Typically, probating your will is a straightforward process, but sometimes issues can arise especially when a will was executed years ago and witnesses have died or moved, or the attorney who drafted the will and oversaw its execution did not follow industry “best practices.” These issues could create problems for your chosen executor when he/she seeks to probate the will.

“Probating” your will simply means proving or validating that the will is the true will and testament of the individual who died (the decedent). The requirements in New York for a valid will are:

• The testator (person who made the will) had testamentary capacity – that is, he/she was above the age of 18 and of sound mind.
• The testator declared the will to be his/her last will and testament and was not under any duress or undue influence when he/she did so.
• The will was properly executed by the decedent before two attesting witnesses who are not beneficiaries or distributees of the decedent and who witnessed the will signing.

Usually, the attorney overseeing the drafting and execution of the will has the witnesses sign attesting witness affidavits which describe all the necessary information regarding the execution of the will. These affidavits can be attached to the original will and submitted to the probate court in lieu of testimony from the witnesses regarding their witnessing of the will.

If the witnesses did not sign affidavits or the affidavits cannot be found, then the witnesses will need to be located. An executor, usually with the assistance of counsel, must diligently search for witnesses to confirm their whereabouts and contact them. Most attorneys’ offices are equipped to perform this service by searching various public records databases.

Locating witnesses can present a problem. Witnesses may have died or they cannot be located in the state. In some cases, it may be difficult to determine who the witness is because the signature is illegible and no print name is provided on the Will.

Even when the witnesses are located, it can be difficult to probate the will due to fading memories. If the witness is available for testimony but is unable to recall the circumstances of the will execution ceremony, his/her testimony would be of little value.

A will can still be admitted to probate even if no attesting witnesses can be found in the following situations:

• If the will is more than 20 years old (or 30, in some jurisdictions) and was kept in a natural place of custody (e.g., the decedent’s residence, safe deposit box of the decedent, on file with the Court), it can be admitted under the “ancient document rule.” The reasoning behind this rule is that ordinary testimonial evidence regarding the testator’s signing of the will, state of mind and/or handwriting are generally unavailable for older wills and circumstantial evidence becomes necessary. Therefore, the circumstance of the age or long existence of the will, together with its place of custody, its unsuspicious appearance, and perhaps other circumstances are enough to prove the will.
• If the nominated executor can prove the testator’s handwriting and handwriting of at least one of the other witnesses, plus provide other facts that would support the authenticity of the will, it can be admitted. This is the method which must be used for wills which do not qualify under the ancient document rule. Facts supporting the authenticity of the will may include the fact that the will was prepared by an attorney, contains an attestation clause by the witnesses and was kept in a secure location.

The absence of witnesses is just one problem which may arise in probating a will. Without the assistance of experienced counsel to draft the will as well as review and update the will when appropriate, there are likely to be more opportunities for mistakes to occur, or worse, for unscrupulous individuals to take actions contrary to the testator’s intent. For example, decisions about where to keep the original will, how many copies to make (and what the copies should look like) and with whom the cop(ies) should be kept may seem like simple decisions which, if not considered appropriately, could leave room for ambiguities, mistakes or fraudulent behavior after the decedent’s passing.

If you do not have a will or have not recently reviewed your will, contact a qualified attorney to make sure your heirs can avoid foreseeable obstacles to probating your will.

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This post does not constitute legal advice or establish an attorney-client relationship.