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Contesting a Will

Wills carry with them a presumption of validity when they are properly executed in accordance with certain formalities. However, an estate plan can be the result of confusion, mistake, undue influence or outright fraud. In addition, an instrument purporting to bear the signature of a loved one may in fact be a forgery.

The person executing the will (signing the will) could be suffering from physical impairments or mental impairments that may make them particularly susceptible to fraud. Criminals counterfeit $20 dollar bills, so why wouldn’t a criminal forge a will which could be worth hundreds of thousands of dollars or more?

The simple answer is that because of the nature of a will, it is subject to all types of malfeasances, such as fraud, forgery and undue influence. New York’s Surrogate’s Court Procedure Act gives any person who would be adversely affected by a will or has an interest in property belonging to the estate the right to contest a will.

Grounds for Contesting a Will in New York

The person objecting to the probate of a will may do so on several grounds, including:

  • That the will being probated is not the last will and testament of the deceased (usually referred to in Court as the decedent); or

  • That the will was not properly executed and/or published in front of two witnesses, that the decedent did not sign the will in front of the witnesses, that witnesses did not sign the will in front of each other or that the decedent did not request that two witnesses be witnesses to his/her last will and testament; or

  • That the decedent was not of sound mind or memory or was not otherwise mentally capable of making a will; or

  • That the decedent had some physical impairment that prevented them from understanding the nature of what they were signing or the nature of the bequests (gifts) made under the will; or

  • That the will was not freely and voluntarily made or was procured by deceit, undue influence or fraud; or

  • That the propounded executor is not qualified under the Surrogate’s Court Procedure Act to become the executor of a will. A person is not competent to become an executor if they are a convicted felon, a minor, or incompetent, or it can be demonstrated to be improvident or lack understanding.

A person seeking to object to the probate of a will should hire legal representation with experience in filing these types of objections in Surrogate’s Court.

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