Will Contests

Section 1410 of the Surrogate’s Court Procedure’s Act provides that: “Any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof…” This is commonly known as “contesting” the will. A will is generally contested upon one of four grounds: invalid execution, fraud, lack of testamentary capacity, or undue influence. Lack of testamentary capacity and undue influence are the most common grounds for contesting a will.

1. Undue Influence.

1.1. The purpose of the doctrine of undue influence is to protect the free will of the testator, and invalidate a will that does not reflect the intent of the decedent, but reflects the coercion of the “influencer” on the decedent. It is a subtle concept, and often difficult to prove. The influencer rarely acts in the presence of other witnesses and therefore undue influence often must be proved by circumstantial evidence.

1.2. In general, an objectant to a will alleging undue influence must establish that an individual:

1. had the motive to exercise undue influence,

2. had the opportunity to exercise undue influence, and

3. actually exercised undue influence over the testator.

1.3. Although the burden of proof on the issue of undue influence remains on the objectant, if the objectant is able to establish that there was a confidential relationship between the testator and the beneficiary, the burden is then placed on the beneficiary to explain the circumstances of the bequest by reason other than his influence.

1.4. These issues are fact-sensitive and will vary from case to case. Factors to be considered include, but are not limited to, provisions of the will, credibility of witnesses, whether the attorney draftsman was the attorney of the decedent or the alleged influencer, family relations, the decedent’s medical history, the decedent’s physical and mental condition at the time of the execution of the will, if there was an alteration of a prior testamentary plan, and the decedent’s dependence on the party allegedly exerting the undue influence.

1.5. It must be noted that the doctrine of undue influence is to be applied solely in instances where testamentary dispositions do not reflect the actual intent of the decedent. Not all influence is “undue.” Usual, everyday influence exerted through love, affection, advice, family relationship, etc., is not considered undue. It is also not meant to void bequests that may be deemed unfair, a result of bad judgment, or against the prevailing moral code, such as disinheriting blood relatives in favor of non-blood relatives.

2. Testamentary Capacity.

2.1. Section 3-1.1 of the New York Estates, Powers and Trusts law provides that, “Every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property.” The age requirement is self-explanatory, but what constitutes “of sound mind?” New York courts have developed a three-part test to determine whether or not a person possesses testamentary capacity. The testator must:

1. be aware of the general nature and extent of his or her property,

2. know his or her relationship with the people who are the natural objects of his or her bounty, and

3. understand that he or she is signing a will, and what the provisions of the will entail.

2.2. There is a very low threshold for testamentary capacity. In fact, a testator needs less mental capacity to execute a will than any other instrument. A person need not posses superior, or even average intelligence. Old age, physical infirmity, and even mental impairment are not necessarily inconsistent with testamentary capacity. Testamentary capacity is determined at the moment of the execution of the will, and prior or subsequent incapacity by the testator will not necessarily be grounds to void the will for incapacity.

2.3. The proponent of the will in a will contest bears the burden of proof on the issue of testamentary capacity. The general rule is that a testator is presumed to have testamentary capacity until the contrary is established. Testimony of the attorney-draftsman and from the attesting witnesses is sufficient to establish a prima facie case that the testator possessed the requisite testamentary capacity to execute the will. Testimony from the testator’s physician(s) and the testator’s medical records may also be introduced as evidence of capacity.

3. Invalid Execution.

3.1. Section 3-2.1 of the New York Estates, Powers and Trusts law provides that, except for nuncupative and holographic wills, every will must be in writing, and executed and attested in the following manner:

1. It shall be signed at the end thereof by the testator or, in the name of the testator, by another person in his presence and by his direction.

2. The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction. The testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately.

3. The testator shall at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will.

4. There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator’s signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will.

3.2. The procedure for the execution and attestation of wills need not be followed in the precise order set forth in paragraph 1-4 above, so long as all the requisite formalities are observed during a time period which, satisfactory to the Surrogate, the ceremony or ceremonies of execution and attestation continue.

3.3. The burden of proof in establishing due execution lies with the proponent of the will. However, where the execution ceremony was supervised by an attorney, particularly the attorney-draftsman, there is a presumption of due execution of the will. Typically, an experienced estate attorney will develop a standard procedure for executing wills, and will testify to following that procedure vigilantly in the event the attorney is unable to recall the circumstances surrounding a specific will signing ceremony.

4. Fraud.

4.1 To prove fraud in the context of a will contest, the objectant must show that a knowingly false statement was made to the testator which induced him to execute a will disposing of his property differently than if he had not heard said false statement. The burden of proof lies with the objectant to establish fraud. Fraud is the most difficult of all objections to prove, and is most often stricken on a summary judgment motion for failure to meet the burden of proof.