If you are looking for a law firm to handle your will contest, look no further than the Law Offices of Albert Goodwin. We have a record of success in both contesting and defending wills. You can send us an email at email@example.com or give us a call at 718-509-9774 to find out more about how we at Goodwin can make our record of winning work for you.
Contest a Will
If you suspect that a will is defective, we can represent you in contesting it. Our fee for this service is based on an hourly basis, at $400 per hour, and we will require a retainer deposit in the amount of $4,000. In the will contest process, we will provide the following services:
- Find out the first hearing date and arrange to appear at the hearing
- Analyze your case and put together an initial strategy
- Review the purported will
- Review the petition for probate
- Review the Citation or Notice of Probate
- Open up a line of communication with the opposing counsel
- Request a copy of the attorney draftsman’s file
- Schedule depositions of the attorney-draftsman and attesting witnesses
- Schedule depositions of the person who is trying to probate the will
- Request copies of medical records from the providers
- Draft objections to the will and file with the court
- Appear at court hearings
- Research case law
- Select a jury
- Conduct settlement discussions
- Conduct trial if necessary
In will contests, our results speak for themselves:
$2 Million Settlement. We used an elective share to go around the will. The executor who is the son of the deceased from the first marriage claimed that any money he received from his father is not a part of the estate and that the father’s widow is not entitled to the funds. We utilized the law that any money transferred within a year before death is a part of the augmented estate for the purposes of calculating the elective share, and agreed on a $2 million settlement for the widow.
Defend Against a Will Contest
If someone is contesting a will and you as the executor need to defend it, look no further than Goodwin for the best defense. Our record speaks for itself. Our fee is based on an hourly basis, at $400 per hour, and we will require a retainer deposit in the amount of $4,000. In will contest defense, we will provide the following services:
- Draft petition for probate and the required notices, citations, affidavits and certifications
- Appear at hearings
- Handle communication with the objectants’ attorneys
- Defend depositions of attesting witnesses and attorney-draftsman
- Defend discovery request
- Make sure that the information that the objectants obtain stays within the relevance and “3/2” rules
- Conduct settlement discussions if reasonable
- Conduct a trial if necessary
In will contest defense, our results speak for themselves as well.
INFORMATION ABOUT CONTESTING A WILL
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, you can get in touch with me personally. I can be reached at firstname.lastname@example.org or at 718-509-8774.
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. The person who died was not well enough to make a will
Mental Incapacity – To show mental incapacity to make a will, 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.
Dementia Disorders – When contesting a will based on lack of mental capacity, you have a higher chance of success when the person who made the will 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 a person’s 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 for a person to make decisions. Therefore, the later the stage of Dementia, the more likely it is for the will challenge to succeed.
Mental Illness – Mental illness in and of itself does not mean that the decedent lacks capacity. In order to be successful in contesting a will, the objectant to the will is going to have to show how the 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 will-maker 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 paranoia patients can make it easier to manipulate and “triangulate” them into excluding some people from their will.
- Bipolar – Bipolar patients experience mood swings. People who manipulate those patients can exploit those mood swings in order to get the patient to change their Will.
- Schizophrenia – Schizophrenia patients experience delusions and distorted reality. People who benefit from their will can take advantage of those mental deficiencies in order to manipulate the patient into making a will bequest. More about schizophrenia here.
Personality Disorders – personality disorders do not automatically mean that the decedent lacked capacity. But they can still make a big difference in contesting a will. For example, if the person who made the will had a “Cluster C” Dependent Personality Disorder, that person can be vulnerable to having “well-wishers” unduly influence them into making a will. When using personality disorders as a factor in challenging the will, 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 decedents who were in such a weak physical state that it can be said that their physical state adversely influenced their mental capacity.
Mind-Altering Pharmaceuticals – The fact that the decedent was taking potent mind-altering pharmaceuticals during the will execution can play a difference. When the decedent is in an altered state, they can have a significantly reduced capacity in understanding the facts of daily life, including the factors involved in making a will. Sedatives, antipsychotic and pain medications can push a person’s mental state over the edge of capacity.
