Contesting a codicil is a legal process undertaken to challenge the validity of a deceased person’s codicil. In New York, as in other states, there are specific grounds on which a codicil can be contested. We will discuss those grounds, as well as how they apply to prosecuting and defending a codicil contest.
1. Formal Requirements Not Met: For a codicil to be valid, the people involved must follow the formal requirements specified in the statute, NY EPTL 3-2.1. New York is a state that has rigid formal requirements for executing codicils. Failure to adhere to every single one of these requirements can lead to a codicil failure and a successful codicil contest. The formal requirement that fails the most? The codicil-maker not saying to the witnesses that the document is their codicil.
2. Forgery: If the codicil is a forgery, in whole or in part, then it fails and the codicil contest is a success. The most common forgery methods are to claim that a document is a person’s codicil when that person never singed the document, or replacing pages in a codicil.
3. Undue Influence: This occurs when a trusted individual takes advantage of a person and manipulates them into making a codicil. Proving undue influence is not easy, because it often occurs behind closed doors. For that reason, the contestant will have to rely on circumstantial evidence.
4. Lack of Mental Capacity: To contest a codicil based on this ground, you have to prove that the deceased did not understand the nature of their assets, their relatives, and friends, or what was in the codicil at the time of its execution. Medical records showing conditions such as dementia disorders or mental illness are used as evidence of lack of mental capacity.
5. Fraud: Contesting a codicil based on fraud involves showing that the beneficiaries knowingly misled the deceased into signing the codicil, either by misrepresenting the contents of the codicil or by providing false information about outside circumstances.
6. Duress: To contest a codicil based on duress, you have to prove that someone forced the decedent to make a codicil.
This guide will delve into each of these grounds in detail and explore the various challenges faced when contesting a codicil in New York, shedding light on the legal intricacies involved in this process. While this guide provides some detailed explanations on using the above grounds for contesting a codicil, it is important to note that the task of proving them in court is a complex and subtle undertaking best handled by experienced estate litigation attorneys.
Do you remember when we were able to fight traffic tickets because of mistakes in writing them or the way they were set up? We’d have our lawyer dismiss the ticket on technical grounds. Well, that’s still sometimes possible in codicil contests.
For a codicil to be valid, the people involved in the codicil execution need to follow formal requirements for executing a codicil. And New York has some of the most rigid codicil execution requirements in the country. If execution formalities were not correctly followed, the codicil could fail, and we could successfully contest that codicil, leading to the codicil being overturned and invalidated by the Surrogate’s Court. That is why we advise that when a person makes a codicil, they do so in the presence of an estate attorney. In making a codicil, as well as in contesting one, you will need to be familiar with the formal requirements of codicil execution.
In order for a document to be accepted by the court as a valid codicil, it needs to meet the formal execution requirements of NY EPTL 3-2.1, which are:
The people involved have to follow New York execution formalities. Problems can creep up, such as when the potential codicil-maker did not declare the document to be their codicil, or the witnesses are not there or not fully there. We can use those “hiccups” to litigate a successful codicil challenge in New York.
When a person makes a codicil without an attorney present, they are playing Russian Roulette with the validity of their codicil. It is easy to figure out how to challenge a DIY codicil. No estate attorney would possibly testify to support such a codicil, because no attorney was present when the codicil was claimed to have been executed. Here are the common scenarios where this problem with codicils occurs:
Where the codicil was signed with an attorney present, that attorney would typically testify that he made the codicil at the request of the person whose name is on it and the witnesses will testify that they saw the person sign the codicil and declare it to be a codicil to their will. After that, the codicil contest will focus on mental capacity and undue influence.Where the codicil was signed without an attorney, there is no attorney to testify that the codicil was made correctly, so the codicil contest codicil also deal with possible issues of the codicil not made correctly and not signed correctly.
Where the codicil has problems with the attorney or witnesses, the codicil contest will also focus on forgery, which we discuss next. The problems with attorney or witnesses can be as follows:
There is little place left for ceremony in the modern world. A codicil execution is one of the few exceptions, and it needs to be followed precisely in order for a codicil to be valid.
Lack of execution formalities is a powerful codicil contest ground, and one that results in the most overturned codicils, at least in our experience.
If somebody forged a part of the codicil and we can prove the forgery, then we can have the Surrogate’s Court declare the codicil to be invalid. When contesting a codicil, you will likely need to hire an expert familiar with the different forgery methods. The expert will examine the suspect codicil, prepare a report and testify in court.
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.
We win forgery-based codicil contests by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert compares the handwriting on the codicil and testifies that it’s not a close enough match. The handwriting expert would also determine if the handwriting on the codicil belongs to someone else, such as the person benefiting from the codicil.
A forgery trial can easily become a battle of the experts. Getting the most presentable and authoritative expert can make all the difference.
In codicil contest parlance, pressure to make a codicil is called duress and manipulation of the person who died is called undue influence.
