Defending a Will From a Contest in New York

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.

If you would like to speak with Albert Goodwin, an attorney who defends executors in New York, call us at 212-233-1233 or send us an email at [email protected].

Strategies for Defending a Will From a Contest

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.

  • Listen to your attorney
    Estate attorneys have the expertise and experience to guide you through the defense process. Their advice is based on legal knowledge and past experiences, so it’s crucial to heed their recommendations.
  • Ask you attorney how to handle the will
    An attorney specializing in estate law will have the expertise to advise on the proper care, storage, and presentation of the will. They can provide guidance on legal protocols, potential pitfalls to avoid, and best practices to ensure the will’s integrity remains unquestionable. Entrusting the will’s handling to legal counsel can also prevent inadvertent mistakes that could compromise its validity in court.
  • Gather your evidence
    Collecting all relevant evidence, such as medical records or correspondence, can help demonstrate the testator’s intentions and mental capacity at the time the will was drafted.
  • Do not tamper with the will
    Any alterations or signs of tampering can cast doubt on the will’s validity and may be used as grounds to contest it.
  • Do not tamper with the witnesses
    Witnesses play a crucial role in affirming the testator’s state of mind and the will’s legitimacy. Any attempt to influence or tamper with their testimonies can jeopardize the will’s defense.
  • Do not tamper with any evidence
    Preserving the integrity of all evidence related to the will is paramount. Any alterations, deletions, or manipulations can cast doubt on its authenticity and your intentions. Tampering with evidence can not only weaken your defense but may also lead to legal penalties or sanctions. It’s essential to maintain the original state of all documents, communications, and other relevant materials to ensure a fair and transparent legal process.
  • Do not remove staples
    Removing or altering staples can indicate that pages of the will might have been changed or replaced, casting doubt on its authenticity.
  • Follow all deadlines
    Legal proceedings have strict timelines. Missing a deadline can result in penalties, delays, or unfavorable rulings.
  • Engage expert witnesses if needed
    Experts, such as geriatric psychiatrists or handwriting analysts, can provide specialized testimonies that strengthen the will’s defense, especially concerning the testator’s mental capacity or the will’s authenticity.
  • Secure witness testimony
    Witnesses to the will’s signing can attest to the testator’s state of mind and the circumstances surrounding the will’s execution. Their testimonies can be pivotal in confirming the will’s legitimacy. But do not tamper with the witnesses.

Relationship between the decedent and the objectants to the will

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.

Being a caretaker is scrutinized, but defendable

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.

Helping the decedent with the will is not great, but defendable

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.

Mental capacity is mostly a battle over medical records

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.

Clean record
– 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.

Inconclusive record
– 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.

Coercion or pressure to make a will is hard to prove

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 strong executor protections and a strong presumption of validity of wills

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.

If you would like to speak with Albert Goodwin, an attorney who defends Executors in New York, call us at 212-233-1233 or send us an email at [email protected].

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001
[email protected]