New York State law is very specific states very specific as to how to make a valid will. If those rules are not followed, your will may be subject to a will contest. If someone with an interest in your estate believes that their rights were denied and there is something wrong with the will, they may contest the validity of your will.
A common example of when a will contest occurs is where an individual had an inheritance in a previous will, a new will excludes them and they believe their rights were denied. In this example, the individual who was excluded from the will may challenge on several grounds:
- Lack of testamentary capacity: the Surrogate’s Court looks at the testator’s age or the testator’s state of mind at the time the will was executed; the testator must be able to think with sufficient clarity (sound mind, execute will without prompting), understand the extent of his estate and knows the natural objects of hit bounty.
- Undue influence or fraud: unfair psychological persuasion by someone to be names as a beneficiary in T’s will. It involves the misuse of a position of trust and confidence.
- Improper execution: the Surrogate’s Court looks at whether the will was validly executed; the testator was an adult, the will was written, signed at the end by the testator, published and two witnesses must sign in the testator’s presence.
Should the Surrogate’s Court determine that all or a portion of the will are invalid, the Surrogate’s Court will then determine how your property should be distributed. Generally, the Surrogate’s Court will distribute your property as if no will existed under the laws of intestacy.
If a will is being challenged or you feel a will should be challenged, it is important that you have an attorney who understands will contests and that can work to arrive at a resolution. We will ensure you understand the process every step of the way. The attorneys at James G. Dibbini & Associates, P.C. have over 20 years of experience in Wills, Trusts & Estates.
In order to learn more about Will Contests or you have a Wills, Trusts & Estates matter you would like to discuss, please feel free to contact our office directly.