Most New Yorkers assume that making a will prevents all intra-family squabbles about asset distribution after the maker’s death. If only this were so. . . . Family members often feel short-changed by one or more provisions of the will of a relative. These individuals often wonder whether they have any remedy. They do, but the remedy can be costly and difficult to obtain.
The answer: a will contest
Any heir or person who may be an heir to the deceased may commence a lawsuit in the state court where the will was admitted to probate. Such lawsuits are called “will contests.”
Any person who is named as an heir in the will or who has a legal status – say, a child of the deceased – may start such a lawsuit by filing a complaint alleging the reasons that the will may be defective.
Grounds for declaring a will to be invalid
The grounds for declaring a will to be invalid are listed below in no particular order.
- Lack of capacity. The person challenging the will may believe that the maker was incapacitated when the will was signed. Lack of mental capacity can be proved by medical records or the opinion of a caregiver. Lack of capacity can also be proved by the testimony of friends of the decedent.
- Fraud. A will can be invalidated if the person bringing the will contest can prove that the maker was misled by an intentionally false statement of someone who benefits from the will. A fraudulent statement may be a false assertion that a particular heir intended to apply the bequest to an improper purpose or to a purpose that the maker of the will does not approve.
- Undue influence. The will must be the “free act and deed” of the testator. If the testator was coerced by another person to insert a particular clause in the will, the clause or perhaps the entire will may be adjudged to be invalid.
Conclusion
A will contest is usually a complicated legal battle. Anyone hoping for an easy victory should consult an experienced attorney before joining the battle.