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What is Duress for the Purposes of a Will Contest?

Contesting a Will Where Someone Used Threats to Get a Bigger Share

It is unfortunately not uncommon to find out that, in their final days, a testator was threatened by someone so that a will would be changed. It is a common enough problem that it has its own definition under estate law – duress. If you believe that your loved one was the subject of duress when making their will, there could be something that you can do about it. Contact a New York City estate attorney to find out what your options are.

Duress is a term used both in contract law and in estate law and according to Black’s Law Dictionary it is the “use of force, false imprisonment or threats … to compel someone to act contrary to his/her wishes or interests.” When it comes to estate law, duress usually comes hand in hand with elder abuse as the abuser uses violence or the threat of violence to get a testator to change his or her will in the abuser’s favor. Determining duress is somewhat subjective in that the person who was the victim of duress must have a real belief in the threat of wrongdoing when he or she changes the will.

Duress is not the easiest way to overturn a will in New York City Surrogate’s Courts. The person forced into making the will is no longer available to testify about it. Proving duress could also be considered quite subjective, as it would involve the testator’s belief in those threats or use of violence and likelihood to act on them. This would also be something else that could be challenging to prove without being able to speak to the testator.

Having hard evidence of duress helps the case immensely. Such evidence may include emails or voicemails that have memorialized the threats made against your loved one.

While often used together, duress and undue influence are actually different things. Undue influence is putting pressure on the testator in order to substitute someone else’s free will for the testator’s own. A good example of this would be convincing the testator that their children do not love them or are stealing from them in order to convince the testator to change their will. On the other hand, an example of duress may be threatening to withhold care from the testator if the will is not changed. In both, the free will of the testator is interfered with. However, with undue influence, this may lean more towards manipulation of some sort, as opposed to outright threats or actual violence, as in the case of duress.

If you suspect that duress was the reason that your loved one changed their will, there is something that can be done about it – hiring a New York City estate attorney and contesting the will. While is challenging to prove in court, it is still possible to have a good outcome.

If you are challenging or defending a will and need a New York City estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.