New York probate law sets forth very specific objections that one can utilize to contest the validity of a NY Will. The first parameter before even getting to the issue of filing objections is that one has legal standing to initiate such a challenge. Assuming you meet the initial hurdle of having a pecuniary interest in the estate, in order to contest the provisions indicated in the will, you must fall into one of the following categories:
- Be a statutory distributee (next of kin) who would be entitled to share of estate had the decedent failed to execute a will;
- Be an “adversely affected” party be virtue of receiving a pecuniary beneficial interest under a prior will but no longer receives such interest or receives a lesser amount; or
- Be a creditor of the decedent
Once it is clear you have standing to object to probate of the Will, one of the basis for objection is based upon undue influence exerted by a party upon the decedent. To be successful based upon the undue influence objection, the motive of the alleged party must be established and further, that such influence constrained the testator’s ability to exercise their own free will in drafting the will. It is important to remember that the burden to establish undue influence rests upon the objectant (person raising the objection).
It is equally important for any objecting party to be mindful of the potential presence of an “in terrorem” clause and adverse consequences associated with such a provision. A typical clause of this nature states that if you challenge any provisions of a Will, or the entire Will itself by filing objections, and these objections are found to be without merit, that your share under the will may be forfeited. It is significant to consider both the positive and negative aspects of such a challenge before proceeding as such.
If you require the services of an experienced Long Island estate litigation attorney, please contact the Law Offices of Michael W. Alpert at (516) 280-7288 or e-mail: firstname.lastname@example.org.