The most common scenario for the disputing of a will (wills) by the issue (children) of the deceased is when that child is “disinherited” (i.e. “For my own personal reasons, I leave no provisions for child A”). Basically, that child who is disinherited will make certain claims to justify that the will is not valid, and should be not admitted to probate. If it is determined that the Will is not admitted to probate, the laws of intestacy apply wherein the estate distribution would be treated as if the decedent had no will. Often, these wishes may contravene those of the person who has passed away.
The typical bases for objection to the Will are as follows:
- the decedent/testator lacked testamentary capacity to sign the Will
- someone exerted undue influence upon the decedent/testator
- the will was not executed properly in conformance with the formalities set forth by statute in the EPTL.
- The will was procured by a fraud perpetrated upon the testator/decedent.
Disputing Wills: Basis 1
The first basis to object to a Will being offered for probate in the Surrogate’s Court is because the proper formalities of due and proper execution according to statute were not followed. This is where it becomes so important to have an estate attorney prepare, draft, and supervise over the will execution. The will must be witnesses by two (2) ”disinterested parties”. This means that they can not take under the terms of the will nor be the spouse or child of a person who would benefit by the will being admitted to probate.
Disputing Wills: Basis 2
The second basis for objection focuses on the potential lack of testamentary capacity of the testator. At every will execution ceremony, the attorney-draftsperson always asks the testator if they are of sound mind, not under the influence of alcohol or narcotics, and are able to execute a legal document. Of course, the attorney needs to conduct their own due diligence to ensure that the testator does not suffer from any mental disability or condition (i.e. Alzheimer’s disease or dementia) that would render them unable to execute such a document. However, this does not necessarily disqualify that person from being able to sign a Will. The Courts state that such person need only have a “period of lucidity” during the course of the day that would render them able to do so. Nonetheless, caution must be taken to ensure testamentary capacity.
Disputing Wills: Basis 3
The third basis for objection centers on undue influence. If it is determined that an interested party or a family member coerced the testator to include or disinherit a family member (or other person) from taking under the Will, that act could be deemed an act of undue influence that may subject the Will to being voided and not admitted to probate. The person who allegedly exercises undue influence must have had an opportunity to engage in such a practice, and that the testator had no option but to heed the word of the perpetrator, and that such person would stand to benefit from the Will being written in such a manner.
Disputing Wills: Basis 4
Finally, the fourth and least used basis for objection would be if the Will was executed and the Testator signed said document under a perpetrated fraud, then the Will could possibly be voided and the terms nullified.
If you required the services of an experienced estate litigation attorney to contest the admission of a Last Will and Testament, or if you need an estate attorney to represent the estate in a contested probate proceeding, please contact the Law Offices of Michael W. Alpert at (516) 280-7288 or malpert@alpertlegal.com.