If you believe a will isn’t valid, you may be able to
contest it. This means challenging it after it’s submitted to the court for
It’s important to know that a person can set up their
will in any way they see fit, even disinheriting their relatives if they wish. A
will is presumed to be valid unless proven otherwise.
However, even if the person who created the will (the
“testator”) took all the appropriate steps to create it, the will doesn’t
become a legal document until after they die. In most cases, the will must
still go through the New
York probate process to be proved valid by the county Surrogate
Who Can Contest a Will?
Anyone who is affected by a will can challenge its
validity after it’s submitted to the court for approval. Contesting a will can
be a complicated, costly, and time-consuming process, so it’s not to be taken
Here are a couple of hypothetical examples in which
someone might contest a will:
A child who would have inherited more if
there had been no will. According to New York state law, if a person dies without
a will, the surviving spouse (if there is one) will automatically receive
$50,000 plus 50% of the estate balance. The children inherit everything else.
So, if there are two kids, they would each receive 25% of the remaining balance
of the estate. Now suppose the parent who died left a will indicating that one
sibling should only receive 10% of the estate. If no will had existed, that
sibling would have gotten 25% of the estate. In this case, the sibling might
choose to contest the will.
A wife who believes her husband (the
testator) created a will under conditions of undue influence. Suppose the
husband’s sister threatened to never let him see his favorite nephew again if
he didn’t write her into his will. To avoid being cut off from his nephew, the
husband leaves half of his estate to his sister, even though that’s not what he
wanted. In this case, the man’s wife could contest the will.
Grounds for Contesting a Will
Under New York Law, you can contest a will based on the
Lack of mental capacity: Someone can
claim that the testator was not of sound mind at the time they made the will.
The person contesting the will must prove that the testator didn’t understand
what they owned, who their relatives were, or what was in their will around the
time the will was created because of a cognitive impairment, such as dementia;
a mental illness, such as depression or schizophrenia; or another factor, such
as being on a mind-altering medication. Obtaining the testator’s medical
records can help strengthen the case.
Lack of validity: Someone can claim the
testator didn’t follow the proper protocols for creating a valid will. In New
York, this includes signing the will at the end of the document and having it
signed by two “disinterested” witnesses, among other requirements.
Undue influence: Someone can claim the
testator only made the will because they were influenced by a person (e.g., a
family member, a friend, or someone else) to divide their property in a way
that went against their wishes.
Duress: Someone can claim that the
testator only made the will because they were under threat or extreme pressure
to divide their property in a way that went against their wishes.
Fraud: Someone can claim the testator
only made the will because another person lied to them, thus influencing the
way they divided their property.
The Process of Contesting a Will
Unfortunately, it’s not all that uncommon for a
caregiver, friend, relative, or someone else with ulterior motives to take
advantage of a person with cognitive or physical impairments—in fact, it’s one
of the most common reasons wills are contested. If you believe someone took
advantage of you or your loved one with a will, you may be able to overturn it
with an attorney’s help.
Your attorney will file a claim to overturn the will with
the court, along with any supporting documentation. The court will decide at
trial whether the will is valid. Until the trial is complete, the executor may
not distribute the estate. If the court finds the will to be invalid, they will
Throw out the will
Admit only a portion of the will
Admit an earlier will in its place
Not admit any existing wills and instead
distribute the estate’s assets among the deceased person’s relatives in
accordance with the laws of New York.
If the court finds there is no valid will, the assets
will be distributed as follows:
If there is a spouse, and no children, the
spouse receives 100% of the estate.
If there are a spouse and children (biological
or adopted), the spouse receives $50,000 plus half (50 percent) of the estate
balance; the children inherit everything else (if there are two children, each
would receive 25 percent of the remaining balance, for example).
If there is no spouse but there is a child or
children, they will receive an equal distribution of the estate; if there are
two children, for example, each will receive 50 percent.
Adoptive children have the same inheritance
rights as biological children.
Stepchildren are not entitled to receive
anything from the non-biological parent’s estate (but they will inherit from
their biological parents).
