In order for a will to be successfully contested, the first step is the examination of its witnesses and attorney-draftsman as to the facts and circumstances surrounding the instrument’s execution. This proceeding gives the first glimpse into whether or not the law was properly followed in executing the will and whether or not the testator was mentally competent or subject to duress at the time. Section 1404 of the Surrogate’s Court Procedure Act (SCPA)provides objectant’s counsel with this important tool.

Examinations are generally scheduled at the first conference which is conducted once jurisdiction over all of the necessary parties has been established by the service of a citation. They take place even before formal objections to the will are filed and are held in the courthouse.The cost of the reporter is borne by the estate and not the objectants.

These depositions give the oportunity to delve into key questions concerning the demeanor and competance of the testator as well as the ability of the witnesses simply to remember what occurred. While some witnesses have a clear recollection of exactly what took place at the will signing and what conversations may have taken place with the testator, others may not have a single independent memory of any portion of the event. This is especially true if the will was executed many years earlier.

The attorney who is concerned that a will may someday face a challenge should prepare for that possibility at the time of the will signing and not wait until a probate proceeding has been commenced. It is important to have a conversation with the testator which can later be used to establish both competence and an understanding of what is being done and the basic provisions of the will. I like to discuss everything from sports to current events in addition to ascertaining that my client really does intend to disinherit a child or leave an entire estate to a neighbor. Later, I will dictate a short memo of the conversation , sign it and place it in the file.

It is also important to establish the identity of a client with whom the attorney-draftsman may not have had a long term relationship. A copy of a photo I.D. in the file may be very useful to have when the questions of a 1404 examination become concerned with physical description of the testator and how the witness could be sure that the individual signing the will was not an imposter perpetrating a fraud.

The information developed in the 1404 examination is helpful to both sides . It may show that there were no irregularities in the making of the will and that a contest will be an expensive fiasco doomed to failure. On the other hand, the estate may become aware of obstacles it may need to deal with in defending the will and this may induce the parties to discuss settlement early on rather than engage in a long and uncertain litigation.