Will Contests - Genser Cona Elder Law

Will Contests

If you believe you have been unfairly treated under a Will or you’ve been disinherited altogether, a proceeding can be initiated to contest a Will's validity. Any person who has standing (i.e. a legal interest in the estate), 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 and executors who have a fiduciary duty and obligation to defend a Will filed for probate.

Common Grounds for Contesting a Will

Regardless of the grounds, contesting a Will is challenging. However, the New York estate litigation attorneys at Genser Cona Elder Law bring more than 20 years both contesting Wills and defending Wills from contests. In either case, the most common grounds for contesting a Will include:

  • Challenging mental capacity
  • Fraud or undue influence
  • Improper execution
  • Discovery of a subsequent Will

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/or did not know how his property would be distributed.

Mental incapacity 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 under the law.

Fraud or Undue Influence

This challenge relates to a claim that the testator was coerced or compelled to execute the Will or executed the Will based on false statements made to him. Although these allegations can be difficult to prove and often require expert knowledge of the laws governing contests, the experienced estate administration attorneys at Genser Cona Elder Law can provide guidance and assistance.

Improper Execution

Executing a Will requires specific compliance with the statute governing Will drafting, witnessing and execution. In New York State, there are very specific rules and safeguards to ensure a WIll is properly drafted, reviewed, and signed in the presence of two witnesses and a notary who also sign the Will at the end. When Will contest litigation begins, a special hearing is held to examine the Will execution ceremony, which often uncovers other grounds for a Will contest.

Subsequent Will

A more recent Will, if proven valid in its own right, would replace an older Will. However, time is of the essence.  Probate moves fairly swiftly so that assets can be collected, bills paid, and assets distributed to heirs in a timely manner. After a Will has been accepted for probate, it becomes increasingly difficult to contest that Will.  As such, it's important to quickly initiate a WIll contest proceeding to challenge the validity of a Will or seek to have a subsequent WIll admitted for probate.

How Do I Contest a Will?

A Will contest is initiated when one party files an objection to probate in the Surrogate's Court. This objection must be filed prior to or on the return date on the citation the court issues.   

Who Has the Right to Contest a Will?

Because certain people have the right to contest a Will, it can quickly get complicated. As a result, the law — with a few exceptions — typically only allows one of the following people to contest a Will:

  1. A distributee or someone who could have possibly inherited more if a Will did not exist. Common examples of distributees include a spouse, disinherited child, or sibling.
  2. A party or distributee who could have potentially inherited more under a previous Will.

For example, if a man writes a Last Will & Testament and leaves everything to his friend, the man's children and spouse could potentially contest the Will because if the Will was invalid, they would be awarded the entire estate. Yet, the deceased man's first cousins or parents wouldn't be able to contest the Will.

The only people who are allowed to contest a Will are those it could adversely affect. For instance, if a woman created a will leaving her entire estate to The Breast Cancer Foundation, but then created a new Will leaving her entire estate to her third cousin, The Breast Cancer Foundation could have a valid claim to contest the Will.

Contact Genser Cona Elder Law for Will Contest Representation

Whether you're a beneficiary who believes your claim to your loved one's estate is inaccurate or misrepresented in the Will or you're a fiduciary in need of counsel to defend a Will contest, the New York Estate Litigation attorneys at Genser Cona Elder Law can help.

Since 1998, we've implemented effective strategies to protect the interests of our clients. Our unwavering commitment to excellence and attention to detail are two attributes that truly set our experienced Estate Litigation attorneys apart.

Contact Genser Cona Elder Law today for will contest litigation counsel.