Will Contests

A proceeding can be initiated to contest the validity of a will. Any person who has "standing," (i.e. a legal interest in an estate of the person whose will is in question), can contest the will. Generally, spouses, children, grandchildren and other family members and heirs may have standing to challenge a will.

We regularly represent both heirs who feel they have been unfairly left out of a loved one's will and executors who have a fiduciary duty and obligation to defend a will filed for probate.

A will can be contested on various grounds, the most common of which are:

Mental Incapacity — This represents the most common type of challenge to the validity of a will. Basically, the challenge contends that the testator did not understand the "nature and extent" of his assets; did not know the family members or loved ones who would ordinarily receive such property; and did not know how his property would be distributed. Mental illness in and of itself does not mean a person is incompetent to make a will. In fact, testamentary capacity (the necessary mental capacity to make a valid will) is the lowest measure of mental capacity.

Fraud or Undue Influence — This challenge relates to claims that the testator was coerced or compelled to execute the will or executed the will based on false statements made to him where he would not have otherwise signed the will.

Improper Execution — Executing a will requires specific compliance with the statute governing will drafting, witnessing and execution. In New York State, a will must be signed in the presence of two witnesses who also sign the will at the end.

Subsequent Will — A more recent will, if proven valid in its own right, would replace an older will.