Challenging a will can be a complex and difficult process. In New York, there are several grounds on which a will can be challenged or contested, and it is essential to be knowledgeable about all of them. A will may not meet its legal requirements, such as signatures from the testator or the two witnesses. A will’s validity may also be questioned when the creator of the will, or the “testator,” was not of sound mind at the time of signing. Children who have been excluded from the testator’s will may also be able to contest if they claim that their exclusion was due to foul play or the testator’s mental capacity. Manipulation, deception, or pressure on the testator can also be reasons to contest a will.
Improper Execution
The validity of a will relies on it being properly executed. In New York, a will must be written and cannot be oral, with few exceptions. Two non-inheriting witnesses must be present, and the will must be dated and signed. Having two witnesses, the date, and the testator’s signature are crucial to validating the will and making sure that you or your loved one’s wishes are carried out after passing. A testator must also choose an executor to avoid the courts appointing an administrator. Wills that are created following legal advice will face the least amount of scrutiny, since, without proper and careful execution, a will can be easily challenged in court.
Real-World Example
- An elderly family member allows just one non-inheriting witness to be present at their will signing, believing that one witness would be enough to have a properly executed will.
Disinheritance
Disinheritance is when a testator excludes a family member from their will. New York law protects a surviving spouse from disinheritance. If your spouse decides to exclude you from their will for any particular reason, you are still entitled to a portion of their estate, regardless of what was expressed in the will. However, testators can choose to exclude children from any area of their estate, although the disinheritance must be described clearly within a valid will. If a testator disinherits children from their will, be aware that the child may suspect that they were unfairly excluded. Although disinheritance isn’t direct grounds to contest a will, a child can claim that lack of testamentary capacity, undue influence, or fraud has affected the validity of the will and led to their wrongful exclusion.
Real-World Example
- Your father remarries and dedicates his estate to the children he had in his current wedlock, leaving you out of his will. You may suspect that you have been unreasonably left out of the will.
Lack of Mental Capacity
The mental capacity of a testator during the execution and signing of their will is known as “testamentary capacity.” To possess testamentary capacity, you must understand the basics of a will and express mental clarity. You must also understand the nature and extent of your property and who is affected by your will. A testator having an eccentric character, poor memory, senility, or other behavioral differences does not always mean that they are mentally incapacitated. A testator’s prolonged and severe condition must directly affect their ability to execute a will. For testamentary capacity to be grounds for a will contest, it must be proven that you were unable to recognize your family members, recollect knowledge of your property, and understand the consequences of signing a will. The burden of proof is often on the contestant, as evidence like a doctor’s letter proving disability at the time of the will signing, and/or testimonies from witnesses may be necessary. If you are considering contesting a will due to testamentary capacity, be cognizant of the fact that the contestant must be able to prove that the testator's mental state directly affected the validity of their will.
Real-World Example
- Family members who are cognitively impaired due to a serious mental and/or neurological progressive illness, such as Alzheimer’s disease, may not possess the mental capacity to execute their will.
Undue Influence
Undue influence is a form of manipulation that can be used against the testator when executing a will. Undue influence is often perpetrated by people whom the testator trusts, like close friends or family. Undue influence is subtle and can occur over time, and a vulnerable individual is often the target. Due to its subtlety, providing evidence for undue influence can be difficult. In court, you must prove that there was a motive for the manipulator. There must also be a record of specific instances where a testator was coerced into creating, editing, or redrafting a will centered around the wishes of their manipulator. To help avoid undue influence, a testator must create their will independently without the presence of any trusted individual.
Real-World Example
- Your sibling may persuade your elderly mother to leave the estate solely to them, disinheriting you and other beneficiaries. They could also be present during the drafting and signing of your mother’s will. This can render the will invalid, as your mother would not be representing her wishes as the testator alone, but those of her manipulator.
