You’ve received a Waiver and Consent to Probate in the mail, or an entire packet that contains a variation of

1. 1. a Waiver and Consent to Probate
   2. a cover letter
   3. a copy of a will

The cover letter is asking you to sign the Waiver and Consent to Probate and mail it back to the sender. The cover letter will claim that the purpose of the document is to expedite the process. Is that correct? Do you sign it?

A Waiver and Consent to Probate contains a waiver and a consent.

The waiver is for two things. You are telling the court that

1. You are aware that the court is involved and you will have a chance to respond
2. You don’t need the court to send someone to notify you of the legal proceeding

The waiver means that you are waiving your right to have the court issue a Citation that has to be personally served to you by a process server. Instead, you are agreeing to voluntarily sign a document acknowledging that the court has jurisdiction over you.

The consent is also for two things. You consent that

1. The will is valid and is not defective
2. The court can appoint this person to be the executor of the estate

If you agree to all those things, you can sign the waiver.

If you agree that the will is valid and the person can become the executor, you can sign the waiver and consent to process. If you don’t agree, don’t sign it.

If you don’t sign the Waiver and Consent to Process, then the court is going to issue a Citation, which a process server will personally serve on you.

You will be tempted to think “if I don’t sign the Waiver and Consent to Probate, then they will not be able to probate the will. It will not work without my signature. I am going to hold the whole thing up by not signing it.” That’s not going to work. 

They can easily probate the will without your signature. The only way to halt the probate of the will is to appear on the scheduled court date. When you receive the Citation, it will contain the court date. If you don’t appear on that date, then

• you will lose your chance to object to the will
• you will lose your chance to object to the appointment of the executor

A waiver and consent to probate states that “The undersigned, being of full age and sound mind, residing at the address written below and interested in this proceeding as set forth in paragraph 6a of the petition, hereby waives the issuance and service of Citation, in this matter and consents that the court admit to probate the decedent’s Last Will and Testament.”

If you for any reason do not consent to the probate, or do not consent to the executor who is being nominated, or have any suspicion about what is happening in the estate, speak to an attorney instead of just signing the waiver and consent to probate and sending it out.

The letter that you’ve received with the Waiver and Consent to Probate can be compelling in trying to persuade you to sign. The lawyer who wrote the letter does not work for you. They may have been hired to manipulate you into signing the waiver, and if that fails, to fight a lawsuit against you.

If you received a waiver and consent to probate, speak with an attorney. We at the law offices of Albert Goodwin are here for you. You can send us an email at [email protected]. You can make an appointment to discuss the waiver and consent to probate that you have received.

You are contesting a will in NY, you will be arguing to the court that the will is fatally defective and should be set aside. To succeed in that undertaking, you will need to show that the testator did not have the mental capacity, the testator was unduly influenced or defrauded, the will was a forgery or the will was not made correctly. We will be getting into more than enough detail for you to do your research and explore your options. But never go into a will contest without experienced trial counsel – you will be crushed by the proponent’s defense. This article is just a taste of the possible battle ahead.

The person who died was not well enough to make a will

Dementia Disorders – When contesting a will in NY based on lack of mental capacity, you have a higher chance of success when the person who made the will 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 a person’s 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 for a person to make decisions. Therefore, the later the stage of Dementia, the more likely it is for the will challenge to succeed.

Mental Illness – Mental illness in and of itself does not mean that the decedent lacks capacity. In order to be successful in contesting a will in NY, the objectant to the will is going to have to show how the 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 will-maker 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. People who manipulate those patients can exploit those mood swings in order to get the patient to change their Will.
• Schizophrenia – Schizophrenia patients experience delusions and distorted reality. People who benefit from their will can take advantage of those mental deficiencies in order to manipulate the patient into making a will bequest. More about schizophrenia here.

Personality Disorders – personality disorders do not automatically mean that the decedent lacked capacity. But they can still make a big difference in contesting a will in NY. For example, if the person who made the will had a “Cluster C” Dependent Personality Disorder, that person can be vulnerable to having “well-wishers” unduly influence them into making a will. When using personality disorders as a factor in challenging the will, 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 decedents who were in such a weak physical state that it can be said that their physical state adversely influenced their mental capacity.

