FindLaw KnowledgeBasePublished: 2012-03-26
We’ve all heard stories about shocked family members who learn upon the death of a close relative that they have been left out of the testator’s will. This scenario often involves kids or grandchildren who assumed they would inherit from a parent or grandparent and had no reason to think there was a problem between them and their beloved elder.
Another situation where this comes up increasingly is in blended families when the father or mother has had more than one spouse. Legal issues about inheriting money or property can arise between the spouse or children from one marriage, and the spouse or children from another.
If a New York resident is concerned about being left out of a loved one’s will or is suspicious about why a will may have been changed unexpectedly just before a loved one’s death, a consultation with an experienced and knowledgeable New York probate attorney can provide answers about how to raise those concerns and objections in a will contest in court.
Contesting a New York Will
New York law will set aside a will in certain situations. The most common legal grounds for contesting a will in New York are undue influence, fraud, lack of testamentary capacity, improper execution and physical revocation.
Lack of Testamentary Capacity
A person may challenge a will if the maker did not have “testamentary capacity.” Having testamentary capacity means that the person making the will has the mental ability and “sound mind” to make those important decisions. In New York, three main questions are asked in looking at testamentary capacity:
- Whether the testator knows what a will is and does
- Whether the testator is aware of the type and amount of his or her property
- Whether the testator is aware of the persons who are considered the “natural objects of his or her bounty” — usually a person’s spouse, children and sometimes other close family members
The maker of a will is unduly influenced when another person coerces or forces the testator to write the will a certain way, rather than according to his or her own true wishes. The court will look at whether the person accused of undue influence had opportunity, motive and real influence over the testator, considering things like the testator’s health, the content of the will, and the acts and statements of the suspected influencer.
Fraud can be asserted in a will contest when a third person purposefully said something false to influence the testator to write a will differently than he or she otherwise would have.
For a New York will to be valid it has to comply with required legal procedures regarding signing and witnessing the document.
A will may have been revoked if the testator rips or burns it, or otherwise destroys it, or crosses out his or her signature. Wills that are lost, or the existence of valid, later wills that supersede them, are also considered revoked.
If you have any concerns about the nature or content of a loved one’s will, or there are suspicious circumstances surrounding its execution, should discuss the situation with a skilled estate planning lawyer.