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Facing the death of a loved one is a difficult time and even more so when there are irregularities in the succession process. What are the steps to contesting a will? In this article we will tell you exactly what to do if you suspect that the will was not made by the deceased in complete free will.

At Ortiz & Ortiz we have experienced New York wills lawyers who have been serving the community for over 30 years and can advise you on your case. We are available in English and Spanish, both in person and online. If you would like an in-person consultation, our physical offices are in Queens and Manhattan. However, we serve people from all five boroughs of New York, so please contact us!

Steps to contesting a will in New York in 2021

Unexpected situations at the reading of a will can cause confusion among the decedent’s relatives. When a person important to the decedent is completely disinherited or when an unexpected beneficiary appears that the family does not know about, everything indicates that the will should be contested. Looking for the steps to contesting a will in New York? You are in the right place, the following is a step-by-step process. 

What is a will? 

A will is a widely used estate planning tool today. A will is a legal document that allows the testator to express the last wishes and desires regarding their estate to be carried out after death. 

contest a will in new york

In this document, in addition, the testator will appoint an executor of estate in NY, who will be the person in charge of fulfilling what the will states. The executor will administer and then distribute the decedent’s assets and property to the beneficiaries or organizations named in the will. Read about the executor’s letters of administration and whether or not the executor must disclose the accounting status to the beneficiaries.

Now that you know what a will really is let’s take a closer look at the steps and other aspects involved in contesting a will.

Advantages of having a will at the time of death:

  • By leaving your last wishes in writing you can avoid confusion and conflicts among your relatives regarding who will inherit what from your estate.
  • You can designate a person you trust, the executor of your estate, who will be in charge of carrying out everything you indicate in the will. 
  • Having a will as an estate planning tool can minimize the impact of taxes.
  • At the time of signing your will, there will be two witnesses who attest that the testator was of sound mind and was not being subjected to undue influence or fraud. 

Note: In addition to a will, there are other estate planning tools. Among them are the revocable living trust and irrevocable trust and the power of attorney in New York. Read our article on the difference between a will and a trust.

Once the testator dies, the will must go through probate. This means that even though the will is signed by the testator, the two witnesses and drafted with the advice of an attorney, it does not mean that it is ready for the estate to be distributed according to what it says. In the probate process, the will must be probated in the surrogate’s court in the county where the decedent lived before death. 

The probate process: 

  • While the word probate causes anxiety and evokes a long and complex process, it is anything but. It is a simple process. 
  • It begins when an attorney files the documents and pays a filing fee.
  • Then it is a surrogate court judge who examines the will and appoints the executor named in the will to carry out the deceased’s wishes.

Note: Probate can be testate, that is, when there is a will, and intestate. Review our article on the difference between testate and intestate succession. Also, you may be interested in knowing what the intestate succession laws are in New York and their consequences.  

Grounds for contesting a New York will

At the time of starting probate in court, certain irregularities may be found. In this case there is a possibility to contest the will. To do so, objections must be filed in the Surrogate’s Court to prevent the will from being probated. 

In the steps to contesting a will in New York it is not enough that one of the parties or beneficiaries feels that they did not get enough of the decedent’s estate. The will must be truly defective or have been generated under questionable circumstances. 

Grounds upon which a will contest may be based under New York law: 

1. Improper Execution

Improper execution occurs when the will was not properly executed. It is one of the most common grounds used to contest. 

  • In New York, the decedent’s last will and testament must be in writing. This means that oral or videotaped wills are inadmissible. 
  • The document must be signed by the testator at the end, not in the middle.
  • There must be two witnesses who have seen it and signed it. 
  • If a will and its signature was not witnessed by at least one person it may be considered invalid. 
  • There are some cases in which the testator may ask a third party to sign the will according to the testator instructions. In this case the testator must still be present at the time of signing.
2. Mental Incapacity

In New York State, a person who is 18 years of age or older has the mental capacity to make a will. In general, this ground for the steps in contesting a will is attributed solely to old age, but it is sufficient if it is alleged or can be proven by examination or medical history that the decedent lacked mental capacity or was of unsound mind. 

To prove mental incapacity of the testator, it must be proven that the latter did not understand any of these points: 

  • The assets owned at the time of death.
  • Who are their relatives and direct friends. 
  • What is in their will. 

