Losing a parent is already difficult. But it becomes more painful when you realize that your father left you nothing in his will. Should you contest your father’s will? It depends on the circumstances.
As an estate litigation lawyer, knowing when and when not to contest your father’s will is important because legal expenses in will contests can be very expensive. You need to know the chances of your case being successful or not. Most of the time, it is difficult to prove that some wrong was committed that would result to the denial of the will to probate. However, there are times when contesting the will may prove to be fruitful.
Sometimes, in will contests, when you have a strong case, the other party (the executors and the beneficiaries) will decide to settle instead of dragging out the case for a long time. The other parties know that dragging out a case will deplete everyone’s funds, including that of the estate which pays for the defense in the will contest. For this reason, having a strong case to contest your father’s will is an important consideration in deciding whether to continue litigating your claim.
In New York, SCPA 1404 probe will allow you to discover information from documents and witnesses regarding the execution of the will. This discovery procedure will allow you to know whether or not you have a strong case for actually contesting the will.
What is a strong case for contesting the will? A strong case would be sufficient evidence to prove that your father was unduly influenced by the beneficiary into making that will, your father lacked testamentary capacity at that time to execute the will, your father did not observe the proper state formalities in executing the will, your father was forced or constrained to execute the will, or the beneficiary used fraud to deceive your father into executing the will.
The good news about SCPA 1404 probe is that the cost for witness deposition and document discovery is borne by the estate. You will still, however, bear the cost for your own legal expenses, unless you ultimately prove that the will should be denied probate. In that case, you can be reimbursed your legal expenses because you did the estate a favor by ensuring that an unauthentic will was not admitted to probate.
When you try to obtain documents and witness depositions regarding the execution of your father’s will, you are limited to a time period between three years prior to the execution of the will and two years after or until your father’s date of death, whichever is shorter. This is known as the 3/2 rule.
For example, if your father executed his will on September 2018, you are limited to discovering documents executed and asking the witnesses things that transpired between September 2015 until August 2020 or until date of your father’s death, if your father died earlier than August 2020. So if your father transferred property to your sister on August 2015, you will not be able to discover this document under SCPA 1404 probe because it is outside the time limitation of the 3/2 rule.
Examples of documents you can discover under SCPA 1404 probe are the following documents within the 3/2 rule: medical records, pharmacy records, gift tax records, decedent’s address book, photographs, attorney’s file and notes taken during the drafting of the will, billing records, estate tax returns, and other similar and relevant documents.
You are limited to examining the following persons in SCPA 1404 probe, at the cost of the estate: (a) the witnesses; (b) the person who drafted the will; (c) the nominated executor; and (d) any other person with substantial and relevant knowledge subject to the issuance of a court order.
During deposition, we try to figure out whether it was indeed the testator (which in this case would be your father) who really executed the will. We ask questions regarding the drafting of the will: who contacted the attorney regarding the execution of a will, to whom did the attorney send the drafts of the will, how were changes made to the drafts, who paid for the attorney, whether the testator was with someone else when he met with the attorney to discuss his will, whether the procedure appeared to be hurried, how fast was the will executed from the time of the first meeting. For the witnesses, we ask specific questions about execution: what the testator was wearing, where everyone was seated, what was said during the execution, when and where did the testator and the witnesses sign, who was present in the room during signing. This will allow us to discover whether all the elements of due execution have been observed.
If your father left you nothing in his will, here are the things to look out for to see whether you have a strong case in contesting the will:
If the will was drafted and its execution was supervised by an attorney, New York law presumes that the will was executed regularly. An attorney with expertise in wills will ensure that the will is drafted with a correct attestation clause and a self-proving affidavit. This strengthens the presumption that the will was executed regularly and that the testator had testamentary capacity. Although you can overturn this presumption, it is more difficult. Usually, in cases where an attorney did not draft or supervise the execution of the will, there is a stronger likelihood that the executor and the beneficiaries will settle instead of dragging out the will contest.
An attestation clause serves as prima facie evidence that that will was duly executed. To overcome this, you must submit conflicting proof that there was no due execution. Under New York law, the attesting witnesses must state that the testator’s signature was affixed or acknowledged in their presence, and that they signed as witnesses at the request of the testator.
The self-proving affidavit can be submitted in lieu of the witnesses’ live testimony and provides prima facie showing of the testator’s testamentary capacity. If there is an attestation clause but no self-proving affidavit, the witnesses must submit their testimonies to court regarding the execution of the will and the testator’s competency to execute a will. If there is a self-proving affidavit, as described in SCPA § 1406, the witnesses do not need to appear before the court anymore to testify as to the execution of the will. An attorney with expertise in drafting wills will ensure that a will is executed together with an attestation clause and a self-proving affidavit.
If there is no self-proving affidavit, the will has usually not been drafted or its execution has not been supervised by an attorney. In this case, the proponent-nominated executor has the burden of proving that the will was executed. In order not to drag out the case and incur more legal expenses, parties will usually settle.
During SCPA § 1404 probe, you will be able to discover the medical records of the testator at the time the will was executed. Here, you will know whether you have grounds for claiming that the testator could have been easily and unduly influenced because of his medical weaknesses.
If a confidential relationship exists between the beneficiary and the testator (for example, the beneficiary is the testator’s attorney, financial advisor, accountant, doctor, nurse, clergy, nursing home director, the burden is reversed. It becomes the primary beneficiary’s burden to prove that the will was duly executed without undue influence.
These are some things to look out for when deciding if there are grounds to contest your father’s will, especially if your father left you with nothing. Although the above list is not exclusive, it gives you an idea on whether you can have a strong case for contesting the will. Some of this information, you will know at the onset, while some will be known after discovery in the SCPA § 1404 probe. A lawyer will be able to help you analyze whether you have a strong case or not.
Should you need assistance in contesting 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].