In order to contest a will, you will have to show that the will has a serious problem. Just not liking the result is not enough. You have a few routes to prove to the judge or the jury that the will should be overturned.
Lack of Capacity
First, you can try to show that the testator (person who made the will) did not have the mental capacity to make a will. Preferably, you’d prove that the testator was so bad that did not know who his loved ones or friends were, what his property is or what making a will means. That is the golden standard of contesting a will. But that’s hard to find. Most people even when they are older or are sick, and even with dementia, are able to kind of figure out those things. The attack on the will is going to be more subtle, looking at the testator’s medical records and determining what it is that is in them that can point to the testator not having the mental capacity.
Second, you can try to show that the testator was coerced or unduly influenced into making the will. A lot of people as they get older and sicker depend on others for the basic things in their life. They crave the love and affection of others. They want to be needed. Even if all they’re needed for is their money. This is very unfortunate. Bad people take advantage of that, and manipulate the vulnerable seniors into leaving them the inheritance.
Will not Made Properly
Third, you can try to show that the will was not made properly. This works best with wills that people download from the internet or by at a form store. A will downloaded from a bot on a legal service website like LegalZoom can have problems. For example, it may not have the required number of witnesses (usually two). The person may or may not declare the will to be their will (a requirement). The person may even sign in the wrong place. Also, people tend to make “corrections” and “changes” to those wills, and those changes are not valid.
Unlike in the example above, when a person downloaded a will from the internet at their own risk, trying to contesting the will is not something most people can even attempt. Even at their own risk. To have any chance of contesting a will, you’ll need a lawyer. New York estate lawyer, such as Albert Goodwin, Esq. can help you evaluate your will contest case and let you know what your chances are. Albert Goodwin, Esq. is a New York estate, guardianship, wills, trust and probate lawyer since 2008.
More about undue influence
It is easier to establish undue influence if the following factors are present:
- Susceptibility. The testator had a weakness (physical, mental, or financial) that made them susceptible to influence;
- Opportunity. The wrongdoer had access to the testator and an opportunity to exert influence; (e.g. taking care of testator, excluding everyone else, cutting off testator’s communication with their family and friends so that the wrongdoer can have total control of the testator)
- Active participation. The wrongdoer actively participated in drafting the will; and
- Unnatural disposition. There is an unnatural (unexpected) result.
A common law presumption of undue influence can possibly be established if:
- Confidential relationship. A confidential relationship existed between the testator and the wrongdoer;
- Active participation. The wrongdoer actively participated in the drafting the will; and
- Unnatural disposition. There is an unnatural result.
There is a strong presumption of undue influence if the testator makes a donative transfer to
- Drafter. The person who drafted the will;
- Care custodian. A care custodian of a testator who is a “dependent adult”;
- Fiduciary. A person in a fiduciary relationship with the testator, like an accountant, banker, lawyer or financial adviser.