Mind-Altering Pharmaceuticals – The fact that the decedent was taking potent mind-altering pharmaceuticals during the will execution can play a difference.  When the decedent is in an altered state, they can have a significantly reduced capacity in understanding the facts of daily life, including the factors involved in making a will. Sedatives, antipsychotic and pain medications can push a person’s mental state over the edge of capacity.

“Drifting in and Out” and “Lucid Moments” – Some people, as they get older, may drift in and out, sometimes lucid and sometimes not. If you are contesting a will in NY, you will try to win by showing that the decedent was never lucid at all, or was only lucid on rare occasions and the time of the making of the will was not one of those occasions. Those defending the will are going to say that the time of will execution was a “lucid moment.”

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 that since a person has no mental capacity, it doesn’t “return” to them on some occasions. However, at this time, New York courts still consider “lucid moments,” so this is an important factor to consider in New York will challenges.

Beneficiaries manipulated the person who died into making the will

Duress – On rare occasions, we see cases where someone forced or coerced the person who died into making the will. Read more about duress.

The will is a forgery

How People Forge Wills – To win based on forgery in New York, a will contestant needs to prove that someone forged the signature on a will, by either writing the signature themselves and saying that the person who died is the author, importing the signature from another document, or manipulating the text in some other way (by manipulating, we mean 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 would compare the handwriting on the will and would say 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.

The beneficiaries obtained the will by lying

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 testator (maker of the will) unknowingly sign it.

Fraud in the Inducement – Another type of fraud is misleading the testator about circumstances outside of the will. The will-maker can be fed misinformation about friends and relatives or about other circumstances in their lives.

Unscrupulous individuals, especially psychopaths with narcissistic personalities, are very 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.

The will was not made correctly

The people involved have to follow New York execution formalities. Problems come up with wills when the person does 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.

In the modern world where there is little place for ceremony, it is interesting to see how ceremony, procedure and something remarkably close to tradition or etiquette can make or break a legal document of utmost importance.

6. The maker revoked the will

A person who made a will can revoke that will. All they would have to do would be to physically destroy the will or cross out their signature.

If no one can find the will, we presume that the person who made the will revoked it, unless someone proves otherwise.

The person who made the will can also revoke it by making a new Will. If the decedent made another will, and he made that other will after the one you are challenging, the later will wins. If the later will is overturned, then you would either try to challenge the will before that one or leave it in place, depending on the older Will’s impact on your share of the inheritance.

We can combine reasons (grounds) for a contesting a will in NY

When contesting a will in NY, rarely would you initially present a will challenge with only one ground. In fact, in the beginning stages of a contesting a will, we often plead every possible ground for a New York will challenge, hoping that we find one that sticks at later stages of the case. This strategy is called “alternative pleading.” If it looks like the decedent was not well enough to make a will, we would say that he was vulnerable to being misinformed or pressured to make a Will, due to his diminished mental state. We will also point out that whoever made the will did it in a hurry. There is less of a chance that whoever made the will had the time to evaluate the person who made it and did not have enough time to conduct the execution ceremony with all the required formalities.

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. You 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 a court-supervised examination of those involved before deciding whether it is worth your while to invest in a full-blown will contest.

We settle most many contests before trial. If a settlement is not possible, the sides exchange documents and information and ultimately proceed to trial, where the judge or the jury decides whether the will is valid or should be overturned.

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 the trial ends. 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.

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, you 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.

On the flip side, it does happen that people are wrongly accused of influencing a will-maker. Sometimes a will-maker wants to make a will a certain way on their own volition. This is why we have the court system and the New York attorneys. We practice will contests before the court every day. We strive to resolve those disagreements and let loved ones move on with their lives.

I have been contesting wills in NY for more than a decade. If you are involved in one and are wondering how to contest a Will in NY, give me a call. I will be happy to talk to you about it. My name is Albert Goodwin and you can call me at (212) 233-1233 or send me an email.

