One of the hardest parts of the NY estate law is proving a will is the product of undue influence. An even harder thing to prove under the NY estate law is that a will is the product of forgery. Unfortunately as a NY estate lawyer we do see recurring facts among NY will contests where opportunistic parties plot and steal entire estates using NY attorney drafted wills to do so. What’s more disturbing is the level of proof required for NY estate lawyers to stop these bad actors before they succeed.
To contest a NY will a NY estate litigation attorney has several legal theories at their disposal none of which are easy to prove. In fact the chances of successfully contesting a NY will for a NY estate lawyer is minute as fewer than one tenth of one (.1%) percent of all NY attorney drafted wills are upended. However if a NY estate lawyer succeeds in contesting a NY attorney drafted will it is usually on the principle of undue influence. To successfully prove undue influence in NY will contests the NY estate lawyer must show; 1. Existence of undue influence, 2. Exertion of that undue influence over the testator, individual drafting their NY will, and that, 3. Absent the exertion of undue influence the testator would not have executed their NY will in that manner. In other words the NY estate lawyer objecting to an attorney drafted will must show that an individual benefiting from the instrument had the motive and opportunity along with proof, in admissible form, that that undue influence was in fact wielded upon the testator in the making of their NY will.
The textbook definition of undue influence itself is the exercise of influence over another amounting to moral coercion, restraining the free agency of the testator which could not be resisted. As you can imagine undue influence is seldom practiced out in the open so courts will permit NY estate lawyers to show circumstantial evidence of undue influence to support their claims but such a showing must be substantial. For example, if someone was in a weakened condition and relied on a caregiver for their daily needs that could lend itself to undue influence but would not amount to a substantial showing. However if that caregiver were to have interfaced directly with the attorney draftsperson, orchestrating the document’s execution at their direction, that could be deemed circumstantial evidence of undue influence in a NY will contest proceeding.
The lesser known and rarer still utilized basis to contest a NY will is forgery. According to the NY estate law a paper purporting to be the decedent’s will shall not be admitted to probate where evidence establishes the will is a concocted instrument and forgery. So as a NY estate lawyer in a will contest how do you prove forgery? Once the petitioner, party offering the NY will for probate, presents two attesting witnesses to the will’s authenticity they have now established a presumption as to the NY will’s validity. Objectants must then rebut this presumption with testimony from a forensic handwriting expert. Pursuant to Section 3-2.1 of the NY estate law the forensic handwriting expert must testify at trial that they compared the testator’s signature on the NY will to several other handwriting samples of the deceased taken within a reasonable window of time and must then conclude that the signature was not the genuine signature of the decedent’s.
Estate of John Thomas
John Thomas lived a frugal life on his steel mill worker’s salary. John relished telling his nieces and nephew about his $4 million dollars amassed through investing his modest salary in the stock market over the course of his lifetime. However when the 88 year old retired mill worker John Thomas’s health began to decline in 2014 it opened his estate up to fraud. Uncle Jack, as his nieces and nephew always referred to him never had children of his own. When John’s brother passed away prematurely he began caring for his nieces and nephew as his own. As John Thomas got older his nieces and nephews would check in on him. That was until 2014 when the nieces and nephew of John Thomas suddenly could not locate their uncle.
The reason John Thomas’s heirs could not locate him in 2014 had to do with the emergence of a distant relative, second cousin Tim Ungarean. Ungarean, a dentist by trade, an individual that John Thomas had no relations with, abducted him in 2014 and placed him in a nursing home. In an effort to relieve his distant second cousin of his multi-million dollar estate, Ungarean had a power of attorney, last will and testament and health care proxy all executed on behalf of John Thomas. It appears that Thomas’s last will and testament exclusively named Ungarean, a distant second cousin with no connection to Mr. Thomas whatsoever, executor and sole beneficiary of his $4 million dollar estate.
Upon learning of her uncle’s will the niece of John Thomas, Carol Thomas, immediately smelled a rat and retained a will contest estate litigation lawyer to contest the instrument. In fact, the details which came out in court were so egregious the state attorney general’s office began investigating the circumstances surrounding the purported will’s execution as well. The Thomas family retained a handwriting expert who compared John Thomas’s signature on his will, power of attorney and healthcare proxy which Ungarean had drafted before John’s death. The handwriting expert opined during the will contest trial that the signatures on John Thomas’s last will and testament, power of attorney and healthcare proxies could not have been signed by the same person. The handwriting specialist further testified that within a reasonable degree of certainty, that in his expert opinion, neither of the signatures on any of the documents could be that of the decedent, John Thomas.
As a result of the will contest proceeding, the surrogate’s court determined the last will and testament of John Thomas to be a forgery. The surrogate’s court agreed with Carol Thomas, the decedent’s niece, and her expert in denying the forged will probate. Despite Ungarean’s estate lawyers contention that the will was properly executed in the presence of two attesting witnesses, the court did not find either witness’ testimony to be credible. In fact it was noted in nursing home records that John Thomas himself notified social workers, before his death, that his distant relative Ungarean was stealing his $4 million dollar estate with forged documents.
To make matters worse for Ungarean, the nursing him is alleging he used a forged healthcare proxy to pull John Thomas off of ventilation after he punctured a lung in a fall. The nursing home alleges that while Thomas was recovering from that fall Ungarean pulled the plug even though Thomas was alert, conscious, stabilized with an excellent chance of recovery. These allegations could warrant homicide charges in certain jurisdictions. As John Thomas’s next of kin, Carol Thomas and her siblings now stand to inherit their uncle’s multi-million dollar estate.
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 Queens 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.