and Your Family
Bronx Will Contest
When you pass away leaving a will, your will must go through a process called probate before your property can be distributed to your beneficiaries. Probate involves several different steps, starting with the New York Surrogate's Court judge determining whether to admit your will to probate. Sometimes loved ones challenge the validity of will, not believing that it is authentic. Will contests can be quite painful and emotion-filled. In addition, a will contest will cause a delay in the will being probated or cause it not be probated at all. When there is not a challenge to a will, probate will take at least 9 months, and often significantly longer. Until probate is complete, assets are not distributed to the beneficiaries you mention in your will. Whether you are a beneficiary, heir or an executor, if you are involved in a dispute over a will, it is wise to seek the advice of an experienced Bronx will contest lawyer who will be able to help you understand the intricacies of a will contest and help you achieve the best possible result.Will contest
A will contest is a formal challenge to the validity of part or all of a will. Typically a will contest is initiated at the probate hearing. When a decedent passes a way, the executor must file the decedent’s will with the New York Surrogate’s Court that has jurisdiction over the matter. The will is filed with a petition for probate. The beneficiaries named in the will along with certain relatives of the decedent as served with notices of that the petition for probate. As a result of the notice, those with an interest in the will have an opportunity to object to the will. When an objection is filed, probate is delayed as the Surrogate’s Court judge must review the objection and determine whether the pleading is sufficient to warrant a trial where the court will hear full evidence from both the objectant and the proponent of the will. As a result, probate and the administration of the estate is delayed.Standing to contest a will
Under New York law, in order to challenge will you must have legal standing to do so. Only people who have an interest in the will have standing. Interested parties include anyone who is an heir. An heir is a family member who would be entitled to the decedent’s estate in the absence of a will. Heirs have standing because they stand to gain financially if the will is invalidated and the decedent’s estate is distributed under New York’s intestate succession rules. Those named as beneficiaries in a prior will also have standing because they stand to gain financially if the current will is invalidated and the Surrogate’s Court probates the prior will.Reasons for contesting a will
There are five general reasons that a will can be contested: lack of mental capacity, undue influence, duress, fraud, and improper execution. While beneficiaries are sometimes unhappy with the terms of a will or an heir upset at having been disinherited may feel that the will is unfair, unfairness will not support a will contest. As a Bronx will contest lawyer will explain, with few exceptions, a testator has the right to dispose of his (or her) property in any manner that he chooses, even if his decisions seem odd or are unpopular with family members. Furthermore, even if an interested party has a valid basis for contesting a will, there must be evidence to support the allegations.
- Mental incapacity. When you execute your will, you must have what is referred to as testamentary capacity. Under New York law, testamentary capacity means that you are at least 18 years old and you are of "sound mind and memory." “Sound mind and memory” is defined as: (1) being able to understand the nature and consequences of executing a will; (2) knowing the nature and extent of your estate; and (3) knowing who would be considered your natural heirs. If a challenger proves to the Surrogate's Court judge that you lacked testamentary capacity, the judge will declare that your will is invalid and will not admit it to probate. There are several ways to show that a testator did indeed have mental capacity.
- Testimony from the witnesses who observed the testator signing the will
- Testimony from any members of the bar who were present during the will drafting process or at the execution
- Testimony from others who were around the testator during the time the will was made or executed
- Testimony from the testator's doctor or medical records. In fact, if you feel that someone may challenge your mental capacity, it may be a good idea to have your doctor document in your medical records, write a letter, or sign an affidavit around the time you plan to execute your will state that you are mentally competent.
- Videotape testimony. In the case of In the Matter of Makitra, 956 N.Y.S.2d 780 (2012) upon a will challenge based on lack of testamentary capacity, the executor produced a videotape that showed Makitra reviewing and signing the will. From the videotape the judge was able to conclude that Makitra did have testamentary capacity at the time he signed the will.