Get Legal Help Contesting a Will
Hiring an experienced attorney to help you contest a will
can greatly improve your chances of a favorable outcome.
Joseph A. Ledwidge PC is an expert New York estate
attorney representing executors, heirs, beneficiaries, fiduciaries, and other
interested parties. He and his associate counsel have 32 years of combined
experience. If you entrust us with your case, we’ll plead every possible ground
for a will challenge.
Your loved one passes away and you get a copy of the will. Right away, you can tell that something isn’t right. You don’t think this will should stand. You want to contest it and fight for your rights as an heir.
But can you do so? Do you actually have the proper legal grounds to go to court? Or do you just have to abide by the will, even when you do not think that it accurately portrays your loved one’s wishes? This is already an emotional time for you and your family, and now this legal confusion makes it that much more difficult to move forward.
1. Undue influence impacted your loved one’s decisions
In other words, their decisions were not really their own. The will does not reflect what they wanted, only what someone else influenced them to write down.
For example, perhaps you have an older copy of the will in which you received far more of the estate. Right before their passing, your parent changed the will to give more of the estate to a step-sibling, whom you never got along with but who lived closer to your parent. You think that they convinced them to make the change by manipulating them in the fragile time near the end of their life.
2. Your loved one drafted the will without testamentary capacity
This is often a problem for people with dementia and other mental disorders. They may no longer have the mental capacity to understand what the will means, what assets they control or even what papers they are signing.
This could be related to the manipulation discussed above. Perhaps your step-sibling waited until your parent no longer understood the legal process and then convinced them to move assets out of your name. They never wanted to do this and didn’t even understand that they did.
3. Your loved one only signed through fraud
The extreme end of the example noted above is when someone uses fraud to get an elderly person to take an action they don’t know they’re taking. They can do this by lying directly.
For instance, maybe your step-sibling altered the will and then brought it to your parent. They told them it was a simple medical form they needed to sign for the hospital. They did it, trusting that person. However, they got tricked into signing an altered will that they’d never seen.
The possibility of a nasty court battle over a last will and testament motivates some people to stick a “no contest” clause into their wills. If anyone is going to step forward to contest the will, the no contest clause will specify that the contesting individual will be cut out of the will’s provisions. While this seems like a good way to dissuade beneficiaries from going to court over a will, New York law might not uphold such clauses in all cases.
No contest clauses might seem unfair at first glance since they present an all or nothing proposition, and if a person finds fault with the will, that person could lose out completely on the benefits of the will by contesting it. FindLaw states that for these reasons, many states will not enforce such clauses and will allow people with standing to contest wills if valid reasons exist to do so.
New York law, however, is quite specific, stating that no contest clauses are valid in the state. A testor does not need to provide a beneficiary with any alternative benefits if the beneficiary contests the will. Also, it does not matter if a beneficiary has a probable cause to contest the will. The no contest clause can still take effect and disinherit the person for contesting. However, this is not true for all cases.
State law does provide specific exceptions that bar a person from being disinherited. For instance, the contesting individual may only be claiming that the will is not being offered in the correct jurisdiction and is not challenging the provisions of the will. A challenger may also not be competent under the law to make the challenge in the first place and thus cannot be held responsible. State law provides this exception to infants as well.
People may also suspect that there is something wrong with the will itself, perhaps believing that the will is not even legitimate. State law permits residents to challenge wills if they are forgeries. A will might also have been superseded by a later will but the earlier will was wrongly put into effect, which can also form the basis for a legitimate challenge.
Additionally, a no contest clause cannot be used to coerce people to not engage in legitimate probate actions. A beneficiary may have documents or information that are relevant to a probate proceeding but the testor of the will might not want to come to light. Regardless of the testor’s wishes, a person cannot be disinherited for bringing these documents forward. A person also cannot be disinherited for not participating in a petition to put a document through probate as a last will.
