While news stories about the families of famous or wealthy people contesting wills in court suggest otherwise, trials for contested wills are not particularly common in New York.
Will disputes among beneficiaries and family members are quite common but the frequent use of “no contest” clauses by estate planning lawyers can make legal challenges risky for beneficiaries.
Still, deaths of loved ones are emotional times and people do not always make well-considered choices.
Let’s take a look at the grounds to contest a will in New York, and your legal options for settling the dispute if you are in this situation.
What are the legal grounds to contest a will?
The right to contest a will is only available to certain individuals, irrespective of the circumstances surrounding the creation of the will or its contents.
If you believe that you deserve a larger share of the estate or that the will is unfair, this is not reason enough to legally contest a will in New York.
There are several requirements when a will is created by a testator. To challenge it, there must be a flaw in the way that the will was executed or in its contents.
Essentially, four legal grounds exist for contesting a will in New York, as follows.
- Improper execution
The last will and testament must be in writing with the signature of the testator at the end along with the signatures of at least two witnesses, who must have seen the testator sign it. A testator can instruct another person to sign the will on their behalf and in their presence.
If this procedure is not followed or if there is only one witness, the will is invalid.
- Fraudulent activity
If fraud can be shown to have been perpetrated on the testator during the execution of the will, it will invalidate the will.
If, for instance, the testator was led to believe that he or she was signing another type of document, this may be fraud. Another type of fraud is forging the signature of the testator.
- Lack of mental capacity
In New York, any individual over 18 years of age is presumed to have the mental capacity to make a will.
To challenge a will on the grounds of a lack of mental capacity or an unsound mind, the lack of capacity must be demonstrated through medical records, affidavits, and witness testimony.
The court will consider the following:
- Whether the deceased understood the nature and consequences of executing the will
- Whether the deceased knew the nature and extent of the property he or she was disposing of, and
- Whether the deceased knew the natural objects of his or her bounty and his or her relations with them.
- Undue influence
Typically, undue influence involves an individual persuading a testator to change the will in their favor at the expense of the blood relatives. This is commonly claimed when a testator leaves a large share of his or her estate to a non-spouse partner or a caregiver.
To win a case based on undue influence, you will need to demonstrate motive, opportunity, and the actual exercise of undue influence. The influence exerted must be sufficient to forcefully restrain the free will and independent action of the deceased.
Who can contest a will in NY?
New York’s probate laws state that only parties with an interest in the estate have legal standing to contest a will. The general public or a neighbour, for instance, can never contest a will – only an “interested person”.
Most typically, one of the following applies:
- The challenger would have inherited the decedent’s estate if he or she had died without a will
- The party is a beneficiary in a former will or the current will
Most contests to wills come from children, spouses, and heirs. In the majority of cases, a child of the testator has legal standing as next of kin but a parent may not be able to challenge unless the testator was unmarried and had no children.
Note that in New York, a spouse who has been disinherited from a will is entitled to an “elective” share of the estate whether or not the will mentions their name. This is the amount of $50,000 or one-third of the net estate, whichever is greater.
Legal options for settling disputes
Successful litigation depends on you being a person of “standing” and the ability to demonstrate one (or more) of the four legal grounds to challenge a will.
Bear in mind that will contest in court is both time-consuming and expensive. An alternative dispute resolution method is mediation. This where both sides agree to appoint an independent, third-party mediator to facilitate a negotiated agreement.
Mediation is a more flexible process than litigation and is often preferred because it can avoid the time, cost and disruption that results from litigated disputes. Proceedings are also kept private rather than being a matter of public record.
What is a “no contest” clause?
If a testator is concerned about a legal challenge to a will, a “no contest” clause can be inserted into the will by the estate planning lawyer.
This effectively disinherits a beneficiary if a legal challenge is made to the will and it is unsuccessful in the courts. In many cases, this will be an effective deterrent against challenging a will.
However, someone considering a contest to a will in New York has the right to a proceeding where the witnesses to the will are examined – and the person who prepared the will can be examined under oath, to establish whether a challenge will be worthwhile.
Where forgery has occurred or a will is revoked by a later will, this is NOT considered a “will contest” and therefore no disinheritance will occur in the event of an unfavourable court ruling.
Legal assistance with will disputes
Having a lawyer draft and supervise the signing of a will can prevent challenges. However, disputes about wills are common.
If you are experiencing difficulties with a will or are the subject of a will dispute in New York, please do not hesitate to email or call us at (212) 307-1499.