To successfully defend a Will contest in New York, it is crucial to listen to your attorney, ask your attorney how to handle the will, not remove the staples and to not tamper with any evidence.
Here are some effective strategies for defending a will that can significantly enhance your likelihood of getting the will probated or minimizing the settlement amount.
When evaluating our defense, we look at the relationship between the decedent and the people making the will contest, argue whether there was a confidential relationship between the will-maker and executor and argue the decedent’s medical record.
Typically, if a person is cut out of a will, they either (1) had a bad relationship with the decedent or (2) had little or no relationship with the decedent or was estranged from them. Distributees’ motivations in contesting the will are clear from the start – they will try to throw everything at the will and see what sticks.
The very few cases where the person cut out of the will had a good relationship with the decedent are more difficult to defend and are more prone to settlement, but still have a very high success rate in being defended, as the Courts are mindful of testators having independence and the right to set up their estate any way they see fit. The objectants would still have to go through the process of trying to prove insufficient mental capacity or to prove that the decedent was coerced into making a will, which requires proof that is difficult to get.
The two arguments objectants usually make are that the decedent did not have the mental capacity required to make will or was coerced into making a will.
Executors often think that helping the decedent will score them points in court when trying to defend a will against a contest. The truth is more complicated. Being close to the decedent is a positive factor for an executor in a New York will contest, but being a caretaker for the decedent is a negative factor.
If the people who the decedent left assets to were the decedent’s caretakers, then they would have to explain to the court how is it that they received the estates and the objectants did not. Many times this explanation is relatively simple – if the objectants did not have a good relationship with the decedent, and it can be proven, then the reason for cutting them out will be evident.
Any help by the executors or beneficiaries in procuring the will is considered a negative factor for the proponents of the will 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 with the estate attorney is even worse. While in New York, helping the decedent with the will is not a major factor like it is in some other states, it is still considered a negative.
To challenge the decedent’s mental capacity, the objectants will obtain the decedent’s medical records and will try to use them to show that the decedent did not have the capacity.
– Sometimes all the medical records that the objectants were able to get are all clean, with the decedent having excellent capacity. That usually closes the case. The objectants can try to continue the case, but this kind of case is so weak that it often goes away with a Motion to Dismiss.
– in many cases, the decedent’s medical record is inconclusive and it’s really up to the respective parties’ estate attorneys and medical experts to show the court whether or not the decedent had the capacity to make a will. The law presumes capacity, so the absence of capacity must be proved. Even if the decedent had diminished capacity some of the time, it is still possible for them to have lucid times when they did have the capacity to make a will. Testimony from the attorney who drafted the will is helpful to see just how the decedent did on the day of the will execution ceremony.
Not so great record
– In some cases, the medical records point strongly to the decedent’s incapacity. For example, when the decedent is diagnosed with late-stage Alzheimers. Or the decedent is on very strong medication, making them delusional. This is when cases get very contested and it may be time to consider a reasonable settlement. Even if a Will made under less than perfect circumstances, it is still a legal document and lack of capacity must be proven for an NY will contest to succeed.
Undue influence or duress is almost impossible to prove because even if, theoretically, it were to happen, there would be no one there to witness it. The objectants to the will were certainly not there. They cannot say that the decedent told them so because the words of the decedent are not acceptable as evidence in a New York estate due to the evidentiary rule called the “Dead Man’s Statute.” This is even beside the point that anything they would claim the decedent said would probably not be admissible due to it being hearsay. An attempt to claim undue influence or similar coercion ultimately brings us back to the mental capacity issue and medical records.
New York has estate laws that are relatively favorable to executors and beneficiaries of contested wills. There is no burden of proof reversal when a beneficiary is a caretaker of the decedent, although there can be a rebuttable inference. If an objectant wishes to contest a will in New York, they would have to go through us first, and we are very good at what we do.