Will Contests in New York City

To contest a will, it’s not enough to disagree with it. One would have to establish one of the following grounds:

1. Technical Failure. There were technical errors in how the will was made.
2. Pressure and Manipulation. Someone pressured and manipulated the person into making the will.
3. Diminished Mental Capacity. The person suffered from cognitive decline that interfered with his ability to understand the will.
4. Forgery. A fake will.
5. Fraud. The person made the will because someone has been lying to him.

We will explain the basics of each will contest ground, the process of contesting a will, and the process of defending a will.

Technical Failure

If there are technical errors in how a will was made, it may be possible to contest and invalidate it. Having a lawyer argue against a problematic will on narrow procedural grounds can potentially get it thrown out.

The most common technical errors in wills are:

• One or both of the witnesses did not see the person sign.
• The person did not declare to the witnesses that it’s his will.

When talking about technical grounds, we mostly deal with homemade DIY wills, made without an attorney. That’s where people make technical mistakes. If a lawyer was present, we assume that the will was made correctly.

Pressure and Manipulation

It is possible to invalidate a will if someone manipulated or pressured the person making the will. However, “undue influence” can be hard to prove. You would need evidence showing a trusted person in the will-maker’s life took unfair advantage of them.

Typically, this would be someone the will-maker depended on like a caregiver, family member, or advisor. And that person would have pushed for terms of the will that greatly favored them.

Suspicious circumstances can point to undue influence. For example, the beneficiary was involved in making the will. Or the witnesses are the beneficiary’s friends. Or changes that contradict long-standing wishes or go against existing relationships.

Undue influence includes isolating the will-maker from their other friends and family and making them dependent on the person manipulating them.

Documented timelines linking increased control by the influencer followed by shifts of assets in their favor can point to undue influence.

Claims of pressure and manipulation go hand in hand with claims of diminished mental capacity.

Diminished Mental Capacity

A will can be invalidated if the person lacked sound mind and adequate mental capacity when creating or changing it. However, the threshold for mental competency for making a will is relatively low in New York.

Contestants would need to show the testator was not lucid or of rationally disposing mind and memory when making decisions about property distribution in their last will. This could result from cognitive decline due to advanced age, dementia, Alzheimer’s disease, delirium, or temporary intoxication. These factors diminish awareness and understanding needed to thoughtfully consider the terms of the will.

To demonstrate incapacity, contestants can provide health records indicating pronounced, clinically validated mental deterioration. Statements from witnesses close to the aging testator further questioning coherency, recall, and recognition abilities around times when disputed will updates were made can supplement this. Showing irrational or highly out-of-character terms of a will can also evidence a “want of testamentary capacity”.

If credible evidence establishes the testator indeed lacked capacity, the will can be partially or entirely void.

A will contest based on a lack of mental capacity has a higher chance of success when the person who died suffered from a dementia disorder.

• Alzheimer’s 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 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

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 to make decisions. Therefore, the later the stage of dementia, the more likely it is for the will contest to succeed.

As we said before, claims of diminished mental capacity and pressure and manipulation go hand in hand.

Forgery

Will 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.

To prove forgery, you would have to hire an expert. The expert will examine the will and testify in court. The expert will likely focus on the handwriting.

Fraud

Fraudulent activity surrounding the creation, execution, or terms of a will can serve as grounds to potentially invalidate it. Fraud in wills usually involves deliberate deception to gain profit or advantage exploiting lapses in judgment due to cognitive decline.

Now that we’ve discussed will contest grounds, we are going to explain the process of contesting a will and the process of defending a will from a contest.

How to Contest a Will

Contesting a will involves working closely with your attorney to gather evidence of the will contest grounds and presenting the evidence to the court in the most effective manner.

Filing the Objections

To contest a will, you will need to have your attorney file objections to probate of the will. Objections is a document that lists all of the potential problems with the will and asks the court to reject the will.

Your attorney will file the objections with the court. This filing will set your will contest in motion.

As an example, here is a front page of a set of objections we’ve filed for one of our clients:

Do not miss the will contest deadline

Deadline Alert:	Once the court approves the will for probate, it will be too late to contest it. Act before the first hearing in the case.

Get a lawyer

To succeed, you will need a will contest attorney. You should never go into a will 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 will.

How to Defend a Will

Defending the will means establishing that the will was made correctly and the person who made it had the mental capacity to do so. It also involves fighting off allegations of undue influence.

Here are some effective strategies for defending a will:

• Get an attorney right away

  Don’t wait to get an attorney. Waiting too long can cost you the will.

• Listen to your attorney

  Ignore your attorney’s advice at your peril.

• 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 will was drafted.

• Do not tamper with the will

  Any alterations or signs of tampering can cast doubt on the will’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 will’s legitimacy. Any attempt to influence or tamper with their testimonies can jeopardize the will’s defense.

• Do not tamper with any evidence

  Preserving the integrity of all evidence related to the will 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 will 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 will’s defense, especially concerning the testator’s mental capacity or the will’s authenticity.

• Secure witness testimony

  Witnesses to the will’s signing can attest to the testator’s state of mind and the circumstances surrounding the will’s execution. Their testimonies can be pivotal in confirming the will’s legitimacy. But do not tamper with the witnesses.

If you are involved in a will contest, we at the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan in New York City. We cover Manhattan, Brooklyn, Queens, Bronx, Staten Island, Nassau County, Suffolk County and Westchester County. You can contact us by calling 212-233-1233 or sending us an email at [email protected].

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