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If you think a will is invalid, you may have grounds to contest it. But what evidence do you need to successfully challenge a will in court? Here are some key factors to consider when deciding whether to contest a will and how to build a compelling case.
The most common grounds for contesting a will are lack of testamentary capacity, undue influence, fraud, forgery, or improper execution. To prove these claims, certain types of evidence are typically required:
Proof of Lack of Testamentary Capacity
- Medical and pharmacy records from around the time the will was made showing mental incapacity, such as dementia, delirium, or psychosis, or showing that the deceased was taking mind-altering medication
- Doctor testimony confirming the testator’s diagnosis and mental state
- Statements from people who observed confused behavior or lapses in memory
- Prior wills and trust documents showing inconsistencies
- Other proof of susceptibility to influence due to cognitive decline
Proof of Undue Influence
- Records showing that the influencer was the one who obtained the services of the attorney who drafted the will and was the one who decided who would stand as witnesses to the will
- Attorney draftman’s entire file, attorney notes, drafts, billing records
- Suspicious changes in assets or account access by influencer
- Testimony about testator’s dependency on or isolation made by influencer
- Evidence of the testator’s unbalanced or uncharacteristic disposition
Proof of Fraud
- Proof that testator did not have all relevant information or was misled
- Records indicating that information was concealed
- Evidence of false statements made to the testator
- Accounts of suspicious or dubious claims made to testator
Proof of Forgery
- Handwriting analysis indicating differences in signatures
- Forensics testing of ink, paper, typeface etc.
- Statements about denial of signing the will
- Evidence of testator’s location when signed
Proof of Improper Execution
- Testimony from witnesses that the testator did not declare that the document he was signing was his will
- Testimony that the testator did not sign the document in front of the witnesses
- Testimony that the witnesses did not witness within 30 days from each other
- Inconsistent statements of the witnesses
Securing Evidence Through SCPA 1404 Discovery
To secure the evidence required above, a party can use SCPA § 1404 to request the following:
- Deposition of the nominated executors and the will’s witnesses;
- Production and discovery of relevant documents through the issuance of subpoenas.
The allows a party to gather evidence needed to contest the will, even prior to the filing of objections.
Consulting an attorney can help determine the most relevant evidence for your specific case and ensure you obtain it properly. With the right proof, you may be able to successfully contest a questionable will. Should you need legal representation, we at the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan in New York City. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
