New York Object to a Will

It is not unusual for a family member or friend to be dissatisfied about how a testator decided to distribute assets in a will. In some cases a disgruntled heir may conclude that something went wrong during the drafting or execution of the will that resulted in him or her being left out or getting less property than expected. As a result, that person may decide to object to the will and initiate a will contest. When a will is challenged a New York Surrogate's Court judge must listen to the objector and determine if that person's concerns are valid. If the court determines that there was some sort of problem with the circumstances under which the will was written or executed, the judge could invalidate the entire will or specific terms in the will.

Standing to Challenge a Will

A will cannot be challenged by anyone who chooses to. For example, if your neighbor completely cut her children out of her will and instead left all of her money to a boyfriend she met a few months prior to her death, you cannot initiate a will contest because you disagree with your neighbor's choices. You must be an interested party in order to contest a will. Typically this means that in order to have standing to object to a will you must be an intestate heir, beneficiary of a prior or subsequent will, or a creditor.

Common Grounds for a Will Challenge

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 challenge only under a limited number of circumstances.

Mental incapacity. If you challenge the mental capacity of the testator your position is that the testator did not have testamentary capacity at the time of he or she signed the will. Under New York Estates, Powers and Trusts Law section 3-1.1 the testator must be of "sound mind and memory" at the time he or she executed the will in order to have testamentary capacity. It is important to note that even if the testator did not have a sound mind before or after executing the will, that is irrelevant as long as the testator had mental capacity at the time he or she signed the will.

Undue Influence. A common reason for a will challenge is a claim of undue influence. Undue influence occurs if someone influenced the testator to change how assets were to be distributed under the will. Undue influence is different from simple influence. It is acceptable if someone asks the testator to leave a gift in the will. For the influence to be considered "undue", it must have a negative component such as manipulation. In addition, undue influence would exist if someone used physical or mental force to get the testator to execute a will favorable to the person who made the threats.

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 needs assistance signing the will, it is acceptable for another person to assist the testator in signing or for the testator to direct another person to sign for him or her. However, there are specific rules as to the proper way for someone to help the testator sign, or to sign for the testator. If the will was not properly executed, an interested party may have a valid objection.

Example

In the case of In the Matter of the Estate of Alibrandi, 104 A.D.3d 1175 (2013) the testator left his entire estate in equal shares to his four living children, leaving his granddaughter out of the will. The granddaughter objected to the will, arguing that her grandfather testator lacked testamentary capacity due to an Alzheimer's diagnosis. However, a report from the testator's neurologist indicated that the testator was lucid and competent when the will was executed. Thus, the granddaughter's claim regarding undue influence was dismissed.

Objecting to a will can be both complicated and emotional. To ensure the best possible result based on the particular circumstances of your case, it is critical to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience representing beneficiaries, heirs, fiduciaries and other interested parties in will contests. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate matters. We serve individuals throughout the following locations:

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