Nieces and nephews who are not named in their aunt or uncle’s will or are given a lesser share than they would have received without that will have the right to contest the will.
Nieces and nephews can only contest the will if they are the next in line to inherit. So if the aunt or uncle had a spouse or children when they died, or if their brothers or sisters were alive, or if their parents were alive, then those people may have the priority over nieces and nephews when it comes to inheritance rights and the nieces and nephews may not have the right to inherit and consequently may not have the right to bring the will contest.
If your parents who is the aunt’s or uncle’s brother or sister is still alive, then they are the ones who will have the standing to contest the will, not you. You only have the standing to contest the will if your parent through whom you are related to the aunt or uncle predeceased them.
Presuming the niece or nephew have the legal standing to contest the will, they can win a will contest if they can prove that the aunt or uncle either did not have the mental capacity to make a will, was unduly influenced into making the will or the will was not made correctly.
If you are a nice or nephew looking into contesting your aunt or uncle’s will in New York, then you will need to prove at least one of the following will contest grounds:
- lack of mental capacity
- undue influence
- the will was not made correctly
1. Lack of Mental Capacity
To show that their aunt or uncle lacked mental incapacity, a nice or nephew will need to prove that the aunt or uncle did not understand one or more of the following:
- what they own
- who their relatives and friends are
- what is in their will.
A will contest based on a lack of mental capacity has a higher chance of success when the aunt or uncle suffered from a dementia disorder.
- 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 cognitive functioning and may cause them to lose the capacity to make a will.
- Vascular Dementia – often caused by a stroke, 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
Changes in memory and behavior in older adults usually point to dementia. The gradual cognitive decline caused by a degenerative condition eventually results in the loss of mental capacity required to make a will. The more dementia progresses, the harder it becomes to make decisions. Therefore, the later the stage of Dementia, the more likely it is for the will challenge to succeed.
Mental illness in and of itself does not mean that the decedent lacks capacity. For a will contest to work, the niece or nephew will need to prove that 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 aunt or uncle feels hopeless and passive and does not care what happens to their estate. The elderly often suffer from depression towards the ends of their lives. Family conflicts relating to inheritance only exacerbate their depression.
- Paranoia – The pervasive distrust of paranoia patients can make it easier to manipulate and “triangulate” them into excluding some people from their will.
- Bipolar – Bipolar patients experience mood swings. Caretakers and relatives can exploit those mood swings to get the patient to change their Will.
- Schizophrenia – Schizophrenia patients experience delusions and distorted reality. Caretakers and relatives can take advantage of those mental deficiencies in order to manipulate the patient into making a will bequest.
Personality disorders are not indicative of a lack of capacity. But they can still make some difference in a New York will contest. For example, if the aunt or uncle had a “Cluster C” Dependent Personality Disorder, then they can be vulnerable to undue influence. We look to symptoms such as
- excessive dependence on others
- submissive behavior
- fear to have to provide self-care
- difficulty disagreeing with others and
- tolerance of poor or abusive treatment
Weak Physical State – We challenge wills of decedents whose weak physical state adversely influenced their mental capacity.
Mind-Altering Pharmaceuticals – If the aunt or uncle was taking mind-altering pharmaceuticals during the will execution, then his capacity to execute a will could be diminished. Sedatives, antipsychotics, and pain medications can push a mental state over the edge of capacity.
Drifting in and Out and Lucid Moments – Older people may drift in and out, sometimes lucid and sometimes not. If the niece or nephew are contesting the will, you will need to show that the decedent was not having any lucid moment. An attorney who made the will may testify that the aunt or uncle had a lucid moment when he executed the will.
Some will contest lawyers and medical professionals hold the view that the lucid moment concept is out of date with the modern understanding of mental capacity. Their view is once the aunt or uncle lost mental capacity, he does not get it back. However, at this time, our courts still consider lucid moments, so this is an important factor to consider in New York will challenges.
2. Undue Influence and Duress
While undue influence most often is not the subject of direct proof, it may be proved by circumstantial evidence. It can be shown by all the facts and circumstances surrounding the aunt or uncle, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person.
Duress – To prove duress, the niece or nephew would have to show force and coercion. Duress is the use of force, false imprisonment, or threats to compel the aunt or uncle to make the will a certain way. Duress usually comes hand in hand with other elder abuse. The abuser uses violence or the threat of violence to get a aunt or uncle to change his or her will in the abuser’s favor.
How People Forge Wills – A forgery can either be of the signature or the document. Signature forgery is copying the signature, tracing it, or pasting it from a different document. Forgery of the document is replacing the pages or changing the text.
