I am not mentioned in a will, even though I’m a close friend or relative. Is this ground for a will contest?
Perhaps the only thing that can be more painful than having someone close to you die, is to end up discovering that you were left out of the will. The initial reaction of many when this happens is to go to a New York City estate attorney and attempt to have the will overturned. But is this something that is actually possible?
Unfortunately, simply being left out of a will is not enough, in itself, to have it overturned. The assumption among the Surrogate’s Court in New York is that a will was written in a way to express the wishes of the testator. There are very few things that will overcome this assumption. So, being left out of a will alone would not be enough to have it overturned.
However, a close friend or family member being left out of a will could be used as evidence to prove other things that could result in having a will overturned, such as undue influence, duress or lack of capacity. If someone close to the testator is left out, it could be evidence that the testator was pressured or threatened to leave that person out in place of someone else. It could also be a sign of not being capable of signing a will since the testator did not understand at the time of execution of the will whom the object of their bounty was. One must remember that the rest of the factors of any of these ways to overturn a will would have to be proven in addition to just that someone was left out.
Another thing that someone being left out of a will could be a signal of is that the attorney who drafted the will made a mistake and left that person out, something that was not the actual intention of the testator. Unfortunately, there would be almost no recourse for someone who was left out in such a manner against the estate planning attorney who has drafted the will.
What must be mentioned here is what someone in the process of making estate plans should do if they specifically want to leave someone out of a will. While there is no official duty to put specific language in a will that someone is being left out on purpose, it is a wise thing to do to cut down on future disputes. Also keep in mind is that not everyone can be disinherited. For example, a spouse can claim her elective share even if expressly left out of the will.
If you have any questions about estate planning or if you were left out of a will and believe that you have a valid claim for having the will overturned in a will challenge, schedule a consultation with a New York City estate attorney to find out what your options are. Call us at (212) 233-1233.