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When A Will Can Be Contested?

When a will can be contested? In order to contest a will, or challenge the validity of a Will seeking admission to probate in New York State, you must have legal standing to commence such a challenge. To challenge that the provisions contained in the will, or the will itself, is invalid, you must have a pecuniary interest in the estate. For example, a statutory distributee (next of kin) who would be entitled to share in the estate had the decedent not had a will can challenge the validity of the will.

Furthermore, any beneficiary who had a pecuniary (financial) interest in a prior will but no longer receives under the current will, or receives a lesser amount, has standing to challenge the will. This party is known as an “adversely affected” party. Furthermore, any creditors of the decedent whose will is being offered for probate has standing to challenge the will.

Once standing is established, there are many circumstances upon which to challenge the validity of a will. It is imperative to speak with an experienced estate litigation attorney to determine whether you have standing to challenge a will and whether you have grounds upon which to challenge a will being offered for probate. The attorney should also caution you against the adverse consequences of an “in terrorem” clause. Such a clause states that if you challenge any provision 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. Therefore, it is important to carefully scrutinize the cost-benefit analysis of such a challenge.

The first basis for challenging a will is to object on the grounds that the will was not properly executed. This term is also known as “due and proper execution.” The statute provides the specific components for a validity executed will. The will must be duly signed by the testator (person signing the will) in the presence of two (2) “disinterested” witnesses. As a general rule, a family member or someone who would benefit under the terms of the will should not serve as a witness.

The testator must also have the legal capacity to sign the will. This term is referred to as “testamentary capacity.” The testator needs to be aware of the extent of their assets (nature of one’s bounty) and the parties to whom these assets will be distributed. The threshold for what constitutes testamentary capacity is quite low. For example, case law in New York establishes that even if a testator has early stages of Alzheimer’s Disease or dementia, as long as the testator has a period of lucidity at some point during a given day, or more importantly during the will signing, the will shall be declared valid. Hence, establishing lack of testamentary capacity is not as easy as one might think. Furthermore, the Testator must be at least 18 years of age and understand the English language.

Another objection to probate of a will is that the will is procured as the result of undue influence or fraud. With respect to undue influence, 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. With fraud, it must be established that the will was procured as a result of materially false statements that the testator relied upon in executing the will. Both of these objections carry a high burden for the objecting party to establish successfully.

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