Another possible objection to probate is fraud. The Objectant has the burden of proof on this objection. “To establish fraud, it must be shown that the proponent knowingly made a false statement that caused decedent to execute a will that disposed of his [or her] property in a manner different from the disposition he [or she] would have made in the absence of that statement” (Matter of Clapper, 279 AD2d 730, 732 [3d Dept 2001], quoting Matter of Coniglio, 242 AD2d 901, 902 [4th Dept 1997]).
Prior to filing objections, you have the option to conduct a SCPA 1404 exam. This is your opportunity to explore a possible fraud objection. At the exam, you should inquire about statements made to the decedent by the testifying parties and others. You should also inquire about the truthfulness and the materiality of the statements and their effect on the decedent.
If you uncover evidence of fraud, you should assert a fraud challenge in your objections, along with the allegations supporting the elements of it, with references to the false statements, the persons who made them, and the dates or time periods when the statements were made. If the statements may have affected only a portion of the will, you may want to allege in your pleading that specific portions of it (as well as the entire will) are invalid as a result of the fraud.
Even if you do not have strong evidence of fraud at the early pleading stage of the proceedings, you should still assert the fraud challenge in your objections to preserve it for later. You should have the opportunity during post-objection discovery to question additional witnesses, including the beneficiaries and named fiduciary, about possible false statements and their effect on the decedent.
If after discovery there is no basis to continue a fraud challenge, you should consider withdrawing this objection. Otherwise, the Surrogate’s Court will likely dismiss a weak fraud challenge on summary judgment. Even if the estate does not seek summary judgment, asserting a weak fraud challenge beyond discovery may be a waste of trial resources, and it will distract from the stronger objections in the case.