Contesting a Will in New York State
New York State courts don’t often overturn attorney-drawn wills. The process of contesting a will is complicated, time consuming, and costly. Sometimes, though, legal wills are at the heart of serious injustices. To understand how to contest a will – and whether or not it might be worth the struggle – it will help to know something about the process of estate planning, including drafting a will and probate.
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The Making of a Will
Estate planning is the area of law concerned with a person’s assets and possessions after he or she dies, arranging for an executor to distribute these among relatives, friends, and institutions, and also minimizing the impact of taxes. When a person decides to make arrangements for his or her estate, that process starts at an estate planning attorney‘s office, where the testator (the person who makes the will) drafts a will and signs it in front of two witnesses. The witnesses add their signatures affirming that the testator was mentally competent and not subject to any undue influence. The testator declares that the document is his or her will, that he or she has reviewed it, and that he or she would like the witnesses to sign it.
Probate – The Proving Ground
We say at this point the testator has written and signed a will, but this document doesn’t actually become a legal will until the testator dies, and it passes a process called “probate.” The word comes from the Latin probare, meaning to test and prove. During probate, then, the document – which at this point is only “purporting to be a will” – must be “proved” in the county surrogate court.
The word “probate” alone sometimes causes anxiety. Some of this anxiety might come from the notion that you have no control over your own probate – that you, “the deceased,” are on trial along with your last will and testament, but are unable to influence the court’s decision. In almost all court cases, probate is in fact an easy, simple process. An attorney submits some paperwork, pays a filing fee, and initiates the process. A surrogate court judge then examines the will and appoints the executor named in it to carry out the wishes of the deceased.
Who Can Contest a Will?
Certain people have the right to contest a will, and that’s where the process can get complicated. One group is the “distributees,” or those who would take a distribution from an estate if there were no will. If a man creates a will leaving everything to a friend, his spouse and children could contest that will because if the will were not valid, they would get the entire estate. The man’s parents could not contest it, nor could any first cousins. The only other people who could contest a will are individuals the will adversely affects. For example, if a woman wrote a will giving most of her estate to the Smithsonian, but then wrote a new will giving all her property to her nephew Ned, the Smithsonian could contest the will.
Probate is the only opportunity these parties have to contest a will, so the court must identify and notify these parties before a will goes before a judge. When there is no conflict over a will, these individuals can sign waivers to notify the judge that they take no issue with the will and won’t contest it. This happens in most cases. When this isn’t possible, the court must notify these individuals of the court date, either through certified mail or by process servers. Then those individuals, distributees or people adversely affected by the will, have the right to come to court and object.
Grounds for Contesting a Will
There aren’t many “grounds” for contesting a will. One is to allege that the person who created it was incompetent – usually mentally – on the date he or she signed the will.
The second potential ground is that of undue influence. For an extreme example, imagine a healthcare worker threatening a vulnerable elderly person with neglect and even death if he or she doesn’t sign over his or her estate to the worker.
One could also allege that a will is fraudulent or forged, or that the testator didn’t know what he or she was signing.
No matter the grounds, contesting a will is difficult. Any allegations go directly against the sworn testimony of the witnesses, whose signatures affirm the opposite of all the grounds listed above. The witnesses have sworn that the testator was of sound mind, was not subject to undue influence, and knew what he or she was signing. Distributees and people adversely affected by a will can examine these and other witnesses, but the burden of evidence is very high. Sometimes, people contesting a will call on medical experts, or go through a “discovery” process of gathering information, including medical records and bank statements from the deceased. They will base their objections on this evidence.
Contesting and Settling
Very few attorney-drawn wills, particularly in Western New York, are overturned. That doesn’t mean that one can’t object to a will. In certain situations, both sides will resolve their disagreement without going in front of a judge. Both parties – those who benefited and those who didn’t, or felt they didn’t benefit enough – decide to avoid the hassle and expense of litigating the issue and instead come to their own agreement. Even this isn’t for the faint of heart, though. Anyone contesting a will needs a strong case built on a mountain of evidence – and this can be expensive to gather.
Experience. Integrity. Personal Service.
If you’re thinking about writing a will, someone’s named you executor of a will, or you’re considering contesting a will, the estate planning lawyers at Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., can help. Thomas F. Hewner is a Certified Public Accountant and an attorney with over 35 years of experience in estate planning. Contact our firm today to set up an appointment at one of our five Western New York offices.
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