To prove undue influence, you would have to show that a trusted person took advantage of the person who died and manipulated him into making the codicil.
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 person who died, the nature of the codicil, 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.
This confidential relationship power-up does not work well when the beneficiary of the codicil is a relative. It only works well when the person benefitting from the codicil is a caretaker or a different professional helping the person who died.
Psychopaths with narcissistic personalities are good at using manipulative tactics. Their favored ways of manipulating vulnerable seniors are
Opportunistic charlatans can use undue influence 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. If you believe that someone took advantage of your loved one, you may be able to overturn their so-called “codicil.” This is done with the help of a lawyer through a codicil contest in New York Surrogate’s Court. But at the same time, if a person who signed the codicil wanted to set up their codicil a certain way, was not defrauded and had full mental capacity, then that’s their business. In New York, you can disinherit your relatives if you wish to do so.
Case Study from Our Practice: Contesting a Codicil Due to Undue Influence
To prove a codicil contest based on lack of mental capacity, you would have to prove that the person who died was so out of it that they did not know what they were doing. To contest a codicil based on this ground, we would typically have to show that the person had some kind of serious problem with their brain function which prevented them from understanding what is going on with the codicil.
Legally, to show mental incapacity, we need to prove that the person who died did not understand one or more of the following:
To show what was wrong with the person who died that they did not have the mental capacity, we would typically have to prove one or more of the things below.
A codicil contest based on a lack of mental capacity has a higher chance of success when the person who died suffered from a dementia disorder.
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 codicil. 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 codicil contest to succeed.
Mental illness in and of itself does not mean that the decedent lacks capacity. For a codicil contest to work, you will need to prove that mental illness played a role in the making of the codicil. Some examples of mental illness that can impact the capacity to make a codicil are:
Personality disorders are not indicative of a lack of capacity. But they can still make some difference in a New York codicil contest. For example, if the person who died had a “Cluster C” Dependent Personality Disorder, then they can be vulnerable to undue influence. We look to symptoms such as
Weak physical state – We challenge codicils of decedents whose weak physical state adversely influenced their mental capacity.
Mind-altering pharmaceuticals – If the person who died was taking mind-altering pharmaceuticals during the codicil execution, then his capacity to execute a codicil 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 you are contesting the codicil, you will need to show that the decedent was not having any lucid moment. An attorney who made the codicil may testify that the person who died had a lucid moment when he executed the codicil.
Some codicil 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 person who died 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 codicil challenges.
In contesting a codicil, we don’t have to prove that the decedent lacked capacity on the exact day of the codicil signing. Instead, we can use circumstantial evidence to show that the decedent lacked capacity during at that time. But the time period in question is limited to around the date of the purported codicil.
When contesting a codicil, the most effective strategy for challenging the decedent’s mental capacity is to obtain medical records from the medical providers. You can then go through those medical records and see if any notes point to incapacity.
It’s good to check for a list of Alzheimer’s or dementia medications, sedatives and antipsychotics. You can find a list online.
Different forensic and analytical tests will be used to asses the mental capacity of the person who died. The decedent might have been administered a Mini-Mental Exam or the Clock Test while they were still alive. After their death, we can no longer give them a test. But we can still use models of mental capacity such as PARADISE – 2 to argue that the decedent had impaired brain function at the time of the events in question.
One type of fraud is misleading the decedent about the codicil itself. Beneficiaries slip a codicil under a guise of a different document or mischaracterize what is in the codicil and have the person who died unknowingly sign it.
Another type of fraud is misleading the person who died about circumstances outside of the codicil. They can be fed misinformation about friends and relatives or other things in their lives.
To prove duress, you would have to show force and coercion. Duress is the use of force, false imprisonment, or threats to compel the person who died to make the codicil 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 person who died to change his or her codicil in the abuser’s favor.
A person who signed the codicil can revoke a codicil by destroying it or crossing out the signature.
If no one can find the codicil, we presume that the person who signed the codicil revoked the codicil, unless someone proves otherwise.
A person who signed the codicil can revoke a codicil by making a new one. The latest codicil always controls, unless overturned, in which case we revert to the will orcodicil before that.
Revocation is a good ground to consider when there are multiple documents that are purported to be wills or codicils of the decedent.
The chart below provides a visual breakdown of the grounds that we focus on in questioning a codicil’s legitimacy.
Here are some effective strategies for contesting a codicil that can significantly enhance your likelihood of overturning a codicil or getting a settlement.
Before initiating codicil contest, it may help to weigh the following factors:
By assessing these factors, you can make a well-informed decision on whether it’s worthwhile to pursue the recovery of the stolen inheritance.
To know more about the costs of a codicil contest, you can click here. The cost of your codicil contest can range between four to five figures and codicil depend on the stage in which your claim is concluded: out of court, during the initial probe, discovery, or after trial.
