How to Contest a Will and Win. First the Basics, and then Strategies and Pro Tips.

How to Contest a Will and Win

If you are looking how to contest a will and win, you’re reading the right article. We will discuss the basics of will contests and share some of our winning strategies. Will contests are a time-consuming and costly litigation process that carries risks. For this reason, it is important to get the advice of a will contest lawyer in every step of the process. Every case is unique. But there are some general strategies that can be applied in a number of will contests.

Legal grounds to contest a will and win

The main grounds being used are improper execution, lack of testamentary capacity, undue influence, fraud, and forgery.

Improper Execution

Under EPTL 3-2.1, the will, in order to be valid in New York, should be executed in accordance with the following: (a) must be signed at the end by the testator, or by another person in the name of the testator and under the testator’s presence and direction; (b) must be signed by the testator in the presence of two attesting witnesses or acknowledged by the testator to each of the two attesting witnesses that the signature in the will is his signature; (c) the testator must, at any time during the execution and attestation, declare to the two attesting witnesses that the instrument that he signed is his will; and (d) the two attesting witnesses both attest the testator’s signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence address at the end of the will.

If the will was a do-it-yourself will completed with the help of an internet template and executed without an attorney, there is a good chance your lawyer can contest the will and win. Jurisprudence provides that an attorney draftsman’s presence and supervision of the will’s execution, the attestation clause, and the self-proving affidavit give rise to the presumption of regularity that the will was properly executed in all respects. Matter of Moskoff, 41 AD3d 481 (2007), citing Matter of Tuccio, 38 AD3d 791 (2007), Matter of Weltz, 16 AD3d 428 (2005), Matter of Spinello, 291 AD2d 406 (2002), and Matter of Collins, 60 NY2d 466 (1983). A will is self-proving if it was executed before the notary.

Lack of Testamentary Capacity

Even if the will was executed in accordance with the state’s formalities, one can still contest a will and win if the testator did not have testamentary capacity. Testamentary capacity refers to the testator’s legal and mental capacity to make a will. The testator must be at least 18 years of age and of sound mind. Testamentary capacity is generally presumed, but doubt on the mental capacity of the testator can be provided by medical records. If the testator was old, taking mind-altering pharmaceuticals, and/or suffering from Alzheimer’s, depression, dementia, schizophrenia, and other similar illnesses or disorders, medical records can be obtained under SCPA 1404 prior to filing an objection to contest the will. These medical records can provide indications of, not only the testator’s illnesses but, medications, sedatives, and antipsychotic drugs that the testator was taking at the time he signed the will.

Although this ground alone is difficult to prove, when combined with undue influence, duress, or fraud, the basis to contest the will becomes stronger.

Undue Influence

There is undue influence when a beneficiary of the will exerts improper influence amounting to moral coercion, convincing the testator to leave estate assets to him or her.

In New York, to contest a will and win, you will have to prove the following factors with a preponderance of evidence: (a) motive to influence the testator; (b) opportunity to influence the testator; and (c) actual exercise of undue influence.

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

Susceptibility. The testator had a weakness (physical, mental, or financial) that made them susceptible to influence;
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)
Active participation. The wrongdoer actively participated in drafting the will; and
Unnatural disposition. There is an unnatural (unexpected) result.

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

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

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

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

Although the presence of a close familial relationship might negate a claim for undue influence, it does not rule undue influence, because undue influence can be perpetrated by a relative, friend, caretaker, adviser, or someone in a position of trust to the testator.

In Matter of Paigo, 53 A.D.3d 836 (2008), the Court held that the sister of the decedent exerted undue influence upon decedent based on the following facts: (a) the decedent signed the will after surgery and one day after his release from intensive care; (b) ) the sister was the only person present when the decedent expressed his desires regarding the disposition of his estate; (c) the sister prepared the will; (d) the sister chose the three witnesses; (e) the sister was named executor of the will; (f) the sister was a substantial beneficiary, together with her parents and two other siblings; and (g) the children of the decedent were cut out from the will.

Today, a lot of the will contests revolve around undue influence. Undue influence, raised with the testator’s diminished mental capacity due to old age, illness, mental disorder, intoxication, or presence of antipsychotic drugs, can be a strong ground for contesting the will. One can argue that the testator’s old age, illness, or mental disorder substantially diminished his mental capacity in a way that allowed another person to easily exert undue influence upon him.

Fraud

When a will is procured by fraud, it is denied probate. Fraud can occur in two ways: (a) fraud by way of execution; or (b) fraud by inducement. In fraud by execution, the decedent does not know that the document he is signing is his will. In fraud by inducement, a beneficiary makes substantial misrepresentations to the testator, making the testator change the disposition of his property in a manner different that he would have, if not for that statement. To assert fraud, a false statement must knowingly be made, and the false statement caused the creation of that will or its provision.

For example, there is fraud by way of execution when the testator, who is of old age, was led to believe by his caregiver that the document he was signing was an employment contract, when in reality, it was a will that left his whole estate to his caregiver. An example of fraud in inducement can be as extreme as the sister of the testator telling the testator that the testator’s child died in a car accident, and as a result, the testator left his whole estate in the will to his sister. In the same case between the testator, the testator’s sister, and the testator’s child, the fraud could be as subtle as the testator’s sister telling the testator that the child was committing acts which the testator would find to be disgraceful, such as prostitution, robbery, theft, when in fact, it was not the truth, leading the testator to leave a substantial portion of his estate to his sister, and excluding the child from the will.