Duress
When executing a will, duress is a form of manipulation characterized by pressure and threats of physical or mental harm. While undue influence often takes place between confidential relationships, the danger of duress can present itself regardless of the relationship. When someone in a place of power uses it against you, they are inflicting extreme pressure and emotional distress. This can invalidate the will, as you might leave all your possessions to a manipulator out of fear of being hurt. Like undue influence, duress can be tough to prove in court. There often aren't many witnesses, so there must be concrete evidence of the manipulator posing threats against the testator.
Real-World Example
- A landlord threatened an elderly family member with eviction if they did not leave everything to him, causing the elderly testator to execute and sign their will under duress.
Fraud
Lastly, fraud occurs when you are intentionally misled when creating and/or altering your will, resulting in your intentions being misrepresented and harm coming to the will’s beneficiaries. A common type of fraud is forgery, where a signature will be forged on a document, making it look like you have already approved a document that you have not yet. When information is concealed from you or you are purposefully tricked, the will that is created does not properly carry out your wishes and can be deemed invalid.
Real-World Example
- Your father being tricked into believing that he is signing a separate document that is not his will, and that signature being fraudulently used to sign his will.
FAQ’s
- As a spouse of the testator, can I still contest a will on grounds of disinheritance?
Yes, although New York has protections for a spouse to receive a portion of the estate named in a will, if you are dissatisfied with your inheritance, you may be able to contest the will. However, if the contest is successful, the will becomes subject to New York’s Intestacy Laws.
- Can I claim lack of testamentary capacity as grounds to contest a disabled family member’s will?
It depends on the disability. To claim lack of testamentary capacity as grounds for contest in New York, the testator’s mental state must be compromised in a way that they cannot understand the will as a document, the nature of their estate, and cannot recognize the immediate family members to which they are leaving the will. If the testator is affected by a physical disability which does not render them mentally incapacitated, then you cannot claim testamentary capacity.
- How long do I have to contest a will in New York?
In New York, a will contest based on fraud, undue influence, or lack of capacity must be initiated within two years of the will being admitted to probate, or within six years from the testator’s death.
- How much does it cost to contest a will in New York?
There is no fixed cost to contest a will in New York, as prices are contingent upon several factors, such as the complexity of the case, the severity of the infraction, and the individual’s specific situation. For a more specific breakdown of what contesting a will may cost you and your family, it is recommended that you contact the Law Office of Inna Fershteyn at (718) 333- 2394 to schedule a consultation.
If You Suspect Any of These Issues With a Will, Here Are the
Next Steps:
- Identify the Problem- Which one of the grounds listed above applies the most to your situation?
- Research- Do research to see which grounds would be the most reasonable fit when presenting your contest in court.
- Collect Evidence- For many of these grounds, the burden of proof is often on the contestant, and each contest needs its own set of evidence based on your claim. Note- The type of evidence testamentary capacity requires can be drastically different than the evidence that undue influence calls for.
- Professional, Legal Guidance- In order to fully understand what it means to contest a will, its processes, and if it is right for you, it is of utmost importance to contact a professional legal specialist in Trust and Estate Law. If you believe that there is a problem with a will, diving into preparation without proper advice can be dangerous.
- Reach Out-The expert experience that the law office of Inna Fershteyn provides will ensure that you are making the right decisions for yourself and your family.
It is incredibly important to stay informed on all of the elements of contesting a will. Being educated on the grounds for a will contest will help you communicate your needs better when writing a will. Knowing the significance of expressing wishes independently and clearly will help avoid conflict after your or a family member’s passing. Understanding mental capacity can ensure that your family members are of sound mind when executing their wills. If you believe you are experiencing any one of the events described above, you may qualify for a probate hearing. Such complicated circumstances require seeking professional legal advice. To secure the safety of you and your loved ones, the Law Office of Inna Fershteyn provides expert consultation for will planning and execution. To receive assistance with will execution and guidance on any concerns regarding will contests, please contact the Law Office of Inna Fershteyn at (718) 333- 2394.
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