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:
The objections would typically state all the possible grounds for your will contest. The typical grounds to contest a will in New York and most other states are as follows:
- Lack of mental capacity
- Undue influence
- The will was not made correctly
While listing the basic grounds is simple, proving them in a court of law is complicated and should be left to an experienced estate attorney. So before we go further, I would just like to let you know that if you find yourself in a situation where you are figuring out how to contest a will, it’s better that you speak with an attorney. You can send us an email at email@example.com or call us at 718-509-9774.
How we handle typical will contest scenarios
Where the will was made by an attorney, that attorney would typically testify that he made the will at the request of the person whose name is on it and the witnesses will testify that they saw the person sign the will and declare it to be their last will and testament. After that, the will contest will focus on mental capacity and undue influence.
Where the will was made without an attorney, there is no attorney to testify that the will was made correctly, so the will contest will also deal with possible issues of the will not made correctly and not signed correctly.
Where the will has problems with the attorney or witnesses, the will contest will also focus on forgery. The problems with attorney or witnesses can be as follows:
- they have a connection to the person benefitting from the will
- are no longer living, or
- are sketchy or suspicious (you’ll know if when you see it)
Those were the three basic layout of most will contests. We are now going to go into each will contest ground with more detail.
1. Undue influence
In will contest parlance, pressure to make a will is called duress and manipulation of the person who died is called undue influence.
While undue influence most often is not the subject of direct proof, it may be proved by circumstantial evidence. It can be shown by all the facts and circumstances surrounding the person who died, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person.
Duress – To prove duress, you would have to show force and coercion. Duress is the use of force, false imprisonment, or threats to compel the person who died to make the will a certain way. Duress usually comes hand in hand with other elder abuse. The abuser uses violence or the threat of violence to get a person who died to change his or her will in the abuser’s favor.
This confidential relationship power-up does not work well when the beneficiary of the will is a relative. It only works well when the person benefitting from the will is a caretaker or a different professional helping the person who died.
2. No mental capacity to make a will
To prove a will contest based on lack of mental capacity, you would have to prove that the person who died was so out of it that they did not know what they were doing. To contest a will based on this ground, we would typically have to show that the person had some kind of serious problem with their brain function which prevented them from understanding what is going on with the will.
Legally, to show mental incapacity, we need to prove that the person who died did not understand one or more of the following:
- what they own
- who their relatives and friends are
- what is in their will.
To show what was wrong with the person who died that they did not have the mental capacity, we would typically have to prove one or more of the things below.
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 – this 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
- Dementia due to head injuries
- Dementia due to HIV or medications
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.
Mental illness in and of itself does not mean that the decedent lacks capacity. For a will contest to work, you will need to prove that mental illness played a role in the making of the will. Some examples of mental illness that can impact the capacity to make a will are:
- Depression – The person who signed the will feels hopeless and passive and does not care what happens to their estate. The elderly often suffer from depression towards the ends of their lives. Family conflicts relating to inheritance only exacerbate their depression.
- Paranoia – The pervasive distrust of people with paranoia can make it easier to manipulate and “triangulate” them into excluding some people from their will.
- Bipolar – People suffering from bipolar disorder experience mood swings from extreme highs (mania) to extreme lows (depression). Caretakers, relatives and acquaintances can exploit those mood swings to get a person to favor them in their will.
- Schizophrenia – People with schizophrenia experience delusions and distorted reality. Caretakers, relatives and acquaintances can take advantage of those mental deficiencies in order to manipulate the person into making a will bequest.
Personality disorders are not indicative of a lack of capacity. But they can still make some difference in a New York will contest. For example, if the person who died had a “Cluster C” Dependent Personality Disorder, then they can be vulnerable to undue influence. We look to symptoms such as
- excessive dependence on others
- submissive behavior
- fear to have to provide self-care
- difficulty disagreeing with others and
- tolerance of poor or abusive treatment
Weak physical state – We challenge wills of decedents whose weak physical state adversely influenced their mental capacity.
Mind-altering pharmaceuticals – If the person who died was taking mind-altering pharmaceuticals during the will execution, then his capacity to execute a will could be diminished. Sedatives, antipsychotics, and pain medications can push a mental state over the edge of capacity.
Drifting in and out and lucid moments – Older people may drift in and out, sometimes lucid and sometimes not. If you are contesting the will, you will need to show that the decedent was not having any lucid moment. An attorney who made the will may testify that the person who died had a lucid moment when he executed the will.
Some will contest lawyers and medical professionals hold the view that the lucid moment concept is out of date with the modern understanding of mental capacity. Their view is once the person who died lost mental capacity, he does not get it back. However, at this time, our courts still consider lucid moments, so this is an important factor to consider in New York will challenges.
