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How to Win a Will Contest in New York

A person who believes that something is wrong with a will of their relative of friend may be able to overturn that will through the courts.

Reasons for challenging wills are called “grounds.” In this post, we’ll list the grounds for overturning a will. We’ll also offer some pro tips on winning a New York will contest based on those grounds.

Reason # 1: The person who died was not well enough to make a will

If the person who died did not have the mental capacity to make a will, then their will can be overturned. To prove that the decedent was not of “sound mind” at the time the will was made, the contestant has to prove one of the following three things: that the decedent did not understand

  • (1) what they own, or
  • (2) who their family are, or
  • (3) what is in their will.

A will challenge based on lack of mental capacity is especially effective when applied to wills of decedents who suffered from dementia or mental illness and decedents who were in the later stages of Alzheimer’s.

A will challenge of this kind can also be applied to wills of decedents who are in such a week physical state that it can be claimed that they lost their mental capacity.

Mental illness in and of itself does not mean that the decedent lacks capacity. In order for a will challenge to work, the objectant to the will is going to have to show how the mental illness played a role in the making of the will.

If it can be proven that the decedent was on a strong mind-altering medicine at the time of making of the will, it can be possible to overturn a will on that ground.

Some people, as they get older, may drift in and out. A contestant of the will is going to try to win by proving that the will was executed during the testator’s unsound time, not during the lucid moments. If the decedent was well sometimes and sometimes wasn’t, the decedent was drifting in and out of having an unsound mind, the will is valid only if it was executed during the time period when the decedent had clarity.

Pro tip: For a will contest, a person does not have to prove that the decedent didn’t have capacity on the exact day of the will signing. The will challenger can use circumstantial evidence to point to a general time period, let’s say the year before the will signing, depending on the condition.

If the decedent was drunk or on drugs during the will execution, the will can be overturned, if it can be shown how the decedent’s altered state influenced the making of the will.

Pro tip: The most effective strategy for challenging the decedent’s mental capacity is to obtain medical records, go through them and see if there are any notes that point to incapacity.

Reason #2: The person who died was pressured to make the will

In legal terms, pressure to make a will is called coercion and undue influence. If the decedent was influenced through coercion or duress, it will be found invalid and can be overturned.

This involves proving that the people that the decedent trusted took advantage of him and pressured them to make the will to their benefit.

Pro tip: A common strategy of people challenging a will based on undue influence is to prove that the proponent of the will had a confidential relationship with the decedent. That makes it easier to show that the proponent of the will was in a position of influence and had the opportunity to pressure the will maker.

Reason #3: The will is a forgery

If any part of the will is determined to be forged, be that the text of the will or anyone’s signature, the will is invalid.

To win based on this ground, a will contestant needs to prove that the signature on a will is forged or imported from another document, or the text is manipulated – the pages are replaced or the text is changed.

The way to win a will challenge based on forgery is to bring a handwriting expert and to present evidence of other handwriting samples of the deceased, comparing them to the handwriting on the will and saying that it’s not a close enough match.

Pro tip: A forgery trial usually becomes a battle of the experts for the Will proponent and the objectant.

Reason #4: The will was obtained by lying about something

If it can be shown that someone misled the decedent in order to make him sign the will they would not otherwise sign, the will is invalid and can be overturned.

Fraud can mean misleading the decedent about the will itself, such as slipping a will under a guise of a different document or such or mischaracterizing what is in the will and having the decedent sign it.

Fraud can also mean misleading the decedent about circumstances outside of the will, such as misinformation about friends and relatives. Fraud is challenging to prove, but possible if the right evidence can be found.

Reason #5: The will was not made correctly

A will that was not executed with all of New York’s formal requirements will not be valid and can be overturned. The formal requirements are:

  • (1) The will must be signed by the testator (or in their direction in their presence)
  • (2) the signature must be at the end of the will
  • (3) signed in the presence of each witness
  • (4) testator must communicate to the witnesses that they are witnessing a will
  • (5) two witnesses are required
  • (6) the entire ceremony must be completed within 30 days of the testator’s signature

To be valid, a will has to be executed in accordance with New York will execution formalities. The most common will challenges involve problems with witnessing the will and problems with the testator declaring it to be the last will and testament to the witnesses.

Pro tip: a will challenge based on formalities is more plausible when the will was executed without the suprevision of an attorney, such as a will printed out from the internet or filled out in a store-bought form.

Reason #6: There is a later will that overrides this will

If there is a validly executed will made after the one being challenged, the later will wins (unless the later will is overturned).

The reasons (grounds) for overturning a will can be combined

They say when it rains, it pours. It is rare that a Will challenge is presented with only one ground. In fact, in the beginning stages of a will challenges, every possible ground is usually pleaded with the hope of finding one that sticks at later stages of the case. If there is an allegation possibility of the decedent not being well enough to make the will, an allegation will also be made that this diminished mental state made the decedent vulnerable to being misinformed or pressured to make a Will a certain way. It will also be claimed that the will was made in a hurry and was not properly executed.

Although some fact patterns present an opportunity for a laser-sharp focus on a single issue, the most common strategy is still to plead every possible Will challenge ground and see which one of them sticks.

For an easy to use and print format, here’s our quick guide to will contests: Will Contests in New York: An Overview (PDF)

 

 

If you are involved in a will contest, your next step should be to contact a New York estate attorney and describe the circumstances behind the making of the will. The attorney will determine whether the proposed objections have merit, and may request a court-supervised examination of those involved before deciding whether it is worth your while to invest in a full-blown will contest.

It is common for a will contest to settle before trial, especially if family is involved. If settlement is not possible, the sides exchange documents and information and ultimately proceed to trial.

To learn more about will contests in New York, read our article, Will Contests in New York: An Overview (PDF). Give us a call at (212) 233-1233 if you wish to discuss your case.

During a will contest, the validity of the will is decided in a trial. The estate will not be distributed until the trial finishes. If the will is found to be invalid, the court will do one of the following:

  • Not admit the will
  • Admit only a portion of the will
  • Admit an earlier will in its place
  • Not admit any of the wills, and distribute assets among the decedent’s relatives as if there was no will.

Deadline Alert: The time to contest a will may pass once the will is admitted to probate.

Call the Law Offices of Albert Gurevich at (212) 233-1233 today and make an appointment to evaluate your chances of succeeding in a will contest.