Staten Island Will Challenge

The purpose of a will is for the testator to memorialize in a legally enforceable document his or her wishes for how his estate is to be distributed. When a will is executed, safeguards are in place to try to ensure that the will is valid and not fraudulent. However, if someone believes that a will is not valid the process to challenge a will is referred to as a will challenge or a will contest. The purpose of a will challenge is to prevent an invalid will from being admitted to probate. If you have reason to believe that a will that you have an interest in is invalid, contact an experienced Staten Island will challenge lawyer at the Law Offices of Stephen Bilkis & Associates to discuss you concerns.

Standing to challenge a will

While there may be any number of people who may believe the will is invalid for a variety of reasons, under New York law only those who stand to lose financially if the will is probated have legal standing to contest the will.

• Legal heirs. Anyone who would inherit or inherit more if there was no will would have standing. This would include the person who under intestacy rules are considered next of kin. For example, April wrote a will that left her cousin her entire estate and left her daughter nothing. April was unmarried and had no other children. April’s daughter would have standing to challenge the will because under New York’s rules of intestate succession, if April had died intestate, April’s daughter would inherit April’s entire estate.
• Prior will beneficiary. If someone was listed as a beneficiary in a prior will, but not in the current will, that beneficiary would have standing. For example, Holly wrote a will in 1990 leaving her entire estate to her alma mater. Ten years later, after Holly married and had 3 children, Holly wrote a new will leaving her entire estate her husband and three children. When Holly passed away, her alma was surprised to learn that it had been cut out of Holly’s will. The alma mater contacted a Staten Island will challenge attorney to discuss the filing an objection to probating the new will.

Grounds for objecting to probating a will

Many times will challenges are prompted by long-standing family feuds are no necessarily grounded in fact. However, a court will dismiss an objection to probating a will if it is not based in on a legitimate legal argument. Grounds for objecting to a will include:

• Improper execution. In New York a will must in writing, must be signed by the testator at the end, must be witnessed by at least two people, and the witnesses must sign it. If, for example, a testator signs the will, but there is only 1 witness, the will was not properly executed.
• Forgery. Some part of the will was forged. For example, the will was forged, the testator’s signature was forged, or a witness’ signature was forged.
• Lack of testamentary capacity. In New York a testator must be at least 18 years old and must be mentally competent.
• Duress or undue influence. If the testator was induced to write a will based on manipulation or inappropriate pressure, it would not be valid.

No contest clause

A testator can try to prevent a will challenge by including a clause in his (or her) will that penalizes a beneficiary for contesting the will. Such a clause is called a no contest clause or an in terrorem clause. For example, Steven in his sister Sarah had a huge fight. Steven, who was quite wealthy, told Sarah that he was reducing the amount of money that he would leave her in his will. Steven contacted his will challenge attorney in Staten Island to update his will. Because Steven was concerned that Sarah might contest the will, his attorney included a no contest clause as follows: “If a beneficiary under this will challenges or contests the probate of this will or any of its clauses in any manner, such devise or bequest to that beneficiary shall be revoked.”

While some states do not enforce no contest clauses New York does with a few exceptions. New York will not enforce no contest clauses against minors or incompetents. In addition, objectors are permitted to conduct preliminary discovery related to a contest without risking revocation of a testamentary gift.

Contact the Law Offices of Stephen Bilkis & Associates

Will challenges are difficult, particularly because they occur at a time which is emotionally difficult due to the loss of a loved one, and because they often involve difficult family dynamics. However, if you are involved in a will challenge it is important that you are represented by someone with experience to ensure that your interests are protected. The will challenge attorneys serving Staten Island at the Law Offices of Stephen Bilkis & Associates have years of experience representing beneficiaries, heirs, and other interested parties in a variety of estate disputes including will challenges. We are prepared to fight for your legal rights. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Staten Island, Long Island, Queens, Nassau County, Bronx, Brooklyn, Manhattan, Suffolk County, and Westchester County.