Fraud in New York Wills
A will is a legal document stating who you would like to inherit your property after you pass away. In New York, you are permitted to leave your estate to anyone you wish. However, when a will contains a strange or unexpected provision, this may be an indication that the will is fraudulent. To protect the true intent of the will’s creator or testator, there are defenses you can raise to prevent fraud in New York wills. Read on to learn more about fraud, as well as the ways an experienced wills attorney can assist you in creating these entities.
What Makes a Will Invalid?
A will in New York may be invalid due to:
- Lack of testamentary capacity
- Duress
- Undue influence
- Improper execution
- Fraudulent execution
Unfortunately, elderly individuals and those suffering from mental or physical illness are more susceptible to fraud in New York wills, and likely to be taken advantage of during the execution of their wills.
Lack of Testamentary Capacity
The level of capacity required to execute a will in New York is lower than the capacity needed to execute other types of legal documents. To prove that a will was fraudulent due to lack of testamentary capacity, one must show that the testator was not of sound mind when they signed their will.
An individual is generally considered to be of sound mind if they are able to understand the nature of their property, their family members, and the contents of their will. If an individual suffers from dementia, their memory may be better or worse depending on the day. A will cannot be invalidated if an individual suffering from dementia signs their will during a lucid moment.
Duress and Undue Influence
If the testator is threatened or forced into signing a will against their wishes, this may be a case of duress. Duress cases in the estate context can be challenging to prove because this defense is usually raised after the testator has passed away.
Undue influence is slightly different than duress. Undue influence comes up in situations where the testator is so heavily coerced by others that they are no longer acting independently by their own free will. If a person has a confidential relationship with the testator that would allow them the opportunity to exert control over them, it will be easier to invalidate a will due to undue influence.
Improper and Fraudulent Execution
A will may be fraudulently executed if the signature was forged or the contents of the will were altered or substituted. Indications that a will has been fraudulently executed include the absence of notarization, preparation without an attorney, removal of staples from the document, or missing pages. Article 3 of the Estates, Powers, and Trusts law outlines the requirements of a valid will in New York.
If the requirements to establish a will in New York have not been met, the will can be invalidated. In New York, a will must be signed by the testator, or by an individual in the testator’s presence at their direction, and two independent witnesses. Executing a will at an attorney’s office can help ensure that all the necessary formalities are followed to create a valid will.
Consulting a New York Wills Attorney
A professional trusts and estates lawyer can work to help prevent fraud in New York wills. If you are concerned that a loved one has been taken advantage of and executed a will that is contrary to their wishes, reach out to a skilled trusts and estates attorney today to schedule a consultation.