While creating an estate plan is a wise move for any adult living in New York, many people fail to take important steps to plan for their futures and get their affairs in order until they are old or in particularly poor health. This can prove problematic, however, because in some cases, other people take advantage of older Americans who they believe they can easily influence, and they may exploit the trust of an aging American if they think doing so would be to their benefit. At Joseph A. Ledwidge, P.C., we understand that undue influence is a common reason courts may deem a will invalid, and we have considerable experience helping others with similar concerns pursue solutions that meet their needs.
According to the American Bar Association, undue influence, although somewhat difficult to define, refers to someone’s efforts to manipulate someone else for his or her own personal gain. While undue influence can affect virtually anyone, those with memory loss and related issues are particularly vulnerable to this type of treatment. Older Americans, for example, may find that others exploit them for their own financial gain, and those responsible for doing so may try to isolate the victim in an effort to better protect themselves from detection.
Deciphering between undue influence and simple persuasion can prove difficult, however, so many judges and juries consider certain factors when determining whether undue influence is at play. For example, a judge or jury will likely consider the vulnerability of the victim and the degree of authority the influencer has over this person when determining whether someone experienced undue influence.
Judges and juries may also consider the tactics used by the influencer, and the results of the influencer’s behavior, before making final determinations about undue influence. You can find out more about this and other common reasons for contesting wills by visiting our webpage.
New York law allows people who write a will to name an executor. This executor would take care of the estate after the testator passed, but you as a beneficiary or interested party may not always be happy with the way this happens.
Your first course of action would probably be to speak with the individual about their performance. Many executors are not experienced in the capacity, so they could see criticism as a way of improving and therefore making the probate process more efficient. If someone did not respond to your polite inquiries, or if you believe they were engaging in some sort of malfeasance or malicious action, you could act on those grounds to dismiss that individual from the executor position.
Attempting to remove someone who is responsible for administering a will as it goes through the probate process is, as you might imagine, not a simple matter. This is due in part to the court’s general assumption that the testator already assessed and approved the abilities of the individual named as executor.
Complications may also arise from the specific points in the New York consolidated laws procedural rules that allow for removal of executors. In fact, the New York codes specify 12 specific situations in which you might have grounds for such a removal.
Probate is a complex process. Not everyone has the qualifications or the ability to perform the fiduciary and actual duties required of an executor. However, you would probably need to establish evidence of the specific ways in which you found your executor unsuitable for the rigors of his or her position before having any chance of removal. This is not legal advice. It is only general educational information.
The aging population of New York is virtually beset upon by messages about how and where to direct estate funds. Sometimes, that persuasion comes from personal acquaintances or family members as well. Here at the office of Joseph A. Ledwidge, P.C., we often see wills that we suspect were directed, at least in part, by this preponderance of over-generalized or unethical advice.
If you were to lose a loved one while he or she was under the influence of these forces, the condition of the estate could be far from what you expect. You would often have only a few alternatives in these types of situations, such as forming an attempt to contest the will.
Uncontested estates often take quite a while to pass through the probate process, but you should expect even further delays if you were to decide to raise questions as to the validity of documents or the capacity of the decedent. Unfortunately, we often see cases in which these delays and frustrations are the best possible recourse to right an unjust will.
We find that advice columns, such as this article from Forbes, are replete with emphatic language and common-sense reasoning that, while persuasive, does little to address the true challenges presented by the personal, collaborative nature of the estate planning process. We find that the best results often come from bringing as many of the parties together in a guided, strategic process.
No estate plan is a perfect solution. After all, these strategies center around one of the most powerful emotional events in anyone’s life: the loss of a loved one. However, we find that getting together and discussing these matters ahead of time to the greatest extent possible often helps prevent disagreements and disappointments in the future. Please read on to learn more at our main website.
One of the common reasons why people contest a will in New York is for undue influence. According to the American Bar Association, undue influence is psychological abuse and why there is no one standard definition, it is typically considered any acts of manipulation that forces a person to take or not take a certain action.
This type of manipulation may often involve excessive persuasion. It usually means one person is taking away the free will of the other person. Finally, the results of the undue influence usually result in an unfair situation. This is especially true when it comes to wills since this manipulation could end up cutting others out of the will who rightfully have a claim.