In order to contest a will, you will have to show that the will has a serious problem. Just not liking the result is not enough. You have a few routes to prove to the judge or the jury that the will should be overturned.

Lack of Capacity

First, you can try to show that the testator (person who made the will) did not have the mental capacity to make a will. Preferably, you’d prove that the testator was so bad that did not know who his loved ones or friends were, what his property is or what making a will means. That is the golden standard of contesting a will. But that’s hard to find. Most people even when they are older or are sick, and even with dementia, are able to kind of figure out those things. The attack on the will is going to be more subtle, looking at the testator’s medical records and determining what it is that is in them that can point to the testator not having the mental capacity.

Undue Influence

Second, you can try to show that the testator was coerced or unduly influenced into making the will. A lot of people as they get older and sicker depend on others for the basic things in their life. They crave the love and affection of others. They want to be needed. Even if all they’re needed for is their money. This is very unfortunate. Bad people take advantage of that, and manipulate the vulnerable seniors into leaving them the inheritance.

Will not Made Properly

Third, you can try to show that the will was not made properly. This works best with wills that people download from the internet or by at a form store. A will downloaded from a bot on a legal service website like LegalZoom can have problems. For example, it may not have the required number of witnesses (usually two). The person may or may not declare the will to be their will (a requirement). The person may even sign in the wrong place. Also, people tend to make “corrections” and “changes” to those wills, and those changes are not valid.

Unlike in the example above, when a person downloaded a will from the internet at their own risk, trying to contesting the will is not something most people can even attempt. Even at their own risk. To have any chance of contesting a will, you’ll need a lawyer. New York estate lawyer, such as Albert Goodwin, Esq. can help you evaluate your will contest case and let you know what your chances are. Albert Goodwin, Esq. is a New York estate, guardianship, wills, trust and probate lawyer since 2008.

More about undue influence

It is easier to establish undue influence if the following factors are present:

1. Susceptibility. The testator had a weakness (physical, mental, or financial) that made them susceptible to influence;
2. Opportunity. The wrongdoer had access to the testator and an opportunity to exert influence; (e.g. taking care of testator, excluding everyone else, cutting off testator’s communication with their family and friends so that the wrongdoer can have total control of the testator)
3. Active participation. The wrongdoer actively participated in drafting the will; and
4. Unnatural disposition. There is an unnatural (unexpected) result.

A common law presumption of undue influence can possibly be established if:

1. Confidential relationship. A confidential relationship existed between the testator and the wrongdoer;
2. Active participation. The wrongdoer actively participated in the drafting the will; and
3. Unnatural disposition. There is an unnatural result.

There is a strong presumption of undue influence if the testator makes a donative transfer to

1. Drafter. The person who drafted the will;
2. Care custodian. A care custodian of a testator who is a “dependent adult”;
3. Fiduciary. A person in a fiduciary relationship with the testator, like an accountant, banker, lawyer or financial adviser.

The grounds for contesting a will in New York are as follows:

Undue Influence – manipulating a person or pressuring them to make a will in a way that overpowers them and makes them bend to the influencer’s will. This is the most commonly used ground in real-life New York City will contests.

Fraud – knowingly making a false statement to the person who made the will which caused him to execute a will that disposed of his property in a manner differently than he would have in the absence of that statement. This is one of the grounds of contesting a will that you are required to plead with particularity. It has four elements, which your estate attorney will know.

Duress – use of force, false imprisonment or threats … to compel someone to act contrary to his/her wishes or interests. This is a ground for contesting a will that is harder to prove than the other grounds. A lot will depend on how the proponent of the will looks in a deposition. If he looks like a violent or angry person, then there is a bigger chance that this grounds to contest a will succeeds.

Lack of Capacity – the decedent did not understand

1. what they own
2. who their relatives and friends are
3. what is in their will.

Lack of capacity can arise due to dementia, Alzheimer’s, mental illness, trauma, and medication. To put it simply, the person was not well enough to make a will. The grounds for contesting a will based on lack of capacity depend on medical evidence, such as medical records and testimony under oath of the decedent’s healthcare provider.

