and Your Family
Nassau County Will Contest
After someone dies, before the estate can be distributed according to the terms of his (or her) will, the will must be submitted to the New York Surrogate’s Court for probate. The individual named in the will as executor is typically the person who takes the will to the court and files it along with a petition for probate. At this point, if someone feels that the will is not valid, that person can contest the validity of the will by filing an objection. The filing of an objection to probate initiates a type of estate litigation called a will contest. There are a wide range of reasons that someone might feel that the will should not be probated. Regardless of the reason, an objection to probating a will will delay probate and the ultimate distribution of estate asset. If you are involved in a will contest either as a proponent or an objectant, contact an experienced Nassau County will contest lawyer at the Law Offices of Stephen Bilkis & Associates who has the experience and resources to vigorously represent your interests in order help you achieve the best possible result.Standing to contest a will
A will contest must be initiated during probate. When the named executor files the petition for probate, he (or she) is required to include the names and addresses of anyone who is named as a beneficiary in the will, anyone who was a beneficiary in the prior will, and the decedent’s next of kin. Each of these individuals will also receive a notice of probate. Thus, anyone who may feel that there is a problem with the will is given notice of the day, time, and place of the probate hearing. To object to the will, the objectant must show up in court and file his (or her) written objection at the hearing in which the will is submitted for probate.
As an experienced will contest attorney in Nassau County will explain, while there may be a number of people who suspect that the will is fraudulent or void for some other reason, only those with standing have the legal right to file a will contest. For example, the best friend of the daughter of the decedent may strongly feel that the will is invalid because the daughter has expressed concerns about the will to her. However, because the best friend does not have an interest in the will that rises to the level of legal standing, if the best friend files an objection to probate, the Surrogate’s Court will dismiss the objection. On the other hand, if the daughter files an objection, then the court will hear her concerns and not dismiss her objection because of a lack of standing. The standard for standing in a will challenge case is that the objectant must have a direct, immediate, financial interest in the outcome of the will challenge. Anyone who is named in the will has standing.
- The objector is a beneficiary under the current will. Typically the only reason that a beneficiary would object to a will is if he (or she) feels that there is evidence that the will is invalid and that he would receive a greater share of the estate under a prior will.
- The objector is a beneficiary of a prior will or later will that grants them a larger share of the state then the will offer to probate.
- The objector is a statutory heir such that if the will is invalidated that person would receive a portion of the estate under New York’s rules of intestate succession.
The courts are loathe to throw out a will unless there is a very good reason to do so and evidence to support the allegations of invalidity. Even if you have standing to challenge a will, you have to have a good reason to challenge it. It is not uncommon for a beneficiary or heir to feel that the will was unfair and that he (or she) should have received a larger share of the estate or a different asset. Anger or frustration about the terms of the will is not a valid reason to contest the will. As an experienced Nassau County will contest lawyer will explain, the reasons for challenging the will must be based on a technical impropriety during the execution of the will or a circumstance that indicated that the will was not the true wishes of the decedent. Legal grounds for a will challenge include improper execution, mental incapacity, undue influence, duress, and fraud.
- Improper execution. Under New York estate law, in order for a will to be valid, certain formalities must be followed during the execution ceremony. These formalities boil down to that the will must be signed by the testator and there must be witnesses.
- The testator must sign the will at the end. While the court would not invalidate the will based on the testator’s signature not being at the end, the Surrogate can choose to ignore any text that follows the testator’s signature. The testator is not required to sign the will himself (or herself). The law will accept the signature of another person as valid as long as the testator directs the other person to sign for him, the other person signs in the presence of the testator, and the other person also signs his (or her) own name. For example, Bruce is out of town and unable to attend the appointment that he has for signing his will. Bruce asked his son to go and sign it for him. He gave his son a letter to take with him that stated that Bruce approves of his son, Todd, signing the will. Under the New York Laws, Estates, Powers and Trusts Law § 3-2.1, Bruce’s will would not be valid. If after Bruce’s death someone objected to Bruce’s will based on improper execution, the objector would prevail.
