Prudent estate lawyers are likely aware of the typical kinds of will contests out there. These include:
- challenges on the basis that the testator did not validly execute their will following statutory requirements,
- a lack of testamentary capacity, and
- allegations of fraud and undue influence.
Courts often hear these objections together. Section 3-1.1 of New York’s Estates, Powers and Trusts Law (EPTL) determines who can make wills and exercise testamentary capacity: “Every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property.” This provision outlines courts’ broad definition of the minimum level of mental acuity required to dispose of one’s estate.
The history of testamentary capacity and undue influence in federal and New York jurisprudence is far-reaching. The first major decision on testamentary capacity in the United States was in New Jersey in 1820. In Harrison v. Rowan, 11 F. Cas. 658, Judge Washington instructed the jury to consider testamentary capacity as such:
As to the testator’s capacity: He must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged;—a recollection of the property he means to dispose of;—the persons who are the objects of his bounty, and the manner in which it is to be distributed between them …”
Judges have evolved in their ways of describing testamentary capacity. In some early cases, such as the 1830 New York decision Betts v. Jackson ex rel. Brown, Chancellor Walworth described testamentary capacity in relation to a man “whose mind is weakened, or rendered imbecile by age or disease.” Courts’ focus on “imbecility” as medical and legal points of reference for testamentary capacity continued into the 20th century. Towards the mid-20th century, the jurisprudence began to reflect a less medical, more legally broad understanding of the testator’s ability to understand their decisions and devise their estate.
Factors for Finding Testamentary Capacity
In the Matter of the Estate of Olga J. Slade, 106 A.D.2d 914 (1984), the State of New York Supreme Court consolidated its test for testamentary capacity into three broad points. Concerning the testatrix, the Court determined:
(1) whether she understood the nature and consequences of executing a will;
(2) whether she knew the nature and extent of the property that she was disposing of; and
(3) whether she knew those who would be considered the natural objects of her bounty and her relations with them.
In Slade, the decedent, Olga J. Slade, died at 91 after suffering from degenerative dementia. She had left her entire estate, valued at approximately $650 000, to a friend. The distributees of Slade’s estate filed objections on three grounds. They alleged Olga improperly executed her will, lacked the requisite testamentary capacity, and had been unduly influenced by a beneficiary. After considering the evidence, the Court found that Slade had had no understanding of her finances for almost ten years prior to her death. She had believed her estate was valued at $10 000, not the six-figures it was worth. Finally, her doctor had only reviewed her medical records when attesting to her testamentary capacity. He failed to consult her directly despite her dementia diagnosis the year prior to executing her will. Based on the test’s criteria, the Court held that Slade was not of “sound mind and memory” when she executed her will, and refused to admit it to probate.
Matter of Dralle: The Burden of Proof
Courts have continued to consult these three factors in subsequent cases concerning testamentary capacity. In the Matter of Dralle, 192 A.D.3d 1239, Dorothy Anne Dralle (the decedent) named two of her nephews (“Nephew #1” and “Nephew #2”) as the executor and successor executor of her 2010 will, respectively. In 2012, Dralle’s relationship with Nephew #2 deteriorated drastically. Dralle executed a new will naming Nephew #1 as her executor and sole beneficiary with no mention of Nephew #2. When she passed away in 2017, Nephew #1 offered her 2012 will for probate. Nephew #2 objected, challenging its validity on the bases of undue influence and a lack of testamentary capacity.
Considering testamentary capacity, the Court in Dralle cited the Matter of Giaquinto, 164 A.D.3d 1527, holding that the petitioner (Nephew #1) must first meet the initial burden of demonstrating that the “decedent understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of [her] bounty and [her] relationship to them.” Nephew #1 presented witness testimony from both witnesses to Dralle’s 2012 will attesting to her “sound mind, memory, and understanding,” creating a presumption of testamentary capacity. Dralle’s attorney (who was also one of her witnesses) averred that she had approached him directly about Nephew #1 being the sole beneficiary of her assets. Dralle’s tax preparer also attested that she had discussed her assets with him in 2012 and was fully aware of what she owned.
