What it means to sign a will under duress

Heirs and beneficiaries to a New York estate want the testor’s will to have been completed under fair circumstances. A person leaving his or her assets to beneficiaries should do so without any coercive or intrusive influences. However, this may not always be the case. Sometimes a person may actually compose a will under duress. If a heir or beneficiary suspects a testor signed a will under coercive pressure, they can initiate legal action to contest the will.

The definition of duress offered by Findlaw describes the term “duress” as a derivation of the Anglo-French word duresce, which literally means “hardness” or “harshness.” In its modern meaning, duress is defined as compelling an individual to commit an act against that person’s own wishes or desires. This compulsion is wrong in an ethical sense and typically is illegal. It can take the form of threatening a person, physically or psychologically, to draw up a will favorable to the coercer. In essence, to be under duress is to be subjected to harsh behavior designed to get you to do something you do not want to do.

The New York City Bar makes clear that a will signed under duress can be contested in court and, if a judge is convinced a will is a product of coercion, will annul some or all of its provisions. While duress can be difficult to prove, there are circumstances that can indicate that duress had taken place. For example, someone who is in financial hardship may have a lease on their property or is a renter. The person holding that lease or rent may insist the renter or lessee hand over assets in a will.

It should also be noted that signing a will under duress is not the only way someone can be coerced into signing a will against that person’s better judgment. A person can lie to a testor, perhaps about financial information related to their assets, and the testor will make a will based on that information. This is called fraud. Additionally, a testor may have a close acquaintance who acts on the testor’s infirmities, perhaps physical or mental, to secure a will that leaves the acquaintance assets as opposed to the testor’s own children.

Educate yourself about no contest clauses before probate court

When someone dies, there are often concerns among loved ones and family members about how to handle the estate involved. Even when someone has taken the time to create a thorough and valid last will or estate plan, others within the family may not agree with the will or may find themselves unhappy about the administration of the estate.

That unhappiness can often give rise to challenges to an estate, which can result in the involvement of the probate courts. Some people creating last wills or estate plans will go to great lengths to avoid someone contesting their plans. In some cases, they may decide to include no contest clauses when planning their estates.

What is a no contest clause?

For those who are unfamiliar with the term, a no contest clause is language within a last will or estate plan that penalizes those who contest the terms of the will. Sometimes, the penalties involve the loss of a portion of the assets assigned to that person. In other cases, no contest clauses could completely remove the person bringing the challenge from the will.

People generally includes these clauses in their last wills when they worry about one heir or descendant claiming more than a fair share or attempting to push other beneficiaries out of the estate. By including a no contest clause, the testator protects his or her intentions, wishes and legacy from challenges that could undermine them.

How do New York courts handle no contest clauses?

Every state in the country has its own approach to wills, estates and probate law. New York is no different, with its own unique history of both laws and legal precedent that impact court decisions.

Understanding how the state approaches no content clauses can help you understand how to approach issues with an estate in which you have an interest. Some states uphold them, while others, such as Florida, do not.

Typically speaking, New York probate courts uphold no contest clauses , regardless of whether the contest was brought in good faith or due to probable cause. They also uphold these clauses when included in trusts, as well as last wills or estate plans.

For the heirs and beneficiaries of an estate, bringing any sort of legal challenge against the estate could result in penalties, up to potential disinheritance.

Proceed with caution if your loved one included a no contest clause

Most people know about the contents of an estate plan before their loved ones pass on. After all, discussing an estate is one way to prevent conflict later down the line.

Whether you’ve known about the no contest clause for years or only discovered it when your loved one passed on, you need to carefully consider the implications of that clause before taking any legal action regarding an estate.

What are reasons to assign a power of attorney?

New York residents should face the fact that they may not always have the ability to decide what will happen to their personal finances. One way for you to ensure that you will retain control over your assets, including how they are managed, is to assign someone to act as your agent, to grant them power of attorney. Your agent will manage your finances in the event you cannot do so.

According to CNN.com, there are a number of reasons to assign a power of attorney. First, there is no telling what life may throw at you. Some people may suffer a tragic accident that leaves them incapacitated and unable to make important financial decisions, pay bills or manage monetary investments. Even if you should be fortunate to live a long life, age still brings a general decline in vitality and health, and it is possible you may suffer diminished mental ability in your advanced years. If incapacitated, a power of attorney may be able to make decisions when you are unable to do so.

