Will Contests – The Basics

by Michael S. Kutzin

Will contests typically focus on the following three issues: due execution, testamentary capacity, and undue influence.

Due execution.   The requirements for due execution in New York are minimal, but important. In New York, with certain exceptions, the testator (the legal term for the person signing his or her will) must sign the will either in the presence of at least two witnesses or acknowledge to the witnesses that the signature on the will belongs to the testator, and the witnesses must sign as witnesses within 30 days of the testator at the testator’s request. The testator must declare to the witnesses that the instrument is a will (the legal term of this declaration is “publication”).

In New York, the proponent of the will (in other words, the person who files the will in the Surrogate’s Court and seeks to have the will admitted to probate) has the burden of proof on this issue. However, if the will execution was supervised by an attorney, as it typically is, the law presumes due execution. Where due execution becomes a more serious issue is often where a testator attempts to save money and prepares a will without the assistance of an attorney. Not only is the presumption of due execution lost, but there could be other issues, such as an inability to locate witnesses or, even if the will is admitted to probate, a will that creates tax and other headaches that competent legal counsel can help avoid. It is one of the Ten Biggest Mistakes You Can Make In Your Estate Plan.

A will does not have to be notarized. Notarization is only necessary if the will has a “self-proving affidavit” attached to it, which is used to prevent having to locate will witnesses in an uncontested probate.

Testamentary Capacity. The mental capacity necessary to execute a will is commonly referred to as the lowest standard of capacity in the law. The proponent of the will has the burden of proof on this issue.

In order to have testamentary capacity, a testator needs to know that he or she is signing a will and a basic understanding of its terms (the person does not have to have a complete understanding of all the boilerplate in a will or of specific tax provisions, as even the most competent of persons often have only a vague understanding of more complex provisions).

The testator must also know the “natural objects of his bounty.” Generally, the “natural objects” of a person’s bounty are the immediate family (spouse, children), and where there is no immediate family, then the natural objects could include more distant family members. Unmarried partners, depending on circumstances, could also be natural objects of the testator’s bounty.

Finally, the testator must have a general understanding of what he or she owns. The testator does not have to know to the penny what the assets are or are worth, as long as the testator had a general understanding of his or her wealth.

The test for capacity is done on a “snapshot basis.” This means that a person can have dementia where, at times, the person would otherwise lack capacity but was lucid when signing the will. The only question that is before the Court or a jury is whether, at the time the testator signed the will, he or she had testamentary capacity. Medical evidence can be used to cast doubt on whether the testator had testamentary capacity, but it is normally not dispositive.

Undue Influence. Undue influence can exist when, because of the weak or fragile state of the testator, another person is able to assert his or her will over the testator to accomplish what the influencer wanted. Undue influence cases arise in situations such as where one child is favored over another, a second spouse is favored over children, or where a lawyer, accountant or caregiver is provided for in a will to the detriment of family members.

In undue influence cases, the person challenging the will has the burden of proof.   The first issue that the challenger must address is whether or not the influence was “undue.” One spouse is entitled to use influence over the other, including asking, cajoling, arguing, etc. to obtain what he or she wishes from the other without it being “undue.” The challenger must show that undue influence took place, such as isolating the testator, obtaining the lawyer who prepared the will for the testator, and/or otherwise controlling the person such that the influence wielded was “moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against [her] free will.” Matter of Walther, 6 N.Y.2d 49, 53; 159 N.E.2d 665, 188 N.Y.S.2d 168 (1959), quoting Children’s Aid Society v. Loveridge, 70 N.Y. 387, 394 (1877). In addition, while someone may be able to show indicia of undue influence, such as isolation or virtually complete dependence on the beneficiary, the challenger also has to show the actual use of undue influence to have the testator provide the inheritance to the beneficiary.

An undue influence claim is easier to establish if the challenger can establish that the beneficiary, such as a caregiver, attorney or accountant enjoyed a “close and confidential relationship” with the testator. A “close and confidential relationship” implies strong reliance by the testator, usually an aged, weak or frail one, on the beneficiary, so that it would be easier for that person to exercise undue influence due to the nature of the relationship. In that case, the beneficiary must bring forward evidence demonstrating that he or she did not exercise undue influence over the testator.

Other grounds to contest wills. Aside from contesting a will on the grounds of lack of due execution, lack of testamentary capacity and that the will was the product of undue influence, there are other grounds on which a person with standing can contest a will.

If you believe that you may have grounds to contest a will in New York, or if someone is threatening to challenge a New York will that benefits you, you can use the form at the bottom of this web page to contact Goldfarb Abrandt & Salzman LLP.