To contest a codicil, you will need to have your attorney file objections to probate of the codicil. Objections is a document that lists all of the potential problems with the codicil and asks the court to reject the codicil.
Your attorney will file the objections with the court. This filing will set your codicil contest in motion.
As an example, here is a front page of a set of objections we’ve filed for one of our clients:
When contesting a codicil, we often plead every possible ground for a codicil contest, hoping that we find one that sticks. If the decedent was not well enough to make a codicil, then he was probably vulnerable to being misinformed or pressured to make a codicil.
It is true that in some codicil 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 Codicil contest ground and see which one of them turns out to be more successful.
We try to settle codicil 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 jury decide whether the codicil is valid.
While the codicil is being contested, the executor is not permitted to distribute the estate until after the trial. The court can find that the codicil is valid. If the court finds the codicil to be invalid, the court codicil do one or more of the following:
Deadline Alert: | Once the court approves the codicil for probate, it will be too late to contest it. Act before the first hearing in the case. |
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We have never seen a person fight a codicil contest without a lawyer. You should never go into a codicil 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 codicil.
Here are some effective strategies for defending a codicil that can significantly enhance your likelihood of getting the codicil 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 codicil. An attorney specializing in estate law will have the expertise to advise on the proper care, storage, and presentation of the codicil. They can provide guidance on legal protocols, potential pitfalls to avoid, and best practices to ensure the codicil’s integrity remains unquestionable. Entrusting the codicil’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 codicil was drafted.
Do not tamper with the codicil. Any alterations or signs of tampering can cast doubt on the codicil’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 codicil’s legitimacy. Any attempt to influence or tamper with their testimonies can jeopardize the codicil’s defense.
Do not tamper with any evidence. Preserving the integrity of all evidence related to the codicil 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 codicil 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 codicil’s defense, especially concerning the testator’s mental capacity or the codicil’s authenticity.
Secure witness testimony. Witnesses to the codicil’s signing can attest to the testator’s state of mind and the circumstances surrounding the codicil’s execution. Their testimonies can be pivotal in confirming the codicil’s legitimacy. But do not tamper with the witnesses.
Contesting a codicil means challenging its validity in court. If someone believes the codicil doesn’t reflect the true intentions of the deceased or was created under suspicious circumstances, they may contest it.
Any person affected by the codicil, such as beneficiaries or potential heirs, can challenge the codicil after it’s submitted to the court for approval.
Undue influence occurs when the testator is manipulated or pressured into creating a codicil that benefits someone else, often at the expense of their true wishes.
Fraud involves deception, such as lying to the testator about certain facts, which influences how they distribute their property in the codicil.
If a court determines that all or parts of the codicil are invalid, the property may be divided as if there were no codicil at all, following New York’s laws of intestacy.
It’s crucial to seek legal counsel and follow all legal procedures when creating a codicil.
Duress involves extreme pressure or threats to force someone to create a codicil in a certain way. Undue influence is more subtle and involves manipulating someone’s decisions without direct threats.
The timeframe can vary, but it’s essential to act promptly. Consulting with a legal professional can provide specific guidance on time limits.
While it’s theoretically possible to fight a codicil contest without legal representation, doing so carries a high risk of losing. Hiring a lawyer can increase the chances of success and ensure you navigate the legal system effectively.
A person is considered of “sound mind” if they understand the nature and extent of their property, know the natural beneficiaries of their estate, and understand the disposition they are making through the codicil.
Yes, especially if you are a direct heir or believe you were intentionally or mistakenly excluded. The court will consider your relationship to the deceased and the circumstances surrounding the codicil’s creation.
Evidence can include witness testimonies, written communication, suspicious changes in the codicil shortly before the testator’s death, or evidence showing the testator was isolated from family and friends.
The duration can vary based on the complexity of the case, the evidence presented, and the court’s schedule. It can range from a few months to several years.
Costs can include court fees, attorney fees, expert witness fees, and other related expenses. It’s essential to discuss potential costs with your attorney before proceeding.
A no-contest clause is designed to discourage beneficiaries from contesting the codicil by stating they will lose their inheritance if they do so. However, the beneficiary can conduct a preliminary probe without triggering the no-contest clause.
The most recent validly executed codicil is typically considered the final expression of the testator’s wishes. However, if there’s evidence of fraud or undue influence in the latest version, an earlier codicil might be upheld, or sometimes no codicil at all.
If you believe the executor is not fulfilling their duties or is acting in their own interests, you can petition the court to have them removed and replaced. But this is not a ground for a codicil contest per se.
Probate is the legal process of validating a codicil and distributing assets. A codicil contest is a challenge to the validity of the codicil itself.
If there’s no other valid codicil, the assets will be distributed according to New York’s intestacy laws, which dictate how assets are divided among surviving relatives.
The grounds for a codicil contest are:
If you are involved in a codicil contest, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can contact us by calling 212-233-1233 or sending us an email at [email protected].