Contesting a will during probate

As many New Yorkers may know, leaving a will when an individual dies is one way to assure that certain beneficiaries will inherit what the testator wished. Generally, the document goes through probate successfully. However, there are times that wills are challenged. This occurs most often when an individual believes that it does not express the testator’s wishes for a variety of reasons.

Some reasons a will is challenged are due to the belief that the person lacked the capacity to make a will. This includes individuals who had mental issues or if the will maker suffered from conditions such as dementia or Alzheimer’s or was addicted to substances that cloud judgment. In these cases, it may be impossible for the testator to have a firm understanding of the property they wish to designate and the individuals they might choose. Successful probate litigation occurs most often when the will is challenged by a spouse.

Dating a will is important since an earlier will might surface that is contradicted by the latest one. If the final will is dated, it may be difficult to prove that the earlier will carries any weight. It may be beneficial to include wording in the latter will to say that this will replaces all previous wills.

Most states require that a will be witnessed in order for it to be valid. The number of witnesses is state specific. It is usually best for witnesses not to be named as beneficiaries in the will. If they are, it might open up a challenge to their inheritance. Having the will notarized makes it unnecessary for witnesses to be involved in court proceedings if the will is challenged. When a will is challenged, having the advice of an attorney can be important.

Source:  Findlaw, ” Reasons to Challenge a Will “, December 17, 2014