Forgery – signing the name of the person who supposedly “made the will” or having someone else pretend to be that person and sign the “will.” This is grounds to contest a will that has to be proved by the use of a forgery expert. The expert will identify if the signature on the will was traced or copied, or if the pages were modified chemically, physically or in some other fashion.

Improper Execution – to meet the requirements of formal execution, the will has to

1. be signed by the testator (or in their direction in their presence)
2. the signature must be at the end of the will
3. the will had to be signed in the presence of each witness
4. the testator must have communicated to the witnesses that they are witnessing a will
5. two witnesses are required
6. the entire ceremony must have been completed within 30 days of the testator’s signature

Failure to properly execute is grounds for contesting a will in New York.

Revocation – the will was canceled by the person who originally made it.

Read our thorough article if you would like to know more about how to contest a will in New York. If you would like legal representation in a  will contest, you can get in touch with me. I litigate New York will contests for over a decade. Call the Law Offices of Albert Goodwin at (718)-509-9774, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss your will contest.

Schizophrenia is a terrible disease affecting roughly one percent of the U.S. population.^[1] Characterized as a serious mental illness, its symptoms include hallucinations and delusions.^[2] While there is no cure for schizophrenia, it could be treated through antipsychotic medications and psychotherapy.^[3] In many cases, those suffering from this disease could live “a productive and normal life.”^[4] Needless to say, the disease takes a toll on the individual and their loved ones. Schizophrenia and other mental diseases also present additional end-of-life challenges in areas such as conservatorship and estate planning. This article will answer the question: Would a New York court accept a will into probate when it is executed by someone suffering from schizophrenia? The answer will depend on multiple factors—with those suffering from mental illness needing to take extra care to ensure proper documentation.

When executing a will, New York and most other jurisdictions require a testator to possess a “sound mind and memory.”^[5] To clarify this crucial point: the person making the will must have testamentary capacity at the time of the execution of the will. That means that a person suffering from a mental disease like schizophrenia^[6] could be considered of sound mind as long as they are lucid at that point in time.^[7] New York courts long recognized that mental illness like schizophrenia and “senile dementia are not necessarily inconsistent with testamentary capacity.”^[8] Because a known mental illness is a very common challenge to the validity of a will, such possibility must be anticipated for during the will’s execution and appropriate steps must be taken by the estate attorney who is drafting the will to document the capacity of the testator.

In determining whether a person was of sound mind when executing a will, New York courts focus on three elements. Whether the testator: (1) understood the nature of consequences of executing a will; (2) understood which property was being disposed; and (3) knew the natural objects of his or her bounty and his or her relations with them—that is, the testator understands and consciously decides to remove certain family members (e.g., a child) from his or her will.^[9] These are of course reasonable requirements. Unfortunately, with the various predatory schemes and in attempt to prevent fraudulent and unethical behavior, (visualize a person on their deathbed while some greedy relative forces a pen to the moribund person’s hand), NY courts place the burden of proof of testamentary capacity onto the executor or a proponent of the will.^[10] In other words: without adequate proof, the decedent is presumed to have been mentally incapacitated and the will, invalid. This fact makes it crucial for a person suffering from a mental health issue to hire a competent attorney for their will drafting and execution.

A competent trust and estates attorney discusses the end-of-life options with the client and drafts a will tailored to the client’s needs. In fact, it is the attorney’s ethical duty to ensure that the testator is of sound mind during the execution of the will. During contention of the will, attorneys are often called to testify to the testator’s mental state in understanding the will. This is why when possible, the attorney drafting the will should preferably be the attorney witnessing its execution. Next, a good attorney will craft a self-proving affidavit for the two witnesses.^[11] The affidavit will attest to the lucidity of the testator and create a presumption of testamentary capacity—thereby switching the burden of proof to the party challenging the will.^[12] Together with the attorney’s testimony, the witness’ affidavit and testimony provide can help defend a will from a challenge on the grounds of mental incapacity. Since there is no such thing as too much evidence, many attorneys implement additional steps, such as rigorous note-keeping. A few will even go as far as video recording the testator reviewing and executing the will.^[13]

People who live their life with schizophrenia face unpredictable challenges. These challenges carry over to their death, as a person suffering from schizophrenia is presumed to have had a mental illness during the execution of their will. Fortunately, this challenge is indeed predictable. A competent lawyer can take steps to minimize the chance that schizophrenia turns into a successful probate dispute. After all, like a person who was fortunate not to experience mental illness, a person suffering from schizophrenia is no less entitled to have his or her wishes followed as long as they actually have the capacity to make the will.

Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to your will contest.

[1] Schizophrenia, NAMI, https://www.nami.org/Learn-More/Mental-Health-Conditions/Schizophrenia (last visited Sep 16, 2018).

[2] Id.

[3] Id.

[4] Living With: Schizophrenia, PsychGuides,https://www.psychguides.com/guides/living-with-schizophrenia (last visited Sep 16, 2018).

[5] N.Y. Est. Powers & Trusts Law § 3-1.1 (McKinney 2018).

[6] NY courts do not treat schizophrenia legally any different than any other mental disease such as Alzheimer’s or dementia. See In re Grinker, 77 N.Y.2d 703, 712 (1991) (reversing lower court’s judgment for an appointed conservator to forcibly commit a person to a nursing home, finding that the lower court erroneously held that the schizophrenic conservatee was substantially unable to manage her property).

[7] See e.g., In re Estate of Makitra, 956 N.Y.S.2d 780 (2012).

[8] In re Hedges, 473 N.Y.S.2d 529, 531 (1984).

[9] In re Estate of Kumstar, 66 N.Y.2d 691, 692 (1985).

[10] In re Estate of Walker,2 N.Y.S.3d 628, 630 (N.Y. App. Div. 2015).

[11] N.Y. Surr. Ct. Proc. Act Law § 1404, 1406 (McKinney 2018).

[12] In re Estate of Walker, 914 N.Y.S.2d 379, 381 (2011), leave dismissed, 16 N.Y.3d 711 (N.Y. App. Div. 2011).

[13]See, e.g., In re Estate of Makitra, 956 N.Y.S.2d 780, 782 (2012).

It’s easy to take advantage of an elderly person and have them make a will leaving out people they care about. Here are some stories of how people attempt to steal an inheritance, and the ways in which a New York estate lawyer like Albert Goodwin, Esq. helps people undo some of the damage.

“My aunt and uncle died and I was completely left out of their will. It turned out that my cousins arranged a lawyer appointment, told the lawyer what to write, took my aunt to the law office and had them sign a will. My aunt and uncle would never have done this themselves. I’m pretty sure my aunt and uncle did not know what they were doing.”

A valid will has to be made free of undue influence. Meaning, the will has to “express the will of the people making it”. When someone else arranges the appointment with the lawyer, you can see how the will is not completely the product of the will of the person who supposedly made the will. A will also has to be made by a person with sufficient mental capacity. A person who does not know who his relatives or friends are, what their property is and the nature of a will is considered to not have the capacity to make a will. We can subpoena the medical records of the people who made the will and see if they had enough mental capacity or not.

“My sister turned my mother against me and had her make a will leaving me out of her estate. She basically plotted to wait for the right situation and took advantage of it. The irony is, my sister is the one who arranged the situation to have my mother be upset at me in the first place.”

Grooming and manipulating people and taking advantage of them is considered undue influence. Taking advantage of someone when they are at their week point, when they are elderly, mentally incapacitated and upset, is a low thing to do. People think that they can get away with it, but undue influence, coupled with incapacity, is a ground to overturn a will.

“My uncle did not let me speak to my grandfather and did not let me come near him. He screened my phone calls and made it impossible for me to visit. When I came to see him, he told me that my grandfather doesn’t want to see me. He then told my grandfather that I did not care about him and convinced him to make a will leaving me out of his estate.”

