CALL US

E-MAIL

DIRECTIONS

REVIEWS

Undue influence and the elderly: Estate of Evalena Fisher

16
Jan

By Jason Stern

0 Comments

When our loved ones are no longer able to care for themselves we would like to think that those entrusted with their welfare are in fact living up to their obligations. Most importantly we expect those parties entrusted with our loved ones when they are most vulnerable to not take advantage of them. Or so we hope.

When 95 year old Evalena Fisher passed away in her Rio Concho Retirement Community on May 1, 2017, no one had any reason to question the care Mrs. Fisher was receiving .  However, shortly after Evalena’s death the assistant director of the Rio Concho Retirement Community, Blaine Smith, came forward with a 2011 purported will naming himself sole beneficiary, excluding Evalina Fisher’s natural heirs from inheriting her $32 million dollar estate.  The 2011 will executed on premises at the Rio Concho Retirement Community overrides Mrs. Fischer’s prior 1995 will that left her entire estate to her nieces and nephews.  

Thereafter, will contest lawyers for Fisher’s nieces and nephews began investigating the facts and circumstances surrounding the creation of this 2011 will that ostensibly leaves her vast estate to a single stranger.  It turns out that Rio Concho assistant director, Blaine Smith, was broke, deep in debt and even borrowing thousands of dollars from his employer just to survive at the time the 2011 last will and testament was allegedly executed.  

Additionally, medical records show that in 2011 Evalena Fisher was legally blind, heavily sedated for an intestinal illness and was most likely in a diminished capacity at the time she allegedly executed the purported will leaving the assistant director her inheritance which included $32 million dollars in mineral rights.  As such this estate litigation will be going to trial next August to determine whether or not this 2011 instrument leaving Fisher’s estate comprised of $32 million dollars’ worth of mineral rights to the former Rio Concho Communities director, Blaine Smith, was the product of undue influence or not.  

As a NY estate litigation lawyer with more than two decades of experience contesting NY wills I would be shocked if Mr. Smith did not settle this case prior to trial.  Should this case proceed to trial it is very likely that the will contest lawyers for the Fisher heirs will show that the instrument purporting to be the last will and testament was procured by undue influence on the part of Mr. Smith and did not in fact represent the last wishes of Evalena Fisher.  

What are the grounds to contest a NY will?

When a weird will pops up after the death of a loved one the first thing everyone wants to know is how do we contest this NY will?  Most of the time a NY estate lawyer will start by examining the NY will to see if it was properly drafted and executed by a NY estate lawyer.  If it was not properly drafted and executed by a NY estate lawyer there may be grounds to contest the validity of the NY will’s execution on the grounds of due execution within a NY will contest proceeding. However if the will appears to be in order in that it was properly drafted and executed by an experienced NY estate lawyer, a NY will contest lawyer would have to move forward to see if the will was the product of undue influence.  As such the NY estate lawyer would investigate the facts and circumstances surrounding the document’s execution to see if there was coercion also known as undue influence exerted upon the testator.  

What is a NY will contest lawyer required to show to prove undue influence under the NY estate law?

Pursuant to the NY estate law as stated in Matter of Ryan, 824 NYS 2d (App. Div. 1stDept. 2006), the legal definition of undue influence is influence exerted over a testator (someone drafting their will) amounting to mental coercion that leads one to draft a will carrying out the wishes of another and not their own, because the testator was unable to refuse or too weak to resist.  Before a NY will contest lawyer may bring their case to trial the NY estate lawyer must make a showing of both motive and opportunity to exert undue influence along with proof that said influence was in fact utilized.  

I feel very strongly that the will contest lawyers representing the heirs of Evalena Fisher have a strong case for undue influence.  As an experienced NY will contest lawyer I can tell you it is almost never easy to prove undue influence when challenging an attorney drafted will.  However if you think a family member or friend was coerced into executing a NY will it never hurts to ask the opinion of an experienced NY estate lawyer to see if it amounts to undue influence.  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 60 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.

Tags: , , , , , , , , , , , , , ,