Handwriting Expert – We win forgery will contests by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert compares the handwriting on the will and testifies that it’s not a close enough match. The handwriting expert would also determine if the handwriting on the will belongs to someone else, such as the person benefiting from the will.
Fraud in Factum – One type of fraud is misleading the decedent about the will itself. Beneficiaries slip a will under a guise of a different document or mischaracterize what is in the will and have the aunt or uncle unknowingly sign it.
Fraud in the Inducement – Another type of fraud is misleading the aunt or uncle about circumstances outside of the will. They can be fed misinformation about friends and relatives or other things in their lives.
Psychopaths with narcissistic personalities are good at using manipulative tactics. Their favored ways of manipulating vulnerable seniors are
- triangulating – encouraging the victim’s negative thoughts about a close person and
- gaslighting – providing a false view of reality to the victim
Opportunistic charlatans use those techniques to manipulate trusting older adults into leaving them an unfair share of the inheritance at the expense of the vulnerable person’s family and true wishes.
5. Lack of Due Execution
For a will to be valid, the people involved in the will execution need to follow New York’s formal requirements. If they did not correctly execute the will, we could successfully contest that will, leading to the will being overturned and invalidated by the Surrogate’s Court. In figuring out how to contest a will in NY, the niece or nephew will need to be familiar with the formal requirements of will execution.
The will need to meet the formal requirements, which are as follows:
- The person making the will has to sign the will (or direct someone else to sign their will in their presence)
- The person making the will has to sign at the end of the will, not in the middle of it.
- There need to be two witnesses to the will
- The person making the will has to sign the will in the presence of each witness
- The person making the will must communicate to the witnesses that they are witnessing a will
- everyone has to complete the entire ceremony within 30 days of the aunt or uncle’s signature
The people involved have to follow New York execution formalities. Problems can creep up, such as when the aunt or uncle did not declare the document to be their will, or the witnesses are not there or not fully there. We can use those “hiccups” to litigate a successful will challenge in New York.
There is little place left for ceremony in the modern world. A will execution is one of the few exceptions, and it needs to be followed precisely in order for a will to be valid.
A aunt or uncle can revoke a will by destroying it or crossing out the signature.
If no one can find the will, we presume that the aunt or uncle revoked it, unless someone proves otherwise.
A aunt or uncle can revoke a will by making a new one. The latest will always controls, unless overturned, in which case we revert to the will before that.
When It Rains, it Pours – When figuring out how to contest a will in NY, we often plead every possible ground for a New York will challenge, hoping that we find one that sticks. If the decedent was not well enough to make a will, then he was probably vulnerable to being misinformed or pressured to make a Will.
It is true that in some will contest situations, an opportunity for a win can be spotted early on in the case. We can then proceed with a laser-sharp focus on a single issue. However, the most common strategy is still to plead every possible Will contest ground and see which one of them turns out to be more successful.
If you are involved in contesting a will in NY, contact an estate attorney. The niece or nephew will describe the circumstances of the making of the will and air out the case. An estate attorney can determine whether the proposed objections have merit. Estate attorneys usually request court-supervised depositions of the people involved before deciding whether it is worth your while to invest in a full-blown will contest.
We try to settle will contests before trial. If a settlement is not possible, then the sides will proceed to exchange more documents and information, and ultimately progress to trial. The judge or the will jury decide whether the will is valid.
Remedies for a Defective Will
When your lawyer is contesting a will in NY, the court will decide at a trial whether the will is valid. The executor is not permitted to distribute the estate until after the trial. If the court finds the will to be invalid, the court will do one or more 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.|
When it comes to making wills, unscrupulous people can take advantage of vulnerable individuals. Unscrupulous relatives, caretakers and so-called “friends” with ulterior motives prey on people who are physically disabled, cognitively impaired, isolated, confused and depressed. A victim of will fraud often loves, relies on, and fully trusts the person who misleads them. If you believe that someone took advantage of your loved one, the niece or nephew may be able to overturn their so-called “will.” This is done with the help of a lawyer through a will contest in New York Surrogate’s Court.
A will is presumed to be valid unless proven otherwise. If a aunt or uncle wants to set up their will a certain way, it’s their business. In New York, you can disinherit your relatives if you wish to do so.
The niece or nephew should never go into a will contest without trial counsel. Even though you now have all this information, you will still be at a great disadvantage because you don’t have the experience in contesting a will.
Can Nieces and Nephews Contest a Will successfully? Attorney Albert Goodwin has been litigating New York will contests for over a decade. You can call him at 718-509-9774 or send him an email to find out more.