Isolating someone from their friends and family is a sure sign of undue influence. Screening phone calls, coming up with executes, blocking contact, is all a part of a plan to trick the vulnerable incapacitated senior into thinking that no one but the perpetrator cares about them. They gaslight the elderly victim into modifying their estate plan to benefit the perpetrator. They create a false world where the victim is tricked into thinking that their friends and family no longer care about them and have forgotten them. This injustice does much more than deprive the victim’s family of inheritance. More importantly, it deprives the victim of the love and connection with their family, and this is a tragedy.

“My brother lives close to my father and I live in a different state. My brother is not providing the correct care for my father, but he did make sure to have my father make a will, and that will leaves me out. “

If someone lives close to their parents, they are expected to help them. They are not expected to instead spend their energy on manipulating their parents taking their other children out of the estate plan. Using their influence and power over the parents’ lives to gain an advantage in dividing their inheritance is undue influence and can be grounds for invalidating the will.

“My cousin’s caretaker had him make a will leaving his inheritance to her.”

Caretakers are obligated to care about their patients. When someone is a home health aide or a nurse, they are not doing the caring out of love – it is their job. But some unscrupulous caretakers decide to “get smart” and try to get an “extra bonus” by having their patients leave an inheritance to them. How is it even legal to have caretakers get an inheritance from their patients? There should be a law that invalidates such bequests automatically. Meanwhile, there is recourse through New York courts. The good news is, courts frequently rule against paid caretakers in inheritance cases.

“My aunt and uncle’s friends got their inheritance. They manipulated my aunt and uncle into giving them the inheritance, leaving the blood family with nothing”

Whether manipulating existing “friends” or becoming friends with someone in order to get their inheritance, this behavior is essentially a con. It is true that some people do have stronger relationships with their friends than with their family, and some people are estranged from their family. But that does not mean that conmen should get the inheritance that belongs in the family.

There are many “flavors” of undue influence and many ways to overturn a will that is a product of undue influence and diminished capacity. Taking advantage of the elderly should not be rewarded with a big payday, and victims of will fraud should not be silent. You can use the court system to protect your rights.

Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss your will contest.

The objectants to a will or irrevocable trust have the burden of proof on the issue of undue influence.^[1] To establish the undue influence claim, objectants must show by a preponderance of the credible evidence:

1. the existence and exercise of undue influence;
2. the effective operation of undue influence as to subvert the mind of the testator at the time of the execution of the Will; and
3. the execution of a Will that, but for undue influence, would not have occurred.

The three elements of undue influence have also been described as motive, opportunity, and the actual exercise of undue influence.^[2]  In order for objectants to carry their burden with respect to this issue, they must demonstrate not only the existence of opportunity and motive but the actual exercise of undue influence.^[3] As to what actions constitute undue influence, this classic formulation still resonates in the case law:

“it must be shown that the influence exercised amounted to a moral coercion which restrained independent action and destroyed free agency…it must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear.^[4]

In fact, much of this language has been adopted by the New York Pattern Jury Instructions as the model for the statement of the law [PJI 7:56].)

The court recognizes that undue influence is rarely proven by direct evidence and is usually proven by circumstantial evidence.^[5] Among the factors that have been held to indicate the exercise of undue influence are:

1. the physical and mental condition of the testator^[6];
2. whether the attorney who drafted the will was the testator’s attorney^[7];
3. whether the propounded instrument deviates from the testator’s prior testamentary pattern^[8]
4. whether the person who allegedly wielded undue influence was in a position of trust^[9]; and
5. whether testator was isolated from the objects of his natural affection^[10].

