A New York estate lawyer supervised and witnessed will is one of the best ways to protect your assets after you are gone. However it is not uncommon for some unscrupulous person to take advantage of an elderly, infirmed person near the end of their life. It almost always includes bringing the victim to a lawyer’s office and having a NY estate lawyer supervised will drafted making themselves primary beneficiary of their victim’s estate.

While the NY estate lawyer supervised will is accompanied by a strong presumption of legitimacy, it is not impenetrable. As a NY will contest lawyer practicing in Queens, New York, I have successfully challenged more than a few NY lawyer supervised wills. Previously, I had written several posts regarding the grounds for successfully bringing a NY will contest. These grounds are primarily; due execution, undue influence, fraud and incompetency. This post will mainly address the issue of testamentary capacity in relation to a NY will contest.

When a will is properly drafted by your NY estate lawyer, it is usually accompanied by proof of due execution. In a NY will contest, due execution refers to the fulfilling of each element required under the EPTL, Estate Planning and Trusts Law, before the will can be accepted by the New York Surrogate’s Court as valid. However when it appears that any of these essential elements were absent, such as capacity, an issue of fact can then be contested.

Surrogate’s Courts in New York are required by law to be satisfied with a will’s execution before admitting it to probate. Even in instances where no Objectants of a NY will come forward to contest the attorney drafted will, the Court can still have a hearing on the purported instrument’s validity before deciding whether to admit the will to probate or not.

Of course one of the requirements the proponent of a New York will must exhibit is that the testator, person having their will executed, had testamentary capacity at the time of its execution. Any NY estate lawyer with experience in the area of NY will contest litigation should know what testamentary capacity is. Under the NY estate law, testamentary capacity is someone with the mental capability of understanding the nature or character of the dictating and or execution of their will at the time of its execution.

Obviously testamentary capacity is somewhat arbitrary, thus making it a very difficult element to successfully challenge in a NY will contest. In fact, a recent verdict, Estate of McKeen, illustrates just how elusive the issue of testamentary capacity can be to disprove. This will contest was brought by family of a schizophrenic millionaire, suffering from severe mental illness who decided to leave most of his money to the Vegetarian Society. The problem being, Mr. McKeen an avid steak lover, disinherited his family.

While the McKeen family contested this will, the Court ruled that despite his mental illness, Mr. McKeen had made a conscious decision to leave his estate to the Vegetarian Society. While as a NY estate lawyer with extensive NY will contest experience, I do not agree with the Court’s findings. However I can appreciate the difficulty in disproving the testator’s requisite mental capacity at the time of this will’s execution.

Additionally, as a NY estate lawyer practicing in Forest Hills, NY, this fact pattern is not new to me. The simple truth is, for those of us who get our affairs in order with the help of a NY estate lawyer, the vast majority of estates go very smoothly. Probate is a very efficient and expedient way to transfer wealth offering many advantages over more complicated trusts and estate strategies.

If you or a loved one are thinking about planning their estate and would like a free consultation with a NY estate lawyer feel free to call The Law Offices of Jason W. Stern & Associates at (718) 261-2444. Our Queens estate lawyers have nearly 45 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.

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