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Proponent of a will has the burden of proving that the propounded instrument was duly executed, In re Martinico, 2019 NY Slip Op 8409 (N.Y. App. Div. 2019)


A will contest is an action brought in the Surrogate’s Court to challenge the validity of a will. In order to contest a will, the objectant must have valid grounds such as improper execution, undue influence, fraud, or duress.  In the matter of In re Martinico, the objectants petitioned the Surrogate’s Court of Kings County, objecting to the will being probated for multiple reasons, including improper execution.

Under New York estate law, in order for a will to survive a will contest based on improper execution, the will must be executed in a manner that follows the requirements of New York law.  First, the testator must sign the will at the end.  Because there are instances in which a testator are not capable of signing a will himself (or herself), it is acceptable for someone else to sign the will as long as the testator directs the other person to sign for him (or her).  In addition, the person signing for the testator must sign the will in the presence of the testator and must also sign his own name.

Second, the will must be witnessed by at least two competent individuals who must also sign the will.  The two witnesses must be competent. Ideally, both of the witnesses should be present and observe the testator sign the will.  Otherwise, the testator must acknowledge to the witnesses that he did indeed sign the will.

Third, during the execution ceremony, the testator must declare to the witnesses that the document he signed is his last will and testament.

In the matter of In re Martinico, the objectants alleged that the will was not properly executed, but the opinion did not mention the details of why the objectants suspected improper execution. When there is a question as to whether a will was properly executed, the burden is on the proponents of the will to prove that it was.  The proponents of the will has strong evidence that the will was executed in a manner that was consistent with the requirements of New York law.  They presented a transcript of the deposition testimony and affidavit of the attorney who drafted the will and witnessed its execution that demonstrated that the will was duly executed. In addition, the courts have noted that when the attorney who drafted a will also supervises its execution, there is a presumption that it was properly executed.  The proponents also submitted a transcript of the deposition testimony and affidavit of the additional attesting witness which also demonstrated that the statutory requirements for due execution were satisfied.  On the other hand, the opponents of the will did not present evidence that convinced the court that there was a possibility that the will was not duly executed.

Interestingly, the other grounds that the objectants alleged for contesting the will included lack of testamentary capacity, undue influence, and fraud. When adding these grounds to the improper execution allegation, the objectants alleged each of the most common grounds in nan attempt to try to prevent the will from being probated.  However, the court did not find any evidence to support any of the objectants’ allegations.  As a result, the Appellate Division agreed with the Surrogate’s Court and denied the objectant’s motion for summary judgment.

Note that while there may be any number of people who might suspect that a will was not properly executed, only certain people have the legal right to contest the will in court.  Such people are called interested parties. For example, beneficiaries of a will are interested parties, as are a decedent’s intestate heirs. In the matter of In re Martinico, the objectants were the decedent’s niece and nephews who were also 3 of her heirs.

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