NY Will Contests

In this video, New York probate lawyer Robert Friedman discusses NY will contests and how Friedman & Ranzenhofer can help you contest a will.

Question:

How do I contest a New York will?

Answer:

Many children think that they can’t be disinherited, that they have a right to contest the will. Most will contests are not successful, but there are a number of reasons that someone may have a right to contest a will. One reason for contesting a will is if someone does not have testamentary capacity. To have enough capacity to write a will, you have to understand what a will is, what the process of a will is, who your relatives are, and what your property is. Even someone with Alzheimer’s disease can have testamentary capacity if at the moment that they sign their will they understand all this. This is a common reason people contact us. They say that their father or mother didn’t have testamentary capacity when they wrote their will and disinherited them, but it’s difficult to prove.

Another reason for contesting a will is due execution. You should not be using legal Zoom wills or doing wills on your own. Due execution is when a will is signed, there has to be at least two witnesses. It’s a simple procedure, but if not done correctly, the will could be thrown out. After they sign their will, I ask them if this is their will and whether they want the two of us to be their witnesses. It then has to be filed. If it’s not filed, it’s not duly executed.

In 43 years of witnessing wills, I’ve only been called in a couple of times on a will contest. There’s a presumption that if an attorney is supervising the execution of a will, there is proper due execution. That’s another good reason why an attorney should be involved in this. These will contests can become very costly and very brutal. I don’t have to remember the circumstances that happened in a will that was signed on April 26, 1980. All I have to say is this is my usual procedure. I’ve always followed this procedure where I ask the person if this is their will they signed and whether they want the other witness and me to witness it. If that precise procedure is not followed, then the will can be thrown out.

The other reason that’s difficult to prove and commonly occurs in will contests is undue influence. If someone that’s in a position of trust with you, a friend, your priest, your lawyer, a neighbor, and they influence you to write your will to make them the beneficiary, we could say they used undue influence for this lonely person, but the person contesting the will has a burden to prove that the person who wrote the will did something they would not otherwise have done because of the influence of this person that they trusted.

Another reason is duress. If someone holds a gun to your head to make you sign a will, that would be duress. Another reason is fraud. The signature on the will is a forgery. It’s not signed by the actual person. How does this all come about in a will contest? If you want to contest a will and say your father or your mother left you out of the will, don’t sign the waiver. The waiver allows the will to be probated and the executor to be appointed. If you want to contest the will, don’t sign the waiver that’s sent by the executive attorney.

They will serve you with a citation to appear in surrogate’s court. You go to court and say that you want to object to the will, and you have the right to examine the witnesses to the will. You can examine them as to the circumstances of the signing the will, who was there when the person signed the will, did they understand English, for instance, if they were from another country. You have the right to examine the file of the attorney who prepared the will to see what the grounds are. Then after that, you can file your objections.

Are you going through the estate planning process and have questions about NY will contests? Contact our experienced New York probate Lawyers at Friedman & Ranzenhofer today to schedule your consultation.

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