and Your Family
New York Procedure To Invalidate A Will
In New York a will challenge or will contest is a legal action that takes place in the Surrogate’s Court during which someone files an objection to a will that has been submitted to the court for probate. When someone passes away having executed a will, the first step in the process of initiating probate and settling his (or her) estate is for the executor nominated in the will to file the original will with the New York Surrogate’s Court in the county in which the decedent was domiciled at the time of his death, and request that the court admit it to probate. In petitioning the court to admit a will to probate, the petitioner (the executor) is telling the court that the will is valid and that it should be probated. However, just because the executor says the will is valid and submits it to the Surrogate’s Court does not mean that it is indeed valid. Upon review of the will, the court may not have reason to believe that it is invalid. However, those who have an interest in the estate and who have insight into the family dynamics and circumstances surrounding the drafting and execution of the will have the right to challenge the executor’s petition valid. Whether you are a beneficiary, heir or an executor, to learn more about New York’s procedure to invalidate a will, contact an experienced New York will contest lawyer who will ensure that your legal rights are protected throughout the case.Procedure to invalidate a will
The procedure to contest a will is commonly referred to a will contest or a will challenge. However, the process is actually filing an objection to probate. A probate proceeding is initiated when the executor files the will along with a petition for probate. In the petition, the executor is required to include the name and address of each beneficiary named in the will, beneficiaries under a prior well, as well as the names of family members—whether or not they are beneficiaries. These individuals will receive a notice of the probate proceeding. The notice will include the date, time, and place when the will will be presented for probate. Any interested party who wishes to contest the will must appear in the appropriate Surrogate’s Court on the date indicated or have their New York will contest lawyer appear for them. At that time anyone objecting would file his (or her) objection in writing.
If no one shows up on the return date and files an objection to probate, the will will proceed to probate unopposed. If someone does file an objection to probate, the next step in the procedure to invalidate a will is that the court will review the allegations and determine if the objectant included sufficient information to warrant a hearing on the objection.Reasons for contesting a will
While someone who is excluded from a will or who receives less that he (or she) expected to receive in the will may have a number of reasons to object to the will, the court will only allow will contest to move forward if the objectant presents legal grounds for objecting to a will.
Undue Influence. Another grounds for will contest is that the testator was illegally influenced by a manipulator seeking to benefit from the testator’s will. The typical scenario is that the testator is vulnerable due to failing health, a physical or mental disability, or due being lonely or depressed. The testator the becomes dependent on a caregiver who may or may not be a family member. The caregiver uses his (or her) position of power over the testator to isolate him from his family and ingratiates himself to the testator. Ultimately, the caregiver takes advantage of his relationship with the testator to convince him to change his will.
When determining if undue influence existed, the Surrogate’s Court may take the following into consideration:
- The relationship between the testator and the alleged manipulator. If the alleged manipulator was in a position of power over the testator, then the alleged manipulator could have taken advantage of the circumstances.
- The opportunity to exert undue influence. If the testator was often alone with the alleged manipulator, there would be opportunity for the alleged manipulator to plant seeds in the testator’s head and to arrange for a new will to be written and executed in secret.
- The testator's ability to resist undue influence. If the testator was in a mentally weakened position due to dementia or depression, it would be easier for the alleged manipulator to influence him (or her).
- Whether the will includes a questionable bequest. If the will includes an extraordinary bequest to the alleged manipulator, such as leaving the alleged manipulator a proportionately large distribution compared to that which was left to the testator’s next of kin, the court may view that as evidence of manipulation.
As a skilled will contest attorney in New York will explain, undue influence is tricky to prove. It is different from simple influence. Merely showing affection to a relative or a dear friend by leaving them a generous bequest is not undue influence. Also, just because a caregiver or other person is in the position to manipulate a testator and the testator leaves him a testamentary gift does not mean that the caregiver actually exercised undue influence.
