30 YEARS EXPERIENCE REPRESENTING CLIENTS LIKE YOU
Will Contests FAQs
Frequently Asked Questions About Will Contests in New York
The death of a family member can call up strong emotions, which in turn can lead to heated conflicts. When it appears that the decedent’s will does not reflect his or her true intentions, and a will contest is filed, these conflicts can become even more difficult to sort through. It’s important to call a lawyer whether you are an heir, beneficiary, executor, or other interested party to a will contest. Here are some of the most frequently asked questions that New York lawyers are asked about will contests.
- What Is a Will Contest?
- How Is a Will Contest Initiated in New York?
- Who Can Contest a Will?
- What Are Common Grounds to Contest a Will?
- When Does Undue Influence Exist?
- When Does Duress Exist?
- What is Revocation Under Probate Law?
- What is Fraud Under Probate Law?
- What is Improper Execution of a Will Under New York Probate Law?
- What is Lack of Testamentary Capacity?
- Can You Protect a Will From Being Contested?
What Is a Will Contest?
A will contest is a probate proceeding where an interested party challenges whether the will being probated is valid. Often the interested party brings the will contest because he or she is surprised by the bequests of the testator who drew up the will and believes that they don’t reflect the testator’s true intentions. The person filing the will contest must prove their claims are more likely true than not.
How Is a Will Contest Initiated in New York?
In New York, a will contest is initiated by filing objections in the Surrogate’s Court to stop probate of the will.
Who Can Contest a Will?
You can contest a will if you have a pecuniary interest in it. Heirs of the decedent, who would receive less under the will than they would receive if there were no will, can contest a will, as can beneficiaries that would receive less than the will being probated than they would under a prior will by the decedent. If you don’t have a pecuniary interest, you can only object to the appointment of the named executor but cannot challenge other will provisions.
What Are Common Grounds to Contest a Will?
The most common grounds to contest a will are undue influence, duress, revocation, fraud, improper execution of the will, and lack of testamentary capacity.
When Does Undue Influence Exist?
Undue influence exists if the testator made the will because he or she was in a weakened mental state and was influenced by somebody else to divide the property in a way that goes against his or her true wishes.
When Does Duress Exist?
Duress exists if a testator made a will only because of extreme pressure or coercion by someone to divide his or her property in a way that goes against his or her wishes.
What is Revocation Under Probate Law?
Revocation is the nullification of all or part of a will by making a subsequent will, making a written declaration of revocation, or by physically destroying the will such as by burning it.
What is Fraud Under Probate Law?
Under probate law, fraud occurs when someone deceives the testator such that the will does not accurately reflect the testator’s true wishes. For example, if a person made a material omission of fact intending to mislead the testator about the actions of a loved one for the purpose of convincing the testator to disinherit the loved one, this may be fraud.
What is Improper Execution of a Will Under New York Probate Law?
Under New York probate law, improper execution of a will occurs when a testator doesn’t follow the legal formalities for making a valid will. These requirements include the testator signing the will in front of a minimum of two witnesses who also sign the will at the testator’s request. A will may be invalidated for improper execution if the testator failed to sign the will or someone forged his or her signature; a witness did not meet the criteria for being a witness, such as when a witness is underage; or the will lacks two witnesses.
What is Lack of Testamentary Capacity?
A lack of testamentary capacity means that the testator didn’t have the needed mental ability to understand the nature and effect of creating the will at the time of executing the will. Lack of testamentary capacity includes a testator’s failure to understand the consequences of signing the will, the nature and extent of the property, or their relationship with heirs. For example, someone with dementia who can no longer recognize their sons and daughters at the time a will is executed may lack testamentary incapacity, and their will may be invalidated in a will contest.
Can You Protect a Will From Being Contested?
You can protect a will from being contested by having it drafted and executed by an experienced attorney who can make sure the provisions for asset distribution are clear and unambiguous. You should only make the will while you have full mental capacity and can follow all required legal formalities. An experienced attorney can make sure your intentions are carefully documented whether in a separate letter or within the terms of the will. In some cases, it can be appropriate to include a no-contest or “in terrorem” clause to discourage beneficiaries from challenging the will; in most cases, these clauses state that a beneficiary who unsuccessfully challenges the will can be disinherited or may only receive a nominal share of the estate. It is also wise to avoid the appearance of undue influence by a beneficiary to whom you leave substantial property.
Consult an Experienced New York Will Contests Attorney
Whether you are bringing a will contest or seeking to uphold a will, you should consult and retain an experienced New York will contests lawyer. Jules M. Haas has over 40 years of experience. Call him now for a free confidential review of your case at (212) 355-2575 or contact him through his online form. He offers reasonable and flexible fee arrangements.