It is common for undue influence to be proven through looking at some key factors. To begin with, the victim has to be vulnerable in some way and the person doing the manipulation has some authority or power over the victim. The results should be unfair and the actions and tactics used need to have been manipulative. This may vary from court to court because the definition of undue influence is not always clearly spelled out under the law.
Undue influence is more common with older individuals, but it can happen to anyone. It can be subtle or can be done through threats and intimidation. It usually happens in private, but the results become apparent once the results are revealed. This information is for educational use only and is not intended as legal advice.
New York residents who are dealing with matters of wills and estates will also be dealing with executors. However, situations may come up in which you believe an executor of a will or estate should be removed from their position for whatever reason.
According to FindLaw, as the executor of a will , a person has a number of duties that they are expected to accomplish. This includes paying bills for the estate, distributing assets according to the will, paying any taxes due, maintaining property, and making court appearances on behalf of the estate.
In some instances, the executor of a will may not be fulfilling these duties. You may have evidence that they are not paying bills or that they have not been distributing assets. Fortunately, the executor that is appointed by a probate judge does not have to remain the executor indefinitely. It is possible to have an executor removed.
You can take your case before a probate court. You will need proof of mismanagement or misconduct. If this can be proven, then the court will likely grant a petition to remove the personal representative or executor. You may then proceed to appoint a new one who will pick up with the duties in their place.
If you are in a situation in which you believe an executor should be removed from a will or estate, seek the guidance of a probate attorney. Dealing with matters of the estate can be tricky and complicated. Having someone with legal expertise could ease some of those complexities.
Will contests are somewhat common in New York. However, if you were concerned about the enforceability of changes you made to your will, it might help to know that successfully contesting a will often takes a solid legal basis, extensive knowledge of case law and familiarity with the probate process of the relevant jurisdiction. Perhaps most importantly, the court would only consider a few people automatically eligible to formally argue with your decisions.
This does not mean, however, that you would have free reign in distributing your property. The provisions in your will would have to comply with New York law. You could also follow some precautionary steps to ensure that your survivors stay faithful to your intentions.
One reason that someone might challenge your will would be a lack of appropriate witnesses. A court could support this challenge if there were enough evidence to support the idea that you were not the author of the document in question. It could therefore benefit you to have at least the minimum number of witnesses — two, by New York statute — present when you formalize your document. You could also take other steps to further secure the authenticity of your will against this type of challenge.
Another common challenge is based on the existence of a previous version. It is generally good to keep your will updated, but, when you revise a will, it is often wise to account for any other versions you have written. It is also often important to know when to update your estate management documents. To that end, you might consult FindLaw for a checklist of milestones that could necessitate drafting a new will .
Everyone’s estate is different. Your will is probably an important part of your legacy: something best approached with careful, case-specific planning. As such, please do not view this as legal advice. It is only meant to inform.
Beneficiaries and those with a pecuniary interest in a given estate are often allowed to participate, in various ways, in the New York probate process. If someone were to disagree with some of the terms of a will, it may not be necessary for the party to contest.
Probate is often a convoluted and time-consuming process. Understanding all of the ways that beneficiaries and interested parties might affect the outcome — and how these individual’s actions and interests might affect each other in a certain case — is often critical for success.
One of the reasons probate often takes so long is the potential for many parties to have input. To this end, according to the Uniform Rules For The Surrogate’s Court, each party must officially serve papers upon all other parties with most actions. This serving process and the responses may take time.
As stated on the official page of the New York State Unified Court System, the purpose of probate is, in part, proving the validity of a will . Improperly drafted wills — or those with terms falling outside the power of the courts to enforce — could face partial or complete invalidation. Even so, it is rarely advantageous to step back and let the process work itself out.
One of the more complex will issues occurs when the decedent leaves people out of an inheritance from which they expected to benefit. For example, a child might disagree with the contents of a will if his or her deceased parent left the entirety of the estate to a spouse. Another common issue is when one beneficiary believes that they would not get a fair share under the terms of the document. The latter example is less complex, because, as stated on the New York Court’s website, all beneficiaries must receive notification about the probate hearing and have the option to appear to disagree.