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I believe that my brother's friend exerted undue influence on him in the execution of his will. How do I prove it in court?

Yonkers, NY |

My brother knew this woman only casually . She was not a girlfriend in the traditional sense . My brother suffered from brain cancer . After my brother's third operation to remove the tumor , my father died and I was named the executor of his estate . I attempted to get the estate settled as soon as possible but my brother became impatient and hired his own lawyer . Previously , we had used the same lawyer to assist us , the only beneficiaries , to in dividing the estate . At the same time as he hired his own lawyer , he dropped me as his power of attorney and health care proxy and installed the same friend in these roles . He also had a will drawn up in which he left 70% of his assets to his same friend and her relatives . What are my percent chances of successfully challenging his will in court ?

Attorney Answers 4

Posted

What are your chances of prevailing in court? There is absolutely no way to tell you that and anyone who says they can on a message board is full of "it." You need to hire an attorney to determine what evidence, if any, you have that undue influence was exerted. These types of cases are very hard to prove as you would need eyewitnesses and perhaps medical records. Start now if you are serious by having an attorney investigate the case with you.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/

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James P. Frederick

James P. Frederick

Posted

Strong words, Mr. Zelinger. ;-)

Asker

Posted

Thanks for a rational answer, I appreciate it.

Jayson Lutzky

Jayson Lutzky

Posted

Good answer

Posted

Did your brother die? If NO, any challenge would be premature. If YES, I suggest you consult a trusts and estates lawyer.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at Eric@RothsteinLawNY.com. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.

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Asker

Posted

Yes, he's dead. And I intend to get legal help.

Posted

Wait until he passes and then see what the will says. You can retain an estate lawyer at that time to fight the will. Percentages are unknown and premature. Good luck.

If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or www.mynewyorkcitylawyer.com.

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James P. Frederick

James P. Frederick

Posted

It sounds like percentages may be known...(he referenced the 70% going to the "friend.") But if the testator is still alive, then the Will cannot be contested. I agree with you.

Asker

Posted

He's dead, I wouldn't have posted this otherwise. I've seen the will as a result. I have no intention of letting opportunist walk away with 70% of the estate without a fight. Therefor, I'm not signing the waiver of process; consent to probate. I merely was looking for free legal advice here and I appear to have got what I paid for.

Jayson Lutzky

Jayson Lutzky

Posted

Percentages were in reference to the odds of winning. Consult with an experienced probate lawyer to contest the matter.

Asker

Posted

Right, percentages were in reference to the odds of winning. Essentially, let's get down to brass tacks. Are these cases ever won other than a minute percentage? Are they ever settled out of court? Are you capable of providing me a guess?

Jayson Lutzky

Jayson Lutzky

Posted

Honest answer is I never give percentages to any client, it is misleading and improper. Each case depends on the individual facts, the skill of the lawyers and the quality of the bench. If you are serious about your case, then schedule an appointment with the lawyer or lawyers of your choosing and discuss it in depth in their office. To prepare for the consultation being along all the paperwork, wills , power of attorney, and write a chronology with details of what happened. Important is a list of medicine that your brother was on, if you know the names.

Asker

Posted

Alright, thanks for your answer, I've already done those things.

Posted

I have the same concern as my colleagues -- is your brother still alive? Perhaps the woman to whom your brother apparently wishes to give his assets is "not a girlfriend in the traditional sense," but it seems to me that that is not really your concern. Besides, I'm not sure what a "girlfriend in the traditional sense" is. Maybe worrying about what your brother's will says while he is still alive might make you "not a brother in the traditional sense."

But none of that is your actual question. Your real question is what is the precise percentage of your successfully challenging your brother's will. The answer is 41.2569%.

Am I serious? No, of course not. But there is a percentage I can provide you with: If your brother is alive (as I think your posting suggests) and he learns of your posting, I think I can predict with virtually 100% accuracy that he will be beside himself with anger at you.

Good luck to you. And to your brother.

Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.

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Asker

Posted

With all due respect, why would I have posted this question unless my brother had died? FYI, a girlfriend in the traditional sense means a sexual relationship, for starters, which didn't exist to the best of my knowledge. Nor did true friendship. She also deliberately alienated him from me by suggesting I was cheating him out of his share of the estate, which wasn't true. Of course, an exact percentage of my chances of success is ridiculous, I was looking to find out whether I have a snowball chance in Hell of being successful in court before I spend money on a lawyer. And lastly, your manner is very off putting. Check your attitude at the door, I won't be hiring you.

Jayson Lutzky

Jayson Lutzky

Posted

Reread your question and how you worded it to see why the lawyers responded the way we did. It is not a clearly worded question.

Asker

Posted

Again, who challenges a will before the person has died? I had no access to the will since I was not the executor. The only way I saw the will is that when I contacted his lawyer after his death, announced that I was the only living immediate blood relative and she sent it. The question was perfectly clear.

Michael S. Haber

Michael S. Haber

Posted

Instead of getting all huffy here, you might, instead, wish to return to your actual question, which tended to confuse several of us. Those of us who responded did not see in your posting anything suggesting that your brother had passed away. Now that we know, we likewise understand that most of the information in your posting was irrelevant. You want to know whether you can challenge your brother's will. To do so, you must be able to show that the will was invalid due to lack of testamentary capacity, undue influence, or some sort of fraud (perhaps based on duress). A vague posting that consists of an array of assumptions does not allow any of us to effectively evaluate the efficacy of a probate challenge. That you find my manner "off putting" or my attitude not compatible with your own is fine. I was not campaigning to represent you -- I was answering your question in order to try to be helpful to you, as were the rest of the very able attorneys who responded to your posting. I always advocate that one finds a lawyer with whom he or she feels comfortable. If you seek to hire an attorney, make sure that you present the facts in a clear and concise way, and try to avoid ambiguous phrases (like "not a girlfriend in the traditional sense"). The long and short of it is that whether one can effectively challenge a will is a determination that requires detailed (and focused) analysis. You'll need to actually consult with an attorney. This forum will not allow for the in-depth kind of analysis that is needed.

James P. Frederick

James P. Frederick

Posted

Well said, Michael.

Asker

Posted

And as such, this forum is useless except as a means to steer clients to lawyers. As far as my getting huffy is concerned, you invited it with your mocking response to my question concerning my percentage chance of success. To reiterate, all I wanted was to know was whether cases similar to mine ever succeed and all I got was some mealy mouthed response. And since you opened a can of worms by your condescending tone, allow me to express my view that lawyers essentially make their money off the misery of others. They produce nothing. As far as presenting the facts in a clear and concise way, I have all the facts, I just couldn't present them in the limited format available here. Shakespeare was right, "First kill all the lawyers". Just kidding, I'm sure you're as a swell guy when you're not feasting on the rotting meat of carcasses.

Jayson Lutzky

Jayson Lutzky

Posted

Read the entire quote from Shakespeare, it is actually complimentary to lawyers. This forum is not confidential. Schedule an appointment with a lawyer to discuss the matter if you are serious.

Asker

Posted

Not one of you shysters are going to be my lawyer. I am totally serious concerning my intention to not allow someone I regard as no more than a thief to steal my brother's estate, in which I broke my rear end to make sure he got his fair share when my father died and which frankly, would have been zero except for that inheritance. Also, I took no executor's fee, which I'm sure any of you would have done, because I wanted my brother to get 50% of my father's estate ( we were the only beneficiaries). In closing, let me say they we all prostitute ourselves, some, like attorneys at law, more than others. And yes, I'm aware that this is a public forum. Sorry to disappoint you that you can't sue me for expressing my opinions.

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