- The will must be witnessed by at least two individuals. The two witnesses must be competent. This means that they must be at least 18-years-old and they must not be mentally incompetent. In addition, the witnesses should be disinterested. This means that the witnesses cannot also be beneficiaries. If a witness is also a beneficiary, then that witness’ bequest would be void.
- The witnesses must be present and observe the testator sign the will. If the testator does not sign the will in the presence of one or both of the witnesses, the testator must acknowledge to the witnesses that he did indeed sign the will.
- The witnesses must also sign the will. And the witnesses must write their addresses on the will. However, failure of the witnesses to write their addresses would not alone invalidate the will.
- The testate must declare to the witnesses that the document is his last will and testament sometime during the execution ceremony.
- Mental incapacity. New York estate law is very clear that the testator must be “of sound mind and memory. This means that the testator must have not suffer from a mental incapacity at the time that he signed his will. The definition of having the requisite mental capacity for signing a will is very specific and may not be the same definition that would be used for other purposes. Being of “sound mind and memory” means that the testator is able to pass a 3-part test: (1) the testator must have understood the nature and consequences of executing a will; (2) the testator must have a general idea of the nature and extent of the property her or she was disposing of; and (3) the testator must have known those who would be considered the natural objects of his or her bounty, meaning he must know who his heirs are. For example, if a testator’s estate is worth $1 million, but the testator believes it is worth only $50,000, then he would likely be considered mentally incompetent since he does not understand the extent of his estate. The testator must be able to past this 3-part test at the time he executed the will. It does not matter if he was not mentally competent a month, week, day, or hour prior to executing the will, as long as he was mentally competent at the time.
One of the most common reasons for contesting a will based on mental incapacity is the objector presenting evidence that the testator suffered from a condition such as Alzheimer’s disease, vascular dementia, Parkinson’s disease, frontotemporal dementia, other types of dementia, and traumatic brain injuries. While evidence of a diagnosis of one of these conditions may be some evidence of the testator’s mental state around the time that he signed the will, as an experienced will contest attorney serving Nassau County will explain, the court has made it clear that a diagnosis of dementia does not necessarily mean that the testator did not have testamentary capacity. Those with dementia have periods of clarity. If the will was executed during one of those periods, then it would be valid.
- Undue Influence. A common reason for a will contest is a claim of undue influence. Undue influence occurs if someone illegally influenced you to write a will favorable to him (or her). For instance, a nurse who has been caring for a testator gradually causes the testator to become estranged from his family and friends, and ultimately convinces the testator to change his will leaving the bulk of the estate to the nurse. Undue influence is different from simple influence. It is not illegal for someone to request that a testator leave him property in his or her will. It is also not illegal for someone to say negative things about the family of the testator. However, if someone is in a position of power and the testator is vulnerable, the testator taking active steps to keep the testator away from his family in order to convince the testator to change his will, then there would be evidence of manipulation that amounts to illegal undue influence.
- Duress. A will contest based on duress would mean that the objector feels that he reason that the testator made a specific bequest is because that beneficiary used actually physical violence or the threat of some type of harm in order to make the testator make a will he otherwise would not have made.
- Fraud. An accusation of fraud can mean many different things. For example, someone could trick a testator into signing a document that is a will without the testator realizing what he was signing. Another type of fraud would be giving the testator false information in order to ensure that he would include a certain bequest in the will. Or, impersonating a testator at an execution ceremony would also be a type of fraud that would invalidate the will.
Whatever the reason for a challenge to the validity of a will or specific bequests in a will, a will challenge is complex. You should not attempt to resolve it on your own. It is critical to have an experienced Nassau County will contest lawyer representing you during a likely contentious and emotionally charged process. The staff at the Law Offices of Stephen Bilkis & Associates have decades of experiences representing clients in complex mattes before the New York Surrogate's Court. We are here to help. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Staten Island, Suffolk County, Bronx, Brooklyn, Long Island, Manhattan, and Westchester County.