By Jason Stern
How do I contest a will?
As a NY will contest lawyer with two decades of experience successfully challenging fraudulent wills for New Yorkers I can tell you firsthand how difficult these cases can be. To begin with, a NY will that has been drafted and supervised by your NY estate lawyer is accompanied by the attorney presumption of validity. This is why people have NY estate attorneys draft their wills in the first place. What this means in plain English is that NY Surrogate’s Courts presume any will drafted by an attorney to be validly executed and the person executing their NY will to be competent. Having successfully challenged NY estate lawyer drafted wills as a NY will contest lawyer I can tell you this is no easy task. The attorney presumption of validity is a difficult hurdle to clear but is not always impossible. While the attorney presumption of validity is substantial it can be rebutted with significant evidence illustrating that the document was not properly executed.
Another avenue of attack for NY will contest lawyers is testamentary capacity. This is the issue of whether or not the decedent knew and was competent enough to know what they were signing. Most people, NY estate lawyers included, wrongly assume that just because a testator, someone preparing their will, was suffering from dementia or a debilitating mental illness like Alzheimer’s their last will and testament should be overturned. Unfortunately, for NY will contest lawyers this is not the case. In fact, the NY estate law states that less mental capacity is required to execute a will than is required to execute any other legal document. In other words, more mental capacity is required to get married at City Hall in the State of New York than to draft your will. This is not accidental but by design. The court’s reasoning being to afford everyone the opportunity to dispose of their property in accordance with their wishes even and especially when they are dying. In fact Surrogate Courts have gone so far as to say, a diagnosis of progressive dementia, standing alone, does not create a triable issue of fact as to mental capacity ( see Matter of Friedman, 26 A.D.3d 723, 725, 809 N.Y.S.2d 667 , lv. denied 7 N.Y.3d 711, 824 N.Y.S.2d 603, 857 N.E.2d 1134  ). Instead, it must be demonstrated that the individual was incompetent at the specific time of the challenged transaction, i.e., he or she was “so affected as to render him [or her] wholly and absolutely incompetent to comprehend and understand the nature of the transaction”. As such overturning a NY will on the basis of mental capacity alone is highly unlikely.
Which brings us to our next and most often utilized ground to overturn a will by a NY will contest lawyer, undue influence. Having overturned numerous NY attorney drafted wills, I can tell you undue influence, depending on the circumstances, will grant an Objectant the greatest chance of success. Undue influence by definition is when influence is exerted over the weaker mind of another amounting to coercion, restraining the individual from exercising their own free will. Undue influence is where the decedent’s mental infirmities are most important. When arguing undue influence, a NY will contest lawyer will claim that any and all infirmities weakened the decedent mind and body rendering the individual more susceptible to the coercion of another. And that any will they may have executed under that coercion was the product of the undue influence and not their own free will. Unfortunately, undue influence is rarely exerted in plain view and can be difficult to prove as well.
Estate of Marvin Rush
In May of 2018 ,79-year-old Marvin Rush passed away. Marvin Rush owned the publicly traded company Rush Trucking which he founded in 1965. With truck dealerships in 22 states, 6,800 employees and annual revenues exceeding $4 billion dollars, Marvin Rush had done very well for himself. Marvin Rush leaves behind his 58-year-old son Rusty Rush and 57 year old third wife Barbara Rush. In 2006 Marvin had his estate lawyers draft a will leaving his son Rusty $70 million in company stock.
Unfortunately for Rusty his father Marvin Rush remarried for the third time in the 1990’s to Barbara, who is even younger than Marvin’s son Rusty. Barbara, now Mrs. Rush, allegedly took her husband to their lawyers to draft a series of five wills, each document progressively disinheriting his children from his prior marriages. However the two wills currently in controversy were both drafted in 2013 completely disinheriting Marvin’s son, Rusty. Rusty, is now challenging both 2013 wills arguing that his father’s well documented dementia caused him to lack capacity and/or be unduly influenced by his third wife Barbara. While Marvin’s proven bout with Dementia is common knowledge among family and friends, well established within his medical records and listed as a cause of his death in his own obituary, challenging these wills is no slam dunk. Here the Court will be less concerned with Marvin Rush’s mental state on the date of his death and more concerned with his condition in 2013 during the executions of each of the instruments. However, if Rusty is successful in proving undue influence in both 2013 instruments on the basis of capacity or undue influence, Marvin’s 2006 will would be admitted to probate granting his son his $70 million bequest.
If you think a family member may have been taken advantage of by an opportunistic relative or friend it never hurts to ask the opinion of an experienced NY will contest lawyer to see if it amounts to undue influence or fraud. Feel free to call the NY will contest lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our Queens estate lawyers have more than 50 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.