When there is a claim that a testator did not have testamentary capacity, it is typically because the testator was older and suffered from a medical problem such as dementia, schizophrenia, or a head injury. A testator who was suffering the symptoms of one of these medical conditions at the time the will was executed would not likely have had testamentary capacity. However, in some cases even testators who do have such medical conditions have periods of lucidity. If the will was executed at one of these times, then a strong case can be made that the testator had testamentary capacity. As a Bronx will contest lawyer will explain, the testator must have had testamentary capacity at the time the will was executed. The best evidence of mental capacity would be testimony from the witnesses who were present at the will signing or from others who were present.
Lack of testamentary capacity can also be based on the testator being under the influence of alcohol or drugs at the time the will was executed. Such a claim can be based on prescription drugs as well as illegal drugs.
Undue Influence. Undue influence means that at the time you executed your will you were not acting of your own free will. This is different from mental incapacity. The claim is not that you were not mentally capable of appreciating what it means to make a will, but that someone had essentially convinced you to make particular bequests in your will through intentional manipulation. If a new will is made immediately prior to someone's death with substantial changes, those who benefitted from the prior will and not from the new will are likely to become suspicious and challenge the will based on undue influence. When determining if undue influence existed, the court may take the following into consideration:
- The relationship between the testator and the person accused of exerting undue influence
- The motive for exerting undue influence
- The opportunity to exert undue influence
- The testator's ability to resist undue influence
- Whether there is a bequest in the will that demonstrates undue influence
- Whether the person accused of undue influence recommended the attorney who drafted the will, was present at the will signing, or had a copy of the will
Undue influence is different from simple influence. It is acceptable to request that a testator leave you property in his or her will. It is even acceptable to pressure the testator. What is not acceptable is to force or manipulate the testator into doing so. For example, if a testator's long-time caregiver merely asks the testator remember her in his will and the testator does so, the caregiver would not have exerted undue influence.
To invalidate a will or part of a will based on undue influence, the Surrogate's Court judge would have concluded that the testator would not have executed the will but for the improper influence.
- Duress. Duress involves actual or threatened physical or emotional force. In cases where there are allegations of elder abuse, there are sometimes also allegations that physical or mental threats were used to force a testator to execute a will leaving a distribution to the person who made the threats. For example, a caregiver threatening to withhold food or medication if the testator did not change his will would be duress.
Improper execution and fraud. Under New York law in order for a will to be executed the testator must sign the will at the end and two people must witness the signing. If the testator is physically unable to sign the will, the law allows for another person to assist the testator in signing, or to sign for the testator. If another person signs for the testator, that person must do so only at the direction of the testator and must also sign will, noting that he she signed at the direction of the testator. In either case, even if the testator was not physically able to sign the will, the testator had to have had the mental capacity to execute a will.
When there is a will contest based on improper execution the person challenging the will may allege forgery. This would amount to fraud. If there is a question of whether or not the testator actually signed the will, the court will elicit testimony from the witnesses, as well as others present at the will signing such as the testator's attorney. The court may even ask a handwriting expert to evaluate the signature. The testimony of an attorney who witnessed the signing is powerful. A court is likely to give that testimony great weight.
As an experienced will contest attorney in the Bronx will explain, if the objection is not successful, the Surrogate’s Court will admit the challenged will to probate and administration of the estate will move forward. If the will contest is successful, then the court will invalidate the will and will not admit it to probate. If there is a prior valid will, the court will probate that will and allow the executor to move forward with the administration of the estate based on the terms of that will. If there is not a prior valid will, the decedent’s estate will subject to New York’s intestate succession rules. An estate administrator will be appointed and estate assets will be distributed to the decedent’s legal heirs.Contact the Law Offices of Stephen Bilkis & Associates
A will contest is not only legally complicated, but emotionally draining for those involved. If you are involved in a will contest, to ensure the best possible result based on the particular circumstances of your case, it is critical that you seek the advice of an experienced will contest attorney serving the Bronx. The attorneys at Law Offices of Stephen Bilkis & Associates have years of experience representing beneficiaries, heirs, fiduciaries and other interested parties in will contests and other types of estate litigation. Furthermore, if you are in the process of making a will, we will make sure it is drafted and executed in manner that will minimize the likelihood that your will will be successfully challenged in a will contest. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Bronx, Staten Island, Queens, Brooklyn, Long Island, Manhattan, Suffolk County, and Westchester County.