By Jason Stern
As a NY estate lawyer with two decades of experience contesting NY attorney drafted wills I can tell you that contesting NY wills are unequivocally the most difficult cases to handle. Having successfully disrupted and set aside more than a dozen of these so called “impenetrable” testamentary documents I have learned some of the red flags that can either help or hurt your case. First, you have to understand that a NY attorney drafted Last Will & Testament that was executed under the supervision of an experienced NY estate lawyer is deemed valid by Courts. The reason these NY wills are deemed valid before the NY will contest even begins is there is a presumption of validity in the State of New York that all Last Will & Testaments drafted by such experienced NY estate lawyers are free from undue influence and were properly executed with all the formalities as required by EPTL 3-2.1.
So in layman terms the Last Will & Testament drafted and supervised by the NY estate lawyer is automatically presumed valid pursuant to the NY estate law. However this does not mean it is impossible to attack and overturn for the trained NY will contest lawyer. The most widely utilized assertion for contesting such NY Last Will & Testaments drafted by a NY estate lawyer is called undue influence. As stated in Matter of Heredia, 34 A.D.3d 212 (1stDept. 2006), to be “undue,” influence exerted must amount to mental coercion that led testator to carry out wishes of another, instead of her own wishes, because testator was unable to refuse or too weak to resist. However what makes these cases so difficult to prove is undue influence is seldom practiced in the open.
Estate of Estacion
81 year-old Abelardo Lopez Estacion was found strangled in his home on April 11, 2015. His alleged murderer, 61- year old Anthony Garcia is now standing trial for that crime. The motive prosecutors claim was to prevent Estacion from stealing his senile wife Dortha Lamb’s multi-million dollar estate. Prosecutor’s claim the mother of Garcia’s daughter is the granddaughter of Dortha Lamb and would have otherwise stood to inherit several million dollars from the Estate of Dortha Lamb when she passed. While Estacion and Lamb had lived together for several years prior to his death prosecutors claim Estacion married Lamb two months prior to his murder.
The theory of the prosecution’s case is that Estacion was taking advantage of Lamb’s wealth, capitalizing on her advanced senility and cognitive impairments to marry him, something Lamb had rebuffed in the past. Once married it is alleged that Estacion unduly influenced Lamb to revoke her previous will that left her several million dollar fortune to her children and grandchildren in favor of her new spouse, Estacion. It is further alleged that when Lamb became completely incapacitated requiring the assistance of a conservator to manage her affairs, the greedy Estacion wasted no time in looting her estate while she was still alive. Prosecutors assert that the Lamb family enlisted Garcia to murder Estacion to prevent Estacion from asserting further undue influence over Lamb and looting the remainder of the Lamb Estate. So prosecutors here are relying on the victim Estacion’s own undue influence and fraud as the motive to convict Anthony Garcia.
Proving undue influence in the NY will contest
As a NY will contest lawyer with two decades of experience I feel some degree of frustration for the Lamb family. While of course we do not want to condone murder in such instances, watching helplessly while someone takes advantage of a loved one can feel very defeating. In fact, once Estacion married Lamb, proving undue influence became exponentially more difficult to prove for the Lamb family.
This is because pursuant to the NY estate law in order to justify a submission of undue influence, the NY estate lawyer for the objectant to the NY will must make a showing of motive and opportunity to exert undue influence as well as that such influence was actually utilized. In other words before you can even get to trial the NY will contest lawyer must first establish that the proponent of the will had both motive and opportunity to exert this undue influence and in fact did so. NY courts are very reluctant to find a motive and opportunity to commit undue influence when the alleged culprit is a spouse.
While undue influence is seldom practiced in the open, and direct evidence is rarely available courts do allow circumstantial evidence to be used to prove undue influence. Some of the circumstantial evidence Courts may look at includes: nature of the will, testator’s family relations, condition of testator’s health and mind, dependency upon and subjection to control of person supposed to have wielded influences, opportunity and disposition of person to wield it, and acts and declarations of such person.
As such, before proving undue influence the NY will contest lawyer will need to first establish “To be ‘undue,’ the influence exerted must amount to mental coercion that led the testator to carry out the wishes of another, instead of her own wishes, because the testator was unable to refuse or too weak to resist” (PJI 7:55; see also Matter of Burke,82 A.D.2d 260, 269, 441 N.Y.S.2d 542  ).
In the Lamb Estate mentioned above, the aforementioned facts would not have supported a showing of undue influence. Since Lamb and Estacion had a relationship that spanned several years and were eventually married these family dynamics would not have reinforced a finding of undue influence against Estacion in a NY will contest proceeding. While there were other factors whose boxes were checked such as dependency, cognitive deficits, opportunity and motive, the Lamb family would have ultimately failed. While it’s unfortunate that the Lamb family resorted to murder in this instance, desperate people can take desperate measures. In retrospect perhaps the family should have done more to shield Lamb from Estacion before they married.
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 NYC will contest lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NYC 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.