Will Contest Lawyers for Objecting to a Will in New York City

A will contest lawyer can help you navigate the complex process of objecting to a will in an effort to contest the will and set it aside, or to receive a settlement. You need an experienced will contest lawyer if you want to object to the probate of the will and have it set aside. Contesting a will is a complex matter. You need a ground to contest the will and strong evidence to support your ground.

Grounds for Contesting a Will

A will is admitted to probate once the court determines that it is genuine and authentic. To contest a will, you must have a ground to object to the admission of the will. You must prove that the will is not genuine or authentic. The usual grounds for setting aside a will are improper execution, undue influence, lack of capacity, fraud, duress, revocation, and forgery.

Improper execution

A will is improperly executed when state formalities are not observed during execution. In New York, the following must be observed:

1. be signed by the testator (or in their direction in their presence)
2. the signature must be at the end of the will
3. the will has to be signed in the presence of each witness
4. the testator must have communicated to the witnesses that they are witnessing a will
5. two witnesses are required
6. the entire ceremony must have been completed within 30 days of the testator’s signature
7. the witnesses must attest to the testator’s signing of the will

When the will is executed under the supervision of an attorney, there is a presumption that the will is validly executed. For this reason, wills that have been executed under the supervision of an attorney have a less likely chance of being set aside on the ground of improper execution. Those wills executed without the supervision of an attorney are usually most likely to be a subject of settlement between the beneficiaries and the objectant.

When a will is improperly executed, it is a strong ground to set aside the will. The most common ways for a will to be improperly executed are:

• the testator fails to declare to the witnesses that the instrument he is signing is his will
• the witness did not see the testator sign the will and the testator did not acknowledge to the witness that the document he wants the witness to attest is his will.

Undue Influence

Undue influence occurs when a person who stands to be benefit from the execution of a will exerts pressure, coercion, manipulation or improper persuasion upon the testator, influencing the testator to write a will that does not reflect his true intentions.

For undue influence to prosper, the will contest lawyer must show that the beneficiary had motive, the opportunity to exercise undue influence, and actually exercised undue influence.

Motive is shown by the benefit the undue influencer would get from the execution of the will.

There is opportunity to exercise undue influence when:

• the testator’s health is declining health;
• the testator is emotionally or physically dependent on the influencer;
• the testator has been isolated from family and friends;
• the testator has frequent interaction with the influencer;
• the influencer has management and control over the testator’s finances.

Usually, the exercise of actual undue influence occurs when the influencer is directly involved in the preparation of the will by obtaining the services of an attorney familiar with the influencer and securing the witnesses to the will.

Undue influence is more difficult to prove than improper execution because it requires a more subjective evaluation of the facts of the case.

Lack of Capacity

A testator must have the capacity to execute a will. The capacity to execute a will is a lower standard than the capacity to enter into a contract. The capacity to execute a will only requires that the testator have knowledge of what they own, who their relatives and friends are, and what is in their will.

Proving lack of capacity requires a search of the testator’s medical records. Great examples of lack of capacity are:

• when the testator is suffering from dementia or some mental disease at the time the will was executed; or
• when the testator is drinking mind-altering medication at the time the will was executed.

Fraud

There is a fraud when a person provides a false statement to the testator, causing the testator to change his will. Proving fraud in the execution of a will is more rare and difficult. The will contest lawyer must show that the fraudster knowingly made a false statement to the testator; that this false statement was made for the purpose of influencing the testator; and that the testator relied on the false statement, causing the testator to change the contents of his will.

Duress

Duress occurs when person compels the testator to act in a manner contrary to his own wishes or interests. The compulsion illegal threats or intimidation with the use of physical or emotional coercion. This is one of the rare grounds for contesting a will. It is imperative that the duress is continuing because if the duress is gone and the testator does not change his will, courts may assume that the will reflects the true intentions of the testator.

Revocation

A will is revoked by the execution of a subsequent will or codicil, by a physical act of destroying the will, or by operation of law such as the occurrence of a divorce which can revoke certain provisions and dispositions in the will that were made in favor of the spouse. Generally, when the original will cannot be presented, the will is presumed to be revoked. Only under exceptional circumstances can a lost will be admitted to probate.

Forgery

Forgery requires that the signature in the will is not the testator’s. However, when two witnesses testify that the will was signed before them by the testator, forgery becomes difficult to prove.

Based on the above grounds for setting aside a will, the most common grounds used are improper execution and undue influence, lack of capacity, and undue influence. Whether the court will deny the admission of the will to probate will depend on the strength of your evidence. A will contest lawyer will know how to procure this evidence through discovery procedures.

Gathering Evidence to Set Aside a Will

A ground to contest a will is nothing when you do not have the supporting evidence to support the ground. A will contest lawyer will know how to procure this evidence through discovery procedures.

In New York, before formally filing the objections to the will, New York law allows the conduct of SCPA § 1404 examinations at the expense of the estate. SCPA § 1404 allows the examination of the attesting witnesses, the notary, and the proponent of the will. During this period, the will contest lawyer can also utilize discovery procedures such as interrogatories and the subpoena of relevant documents such as medical records and electronic evidence to aid in determining whether sufficient ground exists to move forward with contesting the will.

Settling the Objections

When your evidence is strong to set aside the will, you can go through trial or settle. At times, a motion for summary judgment could set aside a will, but when a genuine issue of fact exists, a motion for summary judgment will not be granted and the issue of fact will be resolved after trial. Settlement is a good option in order to avoid expensive legal fees, both for the estate and the objectant. This ensures that the estate is preserved for the beneficiaries.

An experienced will contest lawyer can help you set aside a will by reviewing the evidence and crafting an effective legal strategy based on the weaknesses of the proponent’s case. Should you need legal representation in setting aside 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].