“Drifting in and Out” and “Lucid Moments” – Some people, as they get older, may drift in and out, sometimes lucid and sometimes not. If you are contesting a will, you will try to win by showing that the decedent was never lucid at all, or was only lucid on rare occasions and the time of the making of the will was not one of those occasions. Those defending the will are going to say that the time of will execution was a “lucid moment.”
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 that since a person has no mental capacity, it doesn’t “return” to them on some occasions. However, at this time, New York courts still consider “lucid moments,” so this is an important factor to consider in New York will challenges.
2. Beneficiaries manipulated the person who died into making the will
Duress – On rare occasions, we see cases where someone forced or coerced the person who died into making the will. Read more about duress.
3. The will is a forgery
How People Forge Wills – To win based on forgery in New York, a will contestant needs to prove that someone forged the signature on a will, by either writing the signature themselves and saying that the person who died is the author, importing the signature from another document, or manipulating the text in some other way (by manipulating, we mean replacing the pages or changing the text).
Handwriting Expert – We win forgery will contests by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert would compare the handwriting on the will and would say 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.
4. The beneficiaries obtained the will by lying
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 testator (maker of the will) unknowingly sign it.
Fraud in the Inducement – Another type of fraud is misleading the testator about circumstances outside of the will. The will-maker can be fed misinformation about friends and relatives or about other circumstances in their lives.
Unscrupulous individuals, especially psychopaths with narcissistic personalities, are very 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 made correctly
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, 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 needs 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 testator’s signature
The people involved have to follow New York execution formalities. Problems come up with wills when the person does 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.
In the modern world where there is little place for ceremony, it is interesting to see how ceremony, procedure and something remarkably close to tradition or etiquette can make or break a legal document of utmost importance.
A person who made a will can revoke that will. All they would have to do would be to physically destroy the will or cross out their signature.
If no one can find the will, we presume that the person who made the will revoked it, unless someone proves otherwise.
The person who made the will can also revoke it by making a new Will. If the decedent made another will, and he made that other will after the one you are challenging, the later will wins. If the later will is overturned, then you would either try to challenge the will before that one or leave it in place, depending on the older Will’s impact on your share of the inheritance.
We can combine reasons (grounds) for a contesting a will
When It Rains, it Pours – When contesting a will, rarely would you initially present a Will challenge with only one ground. In fact, in the beginning stages of a contesting a will, we often plead every possible ground for a New York will challenge, hoping that we find one that sticks at later stages of the case. This strategy is called “alternative pleading.” If it looks like the decedent was not well enough to make a will, we would say that he was vulnerable to being misinformed or pressured to make a Will, due to his diminished mental state. We will also point out that whoever made the will did it in a hurry. There is less of a chance that whoever made the will had the time to evaluate the person who made it and did not have enough time to conduct the execution ceremony with all the required formalities.
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, 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 a court-supervised examination of those involved before deciding whether it is worth your while to invest in a full-blown will contest.
We settle most many contests before trial. If a settlement is not possible, the sides exchange documents and information and ultimately proceed to trial, where the judge or the jury decides whether the will is valid or should be overturned.
Remedies for a Defective Will – When your lawyer is contesting a will, the court will decide at a trial whether the will is valid. The executor is not permitted to distribute the estate until the trial ends. 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 will is admitted to probate, it will be too late to challenge it. Act before the first hearing in the case.|
When it comes to making wills, unscrupulous people can take advantage of vulnerable individuals. Unscrupulous 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.
On the flip side, it does happen that people are wrongly accused of influencing a will-maker. Sometimes a will-maker wants to make a will a certain way on their own volition. This is why we have the court system and the New York attorneys. We practice will contests before the court every day. We strive to resolve those disagreements and let loved ones move on with their lives.
I have been contesting wills for more than a decade. If you are involved in one and are wondering how to contest a Will, give me a call. I will be happy to talk to you about it. My name is Albert Goodwin and you can call me at (718) 509-9774 or send me an email.
INFORMATION ABOUT DEFENDING A WILL
To successfully defend a Will contest in New York, one needs to go beyond the basic law. It is crucial to look at the extent of the relationship between the decedent and the people making the will contest, argue whether there was a confidential relationship between the will-maker and executor and argue the decedent’s medical record.