A will contest that is based on the testator lacking mental capacity is more likely to succeed when the testator suffers from a dementia disorder. The more advanced the dementia disorder, the more likely the will will be contested. Some of these disorders are: 

  • Alzheimer’s: This is the leading cause of dementia. It can begin in the 40s or 50s and worsen with age. Alzheimer’s destroys cognitive functioning. 
  • Vascular dementia: Usually caused by a stroke that obstructs blood flow to the brain.  
  • Parkinson’s: It is the degeneration of the nerves of the brain.
  • Frontotemporal dementia: It is the deterioration and shrinkage of the frontal and lateral areas of the brain. 
  • Dementia due to cranioencephalic trauma.
  • Dementia due to HIV or medication

Mental incapacity can also be justified by mental illnesses. Some of the most common are: 

  • Depression: When the testator feels depressed and does not care what happens to the estate. 
  • Paranoia: The general distrust of people who have paranoia makes it easier to manipulate them. 
  • Bipolar: Bipolar sufferers have very strong mood swings. From extreme highs such as mania to extreme lows such as depression. These mood swings can be exploited to change the will in someone’s favor. 
  • Schizophrenia: These people experience delusions and a distorted reality that third parties can take advantage of to change the will in their favor.

While dementia disorders and mental illness are the most common causes for contesting a will for mental incapacity, eating disorders and physical factors can also play a role.

3. Fraud

For a will to be invalid on this ground, two possible forms of fraud must be considered. 

  • Fraud against the decedent by execution. This refers, for example, to the decedent being deceived at the time of signing. The person said that the testator was signing a different document, when in fact they were signing a will. 
  • Fraud by inducement. This form of fraud occurs when the decedent is fraudulently convinced to change or make certain modifications to the will in order to leave the entire estate to a certain beneficiary.
4. Undue Influence

Undue influence refers to an individual, usually close to the decedent, persuading the decedent to change the will in their favor. This is always hidden from the family. 

This ground on the steps for contesting a will is very difficult to be directly proved. Therefore, it must be proven by circumstantial evidence. This means that it must be proven by facts and circumstances surrounding the testator: 

  • Family relationships. Testimonies of their close relatives and friends. 
  • State of health and their mind. Medical history and testimonies of family doctors. 
  • Nature of the will.
  • Dependence of the testator and subjection to the control of the person who allegedly exercised the influence.
5. Forgery 

The entire will may be forged or only part of it may be forged. If forgery is proven, the surrogate court will declare it invalid. How the forgery of wills occurs: 

  • Forgery of the signature: The signature can be copied, traced or pasted on a different document. 
  • Forgery of the document: This is when pages or sections of the document are replaced or even the text is modified. 
6. Revocation

The testator can revoke a will by:

  • Destroying the document.
  • Crossing out their signature. 
  • Making a new will. The most recent will always prevails, regardless of whether there was a previous document.

Who can contest a will?

Not just anyone can follow the steps to contesting a will in New York. In some cases the decedent’s last will may seem nonsensical, however, the legal right to contest is conferred only to some people. 

In New York Surrogate’s Court, only an interested party can initiate a will contest. The requirement that the claimant have standing is designed to protect the decedent’s legal next of kin.

When does one have standing?

  • Distributors. When the challenger would have inherited the decedent’s estate had the decedent died without a valid will. 
  • Beneficiaries. When the party who is contesting the will is a beneficiary of the estate in the current or prior will. 

Either distributees or beneficiaries without a pecuniary interest may also object to the appointment of an executor if it is believed that the executor was appointed by fraud or undue influence. The executor of an estate must also comply with fiduciary duty.

Note: Also read about the difference between the executor of the estate and the administrator of the estate, as well as the difference between executor and trustee.

Rights of the surviving spouse

The spouse of the deceased person who was disinherited from the will has two options: they can contest the will or request an “elective share.” Both options are available if the person never signed a legal agreement waiving the right to inherit.  

The “elective share” is what the spouse is entitled to whether or not it is mentioned in the will. The amount of such a share is fifty thousand dollars or one-third of the net estate, whichever is higher. 