Different forensic and analytical tests will be used to asses the mental capacity of the person who died. The decedent might have been administered a Mini-Mental Exam or the Clock Test while they were still alive. After their death, we can no longer give them a test. But we can still use models of mental capacity such as PARADISE – 2 to argue that the decedent had impaired brain function at the time of the events in question.
How people commit will forgery – A 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.
Working with a handwriting expert – We win forgery-based will contests by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert compares the handwriting on the will and testifies that it’s not a close enough match. The handwriting expert would also determine if the handwriting on the will belongs to someone else, such as the person benefiting from the will.
Fraud in factum – One type of fraud is misleading the decedent about the will itself. Beneficiaries slip a will under a guise of a different document or mischaracterize what is in the will and have the person who died unknowingly sign it.
Fraud in the inducement – Another type of fraud is misleading the person who died about circumstances outside of the will. They can be fed misinformation about friends and relatives or other things in their lives.
Psychopaths with narcissistic personalities are good at using manipulative tactics. Their favored ways of manipulating vulnerable seniors are
- triangulating – encouraging the victim’s negative thoughts about a close person and
- gaslighting – providing a false view of reality to the victim
Opportunistic charlatans use those techniques to manipulate trusting older adults into leaving them an unfair share of the inheritance at the expense of the vulnerable person’s family and true wishes.
5. The will was not written, signed, witnessed or declared correctly
Do you remember when we were able to fight traffic tickets because of mistakes in writing them or the way they were set up? We’d have our lawyer dismiss the ticket on technical grounds. Well, that’s still sometimes possible in will contests.
For a will to be valid, the people involved in the will execution need to follow New York’s formal requirements. If they did not correctly execute the will, we could successfully contest that will, leading to the will being overturned and invalidated by the Surrogate’s Court. In figuring out how to contest a will in NY, you will need to be familiar with the formal requirements of will execution.
The will need to meet the formal requirements, which are as follows:
- The person making the will has to sign the will (or direct someone else to sign their will in their presence)
- The person making the will has to sign at the end of the will, not in the middle of it.
- There need to be two witnesses to the will
- The person making the will has to sign the will in the presence of each witness
- The person making the will must communicate to the witnesses that they are witnessing a will
- everyone has to complete the entire ceremony within 30 days of the will signer’s signature
The people involved have to follow New York execution formalities. Problems can creep up, such as when the potential will-maker did not declare the document to be their will, or the witnesses are not there or not fully there. We can use those “hiccups” to litigate a successful will challenge in New York.
There is little place left for ceremony in the modern world. A will execution is one of the few exceptions, and it needs to be followed precisely in order for a will to be valid.
A person who signed the will can revoke a will by destroying it or crossing out the signature.
If no one can find the will, we presume that the person who signed the will revoked the will, unless someone proves otherwise.
A person who signed the will can revoke a will by making a new one. The latest will always controls, unless overturned, in which case we revert to the will before that.
When It Rains, it Pours – When figuring out how to contest a will in NY, we often plead every possible ground for a New York will challenge, hoping that we find one that sticks. If the decedent was not well enough to make a will, then he was probably vulnerable to being misinformed or pressured to make a Will.
It is true that in some will contest situations, an opportunity for a win can be spotted early on in the case. We can then proceed with a laser-sharp focus on a single issue. However, the most common strategy is still to plead every possible Will contest ground and see which one of them turns out to be more successful.
If you are involved in contesting a will in NY, contact an estate attorney. You will describe the circumstances of the making of the will and air out the case. An estate attorney can determine whether the proposed objections have merit. Estate attorneys usually request court-supervised depositions of the people involved before deciding whether it is worth your while to invest in a full-blown will contest.
We try to settle will contests before trial. If a settlement is not possible, then the sides will proceed to exchange more documents and information, and ultimately progress to trial. The judge or the will jury decide whether the will is valid.
Remedies for a Defective Will
When your lawyer is contesting a will in NY, the court will decide at a trial whether the will is valid. The executor is not permitted to distribute the estate until after the trial. If the court finds the will to be invalid, the court will do one or more of the following:
- Not admit the will
- Admit only a portion of the will
- Admit an earlier will in its place
- Not admit any of the wills, and distribute assets among the decedent’s relatives as if there was no will.
|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.|
When it comes to making wills, people can take advantage of vulnerable individuals. Relatives, caretakers and so-called “friends” with ulterior motives prey on people who are physically disabled, cognitively impaired, isolated, confused and depressed. A victim of will fraud often loves, relies on, and fully trusts the person who misleads them. If you believe that someone took advantage of your loved one, you may be able to overturn their so-called “will.” This is done with the help of a lawyer through a will contest in New York Surrogate’s Court.
A will is presumed to be valid unless proven otherwise. If a person who signed the will wants to set up their will a certain way, it’s their business. In New York, you can disinherit your relatives if you wish to do so.
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.
Attorney Albert Goodwin has been litigating New York will contests for over a decade. We at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.
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