Legal Question in Wills and Trusts in New York
Pursue Case against attorney or does Will stand?
I'm resubmitting this-I had the wrong email address on the first one-sorry.
My brother dictated his Will to his attorney and 3 adults late on a Friday afternoon. The attorney said the Will would be typed up on Monday. Someone asked what if something happens over the weekend? (The Testator was very ill but coherent.) The attorney said not to worry, there were 4 witnesses including himself. The Testator was very ill on Monday and signed the will in the presence of relatives, saying they are witnesses. The testator expired the next day. We are being told the Will is not valid. The attorney says he is too busy to meet with the family. Do we have any recourse in fulfilling our brother's last wishes? Failing that, do we have a case against the attorney? Shouldn't the attorney be standing behind the Will he had drawn up? We didn't know that he really should have been present at the signing, we were taking what we thought was his professional legal advice at a most stressful time.
Thank you.
2 Answers from Attorneys
Re: Pursue Case against attorney or does Will stand?
You do not say why or who determined the Will to be "invalid". I agree with Don that however this decision was made, unless it was by the Probate Court itself, it may still be eligible for probate, but you would need to petition the Probate Court for its approval. If all else fails, someone in the family could apply for Administration (probate without a Will). However, this may cause different results from what the Will provides, as the intestacy laws would specify who gets what. This would get someone control of the assets and the family entitled to the estate under these laws could decide what and how they want to do, if there are differences. You can contact me directly if you wish to discuss this further. This is a response to an Internet question and the reply is not intended to be legal advice or as creating an attorney-client relationship.
Re: Pursue Case against attorney or does Will stand?
The Will may be valid and enforceable, it should be submitted for probate by petitioning the Court. An attorney does not have to be present for the Will to be validly executed. If the relatives are beneficiaries of the Will, they may be improper witnesses and the Will could fail to pass the validity check, but that is up to the court to decide.
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