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contesting a will

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By Hon. Gail Prudenti, Esq.

Hon. Gail Prudenti, Esq.

Contesting a will can be a complex and sensitive decision, often fraught with emotional implications and legal challenges. Understanding when to object to a will is crucial for anyone who believes that the document does not accurately reflect the deceased’s intentions or who has concerns about the will’s validity. Here are key considerations for when a person may choose to object to a will.

Lack of testamentary capacity

One of the most common grounds for contesting a will is the assertion that the deceased lacked the mental capacity to understand what they were doing when they executed the will. If you believe that your loved one was not of sound mind—due to conditions such as dementia, severe illness, or mental incapacity—at the time the will was created, this may warrant an objection.

Undue influence

If you suspect that the deceased was coerced or manipulated into changing their will in favor of another person, this could be a valid reason to contest the will. Evidence of undue influence may include a significant change in the will that benefits a caregiver or a family member who had undue access to the decedent, especially if the decedent had previously expressed different intentions.

Fraud

If the will was procured through fraudulent means—such as misrepresentation about the contents of the will, deception regarding the nature of the documents, or coercive tactics— this may provide grounds for contesting it. If you believe that fraud was involved, it is essential to gather evidence to support your claim.

Improper execution

In many jurisdictions, including New York, there are specific legal requirements for executing a valid will. This typically includes proper signing and witnessing. If the will does not meet these legal standards—such as being signed by the testator in the presence of two witnesses—this could be a reason to object.

Revocation

If you have evidence that the deceased revoked the will prior to their death—perhaps through a later will or other direct actions indicating their intent to change their estate plan—this could justify an objection. Establishing the revocation of a previous will is critical in this scenario.

Disqualification of beneficiaries

Certain individuals may be disqualified from inheriting under a will due to their actions, such as felonies committed against the deceased or being an estranged spouse. If you believe that a beneficiary should not have been included in the will based on legal grounds, this may be a reason to object.

Timeframe for objection

In New York, for example, you generally have **seven months** from the date you receive notice that the will is being probated to file your objections, as outlined in **SCPA § 1410**. Failing to act within this timeframe could result in losing your right to contest the will, so it’s crucial to be aware of deadlines.

Consulting an attorney

If you are considering contesting a will, consulting with an attorney who specializes in trusts and estate litigation is highly advisable. An experienced attorney can help you evaluate the strength of your case, gather necessary evidence, and navigate the legal complexities involved in the contestation process.

Deciding to object to a will is a significant decision that should not be taken lightly. Understanding the grounds for contesting a will and the appropriate legal procedures is essential. 

Whether due to concerns about capacity, undue influence, improper execution, or other factors, it is important to consult with a qualified attorney to ensure that your rights are protected and that you are acting in accordance with the law. By doing so, you can make informed decisions that honor the memory of your loved one while safeguarding your interests.

Hon. Gail Prudenti, Esq. is the Former Chief Administrative Judge State of New York and a Partner at Burner Prudenti Law, P.C. focusing her practice on Trusts & Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

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By Nancy Burner, Esq.

Nancy Burner, Esq.

In order for a person to contest a last will and testament (“will”) in New York, he or she must have legal grounds; a reason based in the law that the will is invalid and should not be admitted to probate.

Admitting a will to probate means that the executor named in the will is appointed by the Surrogate’s Court. The executor then distributes the decedent’s assets as dictated by the will. The most common grounds for challenging a will are improper execution, lack of testamentary capacity, and undue influence.

Having grounds for contesting a will takes more than simply disliking the terms of the will or being unhappy with its distribution.

A will must be properly executed to be valid. The requirements for the proper execution of a will are as follows: (1) the will must be signed at the end thereof, (2) the will must have been signed in the presence of two witnesses, (3) the decedent must have declared the document to be his or her will, and (4) the witnesses must have signed the will as witnesses at the request of the deceased.

When an attorney supervises the execution, the will is entitled to a presumption that it was properly executed — known as the presumption of due execution. Wills prepared from online DIY services and executed without an attorney do not enjoy this presumption.

The decedent must have also possessed testamentary capacity when he or she signed the will. The Surrogate’s Court looks at the following three factors to determine whether the decedent had the requisite capacity to sign a will: (1) the decedent understood the nature and consequences of executing a will, (2) the decedent knew the nature and extent of his or her property, and (3) the decedent knew the natural objects of his or her bounty and his or her relations with them.

If a will is the product of undue influence, it will not be admitted to probate. A will may be invalidated on the ground of undue influence if there was: (1) motive, (2) opportunity, and (3) the actual exercise of undue influence. The influence exercised must rise to a level of coercion that restrains the free will and independent action in a forceful way. The inquiry into whether a will is a product of undue influence is fact specific and involves the examination of the decedent and his or her circumstances, the will and its procurement, and the person alleged to have exercised the undue influence.

If it is determined that any of these grounds exist, then the Surrogate’s Court would refuse to admit the will to probate. The result of the denial of probate would be that the decedent’s next of kin would inherit the estate under the laws of intestacy or the beneficiaries of the decedent’s prior will would inherit.

It is difficult — but not impossible — to contest a will. The requirements of due execution and testamentary capacity are easily achieved by presumptions that are obtained through attorney supervised will signings. Undue influence is not easily demonstrated and generally takes a thorough investigation to uncover significant facts. These matters are usually complicated both factually and procedurally, and the assistance of an experienced estate litigation attorney is essential.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office. Visit www.burnerlaw.com.

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