Nassau County Will Contest

Being the executor of an estate involves routine estate administration duties including petitioning the New York Surrogate's Court to admit the will to probate, inventorying the estate's assets, paying the estate's debts, and distributing the estate's assets to the beneficiaries named in the will. Unfortunately, on occasion the process becomes less than routine. Sometimes the executor's job becomes complicated by disagreement among family members as to how the estate should be managed and how assets should be distributed. In other cases family members who are left out of a will challenge the validity of a will, believing that a prior will should be followed. These disagreements may lead to a challenge of the will. A Nassau County Will Contest Lawyer can help you work through a will contest to help you achieve the best possible result.

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  • N.Y. Estate Procedure & Practice Nassau County Will
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  • N.Y. Estate Procedure & Practice Nassau County Will Contest
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  • N.Y. Estate Procedure & Practice Nassau County Will and Estate
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Will and Probate

The executor has the responsibility of administering an estate and distributing its assets to the beneficiaries. To begin this process the executor petitions the Surrogate's Court to admit the will to probate. The Surrogate's Court judge will review the will to ensure that it was executed with all of the formalities required by law. NY EPTL § 3-2.1(a)(4). For example, the judge will make sure that the will was signed by the testator and that there were at least two witnesses. The judge will also contact interested parties to let them know that a petition has been submitted to admit the will to probate. In doing so the judge gives them the opportunity to object to probate. If the judge determines that the will is valid and there is no objection, the judge will allow the will to be admitted to probate. Should anyone decide to object to probate, then the process for a will challenge will begin, delaying probate.

Who can Challenge a Will

A will cannot be challenged by anyone who choose to. For example, if your neighbor completely cut her children out of her will and instead left all of her money to a charity, you cannot initiate a will contest because you disagree with your neighbor's choices. On the other hand, if your mother's will states that you get nothing and everything goes to a charity, then you would have legal standing to pursue a will contest. In other words, you must be an interested party. This typically means that you are a legal heir such that if there was no will at all, under New York law you would be entitled to inherit part of the estate.

Another reason for a person to be an interested party is if that person is if that person would have inherited a share or a greater share of property under a prior will, of if the contested will is invalidated. For instance, if your neighbor executed a will in 2008 that left you $100,000, but in 2011 executed a new will that left you nothing, even though you are not a statutory heir, you would have standing to contest the 2011 will. However, if there never was a will that named you as a beneficiary, then you would not have standing. When there is a will contest, the most common scenarios are:

  • The objector is someone who was named by an prior 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.
Common Grounds for a Will Contest

Even if you have standing to challenge a will, you have to have a good reason to challenge it. Your reason cannot be just that you feel you are entitled to a share of the estate, or because you think that the will is not fair. The law allows a will contest only under a limited number of circumstances that show that the will is invalid, and there must be evidence that support this position.

  • Mental incapacity. If you challenge the mental capacity of the testator, you are arguing that the testator did not have testamentary capacity at the time of he or she signed the will. Under New York law, the testator must be of "sound mind" at the time the will was executed in order to have testamentary capacity. You may contest a will if you believe your loved one did not have the mental capacity to write the will. There is a 3-part test to show testamentary capacity: (1) the testator must have understood the nature and consequences of executing a will; (2) the testator must have known 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 and his or her relations with them. This knowledge or understanding must have existed at the time you executed the will.

    If someone contest your will claiming that you did not have the mental capacity to make a will, your executor or others that support the will can show that you did indeed have testamentary capacity by a statement from a physician who examined you around the time you executed your will. Testimony from those who witnessed the signing of the will or who were around you around the time you executed the will will also make good witnesses to support the position that you did indeed have testamentary capacity.

    When there is a claim that a testator did not have testamentary capacity, it is typically because the testator was older and suffered from dementia, the testator had a history f mental illness such as schizophrenia, or the testator suffered from a head injury in an accident. A testator who was suffering the symptoms of one of these medical conditions at the time the will was executed would not likely not have had testamentary capacity. However, in some cases even testators who do have such medical conditions have periods of lucidity. If the will is executed at one of these times, then a strong case can be made that the testator had testamentary capacity.

  • Undue Influence. A common reason for a will contest is a claim of undue influence. Undue influence occurs if someone influenced you to change the distribution under his or her will. For instance, a nurse who has been caring for a testator gradually causes the testator to alienate family members, and ultimately convinces the testator to change his or her will leaving the bulk of the estate to the nurse. Undue influence is different from simply influence. It is acceptable to request that a testator leave you property in his or her will. For example, if you have been a testator's nurse for years and asked that the testator remember you in his or her will, the nurse would not have exerted undue influence. The influence would have a negative component if it involved manipulation.

    In addition, undue influence would exist if someone used physical or mental force to get you to sign a will. In cases where there are allegations of elder abuse, there are sometimes often allegations that physical or mental threats were used to force a testator to execute a will leaving a distribution to the person who made the threats.

  • Fraud. An accusation of fraud can mean many different things. For example, someone could believe that you signed the will without realizing it was a will or without understanding some of the terms of the will. In other words, there was some sort of dishonesty or misinformation that if that lead you to execute a will that you would not have otherwise executed.

  • Not Executed Properly. Under New York law, in order for a will to be executed the testator must sign the will at the end and two people must witness the signing. If the testator is needs assistance signing the will, it is acceptable for another person to assist the testator in signing. Furthermore, if the testator is physically incapable of signing, he or she can direct another person to sign for him or her. That person should also sign will, noting that he she signed at the direction of the testator. In either case, even if the testator was not physically able to sign the will, the testator had to have had the mental capacity to execute a will.

When there is a will contest based on improper execution the person contesting the will may feel that the testator did not actually sign the will. When this type of allegation is made, it is often made along with an allegation of undue influence or lack of testamentary capacity. If there is a question of whether or not the testator actually signed the will, the court will elicit testimony from the witnesses, as well as others present at the will signing such as the testator's attorney. The court may even ask a handwriting expert to evaluate the signature. The testimony of an attorney who witnessed the signing is powerful. A court is likely to give that testimony great weight.

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 Stephen Bilkis and Associates are experienced in will challenges and have worked extensively in the New York Surrogate's Court. In addition to handling will contests, we also have extensive experience with developing comprehensive estate planning documents to help you achieve your personal goals, including last wills and testaments, trusts, and advanced health care directives. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.

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