Towards the end of their lives, elderly who find themselves in a solitary existence without a spouse or children to watch over them make easy targets for the unscrupulous. As NY estate lawyers with more than 50 years combined legal experience contesting fraudulent wills we can attest to the frequency in which this occurs. In fact, much of the more than 50 million dollars in estate assets we have recovered on behalf of family members defrauded by bad actors has been related to instances where someone takes the infirmed to an attorney to draft a will naming themselves sole beneficiary.
Unfortunately, it is not uncommon for NY estate lawyers to see family, neighbors, healthcare attendants and even financial planners engaging in such predatory behavior often looting entire estates of millions of dollars before anyone catches on. While NY attorney drafted and supervised wills are meant to withstand intense judicial scrutiny they are not entirely impenetrable. A NY will contest begins when the attorney for the will’s proponent (executor), offers the will for probate by filing it within the Surrogate’s Court with their petition. Next, all parties adversely affected by the instrument are notified of the will’s existence and are ordered to come to court to either consent to the document’s probate or to contest the document’s validity. These parties would include either next of kin of the deceased and/or anyone in a prior instrument negatively impacted by the current instrument offered for probate.
At the hearing, any party wishing to contest the instrument will have an opportunity to do so in an examination also known as SCPA 1404 examinations pursuant to NY estate law. At the SCPA 1404 examination, the proponent will have to produce the attorney draftsperson of the instrument along with any and all attesting witnesses to the paper for inquiry as to the facts and circumstances of same. This allows the contesting parties to form their basis for objecting to the will if warranted. Generally speaking, the grounds that form a basis to object to a will under the NY estate law would be, execution, capacity, undue influence, revocation and fraud. More often than not, NY will contest lawyers look to undue influence to form their basis for objection to testamentary instruments.
What is Undue Influence?
To prevail on undue influence a NY will contest lawyer must prove several elements none of which are easily established. According to NY estate law to be undue, the influence must amount to mental coercion that led the testator to carry out the wishes of another, instead of their own wishes because the testator was unable to refuse or too weak to resist. Additionally, a NY will contest lawyer must further show that the actor had both motive and opportunity to wield such influence, among other factors.
Estate of Ern
Leroy Ern was a retired, elderly hermit who was neither married nor had children. Before his 2016 death, the 92-year-old Ern enlisted the help of a financial advisor, Blanche Berenzweig to assist him with his investments. However, Ern’s financial advisor did much more than invest Ern’s money, a lot more. Berenzweig wasted no time in naming herself Ern’s power of attorney, healthcare proxy, sole beneficiary on the geriatric’s annuities, executor and sole beneficiary of the 92-year-old Dementia patient’s multimillion dollar estate.
Without a spouse, children or close relatives Ern was an easy mark for the financial planner. But Berenzweig did not stop there. After the 92-year-old passed away she was thoughtful enough to have Ern cremated while refusing his relatives from attending.
Sadly, to NY will contest lawyers these circumstances are not surprising and even common place. With a few strokes of a pen an opportunist can perpetrate a multi-million-dollar fraud. Ern’s nieces and nephews are currently contesting the will’s validity on the basis of undue influence. It is clear that Berenzweig intended to take advantage of her helpless client and did, stealing millions of dollars before anyone knew they were gone. Currently Berenzweig’s financial license is suspended and she is facing millions of dollars in fines. Should Ern’s nieces and nephews ultimately prevail, and I believe they will as their case has all the elements of undue influence, they will inherit Ern’s estate through intestacy.
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.