In the world of NY will contests the very first step on the long road to successfully prosecuting these matters is to establish standing. As a NY will contest lawyer with two decades of NY estate litigation experience I can tell you there is no shortage of bad wills out there worth contesting, but before someone can contest a NY will they deem fraudulent or the product of undue influence they must first establish standing. There are two classes of individuals who can bring a NY will contest to bear. The first group are people who may have been in the decedent’s prior will or wills and were later disinherited. These are individuals who would be adversely effected by the more recent instrument. Thus standing to contest the more recent will would be established should an original copy of the previous will come to light.

The other class of NY will contestants are next of kin who are also called heirs and distributees. Under SCPA §1410, any distributee (heir) of the testatrix whose interest is "adversely affected" by admission of the will to probate, may file objections to probate. In other words, if you are the decedent’s legal heir and you would receive less from their will than in its absence, you now have standing to contest the instrument. For instance, if someone dies with a will leaving behind a spouse and/or children, only the spouse and/or their children would have standing to contest the instrument. However, if a testator passes with no spouse, children or parents, then their siblings would be next in line and deemed to be distributees with standing to contest any instrument which attempts to disinherit them.

Forgery

According to the NY estate law to prove the allegation of forgery in a NY will contest, the objectant must show clear and convincing evidence in the form of a handwriting analysis expert in support of their allegation of forgery, Est-ate of Daniel 147, Misc. 541 (Surr. Crt. NY 1933). Additionally, the Queens estate lawyer in the NY will contest must come forward with evidence in admissible form as to the identity and motivation of any and all perpetrators. While not the easiest path to victory in a NY will contest if in fact the signature on the instrument is not that of the testator or it is proven impossible that the testator could even sign the paper, the allegation is not without merit. As such, forgery can be a valid weapon in the attack of a NY attorney drafted and supervised will.

As a Queens estate lawyer with two decades of experience contesting NY wills, I can tell you there are three main avenues to attack a NY will. The first and most widely enlisted precept for a Queens estate lawyer challenge a NY will is that of undue influence. So what is undue influence? According to the NY estate law undue influence requires a showing that the propounded instrument, the NY will, resulted from influence that "amounted to a 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 his free will and desire.” In other words, someone brought the decedent to a Queens estate lawyer and made the testator sign a NY will in a manner they would not have otherwise executed. The main issue with proving undue influence for a Queens estate lawyer however is the fact undue influence is seldom practiced in the open. Therefore courts will accept substantial circumstantial evidence of undue influence from a Queens estate lawyer as evidence in place of direct proof.

Whereas, to challenge a NY will for capacity requires something a little different. In order to admit a NY will to probate the proponent must demonstrate "that (1) [decedent] understood the nature and consequences of executing a will, (2) he or she knew the nature and extent of the property they were disposing of, and (3) he or she knew those who are the natural objects of his bounty and his relationship to them” as stated in Matter of Clapper, 279 A.D.2d 730 (2001). Obviously someone in a severely diminished capacity such as in the Rosenstiel Estate, cannot possess faculties to comprehend and acknowledge any of the required precepts for making a NY will.

How to Contest on Fraud

To prevail upon their claim of fraud, the respondents were obligated to prove, by clear and convincing evidence (see, Simcuski v Saeli,44 NY2d 442) that the appellant knowingly made false statements to his stepmother, the testator, to induce her to execute a will that disposed of her property in a manner [*334] contrary to that in which she would otherwise have disposed of it (see, Matter of Evanchuk, 145 AD2d 559; Matter of Beneway, 272 App Div 463). There was no such evidence in this case (see, Matter of Bianco, 195 AD2d 457; Matter of Philip,173 AD2d 543; Matter of Swain, 125 AD2d 574).