and Your Family
New York Will Contest Time Limitations
With any civil legal action, there is a time limitation for bringing that action for court. Such a time limitation is often referred to as a statute of limitations. In order to maintain the right to seek legal redress, the aggrieved individual must file an action with the court before the end of the limitations period. Failure to do so typically means that the person loses his (or her) legal right to be heard in court on that issue. A will contest is a legal action that can be brought in the New York Surrogate’s Court during which someone objects to the validity of a decedent’s last will and testament. Just like with any other action brought in a New York court, the person objecting to the will, known as the objectant, must do so within the will contest time limitations period or risk losing his opportunity for the court to listen to his reasons for contesting the will. Whether you are a beneficiary, heir or another person with an interest in an estate, if you have questions related to the will contest time limitations, it is important that you contact an experienced New York will contest lawyer as missing a deadline in a legal matter will put your case in jeopardy.Will contest
A will contest is a formal challenge to the validity of a last will and testament. In New York, when someone passes away testate, before the decedent’s property can be distributed to the beneficiaries listed in his (or her), his will must go through a process called probate. Probate means that the will must be “proved.” The Surrogate’s Court must be satisfied that the will presented by the purported executor is authentic and actually reflects the wishes of the decedent. If someone believes that the will is not valid and should not be probated, that person can object to probate, initiating a will contest.Will contest time limitations
The limitations period for filling a will contest begin when the person named in the will as the executor files the will with the New York Surrogate’s Court. The executor is required to send notice to the beneficiaries named in the will as well as the decedent’ heirs. A beneficiary is someone who is named in the will who stands to receive a testamentary gift, while an heir is someone who would be legally entitled to inherit a portion of the decedent’s estate in the absence of a will. As a New York will contest lawyer will explain, these roles are important as only those who have an interest in the estate and the outcome of a will challenge have legal standing to initiate a will contest. Beneficiaries have standing because they stand to lose if the will is invalidated. Beneficiaries of a prior will as well as heirs have standing because they may benefit if the will challenge is successful.
The required notice alerts interested parts that a probate proceeding has been initiated, giving anyone who has questions about the validity of the will opportunity to object. Named executors have an interest in the will being probated, thus many seek to streamline the probate process by requesting that beneficiaries and heirs sign a Waiver and Consent to Probate of a Will and Appointment of an Estate Executor. In doing so the person signing essentially states that he (or she) does not object to the will and supports it being probated.
Otherwise, if the executor does not get everyone to sign a waiver, the executor can get a document called a “citation” and send it to all interested parties. A citation is an official court document that states the date and time that a will will be presented for probate. That date and time, known as the “return date” of the citation is essentially the deadline for filing a will contest. Anyone who wishes to challenge the validity of the will must appear in the Surrogate’s Court on date or have their New York will contest lawyer appear for them. Failure to appear amounts to missing the will contest time limitations period. If no one shows up at the return date of the citation to contest, the will will proceed to probate unopposed.Reasons for contesting a will
It is important to understand that filing a will contest within the will contest time limitations period does not guarantee that the court entertain the objection or that the court will agree with the objection. Oftentimes those who are left out of a loved one’s will or who receive less than expected are so upset and surprised that they assume that there must be a problem with the will. A basis of will contest must be more than simply being upset with its contents. There must be valid legal grounds for objecting to a will. Common legal grounds include lack of mental capacity, undue influence, duress, and improper execution.
- Lack of mental capacity. In New York, for a will to be valid the testator must have had the legal capacity to do so. Mental capacity is measured at the time of execution. There is a three part test that the court applies when determining mental capacity. 1. Did the testator understand the effect of making a will. 2. Did the testator understand the breadth of his (or her estate). 3. Did the testator understand who is natural heirs were? Lack of mental capacity is often the basis for will contests when the testator suffers from an ailment that impacts cognition such as Alzheimer’s, Parkinson’s, and traumatic brain injuries. However, a diagnosis is not conclusively determinative of mental incapacity as there are certainly varying degrees of cognitive deficiencies. If you are the proponent of a will that is being challenged on the basis of mental incapacity, there are strategies to show that that testator did indeed have the requisite mental capacity to make a will. For example, testimony from the 2 witnesses who were present at the signing of the will regarding the testator’s demeanor and testimony from the testator’s doctor, could provide strong evidence to support your position.
- Undue Influence. Another common basis for challenging a will is known as undue influence. Undue influence occurs when the testator is manipulated into making a will that he (or she) would not have otherwise made because he was unlawfully manipulated into doing so by another person. Typically undue influence occurs when the testator is in a vulnerable position due to age or disability. The manipulator is typically a person who is in a position of power over the testator. For example, caregiver on whom the testator is dependent on for food, medication, and transportation would be a position of power over the dependent testator. Such manipulation often occurs over an extended period and culminates with the testator writing a new will in which the manipulator benefits greatly and the testator’s relatives, friends, and others who would be his (or her) natural or logical beneficiaries are cut out completely or received significantly reduced distributions. Circumstances which may lead a testator vulnerable to undue influence include the recent death of the elderly person’s spouse, living alone, inability to manage own finances, illness, and cognitive decline. To invalidate a will or part of a will based on undue influence, the Surrogate will review the circumstances surrounding the making of the contested will and must conclude that the testator would not have executed the will but for the improper influence of the manipulator.
- Duress. Duress is involves using physical or mental force, or the threats of physical or mental force to force a testator to make a will that he (or she) would not have otherwise made. Duress often goes hand and hand with elder abuse as the abuser uses his or her power over a defenseless older person in order to make the older person write a favorable will. While they are in some ways similar, duress is distinguishable from undue influence. Undue influence involves manipulation and more subtle pressure. The victim testator may not even realize that he is being manipulated. On the other hand duress is overt pressure, force, or threats. For example, duress may involve a caregiver threatening to withhold care from a sick testator if the will is not changed.
- Improper execution. To be valid in New York, a last will and testament must be executed in the manner described in the New York Estates, Powers & Trusts Law. The purpose of the strict rules is to ensure that only valid wills are probated. If a will is not executed properly, the New York Surrogate’s Court will invalidate it and decline to probate it. For a will to be valid in New York, the will must be signed at the end by the testator. A signature at the end is evidence that the testator was aware of the contents of the will that preceded the signature, while a signature elsewhere leaves open to question as to whether or not the text after was added later. It is also acceptable for someone else to sign the will for the testator, as long as it is done so in the presence of the testator and at the direction of the testator. This is necessary in cases where the testator is physically unable to sign the document. There must be two 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. The witnesses should be “disinterested,” meaning that they should not also be beneficiaries. The most common reason for challenging a will based on improper execution is related to the witnesses. Thus, as a will contest attorney in New York will explain, it is important to make sure that there are two qualified witnesses who are actually present when the testator signs the will.
- Revoked will. The Surrogate’s Court will not probate a will that was revoked. The most common way for a testator to revoke a will is to executor a new one. If someone produces a later dated, duly executed will, then in the absence of evidence that the new will is in some way fraudulent, then the later dated will should be probated. Other ways to revoke a will would be physically destroy the original or execute a document revoking the will.
If you suspect that a will of a loved one is invalid there is something that you can do about it. You can file an objection to it with the New York Surrogate’s Court. However, you must do so within the will contest time limitations period, or risk being forever barred from contesting the will. 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 litigation matters. We are here to help. 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: Queens, Staten Island, Suffolk County, Bronx, Brooklyn, Long Island, Manhattan, Nassau County, and Westchester County.