COVID-19 Update: We are open and serving our clients. Learn More >>>
Member of:
Justia Lawyer Rating
American Association for Justice
Union Plus

New York Will Contest Consequences

In New York, when a last and testament is submitted to the New York Surrogate’s Court along with a petition for probate, all of the beneficiaries of the will, as well as the decedent’s legal heirs are notified. It is not unusual for some beneficiaries to have concerns and questions about the contents of the will. They may not feel that that will represents what they know the testator wanted to happen with the property in his (or her) estate. Or, they may be upset or concern that the will was suddenly changed in the last weeks or months prior to the testator’s death. There may be questions as to whether the changes to the decedent’s final wishes were based on another person’s influence, misinformation, or false promises. If there is any evidence to suggest undue influence, fraud, duress, or lack of mental capacity involved in the creation or revision of a will, then the concerned beneficiary or heir should speak with an experienced New York will contest lawyer about contesting the will.

Reasons to contest a will

While beneficiaries and heirs may feel that a will does not truly reflect the wishes of a decedent, in order for a will contest to move forward the objectant must have legal grounds for challenging the will. In other words, it is not enough for a disinherited relative to be angry that he (or she) did not get anything. The law allows a testator to determine who get his property. In order to avoid being dismissed for lack of legal grounds, the objectant must allege that the will was improperly executed, that the testator lacked mental capacity, that the testator was under undue influence or duress, that there was some type of fraud involved in the making of the will, or that the will was revoked. As an experienced New York will contest lawyer will explain, in order for your will contest to b successful, not only must you allege legal grounds for contesting the will, you must also have sufficient evidence to back up your allegations.

Improper execution. Under New York law, in order to be valid, a will must be properly signed by the testator and properly witnessed by at least two people. The witnesses must be qualified and must also sign the will at the end of the document. A will can be contested on the grounds that these signatures or the drafting of the will do not meet the legal requirements of New York Estates, Powers & Trusts Law.

Mental incapacity. A will can be declared void if there is evidence that the testator was of unsound mind at the time it was written and signed. In order for a will to be valid, the testator must be able to understand the extent and nature of his (or her) assets, understand who his natural heirs are, and understand what it means to make a will. While a diagnosis of Alzheimer’s, a traumatic brain injury, or other condition which impacts cognitive ability may be some evidence of mental incapacity, it is not necessarily dispositive. The objectant must have evidence that at the time the will was executed, the testator was mentally incapacitated.

Undue influence or duress. If someone illegally used their influence to pressure a testator to make a will that he or she would not have otherwise made, or if someone coerce the testator to make a particular will, then that will would be invalid. Undue influence typically involves a elderly, sick, isolated, or otherwise vulnerable testator being manipulated by someone who is in a position of power with respect to the testator. While duress is similar to influence, it typically involves a direct threat or physical violence, or the actual use of physical or emotional coercion. Evidence of undue influence of duress would make the will invalid.

Revoked will. If a second, later dated will is filed and proven valid, then it would replace the older will. A new will would revoke a prior will. .

Will contest consequences: probate prior will

If the New York Surrogate’s Court concludes that a will is invalid for any reason, and there is a prior will that is valid, the court may probate the prior will. If, for example, the testator was manipulated or coerced, if fraud was involved, or if the testator was mentally incapacitated, then the Surrogate’s Court is likely to conclude that the testator did not have the intention to revoke the prior will. The court will then probate the prior will.

There are instances in which it is clear that the testator intended to revoke the prior will and intended the new will to be probated. The testator may take overt action to destroy the prior will, or may execute a document expressing his intent to revoke the prior will. If this is the case and the new will is found to be invalid, the court would not probate the prior, revoked will.

On the other hand, if as described in the Matter of the Estate of Juliana Sharp, 68 A.D.3d 1182 (2009), the decedent did intend to revoke the prior will but the revocation was conditioned on the making of a new, valid will, then in the event the new will is not valid, the prior will would be probated. Whether or not a prior will would be probated in the event a successful will contest depends on a number of factors including the clear intention of the testator when revoking the prior will. If you are administering an estate that is or may be subject to a will contest or perhaps as a beneficiary of a prior will you want to contest a will, it is imperative that you speak with experienced New York will contest lawyer to discuss the will contest consequences.

