As any New York will contest lawyer will tell you, winning one can be a challenge.
We do have a record of doing well in will contests by presenting solid evidence and proving the underlying facts.
Here are the basic grounds to overturn a will and some tips on how those contests usually proceed:
Not Well Enough to Make a Will: This involves proving that the decedent was not well enough to make a will. This Will challenge is especially effective when applied to Wills of decedents who suffered from dementia or mental illness and decedents who were in the late stages of Alzheimer’s. It is also applied to Wills of decedents who are in such a week physical state that it can be claimed that they lost their mental capacity. Claims are also sometimes made that the testator was under the influence or medicine or illicit drugs, or was drunk during the will execution. The most effective strategy for this Will contest ground is to obtain medical records, go through them and see if there are any notes that point to incapacity. Some people, as they get older, may drift in and out. A contestant of the will is going to try to win by proving that the will was executed during the testator’s unsound time, not during the lucid moments.
Pressure to Make a Will: This involves proving that the people that the decedent trusted took advantage of him and pressured them to make the will to their benefit. A common strategy of people challenging a Will based on this ground is to prove that the proponent of the will had a confidential relationship with the decedent. That makes it easier to show that the proponent of the will was in a position of influence and had the opportunity to pressure the will maker.
Forgery: This involves proving that the signature on a Will is forged or imported from another document, or the text is manipulated – the pages are replaced or the text is changed. The way to win a will challenge based on forgery is to bring a handwriting expert and to present evidence of other handwriting samples of the deceased, comparing them to the handwriting on the will and saying that it’s not a close enough match. This usually becomes a battle of the experts for the Will proponent and the objectant.
Fraud: Fraud can mean misleading the decedent about the Will itself, such as slipping a Will under a guise of a different document or such or mischaracterizing what is in the will and having the decedent sign it. Fraud can also mean misleading the decedent about circumstances outside of the will, such as misinformation about friends and relatives. Fraud is challenging to prove, but possible if the right evidence can be found.
Improper Execution: To be valid, a will has to be executed in accordance with New York will execution formalities. The most common will challenges involve problems with witnessing the will and problems with the testator declaring it to be the last will and testament to the witnesses. This challenge is more plausible when the will was executed without the suprevision of an attorney, such as a will printed out from the internet or filled out in a store-bought form.
Combination of Factors: They say when it rains, it pours. It is rare that a Will challenge is presented with only one ground. In fact, in the beginning stages of a will challenges, every possible ground is usually pleaded with the hope of finding one that sticks at later stages of the case. If there is an allegation possibility of the decedent not being well enough to make the will, an allegation will also be made that this diminished mental state made the decedent vulnerable to being misinformed or pressured to make a Will a certain way. It will also be claimed that the will was made in a hurry and was not properly executed. Although some fact patterns present an opportunity for a laser-sharp focus on a single issue, the most common strategy is still to plead every possible Will challenge ground and see which one of them sticks.
If you are involved in a will contest, your next step should be to contact a New York estate attorney and describe the circumstances behind the making of the will. The attorney will determine whether the proposed objections have merit, and may request a court-supervised examination of those involved before deciding whether it is worth your while to invest in a full-blown will contest.
It is common for a will contest to settle before trial, especially if family is involved. If settlement is not possible, the sides exchange documents and information and ultimately proceed to trial.
To learn more about will contests in New York, read our article, Will Contests in New York: An Overview (PDF). Give us a call at (212) 233-1233 if you wish to discuss your case.
If you are looking for information that is more technical, below you will find more details about the grounds for New York will challenges.
- Incapacity – To prove that the decedent was not of “sound mind” at the time the will was made, the contestant has to prove that the decedent did not understand (1) what they own, or (2) who their family are, or (3) what is in their will. If the decedent was drifting in and out of having an unsound mind, the will is valid only if it was executed during the time period when the decedent had clarity. Proving that the decedent was mentally ill or under the influence of drugs or alcohol during the will execution can also establish incapacity.
- Coercion and Undue Influence – If the decedent was influenced through coercion or duress, it will be found invalid.
- The Existence of a Later Will – If there is a validly executed will made after the one being challenged, the later will wins (unless the later will is overturned).
- Fraud – If it can be shown that someone misled the decedent in order to make him sign the will they would not otherwise sign, the will is invalid.
- Improper Execution – A will that was not executed with all of New York’s formal requirements will not be valid. The formal requirements are: (1) The will must be signed by the testator (or in their direction in their presence), (2) the signature must be at the end of the will, (3) signed in the presence of each witness (4) testator must communicate to the witnesses that they are witnessing a will (5) two witnesses are required (6) the entire ceremony must be completed within 30 days of the testator’s signature. If the will was not executed in compliance with New York’s formalities, it will not be valid.
- Forgery – Needless to say, if any part of the will is determined to be forged, be that the text of the will or anyone’s signature, the will is invalid.
During a will contest, the validity of the will is decided in a trial. The estate will not be distributed until the trial finishes. If the will is found to be invalid, the court will do one of the following:
- Not admit the will
- Admit only a portion of the will
- Admit an earlier will in its place
- Not admit any of the wills, and distribute assets among the decedent’s relatives as if there was no will.
Deadline Alert: The time to contest a will may pass once the will is admitted to probate.
Call the Law Offices of Albert Gurevich at (212) 233-1233 today and make an appointment to evaluate your chances of succeeding in a will contest.