Contesting a will is a serious undertaking and not everyone is entitled to do it. As Consumer Reports states, only an “interested party” may formally contest a will by filing a legal challenge. An interested party could include any of the following:
- Anyone named in the will
- A close relative of the decedent not named in the will
- Anyone who would inherit by law had the decedent died without a will
- Anyone named in a previous or subsequent will whose inheritance has been reduced in the current will or whose name does not appear in it
New York Intestacy Laws
The New York State Unified Court System explains that any New York resident who dies without having made a Last Will and Testament is considered to have died intestate. Under New York intestacy law, a decedent’s spouse and children are protected against disinheritance. This applies to both biological and adopted children including, in the case of a male decedent, any biological child born out of wedlock, assuming the decedent established his paternity of such a child.
Should one or more of the decedent’s children predecease him or her, the decedent’s grandchildren by the predeceased child(ren) stand in the place of their deceased parent. The decedent’s parents and siblings likewise are protected from disinheritance to a much lesser extent, and only in certain circumstances.
Grounds to Challenge
FindLaw warns that challenging a will is difficult; nearly 99 percent of wills go through probate unchallenged. Grounds for challenging a will include the following:
- Lack of testamentary capacity of the decedent at the time he or she made the will
- Undue influence over the decedent by someone at the time he or she made the will
- Improper signing or witnessing of the will
- Existence of a valid previous or subsequent will
The person making the will is called the testator. In New York, a testator must be at least 18 years old. New York considers younger people not to have the legal capacity to create a will. Adults 18 years and older are presumed to have such capacity. However, some conditions such as senility, dementia, insanity, or being under the influence of alcohol or drugs can rebut that presumption. Legal capacity also includes the testator’s ability to understand the following:
- The meaning of a will
- The property he or she is disposing of by will
- The extent and reasonable value of his or her property
- Who he or she is providing for in the will
- Those whom he or she is expected to provide for under New York law
- How all of these things work together to result in a valid distribution of his or her property
While outright fraud or forgery are rare with regard to a will, undue influence is not. The classic example is that of the caregiver of an elderly person or patient. Should the will leave the testator’s entire estate, or a substantial portion thereof, to the caregiver, it is possible that this person, by virtue of his or her position, exerted undue influence on the testator to make such a bequest.
Improper Signing or Witnessing
In New York, a will must be signed and witnessed in a specific way. The testator must sign it in the presence of two witnesses and they must hear him or her state that what is being signed is in fact his or her Last Will and Testament. The witnesses must then sign the will, giving not only their names, but also their addresses.
Existence of a Prior or Subsequent Will
When a testator makes a will, he or she should destroy any previous wills, including copies thereof. In addition, the new will should be dated and contain language to the effect that any and all previous wills are null and void. Situations do arise, however, where these things were not done. Anyone having a copy of a prior or subsequent will has the right to challenge the will being probated.
Holographic and Oral Wills
New York does not recognize the validity of a handwritten will, also known as a holographic will, except those written by members of the armed forces during an armed conflict. Such service members also are the only people who can make a legally valid oral will.
Results of a Successful Will Challenge
A successful will challenge can result in the decedent’s entire will being invalidated or only a portion thereof. If a prior or subsequent valid will is proven, some or all of its provisions may be reinstated in place of, or in addition to, the provisions of the will being probated. If there are no valid prior or subsequent wills and the entire current will is invalidated, the decedent’s property will pass as it would have had he or she died intestate.