Q: My father knew he was terminally ill, and went to an attorney to have a will made. My brother and sister were at his house when he returned, and he told them, "Just got back from the attorney, my will is all drawn up, everything is taken care of." He passed away several months later.
His wife has presented a will written several years earlier on their home computer, printed but not notarized, which leaves everything to her. She says he never went to an attorney to have another will drawn up. She submitted her computer-printed copy to the probate court as the only will. Is there a statute of limitations, if we ever find the attorney who drew up his real last will? Can she be prosecuted for knowingly filing an outdated will? -- KC, via email
A: This sounds like a promising plot for a 'Law and Order' episode. But don't leap to conclusions yet. Your stepmother may be innocent of any crime.
Destroying someone else's will with intent to defraud is a Class E felony, says Gregg M. Weiss, an estate lawyer at Gardner & Weiss in New York City. But what your father said to your siblings doesn't prove the existence of a later will.
A person who is old and sick and feels pressured to write a will sometimes tell his relatives he has done so even when he hasn't, just to reassure them. And even if your father did have a new will drawn up shortly before he died, your stepmother may not have known about it.
As for the will she presented to the court, the fact that it isn't notarized doesn't cast doubt on its validity. A will must be signed and witnessed by two people to be accepted by a New York court, but there's no requirement it be notarized, says Weiss. "What you often see attached to a will is an attesting witness affidavit, and that affidavit is notarized," he says. "That's good legal practice, but it's not a requirement."
In the affidavit, the witnesses affirm that they signed the will. When there is no affidavit, New York law requires that the witnesses be located before the will can be probated. That can be time-consuming and expensive. (A heads up to other readers: If there's no witness affidavit stapled to the original copy of your will, it's a good idea to have the will retyped and witnessed again, even if you're still satisfied with its wording -- and have the witnesses sign an affidavit this time.)
It's not a foregone conclusion that the court will accept the will your stepmother has presented. The probate process will give you and your siblings plenty of opportunity to voice your concerns, says Weiss. He suggests you search through your father's checkbooks for a payment to a lawyer. "The checks he wrote are a road map to his life -- and you're talking about a relatively narrow period of time between his statement about visiting a lawyer and his death," he says.
And what if the court accepts the will your stepmother presented, and you subsequently find a later one? There is no statute of limitations for the court to accept a later will, says Eric Kramer, an estate lawyer at Farrell Fritz in Uniondale New York. But of course, the sooner it's found, the better. The more time has elapsed, the less likely it is that a court will agree to hear about it.
This is a cautionary tale. Weiss and Kramer both advise readers to leave the original copy of their will with their lawyer, and make sure that family members know that lawyer's name and telephone number. "Your situation could have been avoided if your father had told your siblings his lawyer's name," says Kramer.