Fraud, coupled with an allegation of the testator’s diminished mental capacity, can be a strong ground for contesting a will. The testator’s diminished mental capacity makes it easier for fraud to be committed against him.

Forgery

There is forgery when the signature in the will is neither the signature of the testator nor the signature of a person whom the testator has directed to sign for him in his will. Forgery is proven by handwriting experts who can compare the signature of the testator with the signature in the will. Because forgery can only be proven by experts, it is important to get a the most authoritative expert in the industry.

Evidence needed to win

For the court to find sufficient ground for denial of the will’s admission to the probate, the ground must be supported by evidence. In most states, it’s generally difficult to find evidence to support a ground before actually filing an objection. Discovery procedures to obtain documents and depositions are normally allowed only after filing the objection to contest the will. Fortunately, in New York, SCPA 1404(4) allows the examination, before the filing of an objection to contest the will, of any or all of the attesting witnesses, the person who prepared the will, the nominated executors, the proponents, and any person whose examination the court determines may provide information with respect to the validity of the will and related to the objections to the will.

SCPA 1404 discovery allows potential objectants to gather documents relating to their grounds to contest the will, such as medical records, before even filing an objection. It allows the potential objectant the opportunity to see if he has enough evidence to support an objection. The results of SCPA 1404 will show whether the potential objectant has a strong case and will aid in the negotiation of a compromise and settlement.

Under SCPA 1410, if an examination has been requested under SCPA 1404, the potential objectant generally has 10 days after completion of the examinations to file his objection.

Standing

In New York, standing is defined in SCPA § 1410 as “[a]ny person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will.” This has been interpreted by courts as any person who would suffer pecuniary loss (financial damage) from the admission of the will to probate. “This financial, pecuniary or material interest must be sought to be protected and it must be threatened by the offering of the will for probate.” Matter of Turner, 86 Misc. 2d 132 (1976), citing Matter of O’Keefe, 135 Misc. 394, Matter of Salkind, 11 Misc. 2d 826, Matter of Bahrenburg, 200 Misc. 959.

Based on this definition, there are only three types of persons with standing to contest a will: the distributee, the beneficiary in a previous will, and the beneficiary in a later will.

The first person with standing is the distributee (heirs at law) who would inherit from the deceased if the deceased did not have a will. This assumes that there is no prior will than the will being offered, and that in the absence of such will, the property would be distributed under intestacy laws. The distributee should have been either completely excluded from the will, or, if included in the will, should have received more as a distributee than what was given in the will. If the distributee received more in the will that his share under intestacy laws, the distributee would have no standing.

For example, a child is a distributee of a parent. Under EPTL 4-1.1, if the parent died leaving no spouse but a child, the child would receive everything. Thus, if the parent died with a will that left everything to a friend and completely excluded the child, the child would have standing to contest the will. If the parent died with a will, leaving ½ of his estate to the child and ½ of his estate to a friend, the child would still have standing to contest the will because under EPTL 4-1.1, if the will would not be admitted to probate, the child would receive everything. Now, if the decedent died with two children and no spouse with a $100,000 net estate and there was no will, Child A and Child B would share the estate equally as distributees, receiving $50,000 each. If the decedent left a will, leaving Child A with $50,000, Child B with $25,000, and Friend X with $25,000, Child A does not have standing to contest the will because he received the same amount in the will as he would if the will was not admitted to probate. Child B, however, has standing to contest the will because he would be financially damaged. Child B would have received $50,000 if the will was not admitted to probate, as opposed to the $25,000 under the will.

The second type of person with standing to contest the will is a beneficiary in a prior will. If the decedent executed two wills and in the first will, decedent gave $25,000 to Friend A, and in the later second will that is being offered for admission to probate, decedent did not give anything or gave an amount lower than $25,000 to Friend A, Friend A has standing to contest the will.

The third type of person with standing to contest the will is a beneficiary in a later will. If the decedent executed two wills, and in the first will, decedent gave $10,000 to Friend A, and in the later second will, decedent gave $25,000 to Friend A, and the will being offered for admission to probate is the first will, Friend A has standing to contest the will because there is a second will that reflects the testator’s latest intent and Friend A would have received an amount higher in the second will than in the first will, and thus, there was financial damage.

Once the court decides this preliminary issue of standing, then the court can proceed to determine whether there is sufficient ground to deny the admission of the will for probate.

More on how to win a will contest

Given these grounds for invalidating and contesting a will, the best way to ensure you will win a will contest is to get the best estate litigation lawyer – someone with experience who can guide you through the process.

Winning a will contest is not just about actually going through trial and securing a favorable judgment. Getting a good financial settlement as a result of mediation can also be considered winning a will contest. The results of the discovery procedures under SCPA 1404 will show the lawyer the strengths and weaknesses of one’s case – whether it would be wise to pursue the will contest or enter into mediation. Will contests are not cheap and can be time-consuming, ranging from several months to years. One must weigh the financial costs and emotional strain of pursuing a will contest, and whether these legal costs would be less than what one would have received from the estate. Sometimes, it’s better to just let go.

A good estate litigation lawyer knows how to contest a will and win. If evidence is strong and the case is winnable, and will tell you to stop or mediate, if the case is weak. If you are considering a will contest or you are an executor who will defend a will 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 call us at 212-233-1233 or send us an email at [email protected].