Contesting a Will

Wills in New York a are an essential way for a person who has died to express their legal wishes about the disposition of their assets and belongings. Since a will, by definition, will only be needed upon a person’s death, the law requires that certain formalities be adhered to in order to ensure that the piece of paper that is presented as a will after the person’s death is in fact an authentic expression of that person’s wishes.

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. A Westchester County probate litigation attorney can help you investigate, and if necessary litigate, these matters.

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 and gives that person brought rights to obtain discovery about the will and the circumstances surrounding the execution of a will before and after deciding whether or not to contest the will.

As the probate litigation attorneys at our Westchester County firm understand, a 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 a Westchester County probate litigation lawyer with experience in filing these types of objections in Surrogate’s Court as soon as possible and before signing any documents that they may be sent by the estate.

Even before deciding whether to formally contest the will, an experienced an attorney can seek discovery of documents, medical records or other information that may shed light on whether contesting the will is appropriate.

The Law also gives certain people who wish to decide whether to contest a will the right to depose, or take sworn testimony from, the witnesses to the execution of the will and possibly the attorney draft-person of the will.