There is a very good reason most New Yorkers have their NY estate lawyer draft and supervise the execution of their NY wills. In New York, as well as most other jurisdictions, in order to properly execute one’s NY will it must comply with all the requisite elements dating back hundreds of years before being accepted as valid. For instance, in New York before the NY will can be admitted to probate, filed and accepted by the court, the petitioner, individual offering the document to the court must prove that each element of due execution was complied with.
Pursuant to EPTL 3-2.1 of the NY estate law the four elements of due execution of a NY will are as follows;
1) the testator signed at the end of the instrument;
2) the testator either signed in the presence of at least two attesting witnesses or acknowledged his or her signature to them;
3) that the testator declared to each of the attesting witnesses that the instrument was his or her NY will and;
4) That the witnesses signed at the request of the testator.
The Petitioner, individual offering the NY will for probate, has the burden of proving each element by a preponderance of the evidence that the instrument was properly executed. (Estate of Krugman, NYLJ p.18 Col.6 (Surr. Crt. Kings 2002). If this sounds like a big burden to overcome it can be, especially if witnesses either pass away, cannot be found or just fail to remember the execution of the NY will. In cases like these the NY will can fail and will be denied probate.
However having your NY will drafted by a NY estate lawyer will relieve you of this burden. Under the NY estate law governing due execution, NY wills drafted and supervised by a NY estate lawyer are presumed to have been properly executed and in compliance with this statute in all respects. Therefore a NY estate lawyer drafted and supervised will is considered validly executed without having to prove anything further.
Even NY wills drafted and supervised by NY estate lawyers may be subjected to scrutiny and denied probate where there exists overwhelming evidence that the NY will was not properly executed. Rare instances do occur where the attorney presumption of validity accompanying NY estate lawyer drafted will may itself be rebutted.
For example, a NY will is currently being decided where the attorney draftsman failed to have the document executed in front of the witnesses. Each of the witnesses stated under oath they neither witnessed the testator sign the will and when they did see the testator he was unconscious and could not publish his intention to execute his will to them. While this particular case may be an anomaly it illustrates how strict compliance with the requirements of due execution must be complied with even when a NY estate lawyer is supervising its execution. Ultimately this NY will mentioned above will be denied probate. That being said having your NY estate lawyer draft your NY will improves your chances of validly probating your will exponentially.
Estate of Nichelle Nichols
For anyone that grew up watching Star Trek Nichelle Nichols was probably their favorite communications officer. Not only did Nichols pave the way for female actors but she was one of the very first multi-cultural role models to portray a crew member within the science fiction genre. Additionally, Nichols achieved stardom in 1967 during a time where Civil Rights were being widely contested. In fact in 1967 after her first season cast as Lieutenant Uhura, Nichols had concerns about being marginalized as a glorified secretary on the intergalactic series. Nichols claimed that it was only after speaking to Martin Luther King, Jr., an avid Star Trek fan it would seem, who convinced her that her role made her an inspiration to women everywhere that she remained in the cast.
Nichols recently passed away at 89 years of age leaves behind an estranged son and a estate estimated to be valued at $10 million dollars. In 2017 Nichols attempted to disinherit her son by amending her existing will herself. However the amendment which was signed by Nichols is missing attesting witnesses along with an attestation clause as required by law. As such this amendment will ultimately fail and her son will inherit her estate as provided in her earlier instrument.
If you are thinking about drafting a will it does not hurt to speak to an experienced NY estate lawyer. Feel free to call the NYC estate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NYC estate lawyers have over 60 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 and Dutchess.