Former Surrogate Court Judge Seddio gives CLE on incontestable wills
The importance of preparing a will was the topic of a continuing legal education seminar given recently at Brooklyn College by former Kings County Surrogate Court Judge Frank Seddio.
If a will is properly made, it can be very hard to contest, and wills should be one tool in every attorney’s tool kit, explained Seddio, who is also the immediate past president of the Brooklyn Bar Association and the current chair of the Kings County Democratic Party.
“Wills in the law profession are sort of like milk and bread in the grocery profession,” Seddio said. “Every store sells milk and bread, and every lawyer should know how to do a will.”
Seddio began his one-hour lecture, which was part of the recent military CLE hosted by the BBA’s Military Law Committee every two years, by explaining exactly who could challenge a will and how.
Those who have standing to challenge a will are, according to Seddio, intestate heirs (those who would inherit if there was no will), beneficiaries in previous wills and heirs to a subsequent will.
The two biggest challenges to a will that Seddio anticipates are a challenge to the testamentary capacity of the client (whether or not they know they’re even signing a will), and a challenge based on undue influence.
“It’s important that you understand that the client is capable of signing a will and that you believe that,” Seddio said. “It doesn’t hurt to have a witness present when you are asking the client the basic questions like who the president is, because everyone knows that, and you want to make sure that they have a good understanding of what their assets actually are.”
To avoid undue influence challenges, Seddio said that he typically doesn’t allow children or family members to sit in on discussions about the will until the final stages when they might serve as a witness. Wills are also susceptible to undue influence challenges if the client often changes their will.
“You are going to work for free if there is a challenge of undue influence or a challenge of incapacity. Why? Because if you are the will drafter or witness and there is a challenge to that will, you don’t get to probate it.”
The final way people contest wills is with forgeries, Seddio said. He explained some potential ways using forensics to avoid this, like testing for the age of the paper. Forgeries are not common, he told the group, but he has seen a few.
Seddio said the single most important thing to creating a will is to use common language. Many attorneys get trapped with the idea of a “Manhattan 500-page will,” but oftentimes fancy language can often lead to confusion in court, he added.
“The most important thing in my mind is the wording,” Seddio continued. “I tell attorneys all the time when they’re doing a will — think about common sense and stop worrying about the legalese. If you write it how you understand it and how the client understands it, then the court should be able to understand it too.”
Seddio finished the lecture by talking about various times he’s seen wills gone awry and how he handled those situations. He offered quite a bit of practical advice, such as always having at least two witnesses and always including a attestation clause.
He also warned attorneys not to charge too little for wills, because if a will is contested it could cost a lot in malpractice insurance later on, he explained.
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