By Thomas G. Daley
Partner, Maynard, O’Connor, Smith & Catalinotto, LLP
It is not uncommon for questions to arise with regard to the validity of a will. Specifically, there may be issues regarding the mental capacity of an individual to sign a will. There may also be potential questions about fraud or undue influence that may have affected the contents of the will. When issues such as these arise, there is the potential for a will contest which, if successful, could result in the will which is being offered for probate invalidated.
Attorneys who draft wills have recognized that the potential for will contests could potentially frustrate the intent of the testator (the person making the will). In order to try to limit will contests, many wills will have a “poison pill” clause in them which states that if any beneficiary attempts to contest the will and is unsuccessful, the bequest to that beneficiary will be nullified.
In an effort to strike a balance between making sure that the will that is being offered for probate is legitimate and proper as opposed to the attempts of the deceased to prevent a will contest, SCPA § 1404 allows for the examination under oath of certain specified individuals. The examination under oath of these individuals does not violate the “poison pill” provision in the will and will not serve to invalidate the bequest to the individual seeking these examinations.
The question recently arose in a case as to whether the list in SCPA § 1404, which allows for the examination of the will preparer as well as the witnesses to the will, is exclusive. In Matter of Singer, 13 NY3d 447, the Court of Appeals stated that the list is not exclusive and that other individuals may be questioned under oath without losing the protection from the “poison pill” provided by SCPA § 1404. The Court reasoned that the overriding public policy interest in having valid wills admitted to probate outweighs the intention of the deceased to avoid a will contest. In this particular case, the beneficiary seeking to question the witnesses decided, after having completed the examinations under oath, that he did not wish to file objections to the probate of the will. If the beneficiary had filed objections and was unsuccessful in preventing the will from being admitted to probate, his bequest would have been nullified.