Defending a Contested Will in New York City

Defending a contested will in New York is easier than contesting it. That’s due to the presumption that a will is valid. The burden is on the challenger to prove the will’s invalidity. But the proponent of the will still has to prove that the will was executed correctly and the testator had the mental capacity to execute a will. It would then be up to the contestant to prove otherwise. You will likely need an attorney to successfully defend the will.

Why The Defense Has the Advantage

In will contests, the defense often has an easier case than the challengers. Here’s why:

• The benefit of presumption

  The law assumes a properly executed will is valid. A will with an attestation clause and whose execution is supervised by an attorney enjoys a strong presumption of validity.

• The burden of proof

  The challenger must present compelling evidence to overcome the presumption of the will’s validity.

• The testator not present

  New York’s Dead Man’s Statute prohibits interested parties from testifying about transactions or communications with the deceased testator.

• The contest grounds

  Challengers must focus their objections on certain legal grounds like lack of capacity, undue influence, improper execution, fraud, or forgery. Each basis has specific elements that must be proven. Certain grounds face longer odds than others. Challenges based on improper execution, lack of testamentary capacity, or undue influence have slightly higher success rates if adequate evidence is produced. Meanwhile, contests based on forgery or fraud are much rarer and more difficult to prove.

Building a Defense Strategy

The key elements of an effective defense include:

• Hiring an estate litigation attorney

  Defending a will requires working closely with an experienced will contest attorney who has successfully contested and defended wills over many years. We know the complexities and strategies involved with each potential ground for the contest and understand the strengths and weaknesses of legal arguments from both attack and defense perspectives.

• Gathering evidence

  Thoroughly gather documents and accounts demonstrating the testator’s state of mind and intentions when writing the will. This includes assembling medical records, statements from impartial parties, financial histories, communications, and any proof of the testator’s strong mental capacity and lack of coercion.

• Taking depositions

  Strategically question the will’s witnesses during depositions to provide facts that would support the will’s proper execution and validity in accordance with state laws.

• Understanding the burdens of proof

  Emphasize how the challenger’s arguments fail to overcome the presumption of validity.

• Painting an accurate picture

  Gathered evidence and testimony should show an accurate portrait of the testator’s strong mental state, earnest intentions, and legitimate relationships at the time he signed the will. The goal is to convincingly convey that the will genuinely represents the testator’s wishes.

Since defending a will contest is complicated, we recommend that you seek the assistance of a New York will contest attorney to represent you in the matter. Should you need legal representation, we at the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan in New York City. You can call us at 212-233-1233 or send us an email at [email protected].

The SCPA 1404 Examinations

One of the most consequential phases of a contested probate is the SCPA § 1404 examination. This is the pre-objection deposition phase that gives potential objectants access to the will witnesses, the drafting attorney, and other witnesses. The proponent's preparation for these examinations is critical to defending the will.

Witnesses to be prepared typically include:

• The will witnesses. Each of the two (or three) attesting witnesses can be deposed about what they observed at the signing. Their memories of the formalities, the testator's appearance, and the surrounding events are central.
• The notary. If a self-proving affidavit was notarized, the notary can be deposed.
• The drafting attorney. The attorney who prepared the will is often the most consequential witness. The attorney's contemporaneous notes, drafts, and meeting records become important exhibits.
• The proponent. The named executor seeking to admit the will may be deposed about their interactions with the testator and the will's preparation.
• Other witnesses with relevant knowledge.

Witness preparation is not about coaching false testimony. It is about helping the witness understand the questioning process, recall what they actually remember, and respond clearly to questions. Well-prepared witnesses produce clean records that support the will. Unprepared witnesses can hand the contestants their case.

Building the Record for Capacity

When the contestants challenge testamentary capacity, the defense focuses on building a strong record of the testator's capacity at the time of execution:

• Medical evidence. Physician's notes from the relevant period, mental status examinations, and other clinical records showing capacity. A current letter from the testator's primary physician confirming testamentary capacity is sometimes obtained at the time of execution as defensive evidence.
• Attorney testimony. The drafting attorney's observations of the testator over multiple consultations, the attorney's assessment of the testator's understanding of the will, and the attorney's notes from each meeting.
• Lay witness testimony. Friends, neighbors, religious community members, and others who interacted with the testator can describe their observations of the testator's daily functioning.
• The testator's own activities. Business decisions made by the testator, complex tasks performed, financial transactions handled — all support the proposition that the testator was functioning.
• The will itself. A will that reflects a coherent disposition, deals with all the testator's significant assets, and treats family members in ways consistent with their relationships is evidence of capacity.

Defending Against Undue Influence Claims

Undue influence claims are typically more difficult to defend against than capacity claims because they rely on circumstantial inference. The defense focuses on showing:

• The testator's independence — not isolated, in regular contact with multiple family members, making decisions across multiple areas of life.
• The drafting attorney's independence from the favored beneficiary — not brought in by them, not paid by them, not present during consultations.
• The consistency of the disposition with the testator's long-stated wishes — not a sudden change inconsistent with prior planning.
• The favored beneficiary's legitimate position — someone who had a close relationship with the testator, who provided care or support, or who had other reasons for being favored.
• The absence of suspicious circumstances around the execution — a normal signing in normal conditions, not a deathbed or hospital signing under emotional pressure.

The Strategic Use of Summary Judgment

Once discovery is complete, the proponent should evaluate whether summary judgment is available. Summary judgment asks the court to decide the case based on undisputed facts and the law, without trial. The motion is appropriate when:

• The execution formalities are clearly satisfied.
• The capacity evidence is strong and undisputed.
• The contestants' evidence on undue influence is insufficient as a matter of law.
• The contestants' arguments are based on suspicion rather than evidence.

Granting summary judgment ends the case in the proponent's favor without trial. Even when summary judgment is not granted, the motion forces the contestants to put their cards on the table and often produces a settlement.

Settlement Considerations from the Proponent's Side

The proponent has decisions to make about whether to settle. Considerations:

• The realistic risk of losing at trial.
• The cost of continued litigation versus the cost of settlement.
• The delay involved in continued litigation.
• The impact on the estate's administration and the beneficiaries.
• The emotional cost to family members.

Settlements typically involve reallocation of the estate — the contestants receive some share they would not have received under the will, in exchange for withdrawing the contest. The exact terms depend on the strength of the case on both sides.