With all this in mind, it is also important to remember that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations which are specific and detailed, substantiated by evidence in the record and that mere conclusory assertions will not suffice.^[11]

RELATIONSHIP

This was a typical parent-child relationship. It is clear that Ruth Zirinsky lived an independent life and that Robert’s involvement with her affairs was no more than incidental, given their particular circumstances and the facts attendant to a typical mother-son relationship. This fact should be kept in mind, because the objectants’ efforts to portray the relationship as “confidential,” as that term is defined in this context, is belied by the family relationship, not to mention the facts themselves. The law recognizes that a close family relationship “counterbalances any contrary legal presumption; and explanation by the beneficiary is not required”^[12]. A confidential relationship may be inferred if one party has disparate power over the other^[13], such as the power of an attorney, guardian, clergymen, doctor or nursing home director. Generally, no presumption of undue influence can be drawn solely from the relationship between the decedent and her child because a sense of family duty is inexplicably intertwined in this relationship.^[14]

INVOLVEMENT

The objectants point to several instances of Robert’s active involvement in his mother’s financial affairs, including her generosity to him regarding gifts, and his assistance with her bills and income. Moreover, there is some indication that Ruth may have asked Robert for some input during the Will-drafting process. However, none of these facts, assumed to be true for purposes of this motion, rise to the level of showing Robert actually exercised undue influence over his mother or that he defrauded her. Therefore, while it is clear that a close family relationship operates to negate an inference of undue influence, even if the court applied such an inference, the record is devoid of any fact whatsoever that Robert’s conduct “amounted to a moral coercion, which restrained independent action and destroyed free agency”^[15]

The final two factors in this part of the analysis may be considered together, i.e., whether the person who allegedly exercised undue influence was in a position of trust^[16] or whether the testator was isolated from the objects of his natural affection^[17].

Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, medicaid and probate lawyer, and make an appointment to discuss your will contest.

[1] Matter of Bustanoby, 262 AD2d 407 [1999]; Matter of Gross, 242 AD2d 333 [1997], lv denied, 90 NY2d 812 [1997]

[2] Matter of Walther, 6 NY2d 49 [1959]

[3] Matter of Fiumara, 47 NY2d 845 [1997]; Matter of Walther, 6 NY2d 49 [1959]; Matter of Holly, 16 AD2d 611 [1962], affd, 13 NY2d 746 [1963], Matter of Foranoce, NYLJ, August 7, 2000, at 25

[4] Children’s Aid Society v Loveridge, 70 NY 387, 394 [1877]; see also Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Weltz, 16 AD3d 428 [2005]

[5] Matter of Walther, 6 NY2d 49 [1959]; Rollwagen v Rollwagen, 63 NY 504 [1875]; Matter of Burke, 82 AD2d 260 [1981]

[6] Children’s Aid Society v Loveridge, 70 NY 387 [1877]; Matter of Woodward, 167 NY 28 [1901]; Matter of Callahan, 155 AD2d 454 [1989]; Matter of Gnirrep, 2 AD2d 404 [1956]

[7] Matter of Elmore, 42 AD2d 240 [1973]

[8] Matter of Kruszelnicki, 23 AD2d 622 [1965]

[9] Matter of Elmore, 42 AD2d 240 [1973])

[10] Matter of Burke, 82 AD2d 260 [1981]; Matter of Kaufman, 20 AD2d 464 [1964], affd15 NY2d 825 [1965]

[11] Matter of O’Hara, 85 AD2d 669, 671 [1981]

[12] NY PJI 7:56, citing Matter Of Walther, 6 NY2d 49 [1959], Matter of Moskowitz, 279 AD 660 [1951]

[13] Ten Eyck v Whitbeck, 156 NY 341 [1898]

[14] Matter of Walther, 6 NY2d 49 [1959]

[15] Children’s Aid Society v Loveridge, 70 NY 387, 394-395 [1877]

[16] Matter of Elmore, 42 AD2d 240 [1973]

[17] Matter of Burke, 82 AD2d 260 [1981]; Matter of Kaufman, 20 AD2d 464 [1964], affd 15 NY2d 825 [1965]

For a will to work, it has to first be approved by New York Surrogate’s Court. If you will be able to prove that a New York will is a result of fraud, then it will be possible to have the court deny approval, resulting in the fraudulent will being set aside.

fraud (noun): wrongful or criminal deception intended to result in financial or personal gain. Synonyms: fraudulence, cheating, swindling, embezzlement, deceit, deception, double-dealing

Fraud is usually the result of a close and trusting relationship gone wrong, between the person signing the fraudulent will and the person who is defrauding them.