Relationship between the decedent and the objectants to the will
Typically, if a person is cut out of a will, they either (1) had a bad relationship with the decedent or (2) had little or no relationship with the decedent. Distributees’ motivations in contesting the will are clear from the start – they will try to throw everything at the will and see what sticks.
The very few cases where the person cut out of the will had a good relationship with the decedent are more difficult to defend and are more prone to settlement, but still have a very high success rate in being defended, as the Courts are mindful of testators having independence and the right to set up their estate any way they see fit. The objectants would still have to go through the process of trying to prove insufficient mental capacity or to prove that the decedent was coerced into making a will, which requires proof that is difficult to get.
The two arguments objectants usually make are that the decedent did not have the mental capacity required to make will or was coerced into making a will.
Being a caretaker is scrutinized, but defendable
Executors often think that helping the decedent will score them points in court when trying to defend a will against a contest. The truth is more complicated. Being close to the decedent is a positive factor for an executor in a New York will contest, but being a caretaker for the decedent is a negative factor.
If the people who the decedent left assets to were the decedent’s caretakers, then they would have to explain to the court how is it that they received the estates and the objectants did not. Many times this explanation is relatively simple – if the objectants did not have a good relationship with the decedent, and it can be proven, then the reason for cutting them out will be evident.
Helping the decedent with the will is not great, but defendable
Any help by the executors or beneficiaries in procuring the will is considered a negative factor for the proponents of the will and a plus for the objectants. Arranging the appointment with the estate attorney and driving the decedent to the attorney’s office are considered bad. Being in the room with the decedent during the appointment with the estate attorney is even worse. While in New York, helping the decedent with the will is not a major factor like it is in some other states, it is still considered a negative.
Mental capacity is mostly a battle over medical records
To challenge the decedent’s mental capacity, the objectants will obtain the decedent’s medical records and will try to use them to show that the decedent did not have the capacity.
Clean record – Sometimes all the medical records that the objectants were able to get are all clean, with the decedent having excellent capacity. That usually closes the case. The objectants can try to continue the case, but this kind of case is so weak that it often goes away with a Motion to Dismiss.
Inconclusive record – in many cases, the decedent’s medical record is inconclusive and it’s really up to the respective parties’ estate attorneys and medical experts to show the court whether or not the decedent had the capacity to make a will. The law presumes capacity, so the absence of capacity must be proved. Even if the decedent had diminished capacity some of the time, it is still possible for them to have lucid times when they did have the capacity to make a will. Testimony from the attorney who drafted the will is helpful to see just how the decedent did on the day of the will execution ceremony.
Not so great record – In some cases, the medical records point strongly to the decedent’s incapacity. For example, when the decedent is diagnosed with late-stage Alzheimers. Or the decedent is on very strong medication, making them delusional. This is when cases get very contested and it may be time to consider a reasonable settlement. Even if a Will made under less than perfect circumstances, it is still a legal document and lack of capacity must be proven for an NY will contest to succeed.
Coercion or pressure to make a will is hard to prove
Undue influence or duress is almost impossible to prove because even if, theoretically, it were to happen, there would be no one there to witness it. The objectants to the will were certainly not there. They cannot say that the decedent told them so because the words of the decedent are not acceptable as evidence in a New York estate due to the evidentiary rule called the “Dead Man’s Statute.” This is even beside the point that anything they would claim the decedent said would probably not be admissible due to it being hearsay. An attempt to claim undue influence or similar coercion ultimately brings us back to the mental capacity issue and medical records.
New York has strong executor protections and a strong presumption of validity of wills
New York has estate laws that are relatively favorable to executors and beneficiaries of contested wills. There is no burden of proof reversal when a beneficiary is a caretaker of the decedent, although there can be a rebuttable inference. If an objectant wishes to contest a will in New York, they would have to go through us first, and we are very good at what we do.
I have been defending wills for more than a decade. If you are involved in one and are wondering how to contest a will, give me a call. I will be happy to talk to you about it. My name is Albert Goodwin and you can call me at (718) 509-9774 or send me an email.