One question I am often asked is how to contest (or challenge) a last will & testament. While challenging a last will is not something to be done lightly, there are specific instances in which a will contest would be appropriate.
In order for a last will to be deemed valid and legally enforceable in New York State, it must first be admitted into probate by the Surrogate’s Court where the deceased resided. Once this process begins, individuals with a pecuniary interest (those who stand benefit monetarily from the last will) have the opportunity to formally challenge the document’s validity. This includes named beneficiaries in a previous will and/or heirs at law.
Once it has been established that an individual does have a pecuniary interest, he or she may formally challenge the last will by filing an objection with the Surrogate’s Court. In New York, the grounds for objecting to the admission of the last will & testament to probate are:
Lack of Testamentary Capacity – Testamentary capacity is a legal term used to describe a person as being of sound mind and memory when signing a will. To contest a will for lack of testamentary capacity, one must prove that the decedent was incapacitated due to senility, loss of memory, infirmity or insanity during the will’s execution and did not have a ‘lucid moment’ at the time of signing.
Due Execution – In order to be valid, a last will must be prepared following a number of strict technical rules. If the will was not duly executed by the decedent according to the laws of the state (“Due Execution”), the document can be rendered invalid.
Undue Influence and/or Fraud – If the last will was the product of undue influence and/or fraud practiced upon the decedent it may be challenged during probate. Illness or frailty may have left the decedent susceptible and, if it can be proven that the influencer took advantage of him or her and benefited, the last will could be invalidated. It should be noted that successfully proving undue influence is often a difficult matter. The court must rely on third party witnesses (health care providers, lawyers, family and caregivers) who knew the decedent well to make a decision.
A last will & testament is often among the most important legal documents that a person creates in his or her lifetime. For those considering a will contest, it is advisable to first consult an elder law attorney. The circumstances surrounding each case are unique. An attorney experienced in probate matters can best advise on how (or if) to proceed.