While the probate process is almost always the desired NY estate strategy it is not without its shortcomings.  Quite simply, the greatest opportunity for someone to steal vast amounts of money without a gun is with a fraudulent will.  Luckily the NY probate estate law is equipped with section 1404 of the SCPA to inspect suspicious wills that raise red flags.

So what are red flags?

Fraudulent wills in NY come in many shapes and varieties.  The most common type is the instrument that is the product of undue influence.  According to the NY estate law, discrediting a NY will requires an accumulation of circumstantial evidence, as undue influence is seldom practiced out in the open.  Undue influence is often insidious, subtle and impalpable, that which bends the intent or will of the testator, and internalizes within the mind of the testator the desire to do that which is not their intent but the intent and end of another.

Garden variety undue influence more or less entails a culpable party who has another execute an instrument in the hospital, on their deathbed, while pumped full of morphine.  The principal will often enlist either knowing or unwitting participants in their plans to witness or even draft the purported instrument.  Such NY will contests are easy to spot but infrequently easy to prove.  Keeping in mind, while all these factors might raise red flags under the NY estate law, the level of capacity to execute a valid will in New York State is lower than for any other type of transaction.  For example, it would require more of a cognitive showing to get married in the State of New York than to execute a valid will.  The reasoning is so people can in fact execute their wills while dying in the hospital on pain medication.  Unfortunately, this paradox creates a very high burden for any NY probate lawyer attempting to contest an instrument on the basis of undue influence.  As a NY probate lawyer with extensive experience challenging NY attorney drafted wills, this can get frustrating.

However, there are other red flags which do not require quite the same level of circumstantial evidence to overturn an otherwise properly executed will.  Recently, in Estate of Price, the decedent’s spouse, Janie Price produced a document dated 12/04/2014, purporting to be the Last Will & Testament of her husband, James David Price.  In the purported instrument, Janie Price is the nominated executor and sole beneficiary of her husband’s estate, meaning she gets everything.  On its face, the will seems valid and the bequest to one’s spouse perfectly natural.  So why is this a fraudulent will?  Well just as in most NY will contests, the document often looks fine on its face, with all of the right language and signatures in their proper places.  However, its only when you dig a little deeper and start peeling back the layers of subterfuge do you begin to understand the true intent of the document’s inception.  You see, the decedent had a daughter from a prior marriage, Cassandra Price, who as a distributee has standing to contest the validity of the instrument purporting to be her father’s will.  Upon closer inspection of the witnesses signatures, it became apparent that there was a problem with the will of James David  Price.  The will of James Price was allegedly witnessed by one Leroy Holland on December 4, 2014.  Unfortunately for the decedent’s spouse, Leroy Holland had passed away on February 4, 2014, ten months prior to the will’s execution.  Thus, it became apparent that the will was fraudulent and denied probate.

Unfortunately, fraudulent wills are rarely so easy to overturn but it never hurts to investigate where a will does not seem congruous to one’s decision making during their lifetime.  As a NY probate lawyer, if someone comes to me for a will that is completely contrary to their prior dispositions or that disinherits close family, I am going to inquire as to what prompted these changes.  While the NY estate law permits us to leave whatever we want to whomever we want, a valid will should still make sense.  If a NY will departs from a person’s beliefs during their lifetime, as evidenced by prior wills and communications, there is a good chance that the will may have been the product of someone else’s beliefs.

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 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, Richmond, Orange, Dutchess as well as in the State of New Jersey.