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Katya Sverdlov Blog

Thursday, January 26, 2017

Are you at risk to have your Will invalidated?

A Will execution has many formalities - ensure that your attorney actually knows them!

Most people think that writing and signing a Will is easy. I often hear from friends "Any attorney can do it", or better yet "It's so easy, I don't need an attorney, I will do it myself".

Well, do so at your own peril. Remember that the content of your Will is only half of the calculation for getting a Will probated, since Wills can and often do get invalidated based on improper execution, particularly when the Will is executed without an attorney being present. The latest case in point: Matter of Costello, 136 A.D. 3d 1028 (2d Dep't 2016).

A New York Will has a presumption of validity if it includes an attestation clause signed by two witnesses. An attestation clause requires the witnesses to “attest” in writing that they are familiar enough with the Testator to know he is who he claims to be, that the Testator looked to be over the age of 18, not under duress, not incompetent, and the witnesses were present when the Testator actually signed the Will or states that the signature on the Will is his. The language of this clause is relatively standard (unless there are special circumstances present).

In the Matter of Costello an attestation clause existed. However, both witnesses testified at the deposition that they never read it and simply signed it! As a result, the attestation clause did not carry any presumption that the Will was properly executed. In addition to this testimony, it turned out that not all the Will's pages were present during the execution. As a result, the Will was invalidated.

Don't let this happen to you. Remember that the contents of a Will are only a part of creating an effective Will: Ensure that a knowledgeable and specialized attorney supervises your Will execution to ensure its validity.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING.


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