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How to object to a NY estate lawyer drafted and supervised will? Estate of Van Horn

21
Jan

By Jason Stern

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As a NY estate lawyer with two decades of experience successfully challenging NY wills on behalf of families, undue influence is one of the most common issues I am confronted with. On a daily basis New Yorkers inquire into their loved one’s Last Will & Testament who they believe  was taken advantage of near the end of their lives and coerced into drafting a NY will against their own volition.   Not only is the challenging of a New York will drafted by a NY estate lawyer an emotionally draining process but more often than not it can prove to be an exercise in futility.  That is unless the facts line up correctly to permit the overturning of the purported document.  Very often these cases unfold like a mystery that must be carefully reconstructed and solved using witness testimony, medical records and just plain old detective work.  In fact a good NY estate lawyer has to be part legal scholar and part Sherlock Holmes in the seeking out and gathering of as much of the evidence required by law to successfully contest a NY will. However when the objectant does not fulfill their burden of proof in proving the elements necessary to overturn a NY attorney drafted will, their objections will be quickly dispensed with.

The challenges in upturning a NY estate lawyer drafted and supervised will is outlined and delineated more clearly in a recent Orange County Surrogate’s Court case in New York. In the NY Estate, Matter of Van Horn, the decedent Russell L. Van Horn passed away on January 19, 2019 in the Orange County Regional Medical Center from a hard fought battle with cancer. On January 14, 2019, the decedent’s nephew had him execute a bedside will while at the hospital where the decedent was unarguably in a diminished capacity.  The following day, January 15, 2019, the decedent’s nephew once again came to him with yet another version of said NY will and had him execute an entirely different will.  

The decedent’s daughter, Tammy Long filed objections to probate to both NY wills, which each granted her a fraction of her NY inheritance she would otherwise be entitled to receive from her father’s NY estate absent these two wills.  Decedent’s daughter filed objections to each of the purported NY wills based on the grounds of due execution, undue influence and lack of testamentary capacity.  

So what happened here?

In NY there are three main grounds for contesting a NY will; due execution, undue influence and mental capacity. First, in relation to due execution, in the NY Estate of Van Horn, the Court upheld the long standing tenet that when a NY estate lawyer drafts a will and supervises its execution, a presumption of regularity is raised that the will was properly executed. Additionally, the court ruled that a valid attestation clause, drafted by the NY estate lawyer accompanying the NY will raises a presumption of a NY will’s validity, but it is nonetheless incumbent upon the Surrogate’s Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity.  Since both NY wills in this matter were found to be properly drafted and their executions properly supervised by the NY estate lawyer, albeit the decedent’s own nephew, Objectant’s objections were dismissed regarding due execution.

Secondly, the Court found, with regard to testamentary capacity, there is a general presumption that the testator of a NY will possesses the requisite testamentary capacity to make a valid NY attorney drafted will until it is proven otherwise.  Furthermore, a presumption and prima facie case of testamentary capacity is created when a NY estate lawyer drafts the will and supervises its execution.  Additionally, an affidavit of the attesting witnesses, accompanying the NY estate lawyer drafted will, that states the testator appeared to be of sound mind and memory to make a NY will, creates a strong presumption of testamentary capacity as well.  Specifically, this Court found, the appropriate inquiry is whether the decedent was lucid and rational at the time the NY will was signed.  Thus, even the fact that decedent might have been confused or disoriented within a period relatively close in time to when the will was executed does not mandate denial of the NY will to probate if the NY will was executed during a “lucid interval”.  In other words its very unlikely a NY estate lawyer is going to successfully overturn a NY estate lawyer drafted and supervised will on the basis of testamentary capacity alone.  Hereto the Court also dismissed the Objectant’s objections as to testamentary capacity as grounds to overturn either the January 14thor the January 15thNY wills.

Third, is the objection to the NY wills based on undue influence.  This is the most commonly utilized ground in setting aside NY estate attorney drafted wills.  In the Estate of Van Horn the Court ruled that, undue influence is the exercise of coercion upon the testator, which restrains the testator’s independent action and destroys his or her free agency, or which, by importunity which cannot be resisted, constrains the testator to do that which is against his or her own free will.  However the court also found that undue influence is a fact which must be proven by the party objecting to the NY will and not merely assumed to exist.  To prove undue influence the objectant must demonstrate that the decedent was actually constrained to act against his or her own free will and desire by identifying the motive, opportunity and acts allegedly constituting the influence as well as when and where such acts occurred.

Here the court found no evidence in the Objectant’s arguments in favor of undue influence. The Court instead found, her allegations were merely conclusory and speculative, in that the Objectant only identifies a potential opportunity for undue influence to exist, but not the details of the facts and circumstances comprising the undue influence or, critically, the actual exertion of undue influence over the Decedent.  As such, the daughter’s objections to her father’s NY wills based on undue influence were dismissed entirely and the January 15th, 2019, purported document drafted on decedent’s own deathbed just 72 hours prior to his demise was duly admitted to probate.  In other words, unless you have a smoking gun, as to undue influence or due execution, your chances of successfully overturning a NY estate lawyer drafted and executed will are infinitesimal.  Having successfully overturned more NY estate lawyer drafted wills than any other firm, we know exactly how difficult these cases can be, both emotionally and legally.  

As an experienced NY will contest lawyer I can tell you it is almost never easy to prove undue influence when challenging a NYattorney 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 and Dutchess. 

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