Admitting the will to probate means proving that the will is valid. The will must be properly executed; the testator must have possessed testamentary capacity (the necessary mental capacity to execute a will); the will must not have been revoked by the testator; the testator had to be acting under her own free will (no undue influence); and the will must not be the product of fraud.
Protracted legal proceedings by disgruntled descendants and relatives asserting lack of testamentary capacity or undue influence deplete the estate and delay distribution. Therefore, steps taken by the testator before death which minimize the possibility of later challenge are essential. Although somewhat surprising, the mere choice of who witnesses the will execution may later determine the success of a will contest. Favorable testimony given by attesting witnesses at an SCPA § 1404 deposition may facilitate the admission of the instrument into probate, or at least force a favorable settlement.
Without a Will, one’s property passes by the laws of intestacy. “Distributees” (i.e., those who would take under intestacy) have a right to be “cited” by the Surrogate’s Court prior to a Will’s admission to probate. For example, children of a decedent whose Will leaves everything to the wife must be cited, or waive citation, since as distributees they would be entitled to nearly half the estate if the decedent died without a will.
If any distributee fails to execute a waiver, a probate proceeding must occur prior to the will’s being admitted into probate. Prior to such formal proceedings, a potential objectant may demand that depositions be taken of witnesses to the Will, including the drafting attorney. Following these “1404” depositions, the potential objectant must file objections within 20 days.