Evidence Needed To Contest A Will

The evidence needed to contest a will in New York depends on the grounds raised. In New York, there are different grounds to contest a will: lack of testamentary capacity, undue influence, fraud, improper execution, and forgery.

Evidence needed to contest a will based on lack of testamentary capacity

A testator’s capacity to execute a will is measured by his age (must be over 18) and his capacity to understand the nature and extent of the property he means to dispose, the persons who are the objects of his bounty, and the nature and consequences of executing a will.

There could be complete lack of testamentary capacity (such as a judicially declared incompetent person executing a will) or there could be a disminished capacity (which could lead to undue influence).

For contesting a will based on complete lack of testamentary capacity, the objectant should show that the testator did not understand the nature and consequences of the will, the extent of his property, and his relations with his family members and loved ones. To prove this, evidence must be presented, such as medical records, testimony from doctors or other healthcare professionals who treated the testator, statement from witnesses who observed the testator’s menta state at the time the will was executed, to show that the testator was suffering from a lack of testamentary capacity. Usually, this happens when the testator is in advanced stages of mental illnesses with no more lucid intervals, such as dementia.

Evidence needed to contest a will based on undue influence

Undue influence in the execution of a will occurs when a person exerts pressure upon the testator, causing the testator to make provisions in the will that would have not been otherwise made. In these cases, the testator becomes susceptible to pressure, such as manipulation, coercion, or threats, because of his diminished mental capacity.

To prove undue influence, the objectant must show motive, opportunity, and the actual exercise of undue influence.

First, the person exercising undue influence had the motive. Usually, this is easily proven by the fact that the person exercising undue influence is a substantial beneficiary of the testator’s will.

Second, the person must have had the opportunity to exercise undue influence. This is shown by the person’s proximity to the testator at the time the will was executed, and on the part of the testator, the susceptibility of the testator to undue influence. Thus, proximity can be shown when the beneficiary was beside or near the testator during the period of time the will was executed. Susceptibility of the testator to undue influence can be found in the testator’s medical records which can show if the testator was taking mind-altering medication and/or was dependent upon the influencer for his daily activities. This gives the influencer the opportunity to exercise undue influence.

Lastly, the person must have actually exercised undue influence. The actual exercise of undue influence usually occurs when the person is the one who drafted the will or procures the attorney to draft the testator’s will, gets the witnesses, and is actually beside the testator when the testator signs the will.

The court will consider all these facts, taken together, to see if the will was a product of undue influence. If it was, then the will will be denied probate. If the will is denied probate, an earlier executed will can be offered for probate, or if none, then the estate will be distributed under the state’s intestacy laws.

Evidence needed to contest a will based on fraud

New York case law on fraud as a ground to contest the will is few and far between. Proving fraud can be difficult and challenging, but not impossible. To prove fraud, the objectant must show that the a fraud (such as a lie or deception) regarding a material fact was used upon the testator, that the testator relied on such fraud, lie or deception in making the provisions of his will, and without such fraud, the provisions in the will would have been different.

Evidence that can be presented may include documents and witness testimony regarding the fraudulent statements and the testator’s behavioral and mental state of mind at the time of the execution of the will. Usually, diminished capacity, such as the onset of a mental illness or taking of mind-altering medication, makes the testator more prone or susceptible to fraud.

Evidence needed to contest a will based on improper execution

Under New York law, a will, in order to be valid, must be:

• in writing;
• signed at the end by the testator or by another person in his presence and direction;
• testator’s signing being witnessed by at least two attesting witnesses or shall be acknowledged by the testator to each of the witnesses that he signed the will or the will was signed under his direction;
• testator declares to the witnesses at some time during the execution or attestation that the document he is signing is his will; and
• the two attesting witnesses attest the testator’s signature as affixed or acknowledged in their presence within 30 days of each other.

Aside from above, the testator must also be at least 18 years old when the will was executed.

When the execution is supervised by an attorney, the will carries the presumption that it was properly executed in accordance with New York laws.

New York case law shows that most wills have been set aside on the ground of improper execution when the testator fails to declare to the attesting witnesses that the instrument he is signing is his will. Improper execution can usually be proven with the testimony of the notary and the two witnesses.

Evidence needed to contest a will based on forgery

Forgery occurs when the signature in the will is not the testator’s. Forgery is usually proven by handwriting samples and testimony from handwriting experts and witnesses who have knowledge of the testator’s signature and handwriting. In this case, it usually becomes a battle of which handwriting expert is better. Typically, forgery only works with a self-made will, not with a will drafted by an attorney.

Legal standing

Before even thinking about contesting a will, you must have legal standing. Legal standing to contest a will means that you stand to be financially prejudiced by the admission of the will to probate. Those who have legal standing to contest a will are the intestate distributees (those who will inherit if there was no will) and beneficiaries of prior or later wills who stand to receive more than the existing will being offered for probate. Once the will is admitted to probate, the court confirms that such will is genuine, authentic, and properly executed by the testator.

Burden of proof

The burden of proof in contesting a will is upon the person objecting to the will. However, there may be instances when the burden of proof is reversed, especially when the substantial beneficiary of the estate and proponent of the will had a fiduciary relationship with the decedent. In that case, it is the beneficiary’s burden to prove that no undue influence was used upon the testator in the execution of the will. Examples of fiduciary relationships are: attorneys and agents in a power of attorney.

Amount of evidence

The objectant must prove his case by preponderance of evidence. This is a lower standard than “beyond reasonable doubt” required in criminal cases. Preponderance of evidence is the standard usually used in civil cases, where preponderance is measured with the side that presented a slightly more convincing evidence than the other.

Contesting a will can be a complicated process and requires the expertise of an expert will contest attorney. Should you have doubts regarding the validity of a will, 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 call us at 212-233-1233 or send us an email at [email protected].