When your aunt leaves a substantial inheritance to a caretaker in her will, this is not uncommon, especially when the caretaker has been giving personal care and support to your aunt for a long time.
However, there may be instances when your aunt’s will leaving a substantial inheritance to the caretaker was subject to undue influence at the time of execution, and therefore, invalid.
Contesting a will that leaves an inheritance to the caretaker
It is very common in New York for the closest living relatives, called the distributees, to question a will that gives only a negligible amount of the estate to the next of kin and leaves a substantial part of to the caretaker.
Many factors come into play: was your aunt sick, did she suffer from physical and mental disability that could affect her ability to execute a legal document, was she isolated from her relatives, did a lawyer draft and supervise the execution of the will, was she taking mind-altering medication?
The answers to these questions may shed light on whether the will was valid or not.
Contesting a will in New York
In New York, before you object to a will, you can conduct SCPA § 1404 examinations. This allows you to question the person who drafted the will and the witnesses, at the expense of the estate.
During the deposition, your attorney can ask the draftsperson questions that as to the decedent’s mental disposition, whether it was the decedent or someone else who procured and paid for his services, whether the decedent corrected drafts of the will and what corrections were made, and the reason for the dispositions made in the will.
As to the witnesses, your attorney can question them regarding their observations about the mental disposition of the testator and facts regarding the execution of the will. Most wills are denied probate when witnesses testify that the testator did not declare to them that what the testator was signing was his last will and testament.
Discovery when contesting the will
Aside from examining the draftsperson and the witnesses, you can compel the production of documents, such as bank accounts and medical records. Your attorney can also write questions and have selected parties answer them even prior to deposition.
In some cases, requests for electronic evidence from computers, mobiles and other storages of electronic data have also been granted. Here, electronic data is limited to
Is it worth it to contest your aunt’s will?
The decision to contest a will depends on the value of estate being contested and the cost of contesting the will. It is worth contesting a will when the benefit outweighs the cost. What you should get from the estate if the will is invalidated should be substantially higher than your estimated costs of contesting the will. To determine if you stand to inherit from your aunt, EPTL § 4-1.1 provides for descent and distribution in case the decedent dies without a will. Whether you inherit or not depends on who survives the decedent. This only applies when the current will is invalidated and there is no other prior will which was validly executed.
Cost to contest a will
Your cost to contest a will depends on your fee arrangement with the attorney and the stage at which your claim is concluded. Generally, expect to pay three to four figures if you settle out of court, low four to five figures if you settle during the initial probe, low to mid five figures if you settle during discovery, and at the higher end of five figures if you go through trial.
Compare that amount with the value of the estate and the value of the estate you will get in case the will is invalidated. You also need to take into consideration the strength of your case. All these factors will come into play when determining whether it is worth it to contest a will.
Payment terms with your lawyer
Usually, your lawyer will charge an hourly basis on will contests, at about $500 per hour, with a retainer agreement of $10,000 that serves as an advanced deposit on the lawyer’s hourly fees.
In exceptional cases, a lawyer will accept your case on contingency fee. Under this arrangement, you don’t have to pay your lawyer his legal fees unless he is able to successfully recover an award or settlement for you. This success fee, the lawyer’s contingent fee, is generally 1/3 of the award or settlement, and is paid in addition to the lawyer’s legal fees. Lawyers typically propose contingency fees in will contests when your case is exceptionally strong and the value of the estate involves at a million dollars.
The stage at which your will contest is concluded
Your legal fees are also dependent on the stage at which your will contest is concluded. The longer the will contest is dragged on, the higher the attorney fees. The earlier parties settle, the lower the attorney fees.
When determining whether it is worth it to contest your aunt’s will, evaluate or estimate when your will contest will be concluded, based on your understanding of the personalities concerned. Do you think they will settle early or not at all? Do you have a strong case? Was the will drafted and its execution supervised by a lawyer?
In our experience, the initial probe under SCPA § 1404 will usually determine whether it is worth it to contest the will. The initial probe will produce the medical records of the decedent, and these medical records will show the capacity of the decedent to be influenced based on the decedent’s mental status at the time the will was executed. Depending on the complexity of the case and the volume of documents received, the costs of an initial probe in a will contest can range from the high four figures to the low five figures.
Estate pays costs if you win
If you are successful in your objection against the probate of the will, the likelihood is high that you will be able to recover some, if not most, of your legal expenses from the estate. This is because your action is deemed to be beneficial for the estate. You have prevented a fake will, a will that does not reflect the true intention of the decedent, from being probated. If your claim is unsuccessful, you will be liable to pay for your own legal fees.
To ensure you don’t waste valuable funds in contesting the will, it is essential to make a cost benefit analysis on whether it is worthwhile to contest a will, given the value of the estate and the strength of your claim. If you would like to contest a will that leaves a substantial amount to the caretaker, we at the law offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.