Due to this evidence, the Court concluded that Nephew #1 had established a prima facie case that Dralle possessed testamentary capacity at the time she executed her 2012 will. The burden then shifted to Nephew #2 to challenge the evidence. Nephew #2 presented Dralle’s uncertified medical records indicating that she suffered from memory loss. In response, the Court took a hard line, ruling that “declining cognitive abilities does not, without more, create a question of fact on the issue of testamentary capacity, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was signed.” Because Nephew #2 could not provide more supporting evidence, the Court dismissed his objection on this ground.
Lack of Due Execution
Nephew #2 also raised the issue of lack of due execution, a claim linked to the question of his aunt’s testamentary capacity. Challenging a will on the grounds of lack of due execution is often a much more cut-and-dry issue for courts. As in all probate codes, Section 3-2.1 of the EPTL provides New York’s formal requirements for executing wills. These requirements include details on signatures, witnesses, and other procedural elements. Perhaps most crucially, the will must express the testator’s valid intentions. Unlike other cases with objections due to a lack of due execution, Dralle did not concern a will with obvious formal deficiencies. Because Dralle’s 2012 will was properly executed, he instead argued that her “near legally blind” vision meant that she could not read it herself to be sure of what she was signing.
Although Dralle’s poor vision was undisputed, she was never diagnosed as legally blind. Moreover, extrinsic evidence supported the argument that she could still read in 2012 and the instrument’s two witnesses attested that Dralle read her will in their presence. Considering the evidence, the Court held that proof of Dralle’s poor vision was not sufficient to overcome the legal “presumption of due execution.” This creative argument of improper execution is better reserved for questioning the testamentary capacity of the testator.
When assessing undue influence, courts look at the relevant time period and events to determine whether someone has influenced or coerced the victim. Given the nature of estate litigation, allegations of undue influence often revolve around forms of elder abuse. Hall v Hall, (1868) LR 1 P & D 481, 18 LT 152 described undue influence as “pressure […] so exerted as to overpower the volition of the testator.” In Dralle, the Court cited the Matter of Stafford, 164 A.D.3d 1527 when it noted that undue influence exists where the “decedent was actually constrained to act against [his or] her own free will and desire,” and the court can identify “the motive, opportunity and acts allegedly constituting the influence, as well as when and where such acts occurred.” The Court has also held that the burden of proof for fraud and undue influence is high and rests on the party who asserts these claims.
In Dralle, Nephew #2 alleged that Nephew #1 exerted undue influence over their aunt when she executed her new will. Evidence suggested that this was not the case: Dralle contacted her attorney to draft a new will who never spoke to Nephew #1, the sole beneficiary, about it. The beneficiary was also absent when Dralle executed her 2012 will and was unaware of its existence until 2013. Even Nephew #2’s testimony conceded that Nephew #1 did nothing improper before Dralle named Nephew #1 her sole beneficiary. Considering the evidence, the Court ruled that Nephew #2’s allegations of undue influence were based on “speculation and surmise,” and did not meet the burden of proof. The Court dismissed all three of Nephew #2’s objections and admitted the 2012 will to probate.
Challenging the validity of wills based on a lack of testamentary capacity or undue influence requires a high degree of supporting evidence. The test for testamentary capacity–from Goodfellow to Slade, through to Dralle–has evolved with our times, becoming more attuned to the wide array of cognitive disorders and neurological diseases, and courts may continue to apply increasingly contextual lenses to this test. If you believe your client or aging loved one is becoming incapable of properly executing their testamentary intentions, it can be helpful to obtain medical records and have a doctor conduct a direct interview with your loved one concerning this issue.
Successfully challenging the validity of a will on the basis of undue influence remains difficult. If your client or loved one is suffering from the moral coercion or influence of another, it is prudent to collect as much relevant information as possible. Gather witness testimonies from third parties, contact the attorney who drafted the will, and ensure the testator has read and fully understood their testamentary dispensing instructions.
Finally, challenging the validity of a will due to improper execution is unlikely to be successful unless it has obvious deficiencies. Even then, courts may validate non-compliant wills after long periods of protracted litigation–something all executors and estate planners would like to avoid. To prevent this deviation from the estate plan, ensure that the testator has followed all the relevant statutory requirements and that others can attest to their testamentary capacity.