Here is a list of the possible grounds for challenging a will in New York:
- Undue Influence
- Lack of Due Execution
Incapacity – the person is not competent to make a will when they either
- don’t know who their natural heirs are
- don’t know the extent of their property or
- don’t understand what the will is and what its implications are
Undue Influence – the will was made as a result of someone else’s influence, as opposed to as a result of the will of the person who signed the document.
Duress – the person signing the document was forced to sign it. They were threatened that something bad will happen in their life if they will not sign it.
Forgery – the handwriting in the signature was forged. The person whose name appears in the document never actually signed it.
Fraud – the will is signed as a result of someone lying to the person who signed the document. The lie can be about the document being signed, hiding the fact that it’s a will from the person who is signing it. The lie can also be about some circumstances tied to the will, such as the other children of the person who made the will doing something that the person who made the will does not approve of.
Revocation – the person who made the will cancelled it, either by destroying it or by executing another will that superseded the one in question.
Lack of due execution – unless the will has all of the following elements, the will is not valid:
- actually signed by the person who supposedly made it
- the signature is at the end of the will
- each witness was present at the time the will was signed (or the signature was confirmed to them by the person who signed the will)
- the person signing told the witnesses that they are signing a will
- there were at least two witnesses
- the entire ceremony was completed within 30 days of the signature
It is up to the person bringing the will to probate to present the basic proof that the will was executed with all of the “due execution” elements listed above.
After that, it is up to the person bringing the New York will contest to prove that the will is invalid, by proving the existence of one of the grounds listed above.
If a will was made to favor a non-relative caretaker or professional, there is an inference of undue influence. That inference can be rebutted by the person benefitting from the will.
Bringing a will challenge usually involves the examination under oath of the witnesses to the will, the attorney who drafted the will, the person who allegedly procured the will and of all other people involved. A will challenge also involves finding the medical providers of the person who allegedly executed the will, requesting the deceased person’s medical records and then examining the medical records for any evidence of incapacity. Learn more about winning a will contest in New York.
Albert Goodwin, Esq. is a New York estate lawyer with a decade of will contest experience. He can be reached at (212) 233-1233.