Vulnerable individuals are constantly taken advantage of when it comes to making wills. People who are physically disabled, cognitively impaired, isolated, confused and depressed can fall prey to unscrupulous relatives, caretakers and so-called “friends” with ulterior motives. A victim of will fraud often loves, relies on, and fully trusts the person who misleads them. If you believe that your loved one has been taken advantage of, you may be able to overturn their so-called “will” through a will contest in the Surrogate’s Court.
To help you make sense of the process, you can review the most common grounds for overturning a will. You can also acquaint yourself with some pro tips on winning a New York will contest. If you are thinking of contesting your loved one’s will, give us a call at and we will be happy to talk to you about it.
1. The person who died was not well enough to make a will
Mental Incapacity – Many people who make wills don’t have the mental capacity to do so. If the decedent in your case is one of those people, then you can have the court overturn their will. You will need to prove that the decedent was not of “sound mind” at the time the will was made. More precisely, you will need to prove that the decedent did not understand
- what they own
- who their and friends are
- what is in their will.
Dementia Disorders – A will challenge based on lack of mental capacity has a higher chance of success in wills of decedents who suffered from a dementia disorder. The gradual cognitive decline caused by those degenerative conditions eventually results in the loss of mental capacity required to make a will. Changes in memory and behavior in older adults usually point to dementia. The more dementia progresses, the harder it becomes for a person to make decisions. Therefore, the later the stage of Dementia, the more likely it is for the will challenge to succeed.
- Alzheimer’s – this is the biggest cause of dementia. Early onset can start as early as the age of 40 or 50, and progresses with age. It destroys a person’s cognitive functioning.
- Vascular Dementia – often cause by a stroker, results from obstruction of blood flow to the brain
- Parkinson’s Decease – degeneration of nerves in the brain.
- Frontotemporal Dementia – deterioration and shrinkage in front and side areas of the brain
- Dementia due to head injuries
- Dementia due to HIV or medications
Mental Illness – Mental illness in and of itself does not mean that the decedent lacks capacity. In order for a will challenge to work, the objectant to the will is going to have to show how the mental illness played a role in the making of the will. Some examples of mental illness that can impact the capacity to make a will are:
- Depression – The will maker feels hopeless and passive and does not care what happens to their estate. This often happens to the elderly towards the ends of their lives, especially if a family conflict is involved.
- Paranoia – The pervasive distrust of paranoia patients can make it easier to manipulate them into excluding some people from their will.
- Bipolar – The mood swings experienced by a bipolar patient can be exploited to influence the terms of their will.
- Schizophrenia – The delusions and distorted reality experienced by schizophrenia patients can be exploited to manipulate the patient into making a will bequest.
Weak Physical State – A will challenge of this kind can also be applied to wills of decedents who were in such a week physical state that it can be claimed that they lost their mental capacity.
Strong Pharmaceuticals – If the decedent was on strong pharmaceuticals during the will execution, the will can be overturned if we will be able to show that the decedent’s altered state influenced the making of the will.
“Drifting in and Out” and “Lucid Moments” – Some people, as they get older, may drift in and out. If you are contesting the will, you will try to win by proving that the will was executed during the testator’s unsound time, not during the “lucid moments”. If the decedent was well sometimes and sometimes wasn’t, the decedent was drifting in and out of having an unsound mind. The will is valid only if the decedent executed it during the time period when the decedent had clarity.
Some estate attorneys and medical professionals hold the view that the “lucid moment” concept is out of date with the modern understanding of metal capacity. Their view is that since a person has no mental capacity it doesn’t “return” to them on some occasions. However, at this time New York courts still consider “lucid moments.”
Duress – If the decedent was influenced through coercion or duress, the will can be invalidated and overturned.
How Wills are Forged – To win based on this ground, a will contestant needs to prove that the signature on a will is forged or imported from another document, or the text is manipulated. When we say manipulated, we mean the pages are replaced or the text is changed.
Handwriting Expert – We win forgery will challenges by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert would compare the handwriting on the will and would say that it’s not a close enough match.
Fraud in Factum – Fraud can mean misleading the decedent about the will itself, such as slipping a will under a guise of a different document or such or mischaracterizing what is in the will and having the decedent sign it.
Fraud in the Inducement – Fraud can also mean misleading the decedent about circumstances outside of the will, such as misinformation about friends and relatives. Fraud is challenging to prove, but possible if the right evidence can be found.
A will that was executed in a way that did not comply with New York’s formal requirements will not be valid. Such will can be overturned.
The formal that needed to be met are are:
- The will had to be signed by the testator (or in their direction in their presence)
- the signature must be at the end of the will
- the will had to be signed in the presence of each witness
- the testator must have communicated to the witnesses that they are witnessing a will
- two witnesses are required
- the entire ceremony must have been completed within 30 days of the testator’s signature
To be valid, a will has to be executed in accordance with New York will execution formalities. The most common will challenges involve problems with witnessing the will and problems with the testator declaring it to be the last will and testament to the witnesses.
If the decedent made another will, and he made that other will after the one you’re challenging, the later will wins. If the later will is overturned, you’d either try to challenge the will before that one or leave it in place, depending on the situation.
We can combine reasons (grounds) for overturning a will
When It Rains, it Pours – It is rare that you’d present a Will challenge with only one ground. In fact, in the beginning stages of a will challenges, we usually plead every possible ground, hoping that we find one that sticks at later stages of the case. If it looks like the decedent was not well enough to make a will, we would also say that this diminished mental state made the decedent vulnerable to being misinformed or pressured to make a Will. We will also point out that the will was made in a hurry and was not properly executed.
Although some fact patterns present an opportunity for a laser-sharp focus on a single issue, the most common strategy is still to plead every possible Will challenge ground and see which one of them is more successful.
Here’s our quick guide to will contests: Will Contests in New York: An Overview (PDF)
If you are involved in a will contest, contact a New York estate attorney. You will describe the circumstances behind the making of the will. The attorney will determine whether the proposed objections have merit, and may request a court-supervised examination of those involved before deciding whether it is worth your while to invest in a full-blown will contest.
We settle most will contests before trial. If settlement is not possible, the sides exchange documents and information and ultimately proceed to trial.
To learn more about will contests in New York, read our article, Will Contests in New York: An Overview (PDF). Give us a call at (212) 233-1233 if you wish to discuss your case.
Remedies for a Defective Will – During a will contest, the court will decide at a trial whether or not a will is valid. The executor is not permitted to distribute the estate until the trial is finished. If the court finds the will to be invalid, the court will do one of the following:
- Not admit the will
- Admit only a portion of the will
- Admit an earlier will in its place
- Not admit any of the wills, and distribute assets among the decedent’s relatives as if there was no will.
Deadline Alert: Once the will is admitted to probate, it will be too late to challenge it. Act before the first hearing in the case.
Call the Law Offices of Albert Goodwin at (212) 233-1233 today. Make an appointment to evaluate your chances of succeeding in a will contest.