Manhattan Will Contest Lawyer

When a loved one passes away, there is sometimes disagreement among family members as to how the assets in the estate should be distributed among family members. This often occurs when the loved one dies intestate, meaning that he or she did not leave a will. However, even when the deceased leaves a will that seemingly makes his or her wishes clear, during this emotional time disagreements over the terms of the will and how the estate is managed may lead to a will contest. 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 Manhattan Will Contest Lawyer who can help you understand the intricacies of a will contest and help you achieve the best possible result.

Will and Probate

The executor has the responsibility of administering an estate and distributing its assets to the beneficiaries. To begin this process the executor petitions the Surrogate's Court to admit the will to probate. The Surrogate's Court judge will review the will to ensure that it was executed with all of the formalities required by law. NY EPTL § 3-2.1(a)(4). For example, the judge will make sure that the will was signed by the testator and that there were at least two witnesses. The judge will also contact interested parties to let them know that a petition has been submitted to admit the will to probate. In doing so the judge gives them the opportunity to object to probate. If the judge determines that the will is valid and there is no objection, the judge will allow the will to be admitted to probate. Should anyone decide to object to probate, then the process for a will challenge will begin, delaying probate.

Who can Challenge a Will

A will cannot be challenged by anyone who choose to. For example, if your neighbor completely cut her children out of her will and instead left all of her money to a charity, you cannot initiate a will contest because you disagree with your neighbor's choices. On the other hand, if your mother's will states that you get nothing and everything goes to a charity, then you would have legal standing to pursue a will contest. In other words, you must be an interested party. This typically means that you are a legal heir such that if there was no will at all, under New York law you would be entitled to inherit at least part of the estate.

Another reason for a person to be an interested party is if that person would have inherited a share or a greater share of property under a prior will, of if the contested will is invalidated. For instance, if your neighbor executed a will in 2008 that left you $100,000, but in 2011 executed a new will that left you nothing, even though you are not a statutory heir, you would have standing to challenge the 2011 will. However, if there never was a will that named you as a beneficiary, then you would not have standing. When there is a will contest, the most common scenarios are:

  • The objector is someone who was named by an prior or later will that grants that person a larger share of the state then the will offered to probate
  • The objector is a statutory heir such that if the will is invalidated that person would receive a portion of the estate.
Common Grounds for a Will Contest

Even if you have standing to challenge a will, you have to have a good reason to challenge it. Your reason cannot be just that you feel you are entitled to a share of the estate, or because you think that the will is not fair. The law allows a will contest only under a limited number of circumstances that show that the will is invalid, and there must be evidence that support this position.

  • Mental incapacity. If you challenge the mental capacity of the testator, you are arguing that the testator did not have testamentary capacity at the time of he or she signed the will. Under New York law, the testator must be of "sound mind and memory" at the time the will was created in order to have testamentary capacity. You may contest a will if you believe your loved one did not have the mental capacity to write the will. There is a 3-part test to show testamentary capacity: (1) the testator must have understood the nature and consequences of executing a will; (2) the testator must have known the nature and extent of the property her or she was disposing of; and (3) the testator must have known those who would be considered his natural heirs.

    If someone contests a will based on lack of mental capacity, there are several ways to show that the testator did indeed have mental capacity.
    • Testimony from the 2 witnesses who observed the testator signing the will
    • Testimony from any members of the bar that 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
    • Medical records
    • Videotape testimony. In the case of In the Matter of Makitra, 956 N.Y.S.2d 780 (2012) the son of the decedent challenge Makitra's will based on lack of testamentary capacity. As evidence that Makitra did indeed have testamentary capacity when he made the will, the executor produced a videotape that showed Makitra reviewing and signing 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 dementia, the testator had a history of mental illness such as schizophrenia, or the testator suffered from a head injury in an accident. 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.
  • Undue Influence. A common reason for a will contest is a claim of undue influence. Undue influence occurs if someone influenced you to change the distribution under his or her will. For instance, a nurse who has been caring for a testator gradually causes the testator to alienate family members, and ultimately convinces the testator to change his or her will leaving the bulk of the estate to the nurse. Undue influence is different from simple influence. It is acceptable to request that a testator leave you property in his or her will as long as you do not force the testator to do so. For example, if you have been a testator's nurse for years and you merely asked that the testator remember you in his or her will, the nurse would not have exerted undue influence. To be undue influence the influence would have a negative component if it involved manipulation.
    In addition, undue influence would exist if someone used physical or emotional force to get you to sign a will. 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.
  • Fraud. An accusation of fraud means that a person used deceit to induce the testator to make a testamentary disposition that the testator would not have otherwise made. To establish fraud, the objector must show that another person may a false statement that resulted in the testator changing a testamentary disposition that would have otherwise been made. The court will only make a finding of fraud if there is actual evidence of fraud and not merely a" gut feeling."
    In the case of Matter of Clapper, 279 A.D.2d 730 (2001), the testator's son was upset that his father had left him only 1,000 pennies in his will and contested the will, arguing fraud on the part of his sister. However, the court did not find there was fraud as there was no evidence that the sister committed fraud or exerted undue influence over the testator. There was no evidence that the sister even knew what was in the testator's will prior to his death. However, there was evidence that the testator and the son had an adversarial relationship.
  • Not Executed Properly. 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 needs assistance signing the will, it is acceptable for another person to assist the testator in signing. Furthermore, if the testator is physically incapable of signing, he or she can direct another person to sign for him or her. That person should 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 contesting the will may feel that the testator did not actually sign the will. When this type of allegation is made, it is often made along with an allegation of undue influence or lack of testamentary capacity. 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 can be very complex and may turn on the fine details of New York Estates, Powers and Trusts law. In order 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 have years of experience in will contests representing beneficiaries, heirs, fiduciaries and other interested parties in will contests and other types of estate litigation. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

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