The challenge and contest of a will in New York State can only occur after the death of the testator. Emotions can run high among beneficiaries and family members that think they have been injured or mistreated. A creditor or beneficiary may also contest accountings if they believe that an administrator, executor or personal representative has breached their fiduciary duty and ask the New York Surrogate’s Court that he or she be removed and replaced. Typical disputes that may arise and cause a New York State will contest include the following:
Improper Execution of the Will
A will contest arises frequently when a will is not properly executed in accordance with New York State Probate Laws. This could mean that the testator’s signature was not properly signed, witnessed or acknowledged in the presence of the required number of witnesses, or the witness did not properly sign the will in the presence of the testator and another witness. You have to be of the legal age of eighteen years to make a will in New York State unless you have been legally emancipated.
Coercion or Undue Influence
If there was an act of coercion or undue influence by a family member or other interested party or potential beneficiary that caused the testator to prepare or amend their will, the will may be invalid. Coercion or undue influence takes place when a person is typically manipulated or influenced to make decisions and decisions regarding the disposition of their estate and assets that they may not have normally made had another person not coerced them into making said decisions. Many times a child or other family member, a friend or other caregiver may influence the testator to write other siblings or family members out of their will. A second wife may have their spouse write his or her children from a prior marriage out of the will leaving the entire state to such second wife, or they may have their spouse write a former spouse out of a will. It is common for coercion or undue influence to occur when a person is mentally or physically incapacitated with a disease or brain injury.
If a testator is mentally incapacitated from an illness or disease, they are considered not of sound mind. However, the important factor is whether the person was mentally competent at the time they made and executed their will, not the condition that they were in when they passed away.
Typically, in order to prove the incapacitation, there needs to be prior medical records and a diagnosis of a medical condition such as Alzheimer’s or dementia or testimony of medical professionals. The mere fact that your mother, father or spouse is old or bedridden does not mean that he or she is mentally incapacitated.
Keep in mind just because you are not happy with the way your loved one disposed of their estate assets, that in itself is not a sufficient reason to contest a will. New York State will contests are complicated and generally require the assistance of a New York Probate attorney. An attorney can provide you with the best advice as to whether or not your will contest is valid.
If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at 718-509-9774.