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 or how an estate’s assets are managed. 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 your will may lead to a formal challenge in court, which could in turn lead to a significant delay in the probate process and to the distribution of assets. 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.

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What is probate?

Probate is the legal process during which a will is validated, an estate is managed, and the estate’s assets are distributed. 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). The judge is also required to contact interested parties such as relatives and creditors to let them know that a petition has been submitted to admit the will to probate. In doing so the judge gives them the opportunity to object to probate. In the absence of objections, if the judge determines that the will is indeed valid the will will go to probate. Should anyone decide to object to the will going to probate, then the process for a will challenge will begin.

Who can 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 must have some legal argument that you have entitled to a portion of the estate. Generally, interested people include those who are specifically mentioned in the will, relatives not mentioned in the will, and creditors.

What are 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 you are not getting a greater portio of the estate. 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 that such that he 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 probate law has a three prong test for determining whether or not someone has testamentary capacity.

    1. The testator must have understood what it means to make a will and the consequences of doing so.
    2. The testator must have understood the property that he owns that he would be disposing of through the will.
    3. The testator must have understood who his relatives are.

    If some 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. A common grounds 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 caretaker 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 that results in the testator making a change to his will.

    Undue influence can also have a physical or mental component. Threatening the testator or a member of the testator’s family with harm in order to get the testator to sign a will would amount to undue influence.

  • 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 cannot physically sign the will, the law allows another person to help the testator sign.

    When the grounds for the will contest is failure to properly execute the will, the objector may believe that the testator did not actually sign the will. When this type of contention is made, it is often made along with an allegation of undue influence or lack of testamentary capacity. If there is a question of whether or not the testator actually signed the will the court will elicit testimony from those who were present at the will signing such as the testator's attorney. The court may even ask a handwriting expert to evaluate the signature. The testimony of an attorney who witnessed the signing is powerful. A court is likely to give that testimony great weight.

What should I do if I would like to challenge the valid of a will?

Regardless of the issues involved, a probate litigation involving a will challenge is complex. You should not attempt to resolve it on your own. It is critical to have an experienced Suffolk County Will Contest Lawyer 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 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.

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