and Your Family
Brooklyn 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 Surrogate's Court judge determining whether to admit your will to probate. Sometimes loved ones challenge the validity of will, arguing that the will is not valid. Will contests can be quite painful and emotion-filled. In addition, 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 over significantly longer. Until probate is complete, assets are not distributed to the beneficiaries you mention in your will. With a will contest, it will take even longer for your assets to be distributed to beneficiaries or heirs. Whether you are a beneficiary, heir or an executor, if you are involved in a dispute over a will, it is wise to contact an experienced Brooklyn 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.
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A will contest is a formal challenge to the validity of part or all of your will. While a will contest is relatively rare, the do happen. And when they do occur, they result in probate being extending and a delay in the distribution of assets to beneficiaries.Who can contest a will?
In order to contest a will the challenger must be an interested person. Typically, interested people include beneficiaries, heirs, and anyone else how was included in a prior will.What are the reasons for contesting a will?
There are three general reasons that a will can be contested: lack of mental capacity, undue influence and improper execution. While beneficiaries are sometimes unhappy with the terms of a will or a statutory heir may be upset at having been disinherited may feel that the will is unfair, unfairness will not support a will contest. In addition, even if an interested party has a valid ground for contesting the 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." This is define 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 as well as 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.
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 has essentially forced you to make particular bequests in your will. 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
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 the testator to do 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 be undue influence the influence must have a negative component if it involved manipulation.
In addition, undue influence would exist if there was duress. Duress involves actually 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.
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 or duress.
Improper execution. 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. 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.
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 to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has 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 is successfully challenged in a will contest. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.