Top 10: Top Ten points on contesting a will

1. There are three basic ways a will can be contested. First, proving a failure to duly execute the will properly. Second, proving the will was procured by fraud or undue influence. Third, proving that the proponent of the will lacked testamentary capacity, see generally Matter of Estate of Stewart Joules, 2012 NY Slip Op 31780 (Surr. Ct. Monroe County 2012).

Due execution

2. As to due execution, the proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements, see EPTL 3-2.l(a). However, there is a presumption of regularity that the will has been properly executed in all respects when an attorney draftsman supervises its execution, see eg. Matter of the Estate of Gray, 143 A.D.2d 751, 752 (2d Dept. 1988), lv to app denied, 74 N.Y.2d 607 (1989).

3. Likewise, the fact that the will included an attestation clause creates prima facie evidence of due execution, Matter of Collins, 60 N.Y.2d 466 (1983); Matter of Clapper, 279 A.D.2d 730 (3d Dept. 2001) if not a presumption of due execution; Matter of Nelson. 141 N.Y. 152 (1894); Matter of Clapper, 279 A.D.2d 730 (3d Dept. 2001).

Fraud and undue influence

4. Undue influence has been defined by the Court of Appeals as a moral coercion which restrains independent action and destroys free agency, Matter of Walter, 6 N.Y.2d 49,55 (1959).

5. The burden of establishing that the will is a product of undue influence is on the objectants and this burden does not shift, Matter of Avery, NYLJ Dec.27, 1999, p. 30, col. 2 (Surr. Ct. Suffolk Cty. 1999). In order to sustain this burden, objectants are required to show that proponent (a) had a motive to exercise undue influence; (b) had the opportunity to exercise undue influence, and (c) actually exercised undue influence, Matter of Fiumara 47 N.Y.2d 845,846 (1979).

6. “No inference of undue influence may be drawn from the fact that proponents had the opportunity and motive, absent evidence that such influence was actually utilized,” Matter of Bush, 85 A.D.2d 887 (4th Dept. 1981).

7. An objectant seeking to establish that a will is the product of fraud must demonstrate by clear and convincing evidence that the proponent of the will “knowingly made false statements to the testator to induce the testator to make a will disposing of his or her property in an manner contrary to that which the testator would have effected,” Matter of Rothkamp, 95 A.D.3d 1338 (2d Dept. 2012).

Lack of testamentary capacity

8. The proponent of a will has the burden of proving testamentary capacity at the time the will was executed, but “less capacity is required to enable one to make a will than to make other contracts,” Matter of Coddington, 281 AD 143, 146 (3d Dept. 1952), aff’d 307 NY 191 (1954).

9. Once a decedent’s testamentary capacity is challenged, the proponent of the will must demonstrate only that the decedent “understood: 1) the nature and consequences of executing a will; 2) the nature and extent of his property, and 3) the natural objects of his bounty and the relationship to them,” In the Matter of Jantec, 2012 Slip Op, 31780 (Mon. Cty. Surr. Ct.), citing, Matter of Castiglione, 40 A.D.3d 1227 (3d Dept. 2007).

10. All that is required is that the testator experienced a “lucid interval” of adequate capacity to execute a valid will, and that interval can occur contemporaneously with a diagnosis of an altered mental state, Matter of Mc Closkey, 307 A.D.2d 737, 738 (4th Dept. 2003).

Mark J. Moretti is a partner with the Rochester office of Phillips Lytle LLP. He focuses his practice in business and tort litigation and is a former chairman of the New York State Bar Association’s Trial Lawyers Section. He can be reached at [email protected].