Wills - Contested
A Will is contested when a distributee or heir at law feels slighted by the testator’s choice of property distribution. Such a challenge may have valid grounds such as improper execution (e.g., the testator did not properly sign it), the testator lacked testamentary capacity (e.g., he did not understand what he was doing), the Will contains a mistake, or it is the result of fraud, undue influence, duress, or insane delusion. A Will contested can be a lengthy and costly affair and create bitterness among family members.
New York law provides procedures for the contest of a Will. These proceedings take place in the New York Surrogate's Court. The persons that have a right to contest a Will are usually the decedent's next of kin or distributees. These are the individuals that would receive the estate assets through intestacy if the decedent did not have a Will. The decedent's distributees are determined by reference to New York Estates, Powers and Trusts Law Section 4-1.1. This statute entitled "Descent and distribution of a decedent's estate" provides a list of persons who have priority of inheritance beginning with a spouse and children, parents, brothers and sisters and then more remote descendants. All distributees are required to receive notification from the Court when a Will is filed for probate. The Court issues a document called a Citation which needs to be served upon all distributees. The Citation contains a Court date when the distributees can appear in Court and advise the Surrogate that he or she intends to file Objections to the Will.
It is important to recognize that even where the decedent had no contact with certain relatives during life, if these relatives are the closest living distributees at the time of death, they must be provided with notice of the Probate Proceeding and have a right to contest the Will and file objections in the Surrogate's Court.
Estate Litigation attorneys are aware of the many statutes that can be referred to in contest proceedings. One of the most important laws is contained in Surrogate's Court Procedure Act 1404. These provisions allow a party who is considering to file objections to a Will to obtain papers and testimony from the attesting witnesses and the lawyer that drafted the Will. This discovery information is important in deciding whether to start a contest and decide if there is a basis upon which a Will can be invalidated due to undue influence or lack of testamentary capacity or other grounds. Most of the time the Court does not invalidate a Will because there is a preference to have the decedent's desires as expressed in a writing prevail over the statutory disposition to distributees. However, where there is demonstrated proof that a Will is not valid, a person filing a Will contest in New York can succeed.
I have many years of experience working with clients to create wills that effectively express the clients’ personal desires regarding the disposition and protection of assets. I have also represented clients where a will is contested. I have helped many clients in probate matters and estate administration.
For personalized attentive service and a free case evaluation you can contact me by telephone: (212) 355-2575, fax: (212) 751-5911 or e-mail