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Son Contests Mother’s Will


A wealthy lady executed a will on February 10, 1992. In this will, she named her husband, a lawyer, to be the executor and principal beneficiary. Her husband was the same lawyer who drafted the will and the attesting witnesses to the will were a couple who were their neighbors and close friends.

In this will as well, the wealthy lady stated that her estate was valued at around $6,000,000. She gave $25,000 to each of her seven grandchildren. She established a trust fund for her husband comprised of credits she expected to receive. She bequeathed the interest earned from the credits she expected to receive to her daughter or to her children if the daughter does not survive her father. She left her residuary estate to her husband. To her son, she left nothing except for the bequest of $25,000 to each of his children. She stated in her will that she left nothing to her son because she had been supporting his children while she was alive and he was sure to receive benefits from the law practice he and his father (the testator’s husband) shared.

After filing the petition, the husband submitted an affidavit prepared by his attorney which contained the facts which the sole surviving attesting witness remembers. A New York Probate Lawyer said the husband also submitted a deposition testimony of the attesting witness as well as his own deposition as the lawyer who prepared his wife’s will. These deposition testimonies were submitted by him to the Surrogate Court to accompany his motion for summary judgment.

The son thereafter filed an objection: Brooklyn Probate Lawyers said he claims that his mother executed another will in February 9, 2003 three days before she died; he claims also that the 1992 will was not executed according to the required legal formalities; he was informed and he believes that when his mother made the will in 1992 (that his father now seeks to admit into probate), his mother was not of sound memory. The son also objects to the motion for summary judgment because his father has not yet proven the validity of the 1992 will.

The Supreme Court first stated that summary judgment is a drastic remedy that is only resorted to when the party seeking the summary judgment has provided sufficient evidence that demonstrates that there are no more material issues of fact.

The Court was not convinced with the son’s objections to the probate of the will or to the motion for summary judgment.

First, the Court noted that the two primary beneficiaries have signified in writing (the husband and the daughter) that they support the motion for summary judgment and both request probate of the will. The only beneficiaries who were not given any formal notice of the son’s objections are the grandchildren who are mostly minors. Their interests will not be prejudiced by the probate of the will because they stand to gain $25, 000 each if the will is probated. On the other hand, if they are given citations and they appear, a guardian will have to be appointed for them and the appointment of a guardian will raise the costs of these proceedings and will diminish the estate.

Bronx Probate Lawyers said the Court is also not convinced that there is a later will executed by the testator in 2003. If there were truly a will executed in 2003, then the objector should have at least attached a copy of that will to his objection. He should have asked the Surrogate Court for probate proceedings for that 2003 will and then just have the two probate proceedings heard jointly. But no one has come forward to have the 2003 will probated. Both the husband (the nominated executor) and the daughter have signified in writing that they do not wish to have the 2003 will admitted into probate.

The objector even went so far as to state in his objection that the 2003 will was even more despicable as the 1992 will because in the 2003 will, none of the grandchildren will get a $25, 000 bequest. He even stated that he doubts if the 2003 will was valid. But in the same objection, he states that the fact that the 2003 will exists proves that the 1992 will has already been revoked. And he also adds that since the 2003 will revoked the 1992 will, then really, the 1992 will should not be probated and the estate of his mother should be disposed of as though she had no will.

The Court found this argument of the son also flawed, untenable and incredible: if he claims that the 2003 will is invalid, then an invalid will cannot revoke the 1992 will which is a previous valid will. In order to validly revoke a will, the 2003 will had to also be valid also. This argument of the son is self-contradictory. Again, there is no one willing or able to prove the validity of the 2003 will such that the surrogate court was correct when it refused to count the 2003 will as valid.

The son argues that the 1992 will was not valid because his mother was not of “sound memory” at the time she executed the 1992 will. The Court observed that the requirement of the law was for the testator to be of “sound mind” and not necessarily of “sound memory.” These two are different. The requirement to be of sound mind is met when there is proof that the testator understood the consequences of making a will; that she knew the extent and nature of the properties that make up her estate; and that she knew who the people were who should be the objects of her bounty. This objection of the son is also rejected because perfect memory is not required either of a testator or an attesting witness.

The son also questioned the validity of the will because the attesting witness could no longer remember all the details of the execution of the will. The attesting witness was 84 years old when she was deposed and she was testifying to a will that was executed 10 years prior to her deposition.

The witness, however, knew and recalled enough details. She remembers that her friend told her that she was making a will and that she wanted her to sign it as a witness. She cannot remember clearly if they signed her will in their apartment or at the testator’s apartment but she does remember that she and her husband were there as well as the testator and her husband. She remembers seeing the testator sign it and she remembers her husband signing it as well. She remembers that the husband said he had drafted the will and summarized the contents of the will and what it all meant. Through all this, the testator nodded her head in assent and signed the will.

For all these reasons, the Court resolved that the husband had proven that he was entitled to a summary judgment because he had proven that there are no material issues that still need to be tried. The Court also resolved to dismiss the objections and to admit the will into probate.

Will contests are a serious legal matter. One cannot object to the probate of a will simply because one has been left out. To effectively contest a will on legal grounds you will need the services of a competent lawyer. At Stephen Bilkis and Associates, has a trained legal team that are willing to research legal precedents that will help you successfully object to the probate of a defective will.

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