To invalidate a will or part of a will based on undue influence, the Surrogate’s Court must conclude that the testator would not have executed the will but for the improper influence of the manipulator.
Improper execution. To be valid in New York, there formalities that must be followed during the execution ceremony. According to New York Estates, Powers & Trust Law, the will must be signed at the end by the testator, or the will must be signed at the end by someone else at the direction of the testator in the presences of the testator. There must be two competent witnesses who are present at the signing of the will and the testator must communicate to the witnesses that they are witnessing the signing of his (or her) will. To be competent, the witnesses must be at least 18 years old and must not be mentally incapacitated. The witnesses must also sign the will.
Mental incapacity. For a will to be valid, the testator must have had the cognitive ability to understand the import of making a will. This means that at the time that the testator executed his will he must have had understood the value of his estate. This does not mean that he must know the exact value or that he must be able to recite the property he owns. It means that he must have a rough idea of his net worth. For example, in the In the Matter of the Estate of Olga J. Slade, 106 A.D.2d 914 (1984), evidence that the testator did not have testamentary capacity included testimony that although the testator had assets worth about $650,000, she thought her estate was worth about $10,000. The testator must also understand who his natural heirs are. The testator must indicate that knows what it means to make a will and the effect of the will that he wrote.
Lack of mental capacity will challenges are not unusual in cases where the testator suffered from a condition that affected his cognitive abilities such as Alzheimer’s disease, vascular dementia, Parkinson’s disease, frontotemporal dementia, and traumatic brain injuries. Lack of mental capacity challenges have also been based on allegations that the testator was drunk or under the influence of drugs at the time he made the will.
As a skilled New York will contest lawyer will explain, the New York Surrogate’s Court has made it clear that having a cognitive disorder or suffering from a condition that can affect your cognitive abilities is not the same as lacking the mental capacity to make a will. Those with such conditions can have periods of clarity during which they are capable of making a will. The test is the testator’s cognitive ability at the time the will was executed.
Evidence of lack of mental capacity can be gleaned from the testator’s medical records and testimony from the testator’s doctor. Observations from those around him including family, friends, and even the witnesses to the signing of the will could be valuable testimony. The best evidence would be from those who observed the testator moments before he signed the will, as an individual’s mental state can change from day-to-day or hour-to-hour.
Oftentimes when an objectant challenges a will he (or she) will cite multiple reasons for invalidating the will. For example, in the case of testator who is suffering from dementia, the objectant may allege that testator did not have the mental capacity to make a will, that someone exerted undue influence, and that the same person coerced the testator to make the will. The Surrogate’s Court can find that the objectant produced sufficient facts or evidence to invalidate the will for some reasons, but not for others.Consequences of invalidating a will
Depending on the specifics of the case, there are 4 potential consequences if a will is invalidated.
Probate prior will. If the Surrogate’s Court invalidates the will and there is a prior valid will, the court will probate the prior will. For example, Annie executed a will in 1990 leaving everything to her 4 kids. She executed another will in 2015 that was invalidated based on undue influence. The court will probate the prior will.
Probate current and void contested terms. If there is a specific bequest that the court determines to be invalid, the court may strike that bequest and probate the will as if the clause did not exist.
Intestate succession. If the Surrogate’s Court invalidates the will and there is no prior valid will, the court will order that the estate be settled as an intestate estate. Similarly, if the Surrogate’s Court invalidates the will and there is a prior will that the testator clearly revoked, the court will order that the estate be settled as an intestate estate.Contact the Law Offices of Stephen Bilkis & Associates
If you believe there are grounds to contest a loved one’s will, it is important that you understand the procedure to invalidate a will. Failure to follow proper procedure may result in your objection being dismissed. The seasoned will contest attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have years of experience working closely with beneficiaries, heirs, and executors on complex probate and estate administration matters. 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: Manhattan, Nassau County, Queens, Staten Island, Suffolk County, Bronx, Brooklyn, Long Island, and Westchester County.