and Your Family
Suffolk County Will Contest
Being the executor of an estate sometimes involves more than administrative duties such as paying estate bills and distributing assets to beneficiaries. Often times the job an executor is to manage or respond to disputes that arise over the validity of a will. In fact, the executor has a duty to defend the estate against challenges. For example, a dissatisfied heir may believe that the will is not valid and should not be probated because the signature was forged or because it was not properly witnessed. Or, a disinherited relative may believe that the testator did not have the mental capacity to make a will due to dementia or some other health condition. Any disagreement about the validity of a will may lead to a formal challenge in court, which could in turn lead to a significant delay in the probate administration process. If you are an executor, beneficiary, heir, creditor or other interested party who is involved in a will contest, contact an experienced Suffolk County will contest attorney who will help you work through the dispute so that it is resolved as quickly as possible and in the most favorable manner possible given the particulars of the case.Probate
Probate is the legal process during which a will is validated, an estate is managed, and the estate’s assets are distributed. The Surrogate’s Court has jurisdiction over probate. The executor named in a will is the person who has the responsibility of managing an estate and distributing its assets to the beneficiaries named in the will. Probate begins with the executor petitioning the Surrogate's Court to admit the will to probate. The Surrogate's Court judge will review the will to makes sure that it was executed with all of the formalities that New York law requires. NY EPTL § 3-2.1(a)(4). Part of the petition process is that executor must send notices to interested parties such as relatives and creditors to let them know that a petition has been submitted to admit the will to probate. Thus, interested parties have the opportunity to object to probate. In the absence of objections, if the judge determines that the will is indeed valid the will will be admitted to probate and that administration process will move forward. Should anyone decide to object to probate, then the process for a will challenge will begin.
For more information about the steps in probate, contact an experienced Suffolk County will contest attorney.Standing to challenge a will
Although there may be a variety of people who are unhappy with the contents of a will, only certain people have the legal right to challenge a will. You must be an interested party. This typically means that you will be financially impacted by the outcome of the will challenge. Generally, interested people include those who are specifically mentioned in the will, heirs who would inherit in the absence of a will, beneficiaries of a prior will, and creditors.Common reasons will contests
Being an interested party is not enough to challenging a will. You also must have a good reason. The reason must be more than you are upset that Uncle Bill received a larger bequest than you. New York law allows a will contest only under specific circumstances that point to the possibility that the will is not valid. The objector must have evidence to support the contention that the will is invalid.
Mental incapacity. If the testator had some sort of mental defect such that he (or she) was not of “sound mind and memory" at the time the will was executed, then the testator would not have had the ability to make a will. New York estate law has a three prong test for determining whether or not someone has testamentary capacity.
- The testator must have understood what it means to make a will and the consequences of doing so.
- The testator must have understood the property that he owns that he would be disposing of through the will.
- The testator must have understood who his relatives are.
Note that the test does not refer to having a diagnosis, level of sophistication, or intelligence.
As an experienced Suffolk County will contest attorney will explain, if someone challenges a will based on lack of mental capacity, the best way to show that the testator did indeed have mental capacity at the time the will was executed is to produces witnesses who were present at the signing of the will and medical records.
Undue influence. Another common ground for a will challenge is that an interested party claims that there was undue influence. Undue influence exists when someone influenced a testator to change the distribution under his will. For instance, a caregiver who has been helping out the testator gradually causes the testator to harbor negative feelings against family members, and eventually talks the testator into changing his will leaving most of his estate to the caregiver. Undue influence is different from simple influence. For example, if a friend simply asks the testator to leave her a specific painting in his will and does nothing else to influence the testator to do so, that would not amount to undue influence. Undue influence involves some negative action or manipulative action with the intention to get the testator to change to his will in favor of the manipulator.
Will not properly executed. Under New York law in order for a will to be valid the testator must sign it and at least 2 must be present to witness the signing. If the testator would like another person to sign it for him (or her), then the law allows the testator to direct someone to do so. That person must sign in the presence of the testator. If there is evidence that the will was not properly executed, then the judge will not admit the will to probate.
Fraud. A will contest based on fraud means that there is an allegation of some sort of deceit involved in the creation or execution of the will. For example, it may involve allegations that someone other than the testator signed the will.
When there is an objection to a will, it is common that the objectant has multiple grounds for contesting the will. To prevail, the objectant must present sufficient evidence to support at least one basis for his (or her) challenge.Contact the Law Offices of Stephen Bilkis & Associates
Regardless of the issues involved, a will challenge is complex. You should not attempt to resolve it on your own. It is critical to have an experienced will contest attorney serving Suffolk County on your side. The staff at the Law Offices of Stephen Bilkis & Associates is experienced in will challenges and have worked extensively in the New York Surrogate's Court. In addition to handling will contests, we also have extensive experience with developing comprehensive estate planning documents to help you achieve your personal goals, including last wills and testaments, trusts, and advanced health care directives. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Suffolk County, Bronx, Staten Island, Nassau County, Brooklyn, Manhattan, Queens, Long Island, and Westchester County.