As any New York will contest lawyer will tell you, the only way to overturn a will is to present a legally sound challenge and prove the underlying facts. Here are the basic grounds to overturn a will and some tips on how to succeed on those grounds.
Pressure to Make a Will: The people that the decedent trusted took advantage of him and pressured him to make the will to their benefit. A good strategy to prove a will challenge 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: 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.
Not Well Enough to Make a Will: The decedent was not well enough to make a will. This especially applies to decedents who suffered from dementia or mental illness and decedents who were in the late stages of Alzheimer’s. The same can be said about 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 way to win this contest is to obtain medical records which will show 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.
Fraud: Fraud occurs when the will is heavily influenced by a lie. Often, the lie in question is the will maker hearing something negative about a relative. Fraud can also occur when the will is slipped to the one signing it under a guise of another document or in a pack of other documents. Fraud can be difficult to prove, but udnerlying circumstances sometimes make this challenge possible to win.
Improper Execution: It is not enough to merely write a will. 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.
Combination of Factors: When it rains it pours. Often, more then one problem is found with the will. If there is a possibility of the decedent not being well enough to make the will, a claim will probably be made that the decedent was lied to or pressured to make a will. It will also be claimed that the will was made in a hurry and was not properly executed. Combining a multitude of challenges makes it more likely that one of them sticks.
Here is information about the length of time you should expect to be involved in a will contest:
When challenging the will it is important not to miss the hearing date when the will is being presented to the court, as explained in this video:
If you are involved in a will contest, your next step should probably 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 he owns, or (2) who his family is, or (3) what is in his 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.Proving that the testator was younger than 18 at the time of executing the will also proves incapacity.
- Coercion and Undue Influence – If the decedent was influenced through coercion, duress or fraud to sign a will, 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.
- Fraud – If it can be shown that someone lied to the decedent to make him sign a will he otherwise would not sign, the will is invalid.
- Improper Execution – A will that was not signed 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 his or her direction in his or her 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.
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.