As a NY estate lawyer with over two decades of experience litigating NY estates no issue is as emotionally charged as the NY will contest. Occasionally, when someone passes away leaving behind a NY will the document can create more questions than answers. While we think we know what our parents, grandparents or even spouse are thinking only their NY estate lawyer may actually know what the testator was feeling at the time the document was drafted. Especially in cases disinheriting close relatives in a NY will it is incumbent on the attorney draftsman to explain the document’s contents to potential objectants.
While any party adversely affected by the contents of the NY will may choose to contest the document, the real question is should they? Who is a party adversely affected by a NY will? Any party who would stand to inherit a greater portion of decedent’s NY estate in the absence of the document. NY will contest proceedings begin with SCPA §1404 examinations of the attorney draftsman, if the NY will was drafted by a NY estate lawyer, and any and all witnesses to its execution. Once concluded, the respondent must decide whether or not to formally file Objections within ten (10) days from the hearing’s conclusion.
The burden of proof in these cases initially falls on the proponent’s attorney, the NY estate lawyer for the party offering the NY will for probate, to prove the document’s validity. One of the elements a NY estate lawyer will have to prove in support of the NY will is testamentary capacity. According to the NY estate law it must be demonstrated that the testator understood the nature and extent of their bounty, property being disposed of, and that the testator knew who his or her heirs were. If the NY estate lawyer for the proponent cannot prove that the testator possessed testamentary capacity the entire NY will fails.
That being said courts are loathe to nullify a NY will on the basis of testamentary capacity alone. According to NY estate law as stated in Matter of Scher, 872 NYS 2d 693 (Sur Ct, Kings County 2008) there is no presumption against a NY will made by a testator of advanced age, nor can incapacity be inferred from an enfeebled condition of mind or body.
In other words, a diagnosis of advanced dementia alone is not enough to successfully contest a NY will on the basis of testamentary capacity alone. Potential objectants who have been disinherited mistakenly believe that their NY estate lawyer will be able to invalidate a NY will based on a finding of advanced dementia alone. Unfortunately this is not the case. The threshold level of testamentary capacity required to support a NY will by a NY estate lawyer is lower than any other legal document by design. The NY estate law contemplates the societal interest for someone on their death bed to be able to execute their NY will if they so choose.
Estate of Bette Davis
Ruth Elizabeth Davis, better known as the actress Bette Davis passed away on October 6, 1989. Davis was a beloved American actress whose career in Hollywood spanned more than a half century. Davis who has received several Oscar nominations throughout her career established herself as one of the most versatile actresses on the big screen ranging from roles in romantic dramas to horror film. However Davis was best known for her Oscar nominated role in What Happened to Baby Jane. Bette Davis also starred in the original Agatha Christie murder mystery, Murder on the Nile.
After Davis’s passing in 1989 she left behind one natural born daughter Barbara Hyman and her adopted son Michael Woodman Merrill. Bette Davis’s NY will was offered for probate by her son’s NY estate lawyer. The Davis Estate valued at $2,500,000.00 adjusted for inflation was left to her adopted son Michael and her friend Kathryn Sermack. Kathryne had taken care of Davis in her later years while suffering from breast cancer. Davis’s NY will completely disinherited her daughter Barbara. Originally diagnosed with breast cancer in 1983, Davis had unfortunately experienced four strokes leaving her partially paralyzed on the left side of her body with impaired speech. Ultimately Davis succumbed to her battle with breast cancer in 1989.
Interestingly enough, despite Davis’s limitations and illness her daughter Barbara chose not to retain a NY estate lawyer to contest the NY will. While Bette Davis exhibited signs of diminished testamentary capacity Davis had personal reasons for omitting her daughter from her NY estate plan.
In 1985, four years prior to Davis’s passing, Barbara had written an unflattering memoir of her mother titled, “My Mother’s Keeper.” In the book Barbara depicts her mother in an unforgiving and brutal way which naturally upset Bette. After the publishing of the memoir, Bette Davis became estranged from Barbara having no further contact. This fact pattern does not support a finding of incapacity as the decedent, Bette Davis, was deliberate in the disposition of her NY estate, intentionally disinheriting her daughter Barbara. As such, courts weigh many different factors such as family dynamics when examining testamentary capacity. Had Barbara not been estranged from her mother, perhaps she could have successfully argued incapacity in this instance.
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 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, Richmond, Rockland, Nassau, Orange and Dutchess.
