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Can Nieces or Nephews Contest a Will?

can nieces or nephews contest a will

Can nieces or nephews contest a will? Yes, but only if the deceased aunt or uncle did not have a spouse or children. Or, if the nieces or nephews were beneficiaries of a prior will.

Inheritance rights of nieces and nephews endow you with certain rights to your aunts’s or uncle’s inheritance. However, your rights are lower priority than those of your aunt or uncle’s more immediate family members. As set forth in the laws of the state of New York, you have no rights to your aunt or uncle’s inheritance if they had a living spouse, descendants or parents at the time of their death. Even if you are the closest living relative, you may also have very limited rights if your aunt or uncle left you out of their will.

If you were not named in your aunt or uncle’s will, then you have the right to contest the will. You can win a will contest if you can prove that your aunt or uncle either did not have the mental capacity to make a will, was unduly influenced into making the will or the will was not made correctly.

The ability of nieces and nephews to contest a will has to do with the rule of “standing.” Only those who have something to gain from a legal proceeding have the right to bring the legal proceeding. If the nieces or nephews have nothing to gain from the will contest because they would not inherit even if the will is set aside, then the nieces and nephews would not have the right to contest the will. But if they are the closest living relatives or are benefitting from a prior will, then they do have the right to contest a will.

A niece or nephew who are looking to contesting a will need to prove at least one of the following will contest grounds:

  • lack of mental capacity
  • undue influence
  • fraud
  • duress
  • forgery
  • the will was not made correctly

Lack of Mental Capacity

nieces or nephews contest a will and prove Lack of Mental Capacity

To show mental incapacity, nieces or nephews need to prove that their aunt or uncle did not understand one or more of the following:

  1. what they own
  2. who their relatives and friends are
  3. what is in their will.

Undue Influence

nieces or nephews show undue influence in will contest

In will contest parlance, pressure to make a will is called duress and manipulation of the testator is called undue influence.
Undue Influence –  To prove undue influence and contest a will, nieces or nephews would have to show that a trusted person took advantage of their aunt or uncle and manipulated them into making the will.

Lack of Due Execution

can nieces or nephews contest a will based on formalities

Nieces or nephew who are claiming that the will lacks due execution need to show that at least one of the formal requirements is missing. The requirements are as follows:

  1. The aunt or uncle has to sign the will (or direct someone else to sign their will in their presence)
  2. The aunt or uncle has to sign at the end of the will, not in the middle of it.
  3. There need to be two witnesses to the will
  4. The aunt or uncle has to sign the will in the presence of each witness
  5. The aunt or uncle must communicate to the witnesses that they are witnessing a will
  6. everyone has to complete the entire ceremony within 30 days of the testator’s signature

When it comes to making wills, unscrupulous people can take advantage of your aunt or uncle, leaving the nieces and nephews out of the will. Unscrupulous relatives, caretakers and so-called “friends” with ulterior motives prey on people who are physically disabled, cognitively impaired, isolated, confused and depressed. A victim of will fraud often loves, relies on, and fully trusts the person who misleads them. Nieces or nephews who suspect that someone took advantage of their aunt or uncle may be able to overturn their so-called “will.” This is done with the help of a lawyer through a will contest.

You should never go into a will contest without trial counsel. Even though you now have all this information, you will still be at a great disadvantage because you don’t have the experience in contesting a will.

At the Law Offices of Albert Goodwin, we have been litigating New York will contests for nieces and nephews for over a decade. You can call us at (212) 233-1233 or send an email.