The New York probate of a Last Will essentially requires the determination by the Surrogate's Court that the Will is a valid document to provide for the transfer of the decedent's estate. When a Will is admitted to probate, the Will becomes effective and estate assets are distributed as specified by the Will provisions.
The New York Probate Lawyer Blog has discussed that the decedent's distributees or next of kin have the right to object to the probate of the Will. The common grounds relied upon in contests are: (i) lack of proper execution of the Will; (ii) lack of testamentary capacity; (iii) undue influence; and (iv) fraud. Each of these grounds has its particular requirements of proof.
In a recent case concerning the Estate of Mildred Rosasco, decided by Manhattan Surrogate Kristin Booth Glen on April 5, 2011 and reported in the New York Law Journal on April 14, 2011, the Court recognized that an additional ground for a Will contest can be based upon "duress". Duress differs from undue influence in that duress involves more of a threat or performance of a wrongful act that coerced the testator. In Rosasco the Court found that the basis for a finding of duress was present due primarily to physical violence that the estate beneficiary had displayed and the possible fear by the decedent that such violence would re-occur if she changed her Will. Therefore, the Court allowed the case to move forward toward a trial.
Instances of Will contests based upon more typical acts of undue influence are frequently presented to the Court. I have represented clients in these New York City probate matters in counties such as Brooklyn and the Bronx. In another recent case, Brooklyn Surrogate Diane A. Johnson allowed the proceedings to move toward trial where a 92-year old decedent had left his substantial estate to two administrators of the assisted living facility where he had lived during the final years of his life. The case of Estate of Ralph Besdansky, decided on April 12, 2011 and reported in the New York Law Journal on April 15, 2011, seems to present a more classic example of a Will procured through undue influence and abuse of a confidential relationship.