WHAT HAPPENS WHEN A NEW YORK WILL IS CONTESTED? Understand What a Will Contest Is and the Procedures Involved in Contesting a Will in New York
MICHAEL ROBINSON ROCHESTER NEW YORK ESTATE PLANNING ATTORNEY
A Last Will and Testament is intended to be the testator’s opportunity to direct the gifting of his or her estate assets upon death. A well-thought out, duly executed Will does just that; however, sometimes the validity of a Will is challenged. When the testator dies, the Will often has to go through the legal process known as probate. During the probate process a Will contest could be filed. Whether you are the executor of a Will, a potential beneficiary, or an heir, finding yourself in the middle of a Will contest can be confusing and stressful. Understanding what a Will contest is and the procedures involved in contesting a Will may help clear up the confusion and ease some of the stress.
WHAT ARE THE REQUIREMENTS IN NEW YORK FOR A VALID WILL? In the State of New York, a Last Will and Testament must meet certain basic requirements for it to be presumptively valid. Those requirements include: The testator must be at least 18 years old The Will must be in writing unless it is a nuncupative or holographic Will (discussed below) The Will must be witnessed by two witnesses A nuncupative Will is an oral Will while a holographic Will is written entirely in the testator’s handwriting and lacks the formalities of a formal Will. These Wills are only valid if made by (the below is verbatim from Article Three, Part Two of the New York Code): A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged. A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict. A mariner while at sea.
WHO CAN CONTEST A WILL? A will contest cannot be initiated by just anyone. To contest a Will, a person must have what in legal terms is referred to as “standing.” For the purpose of a Will contest, this means that the person must have a financial stake in the outcome of the litigation. For example, anyone who is listed as a beneficiary under the terms of the Will, anyone who would stand to inherit under the New York State intestacy laws, or anyone who was a beneficiary in a previous Will would likely have standing to contest a Will.
WHAT ARE THE GROUNDS FOR CONTESTING A WILL? Contrary to how Will contests are portrayed in the movies, a Will contest cannot be initiated simply because a beneficiary or heir is unhappy with the gift (or lack thereof) they received under the terms of the Will. A Will contest must allege (and ultimately prove) legal grounds on which the Will could be invalidated. In the State of New York, those grounds include: Mental Incompetence – one of the basic requirements for the execution of a Will is that the testator be of “sound mind and body” when the document is executed. For a Will to be valid, the testator must understand the extent and nature of his or her assets as well as be aware of the nature of the gifts made under the terms of the Will. A testator who was suffering from late stage Alzheimer’s for example, might be found to have lacked the required mental competence to execute a Will. Fraud – a fraudulent Will is typically one that was drafted and executed based on false statements made to the testator. A false statement made to the testator about a loved one that heavily influenced the contents of the Will is one possible example of a fraudulent Will. A Will that was signed under the belief that another document was actually being signed is another example of fraud.
Undue Influence—undue influence means that someone pressured or coerced the testator into signing the Will. Usually, this occurs when someone has the testator’s confidence. The individual often manages to isolate the testator from other possible opinions or influences and then convinces the testator to execute a Will that is favorable to him or her. Improper Execution—a Will must conform to the statutory requirements for a valid New York Will. Usually, a challenge based on improper execution revolves around the failure to have the Will properly witnessed. Forgery – this may refer to a Will where the signature is not that of the testator or a Will where the information contained in the Will has been manipulated after execution by the testator. Discovery of Subsequent Will—if a more recent Will is located, and that Will is found to be valid, it invalidates a previous Will.
DOES NEW YORK ALLOW A “NO-CONTEST CLAUSE”? A “no-contest clause” is a clause that can be included in a Last Will and Testament that essentially threatens beneficiaries with losing their gifts under the Will. The clause typically states that if a beneficiary under the terms of the Will chooses to contest the Will, all gifts to the beneficiary under the Will are forfeited. The goal of a no-contest clause is to decrease the likelihood of a Will contest by making beneficiaries think twice before challenging the Will. New York does recognize no-contest clauses.
WHAT HAPPENS WHEN A WILL CONTEST IS FILED? In New York, the probate of a Last Will and Testament is handled through the Surrogate’s Court. Therefore, any challenge to the validity of a Will must be filed in the court where the Will was admitted to probate, or where it should be admitted to probate. Once a Will contest has been filed the executor of the Will must defend the Will. The process of discovery will proceed and both
sides to the litigation may enter into negotiations toward a possible resolution. If the parties cannot settle the matter out of court, the matter will proceed to trial and it will be settled there. If the Will contest is successful, meaning that the Will is found to be invalid, one of two things can happen. If a previous valid Will was located, that Will is then admitted to probate and the terms of that Will decide what happens to the decedent’s estate assets. If no previous Will was located, the New York State intestacy laws will determine what happens to the estate assets. If you are the loved one of someone who recently died and you are concerned that the Will which has been admitted to probate is not valid, consult with an estate planning attorney right away. There are very specific time frames and statutes of limitations within which a Will contest may be filed. As a general rule, the farther along in the probate process a Will gets, the more difficult it becomes to challenge.
Find Law, New York Code Formal Requirements Lawyers.com, “Challenging a Will May Leave You with Nothing� New York Courts, Surrogate Court Find Law, New York Code Intestate Succession
About the Author Clients notice Michael Robinson’s unique approach to his estate planning practice the minute they walk through his office doors. Mike has established a law practice that provides clients with a warm, comfortable and relaxed atmosphere staffed by professionals who believe in providing highly individualized attention. That’s especially important in Mike’s practice, because estate planning is an often personal process reflecting the most cherished hopes and dreams of his clients. “The estate planning we do for our clients,” Mike explains, “often represents the culmination of their life’s work. That’s why we take a personal interest in helping them complete estate plans that suit their needs and that address the unique circumstances of their families.”
There’s one last difference clients often remark upon in Mike’s estate planning practice. “Because we concentrate on estate planning exclusively, we have the focus to bring state-of-the-art, cuttingedge estate planning techniques and strategies to a broad range of clients, no matter how diverse.”
Mike’s firm has the breadth of expertise to provide its clients with estate plans ranging from the basic to the very sophisticated, including offshore asset protection trusts.
His office regularly conducts seminars on estate planning topics throughout the Rochester and Finger Lakes area. Mike has also been a guest speaker on the subject of estate planning before a variety of professional organizations.
The Law Office of Michael Robinson, P.C. 196 North Main St. PO Box 417 Naples, NY 14512 www.mrobinsonlaw.com Phone: (585) 374-5210 Fax: (585