and Your Family
Long Island Will Contest
The death of a loved one and learning of the contents of his (or her) will is an emotional time. Relatives and friends often display a range of emotions from sadness, to hurt, to anger. During such as an emotional time, it is not unusual for relatives and friends to be anxious about the will. Disappointed relatives may become angry and decide to challenge the validity of a will. On the other hand, if the will was not executed properly or if there are other reasons to suspect that a will does not truly reflect the wishes of the testator, then a will contest would be the appropriate process for determining the validity of a will. A will contest is a lawsuit commenced in the New York Surrogate’s Court that challenges the validity of a will for which a petition for probate has been filed. If you have concerns about the validity of a will, contact an experienced Long Island will contest lawyer at the Law Offices of Stephen Bilkis & Associates who has extensive experience representing clients in complex estate litigation cases in the New York Surrogate’s Court.Standing to contest a will
Not just anyone has the legal right to contest a will. In order to contest the will you must have standing. Standing is limited to those who have an immediate financial interest in the outcome of the will contest. Anyone who is mentioned as beneficiary would have standing as they may lose out on a disposition if the will is invalidated. Anyone who is an heir would have standing as they might inherit if the will is declared invalid. In addition, those who were mentioned in a prior will might also have standing as they stand to gain financially of the current will is declare invalid. Thus, a friend of a beneficiary who is troubled by the will would not have standing to challenge the will in the Surrogate’s Court.
Example. April passed away leaving her entire estate to her best friend, Julie. April never married and had no children. However, she was survived by 3 sisters, her mother, and her uncle. Only April’s mother would have standing to file a will contest. Under the rules of intestacy April’s mother would be entitled to inherit April’s entire estate.
It is important to understand that an interested party is not limited to relatives. A non-relative has standing to contest a will if he (or she) was named in the will or in a prior will as a beneficiary. If you believe you have grounds to contest a loved one’s will, but are unsure as to whether or not you have standing, discuss your concerns with a Long Island will contest lawyer.Grounds for contesting a will
In addition for having standing the file a will contest, the objectant must also have legal grounds. It is not enough for an interest party to simply be angry that he or she did not receive the disposition that he thought he should have received. There must be specific legal grounds. Legal grounds include:
- Mental incapacity. If the testator did not have mental capacity to execute the will, the will is not valid. Mental capacity means that the testator understood what it means to create a will, the general extent of his estate, and who his heirs are. If the objectant has proof that the testator did not have mental capacity at the time the will was executed, then the Surrogate’s Court judge may have no other choice than to declare the will invalid. Evidence of incapacity includes medical records and testimony from the testator’s friends and family.
- Undue Influence. Undue influence involves someone intentionally influencing a testator to make a will that favors him or her, and excludes the individuals who would naturally receive dispositions. Typically the influencer is a in a position of power over the testator who is vulnerable. Undue influence is more than talking negatively about a relative or requesting a disposition. It involves manipulation.
- Improper execution. New York Estates, Powers and Trusts Law had specific requirements for how a will must be executed in order for it to be valid. This is one the reasons that it is so important that you work with an experienced will contest lawyer in Long Island to ensure that your will is not invalidated due to improper execution. A will must be signed by the testator, and it must be witnessed by at least two disinterested parties who also sign the will.
A no contest cause, sometimes referred to as an “in terrorem” clause, is a clause that results in a beneficiary forfeiting his disposition if he challenges the will. The purpose of such a clause is to discourage will contests. However, as described in Estates, Powers and Trusts Law § 3-3.5 , while no contest clauses are enforceable in New York, there are limits. For example, an objectant may conduct preliminary discovery without forfeiting his or her disposition.Contact the Law Offices of Stephen Bilkis & Associates
If you are an interested party and you believe that the will of a loved one should not be probated, it is important that you discuss your concerns with a will contest attorney serving Long Island who has experience. The staff at the Law Offices of Stephen Bilkis & Associates has over two decades of experience representing clients in estate matters before the New York Surrogate’s Court, including matters related to both contested and uncontested wills. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Long Island, Brooklyn, Manhattan, Nassau County, Queens, Staten Island, Suffolk County, Bronx, and Westchester County.