Will contest consequences: apply rules of intestate succession

When a person dies without leaving a will, then his (or her) estate is administered and distributed based on New York’s rules of intestate succession. New York’s intestate succession statute provides that when there is no will, then the decedent’s closest living relative would be entitled to inherit. This person is sometimes referred to as the decedent’s next of kin. In the instance where a decedent’s will is declared to be invalid after a will contest and there is not a prior valid will, the consequence would be intestate distribution to the decedent’s next of kin.

In New York, the intestate succession statute states that an intestate decedent’s default distributees are his (or her) surviving spouse and children, with the spouse entitled to a bit more than the children. The law states that the spouse is entitled to the first $50,000 of the estate, plus half of the balance of the estate. The children are entitled to the other half of the estate which they would share equally. In the absence of children, the spouse would inherit everything, while in the absence of children, the spouse would inherit everything. Where the decedent has no surviving spouse or children, but is survived by parents, New York Estates, Powers, and Trusts Law mandates that the decedent’s parents would inherit everything. In the absence of parents, a spouse, or children, the decedent’s siblings, if any, would get everything. Based on a priority order stated in the statute, other blood relatives would be entitled to inherit if none of the aforementioned relatives exist.

It is important to understand that if the will contest consequence is that the estate is distributed based on New York’s rules of intestate succession, only relatives would be entitled to inherit. Beneficiaries of the invalidated will who are friends, institutions, are who are relatives who are not next of kin, will not be entitled to inherit, regardless of what the decedent might have said or promised.

No contest clause

One strategy that some testators use to discourage will contests is to include a “no-contest” clause in the will. A no contest clause states that if a beneficiary in a will initiates a proceeding to adjudicate that the will or any of its provisions is void, or seeks otherwise to void, nullify, or set aside the will or any of its provisions, then that person’s bequest would be void. Thus, for a beneficiary who is not satisfied with the terms of the will, the will contest consequences is that he (or she) loses any distribution he would have be entitled to under the will.

Preventing a will contest

While there is no way to guarantee that no one will contest a will, there are strategies to reduce the likelihood that no one object to your will, and if someone does, that the objection will be unsuccessful. For example, a will that is drafted by a seasoned will contest attorney in New York is more likely to withstand a challenge that a will drafted by someone who is not an attorney.

If your will has terms in it that some family members might deem controversial or surprising, or if an arguably logical heir is left out, there are steps that you can take to discourage a will contest. Making it very clear to family members what the will says will ensure that there are no surprises. Your attorney can even include language in the will explaining why a certain family member received a generous bequest while another family member received nothing.

No-contest clauses can be effective in discouraging will contests. However, they only apply to those who are beneficiaries. A no-contest clause would have no impact on a person who is not a beneficiary of the contested will. So the effect of a no-contest clause is limited.

Contact the Law Offices of Stephen Bilkis & Associates

If you question the validity of a will of a loved one, contact an experienced will contest attorney serving New York. A will contest is complicated and will contest consequences may not be what you expect. In fact, there are circumstances in which objectants end up in a worse financial position than they would have been hand they not contested the will. Similarly, if you are the proponent of a will that is being challenged, it is important that you have experienced representation to protect your interests. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in matters relating to wills, trusts, probate litigation, and other estate matters before the New York Surrogate’s Court. Contact an attorney in our office at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, Bronx, Westchester County, Long Island, Nassau County, Queens, Staten Island, Brooklyn, and Suffolk County.

Client Reviews
Mr. Bilkis handled both my father and mother's estate issues through very difficult times he was compassionate kind and understanding. In fact the whole firm showed great empathy. Despite the emotional hard time we were having that quickly and efficiently handle all the matters that were necessary to get us the result we desired. Can't recommend them enough. B.B.
From the very first phone call to Stephen Bilkis' office, the staff was extremely polite and helpful in assisting me. Mr. Bilkis was honest and upfront with me from the beginning in what he projected the outcome of my case would be; in the end we got better results than either of us anticipated. He was very genuine and compassionate in understanding my situation and how this legal matter could effect not only myself but my family as well. I highly recommend this law firm and will most definitely continue using them for any future legal needs. Jarrett
Stephen has handled numerous estate matters, criminal matters and family court matters effectively and with a goal-oriented approach. He gets great results and is a results-oriented attorney. Dustin