Posted On: April 5, 2012 by Stephen Bilkis

Petitioner Brings Will Contest Action

A man executed a will in January 23, 1962. In this will the man made bequests of jewelry and personal property; devises of real property; and a trust to his widow. The value of the gifts and benefits he gave to her in the will amounted to $7,500,000.00.

He also made a bequest to his four daughters in the form of a trust amounting to $1,700,000. The four daughters were to share the trust.

He also made a bequest for each of his five sons in the form of individual trusts amounting to $1,450,000.00 each.

The widow objected to the probate of the will. A New York Probate Lawyer said her objection is centered on what they claim was a typographical or fraudulent mistake made by the lawyer in making a trust for each of the sons. It should have been a trust of $1,450,000 to be shared equally among his five sons similar to the trust bequeathed to the daughters.

She claims that the trust for each of the sons was inserted without the knowledge and consent of the testator. Or, in the alternative, the widow asserted that her husband had no understanding and knowledge of the contents of the instrument. The inclusion of the words “each” and “to each” were made by the lawyer who drafted the will and was not the free and voluntary act of the testator. The widow asserted that the lawyer’s insertion of those words constituted fraud committed by the lawyer against the testator. And if the lawyer inserted the words by mistake or inadvertence then the words were still not the free and voluntary acts of the testator himself. For these reasons, she objects to the will.

Two adult sons of the testator also filed objections to the will but their position was that the will should be admitted to probate as a valid will first. After it has been admitted to probate, the question of interpreting the provisions in the will can then be tried.

The executor also moved for the admission of the will to probate except for the questioned provisions of the individual trusts to the sons. Manhattan Probate Lawyers said he claims that the estate of the testator has not enough funds to satisfy the provision of the individual trusts for each of the sons.

The Court held that it cannot give due course to the objection of the widow or the executor because these objections have no bearing on the issue of validity or due execution of the will. In a probate proceeding, the first issue is whether or not a will is valid. The objections must focus on issues that bear on the validity of the will.

These objections have more to do with the interpretations of the provisions of the will. To give due course to the objection of the widow and the executor will have the Court decide that some parts of the will were validly executed by the testator who had understanding of its provisions while some other parts of it were invalidly executed by the testator who had no understanding of the other provisions. This would lead to an absurd and contradictory finding.

So far, there is proof that the testator had testamentary capacity at the time he executed his will. He complied with the formal requirements of validly executing a will. Given these circumstances, the Court cannot inquire as to the testator’s understanding of the effect of the language of his will.

It could be, as sometimes happens that the testator gave instructions to his lawyer who drafted the will. The lawyer read the will to the testator and the testator adopted the words of the lawyer. If the lawyer made a mistake as to the words so that they do not carry out the testator’s intentions, it is the lawyer who has not carried out the testator’s instructions. It was a mistake done in good faith and it cannot affect the validity of the will.

The issue raised in the objections here is the interpretation to be given to certain provisions of the will, not the testamentary capacity of the testator. Long Island Probate Lawyers said the charge of fraud and undue influence was not substantiated. If a mistake was made, it is an error in simple arithmetic or an oversight on the part of the lawyer and the testator.

The Court admitted the will into probate and ruled that after this a hearing may be conducted on application of any interested party for the construction or interpretation of the provisions of the will.

Contesting the probate of a will involves the presentation of evidence that proves that the testator had no testamentary capacity or that the testator did not comply with the requirements for validly executing a will or that fraud and undue influence were exerted on him. The services of a New York Will Contest attorney are necessary to present evidence of these. A competent lawyer will examine witnesses and present documents to make sure that an invalid will is not probated. Stephen Bilkis and Associates are ready and willing to support your objections to a will. Call Stephen Bilkis and Associates today for a free consultation.