When and How to Contest a NY Last Will and Testament

Coping with the death of loved one is a confusing and difficult time. The heartache can quickly escalate when it is revealed that the last will and testament of the decedent fails to include someone dear or provides the person of significance with a nominal inheritance. There are instances in which a disinherited party cannot and should not undertake a challenge to a will that contains unexpected or upsetting provisions. However, it may also be the case that the unforeseen beneficiaries in a will or the disinheritance of an important person in the deceased's life clearly points in one direction – that the NY will should be challenged. But how do you know when to pursue a will contest? And how can you go about it?

Who Can Contest a NY Will?

The contest of a will is a special right afforded only to a limited class. No matter how shocking or corrupt the will of the decedent may appear, the legal right to challenge it is not vested to the general public. In NY Surrogate's Court, when a party is allowed to commence a challenge to a will, that person is considered to have "standing." In NY, in order to have standing the challenger must be an interested party. Interest can be satisfied in any of the following ways: the challenger would have inherited the decedent's estate had he died without a will or the party is a beneficiary in a former will or the current will. The statute pertaining to the standing requirement is designed to protect the lawful family members of the deceased. It precludes, for example, the mailwoman from challenging your father's will because he supposedly promised to include her. On the dark side, it also prevents the decedent's domestic partner from bringing on a challenge although they loved each other dearly and the decedent failed to update his will.

When is a NY Will Invalid?

The satisfaction of the standing requirement alone is not enough to pursue a NY will contest even if the will is blatantly unfair to one party. You cannot initiate a contest because you simply believe you are entitled to a larger share of the estate. The will itself must be flawed or the circumstances leading up to the will execution must be questionable. The four grounds for challenging a will in NY are as follows:

Will Not Properly Executed: One of the most common challenges to a will is improper execution. In NY, the last will and testament of the decedent must be in writing; oral wills are inadmissible. The decedent must have signed the instrument at the end, and at least two witnesses must have seen him sign it. In the alternative, the decedent may asked someone else to sign his will at his direction, and he must have told the witnesses that it was his signature on the will in the event that he failed to sign it in front of them. A will that has not been witnessed or witnessed only by one person is invalid in New York State.

Fraud: There are two forms of frauds if present that will invalidate a will. A fraud may have been perpetrated on the decedent by way of execution. For example, the decedent may have believed that he was signing a pet adoption application, when in fact he was affixing his signature to a will. It may also be the case that the signature in the will offered for probate is not the genuine signature of the deceased. Another form of fraud is by inducement. The decedent may have been fraudulently convinced to change his will or leave his entire estate to a certain beneficiary.

Lacking Mental Capacity: In NYS, an individual who is 18 years old or older is presumed to have the mental capacity to make a will. A contest alleging incapacity based on old age alone is not enough. A challenger who claims that the decedent lacked capacity and possessed an unsound mind should be able to support his claims with medical records, physician affidavits, and witness testimony.

Undue Influence: A challenge based on undue influence typically references a situation in which an individual is able to persuade the decedent to change his will in favor of the present beneficiary at the expense of family members. When contemplating a contest, it is important to examine the relationship between the main beneficiary and the deceased. Was it one of trust and confidence or reliance? Undue influence is commonly claimed when a decedent leaves a large share of his estate to a romantic partner (non-spouse) or a caregiver at the expense of blood relatives.

The First Step in Contesting a Will in NY

If you have sufficient reason to believe that there was some impropriety involved with the will execution itself or the circumstances leading up to the will signing, the first step is to call an experienced will contest lawyer. An attorney specializing estate and probate law will advise you on whether there is standing to initiate a challenge and whether legitimate grounds are present for a contest.

When commencing a will challenge in NY, it is important to bear in mind that although one or all grounds may appear to be present, there might exist reliable conflicting evidence that shows otherwise. The executor may introduce medical records in which the decedent was found alert and sound by his doctor, and writings such as emails showing that the will admitted for probate genuinely did mirror the decedent's intentions. In the event that the last will and testament of the deceased is denied probate and declared invalid, the entire estate will be inherited by the heirs of the decedent pursuant to NY's intestacy law. There are also cases in which a Judge will rule only certain provisions are invalid, while allowing others to stand.

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