Additionally, in the event you do become incapacitated, the court may appoint a person to act as the guardian of your affairs. This takes the decision out of your hands, although judges may still act in consultation with your family. However, even if your family does pick somebody that you might approve of, the process can also cost your family legal fees in doing so, plus there are costs involved in the guardian reporting back to the court on your current situation.

Conversely, if you pick a family member or friend to act as your power of attorney, you may not have to pay that person at all. Selecting your own power of attorney can save you and your family costs if you handle matters correctly. However, not all individuals have the luxury of choosing someone close to them to act as a power of attorney, so in the event you have to hire a lawyer or a bank to act for you, you will have to pay a certain fee or a percentage of your assets.

If you are concerned about a power of attorney making decisions on your behalf while you are still physically fit and mentally alert, you can create a springing power of attorney arrangement. The person acting as your agent will not have any power of attorney unless certain circumstances are met. Should you actually become incapacitated or otherwise cannot make decisions for yourself, the agent will then have the power of attorney.

This article, while offering information on power of attorney, is not to be taken as legal advice.

What does the word fiduciary mean?

We often hear that people contest estate executors in court because they failed to fulfill their fiduciary duties. If you are new to estate law and are not at all familiar with the term “fiduciary,” it is important to understand the basics so, in the future, if you should have to deal with a New York estate executor, you will possess a good understanding of how the executor should fulfill his or her task.

The Legal Dictionary describes the concept of a fiduciary. First, the term “fiduciary” can refer specifically to a person, to someone who is entrusted to manage the property or assets of another person. In the case of estate law, a fiduciary is one who manages the estate on behalf of another. When the person who owns the estate passes away, the fiduciary must carry out the wishes of the deceased, however those wishes are expressed.

The term fiduciary can also describe the relationship by which a person is obligated to act for the benefit of others. In the legal arena, the relationship between a client and an attorney is considered a fiduciary one. Other fiduciary relationships include those between a trustee and a beneficiary, a principal and an agent, and a broker and a principal. In the case of estate law, it also refers to the relationship between an executor or an administrator of an estate and the heirs of the person to whom the estate belongs.

The nature of a fiduciary relationship in administering an estate is that the heirs to the estate are putting trust in the administrator that the wishes of the deceased are being faithfully carried out. A faithful executor will take reasonable care of the assets within his or her care until such time as the assets and property are to be dispersed to the beneficiaries. The executor must also show loyalty to the wishes of the estate and not unjustly or unscrupulously take advantage of the position of executor.

Problems arise when an executor, who retains great authority in a fiduciary relationship, acts in a manner that abuses his or her authority. This can include the executor siphoning off assets or damaging property that belongs to the estate. Courts will scrutinize such actions and if necessary, take action against an executor who has acted against the fiduciary interests of the estate, and if necessary, remove the executor from the position.

This article is intended to inform readers on fiduciary relationships and should not be taken as legal advice.

What are an executor’s fiduciary duties?

You are already probably on the right track if you are asking about your obligations as an executor  of a New York estate. However, the question is not as simple as it might seem to you at first. Your responsibilities are subject to change based on the type of estate you are named to administer. 

The two major distinctions revolve around the way your estate is documented. If the decedent of your estate passed without a will— or was intestate, in other words— then you would face slightly different obligations than if he or she left a will behind. There are also different terms for these two fiduciary positions:

  • An administrator works with an intestate individual’s estate through an administration proceeding
  • An executor administers a will through the probate process

If a will exists, you might also have to prove its validity before you are able to administer the estate.

With that in mind, there are three overarching responsibilities you would have as an executor or administrator. According to the New York State Unified Court System, those duties are to administer the estate  without bias, while observing relevant deadlines and as efficiently as possible. Breaches of these guidelines with respect to any of the payments, tax filings, inventories, court filings or other actions might constitute a failure of fiduciary duty and a personal liability for you. 

The estate in which you are involved is likely to have several unique or unusual circumstances. These responsibilities are stated in the most general terms possible, and they represent only a small fraction of the possible issues you might face as an executor or administrator. As such, this article is not meant as legal advice: Please look at it as educational material.