and Your Family
New York Duress
It can be extremely disappointing, even devastating to learn that a loved one left you out of his (or her) will. You may feel that it is downright unfair. This is particularly the case if you had a great relationship with the decedent and you were under the impression that you would receive something from the testator‘s estate. In fact, the deceased loved one may have even told you that you would be a beneficiary of his will. It may occur to you that the reason you were not named in the will is due to the illegal actions of another person. Under New York law, if you are considered an interest party in a will and you feel that a will is invalid, you have the right to object to that will being probated. However, your objection must be based on legal grounds. One basis for contesting a will is duress. This means that due to a threat or actual force, someone made the testator execute a will he would not have otherwise executed. If you believe that the will of a loved one was created under duress, contact an experienced New York duress lawyer at the Law Offices of Stephen Bilkis & Associates. We will listen to your concerns and help ensure that your interests in the matter are protected.Duress
Duress occurs when someone uses physical force or the threat of harm or another illegal act in order to force a testator to make a will that he would not have otherwise made. Examples of duress include forcing the testator to make will by:
- Physically harming the testator or a relative or friend of the testator. For example, in the case of In Matter of Rosasco, 2011 NY Slip Op 50673(U), the decedent’s will was challenged on the grounds of duress. In this case the issue was not that someone forced the testator to change her will. The objectants complained because of a history of violence and threats against the testator and other members of her family, the testator feared that if she changed her will to disinherit the proponent, not only would he be physically violent towards, but he would also hurt other members of the family. On the basis of this evidence, the Manhattan Surrogate’s Court allowed the case to move forward toward a trial. Keep in mind that there are many ways to cause someone physical harm. A caretaker who withholds food or water from a dependent testator in order to force the testator to leave his estate to the caretaker would be a form of duress.
- Threatening to physically harm the testator or a relative or friend of the testator. As an experienced New York duress lawyer will explain, it is important to understand that target of the duress does not have to be the testator. It can be a relative of the testator, a friend, or other non-relative. The key is that the abuser threatened to harm someone or do some other illegal act in order to force the testator to change his (or her) will to benefit him. For example, 80-year-old Simon was wrote a will that left his vast estate to his 6 grandchildren in equal shares. One grandchild, Joey, was greedy and wanted a larger share than the other grandchildren. For a long time he tried to convince Simon to change his will. Simon repeatedly refused. Finally, Joey started to make unsettling statements about accidents that might happen to his grandmother (Simon’s wife). On one occasion, the grandmother returned home with a bruised arm after falling down the steps while on an outing with Joey. Simon reluctantly changed his will, leaving Joey with significantly more than the other grandchildren. However, Simon confided in multiple family members that he feared Joey and asked them to protect his wife. After Simon passed away and the family learned the contents of the will, the other grandchildren initiated a will contest based on duress.
- Threatening to humiliate, disgrace, or cause a scandal about the testator or a relative or friend of the testator. The threat to the testator does not have to a threat of physical violence. It can be a threat of exposing a secret, or in some other way embarrassing, disgracing, or causing a scandal about the testator, a relative, or a friend. For example, threatening to post embarrassing pictures on social media, exposing a marital infidelity, or starting a false rumor about the testator being involved in illegal activities could be evidence supporting a will contest based on duress.
- Threatening to causes financial harm to the testator, or relative or friend of the testator. Evidence that someone threatened to ruin or harm a testator resulting in the testator changing his will would be sufficient grounds to challenge a will based on duress. Again, violence or the threat of violence is not necessary to support a will contest based on duress. It is only necessary to show that the person threaten the testator with some act that would cause the testator significant physical, personal, or financial damage.
For more information about whether certain actions amount to duress, contact a New York duress lawyer. Keep in mind that for a will contest based on duress to be successful, you must provide evidence of the actions that amounted to duress.Duress vs. undue influence
Undue influence is another possible basis for a will contest. While in some use the terms interchangeably, duress is different from undue influence. Undue influence involves taking advantage of another person, through a position of trust, in order to manipulate the person into changing his (or her) will. Undue influence always involves a relationship between the two parties, with one party in a position of power over the other person who is vulnerable. On the other hand, duress involves the use of physical force or violence, or the threat of in some way harming the testator or someone else. Commonly, when someone objects to a will based on duress, the objectant also objects based on undue influence.Legal standing in New York
In order to challenge a will based on duress or for any other reason, the objectant must have legal standing to do so. This means that the objectant must be an interested party. Interested parties are those who have an immediate, direct financial interest in the outcome of the will challenge. Generally, those who have standing are limited to beneficiaries of the current will, beneficiaries of a prior will, and the decedent’s heirs. When the executor files the will with the Surrogate’s Court and files a petition for probate, he (or she) is required to list on the petition the names and addresses of all interest parties and send them notice of the proceeding. This gives interested parties the opportunity to object to probate.Consequences of a will challenge
As an experienced duress attorney in New York will explain, there are a number of consequences of a will challenge based on duress, regardless of whether or not it is successful.
- Delay probate. The Surrogate’s Court will not allow probate to proceed until the will challenge is resolved. This means that what is typically a 7-12 months process will likely be quite a bit longer. This also means that regardless of the outcome, there will be a delay in asset distribution.
- Will declared invalid. If the will challenge is successful, the judge will declare the will invalid. The judge will not admit an invalid will to probate. If there is a prior valid will, that will be probated. If there is not a prior valid will, the estate will be distributed to the decedent’s legal heirs according to New York’s rules of intestate succession.
If you believe that duress was the reason that your loved one changed his or her will, contact an experienced duress attorney serving New York at the Law Offices of Stephen Bilkis & Associates. We have years of experience representing executors, beneficiaries, and heirs before the New York Surrogate’s Court in complex disputes related to will challenged, the construction of wills, trusts, and other estate documents. We can help. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, Nassau County, Queens, Staten Island, Suffolk County, Bronx, Brooklyn, Long Island, and Westchester County.