If you believe a will isn’t valid, you may be able to contest it. This means challenging it after it’s submitted to the court for approval.
It’s important to know that a person can set up their will in any way they see fit, even disinheriting their relatives if they wish. A will is presumed to be valid unless proven otherwise.
However, even if the person who created the will (the “testator”) took all the appropriate steps to create it, the will doesn’t become a legal document until after they die. In most cases, the will must still go through the New York probate process to be proved valid by the county Surrogate court.
Who Can Contest a Will?
Anyone who is affected by a will can challenge its validity after it’s submitted to the court for approval. Contesting a will can be a complicated, costly, and time-consuming process, so it’s not to be taken lightly.
Here are a couple of hypothetical examples in which someone might contest a will:
- A child who would have inherited more if there had been no will. According to New York state law, if a person dies without a will, the surviving spouse (if there is one) will automatically receive $50,000 plus 50% of the estate balance. The children inherit everything else. So, if there are two kids, they would each receive 25% of the remaining balance of the estate. Now suppose the parent who died left a will indicating that one sibling should only receive 10% of the estate. If no will had existed, that sibling would have gotten 25% of the estate. In this case, the sibling might choose to contest the will.
- A wife who believes her husband (the testator) created a will under conditions of undue influence. Suppose the husband’s sister threatened to never let him see his favorite nephew again if he didn’t write her into his will. To avoid being cut off from his nephew, the husband leaves half of his estate to his sister, even though that’s not what he wanted. In this case, the man’s wife could contest the will.
Grounds for Contesting a Will
Under New York Law, you can contest a will based on the following grounds:
- Lack of mental capacity: Someone can claim that the testator was not of sound mind at the time they made the will. The person contesting the will must prove that the testator didn’t understand what they owned, who their relatives were, or what was in their will around the time the will was created because of a cognitive impairment, such as dementia; a mental illness, such as depression or schizophrenia; or another factor, such as being on a mind-altering medication. Obtaining the testator’s medical records can help strengthen the case.
- Lack of validity: Someone can claim the testator didn’t follow the proper protocols for creating a valid will. In New York, this includes signing the will at the end of the document and having it signed by two “disinterested” witnesses, among other requirements.
- Undue influence: Someone can claim the testator only made the will because they were influenced by a person (e.g., a family member, a friend, or someone else) to divide their property in a way that went against their wishes.
- Duress: Someone can claim that the testator only made the will because they were under threat or extreme pressure to divide their property in a way that went against their wishes.
- Fraud: Someone can claim the testator only made the will because another person lied to them, thus influencing the way they divided their property.
The Process of Contesting a Will
Unfortunately, it’s not all that uncommon for a caregiver, friend, relative, or someone else with ulterior motives to take advantage of a person with cognitive or physical impairments—in fact, it’s one of the most common reasons wills are contested. If you believe someone took advantage of you or your loved one with a will, you may be able to overturn it with an attorney’s help.
Your attorney will file a claim to overturn the will with the court, along with any supporting documentation. The court will decide at trial whether the will is valid. Until the trial is complete, the executor may not distribute the estate. If the court finds the will to be invalid, they will either:
- Throw out the will
- Admit only a portion of the will
- Admit an earlier will in its place
- Not admit any existing wills and instead distribute the estate’s assets among the deceased person’s relatives in accordance with the laws of New York.
If the court finds there is no valid will, the assets will be distributed as follows:
- If there is a spouse, and no children, the spouse receives 100% of the estate.
- If there are a spouse and children (biological or adopted), the spouse receives $50,000 plus half (50 percent) of the estate balance; the children inherit everything else (if there are two children, each would receive 25 percent of the remaining balance, for example).
- If there is no spouse but there is a child or children, they will receive an equal distribution of the estate; if there are two children, for example, each will receive 50 percent.
- Adoptive children have the same inheritance rights as biological children.
- Stepchildren are not entitled to receive anything from the non-biological parent’s estate (but they will inherit from their biological parents).
Get Legal Help Contesting a Will
Hiring an experienced attorney to help you contest a will can greatly improve your chances of a favorable outcome.
Joseph A. Ledwidge PC is an expert New York estate attorney representing executors, heirs, beneficiaries, fiduciaries, and other interested parties. He and his associate counsel have 32 years of combined experience. If you entrust us with your case, we’ll plead every possible ground for a will challenge.
Call us for a no-obligation consultation today at (718) 276-6656. We serve clients throughout the state, including Jamaica, NY, Queens, NY, and Brooklyn, NY.
Ledwidge & Associates
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