and Your Family
New York Will Contests Frequently Asked Questions
Will contests are a type of estate litigation in which the person raising the claim challenges the validity of a will. Only certain people are eligible to challenge the probate of a last will and testament. This legal proceeding is known as a will contest.
- Who Can Initiate a Will Contest?
- How Do Beneficiaries or Distributees Go about Contesting a Will?
- Can Beneficiaries and Distributees without a Pecuniary Interest Contest a Will?
- For What Reasons Can I Contest a Will in New York?
- What Happens after I Initiate a Will Contest?
- Can I Contest a Will If I Believe My Loved One Was Not Well Enough to Generate It?
- Can I Contest a Will Because of Improper Execution?
Beneficiaries or distributees may be eligible to initiate a will contest in New York. Beneficiaries who would receive less under the alleged will than they would under a previous will and testament and distributees or heirs at law who would receive less under the last will than they would if there were no will.
Hiring an experienced estate planning attorney may assist you with this process. It can be overwhelming to figure out the legal procedure for contesting a will and making mistakes early on in the will contest could subject you to an unfavorable outcome.
You can only object to the will if you do not have a pecuniary interest, if your conflict has to do with an executor who was named in the will through undue influence or fraud. You cannot contest other provisions of the will but your probate lawyer can help you determine whether or not you have standing to contest a will being offered for probate.
There are five primary reasons that you may initiate a will contest in New York. These are undue influence, incapacitation, the will being revoked by the testator, the undue execution and fraud.
Once you have filed objections to probate in the surrogate's court, this officially triggers a will contest in New York. This must be done on or before the return date of the citation that the court hands out or as the court might otherwise direct. It is common for an objectant to exercise his or her rights under SCPA 1404 and examine any witnesses as well as the drafting attorney. Furthermore, the objectant may request financial records and medical records for a few years before and after the date on which the will was drafted or up to the point of the decedent's death, whichever of these is shorter.
One of the most common reasons that people come forward to contest a will in New York is because they believe that the person who created the will was not of sound mind at the time he or she created it or signed it. Challenging because of mental incapacity may lead to the court overturning the will. You will have to indicate that the decedent did not understand the property they owned, who their friends and family are and what is indeed in their will. The rising number of people affected by dementia and other cognitive disorders is raising awareness about these critical issues and you should have an attorney at your side to help you with this process.
You may choose to raise the claim in court that the will was improperly executed. This means that it was not prepared properly under the laws of the state and for that reason, should not be upheld. A lack of capacity is one area that you can claim that you want to contest a will. You might pursue this in addition or in conjunction to a claim that the parent or a person in question had a lack of capacity at the time.
In any of these cases, hiring a knowledgeable estate contest attorney to assist you with the process is helpful.