Estate Litigation – Part I

trusts and estate attorneyThere are a variety of situations which result in litigation of estate related matters. The first, and most common, case which is litigated in the Surrogate’s Courts in New York State is a will contest or the challenging of a trust. The most common reason for challenging a will or a trust is lack of testamentary capacity or undue influence.

Testamentary Capacity

Testamentary capacity deals with whether the person making the will had the capacity to make the will on the day the will was executed. This challenge deals with the person who made the will’s understanding of what they were doing, who were the natural objects of their bounty, and the impact this will would have on the testamentary scheme.

Undue Influence

Undue influence deals with a situation where the person making the will has a diminished capacity. Another individual improperly influences them for the purpose of ingratiating themselves. Sometimes undue influence is based on either overt or perceived threats or intimidation.

Setting the Will Aside

Setting a will aside on either the basis of lack of testamentary capacity or undue influence requires the individuals challenging the will to produce documentary evidence proving their claim. Examples of the type of evidence utilized in these cases are medical records, records from pharmacies, financial documents, and testimony of third parties or other family members with regard to the circumstances and events concerning the decedent at the time the will was prepared and executed.

Altered Documents

Other types of proceedings brought to challenge wills deal with forgeries, improper alterations or modifications to the will, and questions concerning the improper destruction of the will, sometimes even after the decedent’s death.wills and estates lawyer