Will Contests

May 31, 2013 | Trusts, Estates & Taxation

In New York State, a Will of a deceased person is given legal effect only after it is admitted to probate by the Court.  In the event someone objected to the admission of the Will to probate, i.e. a Will contest, the Court must consider four issues: (1) Did the Testator have mental capacity to make the Will; (2) was the Will signed in accordance with the legal formalities of New York law; (3) was the Will caused by fraud; and (4) was the Will the product of undue influence upon the Testator. These issues must be resolved prior to the Will’s admission into probate.

The proponent of the Will has the burden of proving the first two issues for the Court.  For a person to have the mental ability to make a Will, it must be shown that she understood the purpose and effect of a Will, knew what property she owned, and knew who her nearest relatives were. The burden of proving that a Will was properly signed is met by showing that the Will was signed by the Testator in the presence of two witnesses and that the each witness signed the Will in the presence of the Testator and the other witness.

While proving capacity and proper execution may be difficult, the proponent of the Will benefits from several legal presumptions which are unique to probate proceedings. These presumptions make it easier to make a case on the issues of capacity and execution. When the signing of a Will is supervised by an attorney, New York State law presumes that the Testator had sufficient mental capacity to make a Will and that the signing of the Will adhered to the formalities of New York law.  These presumptions are further bolstered when the Will contains a “Self-Proving Affidavit.” In this type of Affidavit, the attesting witnesses represent that the Testator had sufficient mental capacity to make a Will, the Will was properly signed, and that the Testator freely and voluntarily signed the Will.

If the proponent successfully meets her burden on these issues, it is then up to the adversary to offer proof to the contrary. And if the Court determines that the adversary fails to do this, the adversary’s objections regarding capacity and execution will be dismissed.  The adversary then has the burden of proof on the remaining two issues: fraud and undue influence.
To establish fraud, the objecting party must demonstrate that false statements were made to the Testator that caused her to make a Will that disposed of her property differently than she otherwise would have done. Undue influence is more nebulous and even the courts have difficulty describing it succinctly. To prove undue influence, the objecting party must show that the Testator was improperly influenced to such an extent that the resulting Will does not represent her actual wishes, but those of the person exercising the influence.  If the Court finds that the adversary fails to offer sufficient proof on the issues of fraud and undue influence, the Court will dismiss those objections as well and – with no remaining objections to the Will – admitt the Will that is being offered for probate.






Related Publications


Legal updates and news delivered to your inbox