and Your Family
New York Practicability of Contests
A will contest is a legal proceeding in which someone with an interesting a probate proceeding challenges the validity of the will that was submitted to the Surrogate’s Court for probate. Typically a lot is at stake with a will contest. If the challenge is successful, someone who stood to receive nothing under the will might receive a significant amount under a prior will or if there is not will. Similarly, those who benefit under the challenged will stand to lose financially if the challenge is successful. Thus, there is typically a strong incentive for the objectant to vigorously pursue a will contest. However, what is the practicability of contests? What are the chances that an objectant will prevail. Will contests are complex and are generally difficult to win. The biggest reason for this is that the most important witness, the testator, is not around to testify. While the Surrogate’s Court has a strong interest in making sure only valid wills are probated, they also are loathe to invalidate a will that appears to be valid without strong evidence that it is not invalid. If you are concerned that the will of a loved one is not valid and should not be probated, it is important that you seek the advice of a skilled New York will contest lawyer who has the experience and resource to ensure that your legal rights are protected throughout the case.Grounds for a will contest
One reason that challenging a will is not as easy as many believe is that the law does not allow someone to contest a will out of anger or because of a belief that the terms of a will are unfair. Before you decide to contest a will, keep in mind with few exceptions, a testator can distribute his property in any way he (or she) wants. Typically the contents of a will are not a surprise to family. However, if you are surprised that your close friend or favorite aunt left you out of her will, particularly if she promised that you would be a beneficiary, does not mean that there was some sort of fraud involved and that you should contact a skilled New York will contest lawyer to begin a will contest. A will contest must be based on valid reasons.
Improper execution. In order to be valid, a will must be properly executed in accordance with New York Estates, Powers & Trusts Law. That means that the testator must signed the will at the end or directed another person to sign for him (or her) and the person did so in his presence. There must have been at least 2 competent witnesses who observed the testator sign the will or to whom the testator acknowledged having signed the will. The 2 witnesses must also sign the will. Sometime during the execution ceremony the testator must communicated to the witnesses that the document that he signed was his last will and testament. The practicability of contests based on improper execution depends on what part of the execution process you are challenging. There are typically multiple people at a will signing that can provide testimony related to any failure to follow the legal mandates. Often times improper execution is not intentional or due to fraud, but occurs due to a mistake or oversight. Mistakes in the execution of a will are among the most common reasons used in successful will contests.
Testator incapacity. Another ground for contesting a will is that the testator did not have the mental capacity to execute a will. Under New York law, in order for a will to be valid the testator must have had been of “sound mind and memory” at the time he executed the will. As an experienced New York will contest lawyer will explain, while the statute does not define “sound mind and memory, “ the court has provided a test for mental capacity. To prevail in a will contest based on mental incapacity, the objectant must show that at least one of the following factors existed at the time the will was executed:
- The testator did not understand the value or nature of his probate estate
- The testator did not understand who his natural heirs are
- The testator did not understand the ramifications of creating the will
- The testator did not understand the impact of his will
The challenge in proving mental incapacity is that the objectant must prove that the testator was mentally capacitated at the time he (or she) signed the. Individuals who suffer from mentally debilitating conditions such as Alzheimer’s and traumatic brain injuries often have periods of lucidity during which they would have the mental capacity to execute a will. The proponent of a will need only demonstrate that there were occasional moments of lucidity on the part of the testator. In addition, in legal proceedings where mental capacity is at issue, the objectant and proponent commonly produce medical testimony to support their position. In addition, the New York Surrogate’s Court has stated that a diagnosis of a condition such as dementia does not necessarily mean that the testator was mentally incompetent when he (or she) signed the will. Thus, medical evidence of cognitive impairment is sometimes discounted. Success of a mental incapacity will challenge often hinges on witnesses to the will-signing testifying that the decedent was not of a sound mind.
Undue Influence. There are times when elderly people who are in failing health and are lonely can fall under the sway of those closest to them such as caregivers. People who are dependent on others for care often grow to completely trust their caregivers. As a result, it is predictable and understandable for the caregiver to gradually gain more and more influence over the vulnerable person. When that influence is used to convince the vulnerable person to make specific bequests in his (or her) will, surprised family members may be quick to object to the will based on undue influence.
The practicability of contests based on undue influence depends on how strong a circumstantial case that the objectant can piece together. As a will contest attorney in New York will explain, it is important to recognize that you need to prove more than that the influencer had the opportunity to manipulate the testator or that the influencer was particularly kind to the testator. You must convince the Surrogate’s Court that the influencer did something that showed intent to illegally influence the testator. For example, taking active steps to isolate the testator from family, finding the attorney to draft the will, being present at the will signing, finding the witnesses, and keeping the original will, would tend to show that an illegal intent. Although not dispositive, compelling circumstantial evidence might be the contents of the will. If the bequest to the alleged influencer is so out of proportion to compared the bequests to the testator’s family, and there is no logical explanation for cutting out family or reducing family bequests, the court might be satisfied that undue influence was involved.
Fraud. Where fraud is concerned, the objectant must show that someone lied to the testator and as a result the testator executed a will he would not have otherwise signed. For example, someone leading a testator to believe that a beneficiary committed a bad act and as a result should be left out of a will. Another example would be someone telling the testator that a beneficiary passed away so that there is no longer a reason to include that person in the will. As a result, the person who made the false statement received a larger share. Fraud would also exist if someone pretended to be another person and executed a will that was favorable to him. Unfortunately, it is very difficult to prove fraud unless there were witnesses to the fraud who come forward.Contact the Law Offices of Stephen Bilkis & Associates
To get a realistic assessment of your will contest case, contact an experienced will contest attorney serving New York. While will contests are complex and often are difficult to prove, many are successful. The seasoned attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience working closely with beneficiaries, heirs, and executors on complex probate litigation matters. We are here to 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.