Will fraud is also usually the result of the victim’s diminished mental capacity. A victim of will fraud can be vulnerable due to a mental and physical condition, such as dementia or mental illness, be ill, on medications, or even on their death bed pumped full of morphine.

There can be two kinds of fraud when it comes to a New York will: fraud in factum and fraud in the inducement.

Fraud in Factum – lying to the person who made the will, telling them that they’re signing something else. “Here Edith, sign this bill, or lease, or deed, or authorization, etc.” The person is not even aware that what they are signing is their will. The document slipped to them without their knowledge.

Fraud in the Inducement – someone lying about something else other than the actual will. For example, a child can tell their parent that leaving their entire estate to them and excluding their other children is what they need to do for tax or protection purposes. Or, a child can tell their parent that the parent’s other children are taking their money or are against them.

Fraudulent concealment occurs when the person accused of fraud hides information from the person who made the will. For example, hiding the fact that their children are trying to get in touch with an elderly parent.

Fraud in a New York will is usually addressed in civil court. Like many white-collar crimes, fraud is difficult to prove and is therefore not usually addressed by the criminal justice system.

When we are discussing will fraud here, we mean actual fraud. If there is a question of a will being invalid for any other reason, see our article “winning a will contest.” It talks about fraud as well as other grounds for challenging a will, such as mental incapacity, undue influence, forgery, revocation and lack of due execution.

Whether you are accused of defrauding the estate or think that there is a fraudulent will that is diminishing your interest in an estate, you have the right to a fair trial before New York Surrogate’s Court. Your chances of winning a New York will fraud case greatly increase when you are represented by a competent and experienced New York estate lawyer will a track record of success in estate litigation.

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Albert Goodwin, Esq. is a New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss spousal claims and rights to the estate. He is in practice since 2008. He has experience litigating will fraud cases and is available for a consultation. He can be reached at (212) 233-1233.

Here is a list of the possible grounds for contesting a will in New York:

1. Incapacity
2. Undue Influence
3. Duress
4. Forgery
5. Fraud
6. Lack of Due Execution
7. Revocation

Incapacity – the person is not competent to make a will when they either

1. don’t know who their natural heirs are
2. don’t know the extent of their property or
3. don’t understand what the will is and what its implications are

Undue Influence – the will was made as a result of someone else’s influence, as opposed to as a result of the will of the person who signed the document.

Duress – the person signing the document was forced to sign it. They were threatened that something bad will happen in their life if they will not sign it.

Forgery – the handwriting in the signature was forged. The person whose name appears in the document never actually signed it.

Fraud – the will is signed as a result of someone lying to the person who signed the document. The lie can be about the document being signed, hiding the fact that it’s a will from the person who is signing it. The lie can also be about some circumstances tied to the will, such as the other children of the person who made the will doing something that the person who made the will does not approve of.

Revocation – the person who made the will cancelled it, either by destroying it or by executing another will that superseded the one in question.

Lack of due execution – unless the will has all of the following elements, the will is not valid:

1. actually signed by the person who supposedly made it
2. the signature is at the end of the will
3. each witness was present at the time the will was signed (or the signature was confirmed to them by the person who signed the will)
4. the person signing told the witnesses that they are signing a will
5. there were at least two witnesses
6. the entire ceremony was completed within 30 days of the signature

It is up to the person bringing the will to probate to present the basic proof that the will was executed with all of the “due execution” elements listed above.

After that, it is up to the person bringing the New York will contest to prove that the will is invalid, by proving the existence of one of the grounds for will contest listed above.

If a will was made to favor a non-relative caretaker or professional, there is an inference of undue influence. That inference can be rebutted by the person benefitting from the will.

Bringing a will contest usually involves the examination under oath of the witnesses to the will, the attorney who drafted the will, the person who allegedly procured the will and of all other people involved. A will contest also involves finding the medical providers of the person who allegedly executed the will, requesting the deceased person’s medical records and then examining the medical records for any evidence of incapacity. Learn more about winning a will contest in New York.

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Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, medicaid and probate lawyer, and make an appointment to discuss your will contest.