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Daughter Contests Father’s Will


In a proceeding, a daughter of a deceased man filed a motion for a decision without trial and objected the petition for probate of her father’s will. The petition was brought by the sister of deceased man and the nominated estate administrator under the last will and testament.

The last will and testament of the deceased man was offered for validation. In his will, the man directed that his entire estate be distributed to his sister. The document reflects that the attesting witnesses were the draftsperson of the will and the draftsperson’s legal assistant. The daughter however filed multiple objections to the will, focusing primarily on an alleged lack of due implementation. The daughter’s counsel examined the two attesting witnesses.

The motion requesting the decision without trial upon objections for the validation of the will and dismissal of the proceeding was followed a lengthy delay in which a settlement was reached concerning payment of the deceased person’s non-probate death benefits, however no settlement was reached in connection with the distribution of the deceased person’s property. In the daughter’s affidavit, she alleges that her aunt cannot appropriately demonstrate due implementation of the proposed last will and testament. In support for the statement, the daughter presents that the one witness cannot recall the will signing ceremony, that the self-proving affidavit was improperly notarized, that the her father failed to initial each page of his will and the proponent’s counsel did not produce her for examination.

A New York Probate Lawyer said that based on records, a self-proving affidavit may serve as evidentiary proof of a will’s genuineness, the validity of its implementation, the competency of the man to make a will and that the man was not under restraint. By definition, however, it is not an integral part of a will. In any event, a self-proving affidavit will not be accepted by the court if a party with standing raises an objection or if for any other reason the court determines that the witnesses to the will should be examined.

A Westchester County Probate Lawyer said the daughter notes that the draftsperson’s legal assistant has no actual recollection of the deceased person’s will ceremony and asserts that the will cannot be admitted for validation on the basis of the draftsperson’s testimony alone.

The draftsperson’s legal assistant did not specifically recall the deceased person’s implementation of the will and both the draftsperson and his legal assistant were personally familiar with the deceased man in connection with his representation by the draftsman’s firm in the deceased man’s divorce proceeding. The draftsman and the draftsperson’s legal assistant were also able to independently identify the signatures on the will. Both of them testified to the usual procedures of the draftsman’s law office in connection with the implementation of the wills by the testators which appear to have been proper except as to the office practice in connection with the notarization of self-proving affidavits. A Staten Island Probate Lawyer said where a will includes a valid attestation clause, it provides evidence that the will was performed properly. When the implementation of a will is supervised by a counsel, there is a presumption of due implementation in accordance with the law.

Based on records, the court finds that all of the elements, combined with the draftsperson’s testimony of his recollection of the will signing ceremony and his legal assistant’s convincing testimony concerning usual office practice, are sufficient to establish that the will was performed in conformance with the law. The court assert that in order to disprove the presumption and raise a material issue of fact, the daughter should offer evidence in admissible form, not hearsay, speculation and conclusory allegations and the daughter has failed to do so. As a result, the request for decision without trial is granted to the man’s sister and the daughter’s motion is appropriately denied.

Parents always want the best as well as a secured and better life for their children. The New York Estate Attorneys can help you construct, draft and even execute your last will and testament the way you want it. On the other hand, if you wish to object your parent’s will, you can get the services of the Kings County Will Contest Lawyers or Kings County Probate Lawyer from Stephen Bilkis and Associates.

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