Yes you can. As the Plaintiff you have the right to assert as many causes of action as you wish. For each cause of action you have certain elements necessary to prove you claim(s).
How are you going to overcome two or more witnesses testifying that they saw your husband sign the Will?
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Mr. Smolinski gives you good advice. It is your decision what grounds you wish to use to contest the will. Other than forgery, available grounds include lack of testamentary capacity and undue influence. Lack of testamentary capacity means that the testator did not have requisite mental capacity to execute a will. Undue influence means that another person essentially deprived the testator of his free will.
Estate contests are never easy. And forgery claims in a will contest are particularly difficult because in the vast majority of cases, the execution of a will is supervised by an attorney, not to mention at least two disinterested witnesses.
But here's he main point: If you are represented by counsel, you should pose your question to your attorney and rely on his or her avice. And if you are not represented by an attorney, prevailing in a will contest becomes virtually impossible.
Good luck to you.
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.
Hopefully, you are represented by an attorney to help to analyze what your possible avenues of recovery are and which ones,lif any, should be asserted. As an answer above points out, you can assert as many (or as few) claims as you desire and the facts warrant. An attorney can help you determine the best way to proceed and what claims may be best suited given your facts. This could include a renunciation of the will. You should consult with a lawyer.
There are several recognized basis for challenging someone's Last Will. The individual who brings the Will challenge may assert as many or as few of these grounds as they wish. In a Will challenge, the Petitioner frequently does not have all the facts necessary to prove each ground at the beginning of the action. As the action progresses the parties are entitled to discovery and may add or dismiss different counts based upon the facts discovered. While the other Attorneys are correct that such a Will challenge is difficult, it is not impossible. I just won a Will challenge action based upon fraud even though there were attesting witnesses. However, to be successful the facts must support your position. Such actions can take years and are very expensive. If you have a forensic document examiner who will testify that the signature is a forgery, that is a good start, but remember the Estate will also hire a forensic examiner who may testify that it is his signature. You will need to take the deposition of the witnesses to the Will as well as everyone involved in the chain of custody of the document from the time of execution until it was submitted to Probate. It is possible that your late husband did sign a Will in front of these witnesses, but that subsequently some of the pages were substituted for the originals, or the document is a compilation of unrelated documents designed to appear as the Last Will. You need an experienced Probate litigator who can evaluate your situation to properly advise you on the likelihood of success. Unfortunately, in these cases where the facts are frequently hidden, it may not be possible to give you an accurate opinion about the chances of prevailing without you spending a great deal of time and money on attorney's fees and experts. An experienced Probate Attorney should also be able to advise you about any possible alternative strategies. Good luck.
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