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Defending a Will From a Contest
Defending a will against a contest in New York comes down to a few disciplines: listen to your attorney, ask how the will should be handled, do not remove the staples and do not tamper with any evidence. This page explains those rules and how a defense is actually built.
Strategies for Defending a Will From a Contest
The following practices significantly improve the likelihood of getting the will probated, or of keeping any settlement small.
| What to do | Why it matters |
|---|---|
| Listen to your attorney | Estate attorneys have the legal knowledge and past experience to guide you through the defense, and their recommendations are based on what has worked before. |
| Ask your attorney how to handle the will | An estate attorney can advise on the proper care, storage and presentation of the will, the protocols to follow and the pitfalls to avoid, so that the will’s integrity remains unquestionable. Leaving the handling of the will to counsel also prevents inadvertent mistakes that could compromise its validity in court. |
| Gather your evidence | Medical records, correspondence and similar material can demonstrate the testator’s intentions and mental capacity at the time the will was made. |
| Do not tamper with the will | Any alteration or sign of tampering casts doubt on the will’s validity and may itself become a ground to contest it. |
| Do not remove staples | Removed or altered staples suggest that pages may have been changed or replaced, and cast doubt on the will’s authenticity. |
| Do not tamper with the witnesses | The attesting witnesses affirm the testator’s state of mind and the legitimacy of the will. Any attempt to influence their testimony jeopardizes the defense. |
| Do not tamper with any evidence | Alterations, deletions or manipulation of documents, communications or other materials cast doubt on their authenticity and on your intentions, weaken the defense and can lead to penalties or sanctions. Keep everything in its original state. |
| Follow all deadlines | Court timelines are strict. A missed deadline can mean penalties, delays or unfavorable rulings. |
| Engage expert witnesses if needed | A geriatric psychiatrist or handwriting analyst can give specialized testimony on the testator’s mental capacity or the authenticity of the will. |
| Secure witness testimony | The witnesses to the signing can attest to the testator’s state of mind and the circumstances of execution, which is central to confirming the will’s legitimacy. |
The Relationship Between the Decedent and the Objectants
When we evaluate a defense, we look at the relationship between the decedent and the people contesting the will, at whether there was a confidential relationship between the will-maker and the executor, and at the decedent’s medical record.
Typically, a person who is cut out of a will either had a bad relationship with the decedent or had little or no relationship with the decedent and was estranged. The objectants’ approach is usually clear from the start: they will throw everything at the will and see what sticks.
The few cases in which the person cut out had a good relationship with the decedent are harder to defend and more likely to settle, but they still have a very high success rate, because the courts respect a testator’s independence and right to arrange the estate any way he or she sees fit. The objectants must still prove either that the decedent lacked the mental capacity to make a will or that the decedent was coerced into making it, and that proof is difficult to get. Those are the two arguments objectants almost always make. For the evidence they typically try to gather, see our page on the evidence needed to contest a will.
Being a Caretaker Is Scrutinized, but Defensible
Executors often assume that having helped the decedent will count in their favor in court. It is more complicated than that. Being close to the decedent is a positive factor for an executor in a New York will contest, but having been the decedent’s caretaker is a negative one.
If the people who received the estate were the decedent’s caretakers, they will have to explain to the court why they received it and the objectants did not. Often the explanation is simple: if the objectants did not have a good relationship with the decedent, and that can be proven, the reason for cutting them out is evident.
Helping the Decedent With the Will Is Not Ideal, but Defensible
Any help by the executors or beneficiaries in procuring the will is a negative factor for the proponents and a plus for the objectants. Arranging the appointment with the estate attorney and driving the decedent to the attorney’s office are considered bad. Being in the room with the decedent during the appointment is worse. In New York, helping the decedent with the will is not the major factor it is in some other states, but it is still counted against the will.
Mental Capacity Is Mostly a Battle Over Medical Records
To challenge the decedent’s mental capacity, the objectants obtain the decedent’s medical records and try to use them to show that the decedent lacked capacity. What those records show usually determines the shape of the case.
A clean record
Sometimes every medical record the objectants can get is clean, showing a decedent with excellent capacity. That usually closes the case. The objectants can try to continue, but a case this weak often goes away on a motion to dismiss.
An inconclusive record
In many cases the decedent’s medical record is inconclusive, and it is up to the parties’ estate attorneys and medical experts to show the court whether the decedent had the capacity to make a will. The law presumes capacity, so the absence of capacity must be proved. Even a decedent who had diminished capacity some of the time can have had lucid periods in which he or she did have the capacity to make a will. Testimony from the attorney who drafted the will is helpful in showing how the decedent did on the day of the will execution ceremony.
A poor record
In some cases the medical records point strongly toward incapacity, for example where the decedent was diagnosed with late-stage Alzheimer’s or was on very strong medication that caused delusions. These are the cases that become heavily contested, and it may be time to consider a reasonable settlement. Even a will made under less than perfect circumstances is still a legal document, and lack of capacity must be proven for a New York will contest to succeed.
Coercion or Pressure to Make a Will Is Hard to Prove
Undue influence or duress is almost impossible to prove because, even if it happened, there would be no one there to witness it. The objectants were certainly not there. They cannot say that the decedent told them so, because an interested party cannot testify to what the decedent told them under CPLR 4519, the “Dead Man’s Statute,” and anything they claim the decedent said would probably be inadmissible hearsay in any event. An attempt to claim undue influence or similar coercion ultimately brings the case back to the mental capacity issue and the medical records.
New York Presumes Wills Valid and Protects Executors
New York’s estate laws are relatively favorable to the executors and beneficiaries of contested wills. There is no reversal of the burden of proof when a beneficiary was the decedent’s caretaker, although there can be a rebuttable inference that the proponent must explain. An objectant who wants to overturn a will has to prove a case, not merely raise suspicion.
If you are an executor or beneficiary defending a will, or want to know how a contest is likely to unfold, call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
