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Will Contests In New York

A person with an interest in the estate that would be jeopardized by the admission of the will to probate can object to the petition for probate. For example, a distributee who receives nothing or less than what he or she would have gotten under the laws of intestacy can file an objection and contest a will. They can do so even if the will contains a no-contest clause that causes the beneficiary to lose his request to his objection. The procedure involves filing the objections in court, paying the appropriate filing fee and serving copies of the objections to all persons who have appeared in the matter. Objections must be filed on or before the return date of process unless the party stipulates another date, the court award orders another date, or SCPA 1404 examinations are conducted, in which case the objections must be filed within 10 days of the 1404 examinations having been completed. However, the court generally has discretion to extend the time for filing objections.

The contestant’s burden of proof, undue influence and fraud and undue influence and coercion constitute grounds for denial of probate. The objectant has the burden of proof on these issues. Undue influence is a question of fact. Influence is considered undue if it amounts to true moral coercion that destroys the testator’s ability to act independently. When undue influence is exerted, the testator acts contrary to his own wishes because he cannot refuse or is too weak to resist. Undue influence is a systematic working away at the testator’s mind. It can be in the form of force, flattery, threats, appeals to his prejudices or plays on his emotions. Exercising some control over the testator’s activities, giving advice or trying to persuade the testator may also constitute influence, but would not be considered undue influence unless the testator’s free will was overcome.

Unless the contestant can produce substantial evidence that is inconsistent with the finding that the testator’s will reflected his real wishes, the court should not permit the issue to go through a jury. Undue influence can be proved by circumstantial evidence, but it must be of a substantial nature. Objections have made out a prima facie case of undue influence by showing that the influencer was a beneficiary under the will, that he participated in the preparation or the execution of the will and that he exercised influence on the testator. It is not sufficient to show that the influencer had an opportunity to exert undue influence and had the motive to do so without some other evidence of the actual influence. That is because undue influence is a question of fact, and the court will consider all the circumstances.

More specifically, the circumstances that the court will consider include the following : the relationship between the testator and the influencer, the opportunity for exerting the influence, the testator’s relationships with the natural objects of his bounty (which means his family), his physical, mental and emotional condition, the role of independent counsel in drafting and executing the will, the will provisions themselves, the existence and provisions of former wills, the testator’s contact with his family or other loved ones, his knowledge of what is in his will and the natural attributes of the will’s provisions, the size of the bequest for the influencer, the whereabouts of the influencer during the will execution, the testator’s dependence on the influencer, and prior judgment against the influencer on undue influence against other testators.

What Constitutes Fraud And How Is It Established?

Fraud is a fourth ground for objections to probate. In order to prove fraud, the contestant must show by clear and convincing evidence that a false statement was made to the testator that induced him to make a will disposition of his property. The fraud must induce the will in order to invalidate it. For example, if the decedent had a dispute with his child and ordered the child out of the house, a subsequent malicious lie about the child would be irrelevant if it did not cause the disinheritance.

Similarly, if the decedent left money to the woman he thought he was married to for 50 years, while in reality she had defrauded him into marrying her (by failing to have dissolved her prior marriage), then it might be said that fraud induced the marriage. However, the years of faithful marriage probably induced the bequest, so the fraud should not invalidate the bequest. On the other hand, if the spouse defrauded the testator into marriage in order to get the bequest, then that would invalidate the will.

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New York Attorney Michael Camporeale

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