Note: You may also be interested in our article on spousal right of election or what happens to a joint account with a deceased parent.

The rights of heirs when contesting a will

In general, a will is contested when heirs have been omitted from the document or because they did not receive the share of the estate they expected. The fact that a person is related to the decedent in one way or another does not mean that it is an heir. This can become complicated when the family tree is very extensive. 

Under the law, it is the decedent’s next of kin who has the right to contest a will. In that regard, New York statute EPTL 4.1-1 outlines the order of priority for inheritances as follows:

  • Spouse and children.
  • Parents of the decedent.
  • Decedent’s siblings.
  • Grandparents.
  • Aunts and uncles.
  • First cousins.

What are the basic steps to contesting a will in New York?

If you believe that there is reason to believe that a will has suffered from irregularities in the execution of the document, signature or in any respect, the first thing to do is to call an experienced wills attorney for advice. Someone experienced in wills will be able to advise you whether there is standing and grounds for contesting the will.

In the event that the will is subject to contest and is indeed declared invalid, the heirs will obtain the entire estate through the laws of intestate succession. There are also some cases in which the judge can make only certain provisions invalid, while leaving others intact. 

last will
  • Once the testator dies, the probate process begins.
  • The will is submitted to probate and the objector receives a summons in the mail. 
  • The purpose of the summons is to waive and consent to the probate process. This means that if the will is waived, it is consenting to the court’s review of the will and its admission to probate. Once it is admitted to probate, the executor already named by the testator is appointed to move forward with the distribution of the estate.
  • Instead of signing the waiver, the objector attends the subpoena and requests pre-objection discovery pursuant to SCPA 1404. 
  • The parties will participate in pre-objection discovery, where the depositions of witnesses and the attorney drafting the will will be discussed. This is limited to a period of three years prior to the execution of the will and two years after the execution or death of the testator, whichever is shorter.
  • 1404 examinations are a way to obtain preliminary information to assist the objector in determining whether a will contest is warranted and appropriate and on what grounds (undue influence, forgery, fraud, among others.)
  • Wills that have an “in terrorem” clause provide that if a beneficiary of the will contests the will and loses, they will lose their entire share of the will. In that sense, the 1404 exams leave room to test the validity of the will without losing the existing legal limits should they ultimately decide not to contest the document.
  • After discovery, the objector has 10 days to file objections, unless the court allows otherwise. The objections must state the ground or reason under which they would be contesting the will. It must almost always include a demand for a jury trial. 
  • Following the filing of objections, the objector will serve a summons on all beneficiaries of the will. This is an opportunity for the parties to discuss whether a settlement is possible. If settlement is not possible, each party will continue to participate in discovery: production of documents, subpoenas, depositions and interrogatories of third parties. 
  • When discovery is completed, the parties may file their motions for summary judgment or motions to dismiss. 
  • If summary judgment is denied or not settled, the parties may proceed to trial.

How to prevent a will contest?

If you are planning your estate situation and want to avoid a will contest, it is advisable to take some steps. Especially if you are going to disinherit a beneficiary or made disparate distributions among your loved ones. For when you are gone but want to avoid having your will contested, follow these steps. 

  • Use an “in-terrorem” or no-contest clause in your will. With it, if a beneficiary decides to contest your will and loses, they will receive nothing from your estate. 
  • Use trusts rather than wills. 
  • Secure your medical situation with a psychiatrist before and after the execution of the will. Ask the doctor to write you a letter advising you of your level of capacity. This way you could immediately rule out some grounds for a possible contest. 
  • Leave a stack of wills. Execute several wills that will then require the objector to spend time and money in protracted litigation to set aside several wills before they can inherit.

Lawyers to contest a will in NY.

Now you know the steps to contesting a willI in New York. f you believe that there are irregularities in a loved one’s will and you are considering taking action, it is advisable to seek the advice of an experienced will attorney. In the event that your assumptions were not true, there may be consequences for you and you may lose the inherited estate. 

Contact our experienced probate lawyers in New York to review your case and analyze together whether there are indeed grounds to contest the document. 

  • Analyze the actual will. 
  • See if there are any grounds to contest and which ones.
  • Move forward with the contest process. 

If you need further help with the steps needed to contesting a will in New York, let us know your case today.