This article is the first in a series of articles concerning contested probate proceedings in Surrogate’s Court. We are hopeful that this series will provide practitioners with a resource concerning each stage of a probate contest.

Planning to Avoid a Probate Contest

It goes without saying that every attorney draftsperson of a Will must keep in mind that the instrument he or she is preparing for the client may have to be “probated” (from the Latin probare, to test or to prove). To probate a Will, there must be proof of the testator’s capacity and due execution. Planning attorneys should be mindful of the common claims of lack of due execution, undue influence, lack of capacity, and fraud by beneficiaries, distributees or others. The attorney drafter should take extra precautions to ensure that there is adequate evidence to rebut these claims.