Four Grounds to Contest a Will


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Simply being unhappy with the distribution of assets or the delay of the probate proceeding in general is not sufficient grounds to successfully contest the validity of a last will and testament. An heir of an estate or a beneficiary of a prior will can commence a will challenge based on a number of enumerated grounds.

Lack of Testamentary Capacity

The most common challenge initiated in Surrogateís Court is the allegation that the creator (ie testator) lacked the capacity to make a will. Essentially, this means that the testator of the last will and testament was not in a sound state of mind when he executed the instrument. The testator must have the capacity to make a will, there is no way around
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it. This means that the testator was conscious, not influenced by any intoxication, emotional disturbance, or medical and external influences. In a lack of capacity challenge, the party contesting the purported will claims that the testator was
not in the right state of mind when they made and executed the document.

When contesting a will based on lack of testamentary grounds, the party should be prepared to prove that the testator lacked the mental disposition to make a rational and conscious decision, and did not fully understand the consequences of creating the said document. The Court will thoroughly examine the decedentís medical records in making its decision.

Failure to Abide With Will Formalities

Another common ground for a contest is the allegation that the will was not properly executed. Each state has its own requirements as to what practices and formalities need to be implemented during the formulation of the will. In New York State, and as with many other states, a last will and testament must be (1) in writing; (2) signed by two witnesses; and (3) declared by the testator to the witnesses that they are signing a will.
If the challenger can establish that will execution failed to comply with state law, the instrument will be struck down and the entire estate of the deceased shall pass as if there was never will in place. In order to determine what exactly happened at the will signing, the challengerís attorney typically requests a 1404 deposition, in which counsel questions the witnesses to the will under oath and on record to identify the exact practices involved during the signing of the will. After the 1404, the judge assigned to the case reviews the transcript of the depositions and makes a decision on whether the will should be declared invalid or if the events are so unclear that the case should proceed to trial.

Fraud & Undue Influence

The final and most notable challenge against a will is what is called fraud or undue influence. Fraud can be as obvious as a trusted friend asking the testator to sign a pre-constructed will without the testator being aware of what they are signing. In the case of
undue influence, coercive tactics are used on the testator in order to convince them that the influencer or an interested party of the influencer should be named as a beneficiary in the will. A challenge based on undue influence is not an easy hurdle. The challenger bears the burden of proving their claim by clear and convincing evidence. Substantial evidence and testimonies from witnesses who knew the testator are necessary to prove such an accusation.

ABOUT THE AUTHOR: Kamilla Mishiyeva, Esq.
Kamill Mishiyeva, Esq., is the founder of Mishiyeva Law, PLLC., a law firm concentrating on estate planning, probate, elder law, and medicaid planning.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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