“Probate” comes from the Latin word meaning “to prove.” Thus, probate is the process of proving the genuineness and validity of a will. Even in the absence of a probate contest, before a will can be admitted to probate, the court must be satisfied that the will was validly executed.
The statute governing probate requires that the court “inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution.” Thus, the court’s focus will always include whether the will was properly executed and whether the testator (the person who signs the will) was competent to make a will and not under any restraint. Whether to admit a will to probate is always within the discretion of the court.
Probate is often completed quickly and without incident, but sometimes there are questions about the validity of a will. These questions may involve issues of forgery; whether the will was properly executed; whether the person who signed the will had sufficient competence to make a will; whether he or she was so pressured to make the will as to deprive the person of his or her own decision making; or whether there was some other sort of fraud involved.
Of course, the first inquiry is whether the testator’s signature is genuine, and that the will is not a forgery. Forgeries are very rare with wills, because most wills are prepared by an attorney, who then presides over the execution of the will.
Beyond that, there are strict requirements for a proper will-signing ceremony and as to what constitutes a will. The testator must make his intention known, through words or actions, that he views the document as his will. This is crucial; failing to prove this could (regardless of any other factors favoring probate) prevent probate.
It has been described as a “meeting of the minds” between the testator and the witnesses that the document that the witnesses are asked to sign is in fact a will.
There have been cases in which the testator’s verbal statements to witnesses suggested that the document was a will, but still uncertain. In such cases, probate was denied. In other words, witnesses must understand that it is a will they are being asked to sign, not merely that it is a legal document or an important document.
If a witness to the will were to later say that statutory formalities did not occur, that could invalidate the will and prevent probate. While witnesses must know the exact nature of the document they are witnessing, they do not need to know any actual terms of the will. A will must be signed at the end. Any writing after the signature will not be valid to distribute assets of the estate.
Although it is common for three witnesses to sign a will, two witnesses are sufficient. The witnesses must be “disinterested” – in other words, none of them should be beneficiaries under the will.
These days, most wills are “self-proving,” meaning that the witnesses’ signatures are notarized. That will make probate an easier process, as it will dispense with requirements that witnesses be located so as to sign an affidavit attesting to the fact that they witnessed the signing of the will. Imagine if 20 years pass between the execution of the will and the testator’s death – if the will is not self-proving, the attorney for the estate must locate the witnesses. During the intervening decades, people often move to other cities, other states, or other countries; they may have changed their names and may be hard to find because they have a very common name. Imagine, for example, looking for a witness named John Jones who lived in Brooklyn in 1998 when he was 24 years old and who could live anywhere now.
Not everyone can execute a will. The person must have “testamentary capacity” – sufficient mental capacity to sign a will. There is no hard and fast rule to determine if a person has that capacity, though it is often said that a person must know the “nature and objects of his bounty.” That is a fancy legal term meaning that the person must know the approximate value of his assets and the will must make bequests that make sense under the circumstances.
For example, I’ve known the pretzel vendor across the street from my office for 25 years. But, so long as I possess testamentary capacity, I am unlikely to change my will to make him my primary beneficiary. [Somehow, my wife and kids wouldn’t understand.] If I were to make that change to my will, it would go a long way to proving lack of testamentary capacity.
Age, physical infirmity, or even dementia do not necessarily negate testamentary capacity. Courts will look to evidence from the witnesses and others who were present at the time of execution of the will. Medical records may be helpful but often will not tell the whole story.
The capacity to make a will is more a legal determination than a medical determination. The fact that “everybody knows” that Uncle Jim is completely out of it does not, by itself, necessarily render any will he makes automatically invalid. Even if a court-appointed guardian has been appointed for him due to his “incapacity” this will not necessarily invalidate his will. It depends on various facts; there is no one-size-fits-all analysis.
Even persons who have Alzheimer’s Disease or other form of progressive dementia might still have sufficient capacity to execute a will. Many persons whose memory and judgment are impaired may have good days and bad days, and their judgment may be better earlier in the day. Of course, it makes sense for someone who suffers from an impairment to take extra steps in the preparation of a will.
That a person may lack capacity to execute a will on Tuesday does not necessarily mean that he or she lacks that capacity on Thursday.
The truth is that in most cases there is no bright line distinguishing capacity from incapacity. An experienced attorney must evaluate all of the facts in order to draw a viable legal conclusion.
If an attorney prepared a will for a person and presides over the execution of the will, that attorney has already made a determination as to the person’s capacity to make a will. And the attorney’s role in the process creates a “presumption of regularity,” meaning that the court is likely to uphold the will in the absence of strong evidence to the contrary.
None of this is meant to suggest that medical records or other indications of mental illness or cognitive decline are irrelevant – a court will look to all factual circumstances before making a determination as to capacity.
Still, it’s useful to remember that courts have found that “less mental faculty is required to execute a will or codicil than any other instrument.” Thus, a person who lacks legal capacity to enter into a contract for a subscription to “People” Magazine might still possess enough capacity to sign a will. It is not the intent of this page to lead you to any strict rules about determining whether a will is valid; rather, it is our intent to advise you that there are many factors to consider and that each such factor should be evaluated by an experienced attorney.
In any event, the person who is seeking to probate the will has the burden of proving testamentary capacity.
When Attorney Michael S. Haber evaluates a circumstance in which it is alleged that a person was incapable of executing a will, the factual analysis is detailed and thorough. Testamentary capacity means the testator generally understands the scope and meaning of the provisions of the will or codicil, the nature and condition of his property, and his relation to those who would ordinarily be thought to be the “objects of [his] bounty.”
To disqualify a will based on undue influence, one must show that there was so much pressure exerted on a person such as to subvert the testator’s mind at the time that the will was executed. It must also be shown that absent that influence, the will would not have been executed.
Undue influence can be shown indirectly, and such a showing often focuses on facts and circumstances surrounding the testator, the nature of the will, family relations, the testator’s health and mind, and other factors. It is, however, not enough to merely speculate that there was motive and opportunity to exert undue influence.
In most (but not all) cases, undue influence will not occur unless there is also a lack of capacity. As an example, no matter how much the corner pretzel vendor pressures me to name him in my will, I am unlikely to yield unless I lack capacity.
Fraud is only occasionally argued as a reason to deny probate of a will.
The person claiming fraud must show that false representations were made in order to induce the testator to sign a will that disposes of property in a way contrary to how he otherwise would have done.
Interestingly, a showing of fraud must be by a higher level of proof – (“clear and convincing evidence”).
A formal probate challenge can be made by anyone whose interests would be affected by the will (except for a person whose only interest is that of being an executor).
So, if you are a family member who is disinherited by the will or who receives less than expected, or you were included in an earlier will of the testator, you have legal standing to challenge the will.
There is a limited period of time in which to challenge a will. Typically, a family member is alerted to a probate proceeding by receiving a document known as a “Waiver and Consent,” which one is requested to sign. If that document is in fact signed, the family member gives up the right to challenge the will.
If the waiver and consent is not signed the family member will be served with a citation. That document indicates a court date to show cause why the will should not be probated.
It is important to hire an attorney before that court date. At court, you can expect that a date will be chosen by which formal objections to the probate of the will must be filed. Even before filing formal objections, there will usually be an opportunity to conduct examinations of the witnesses to the will and sometimes of the executor.
The filing of formal objections starts the will contest. Later proceedings can be expected to include “discovery” (the process by which each side gets the opportunity to make inquiry or examine the other side). If you need an attorney for the purpose of challenging or defending a will, attorney Michael S. Haber can help. Don’t let time pass. Call today.