Unfairly Left Out of the Will. What are my Options? Should I Contest the Will?

If you have been unfairly left out of the will, it can cause a lot of hurt and pain, especially when you took care of the decedent, you were close to the decedent, or you were a child or spouse of the decedent. Should you contest the will? It depends on the circumstances.

Who you are

Who you are is the most primary consideration in determining whether you have been unfairly left out of the will. Only interested persons can claim they have been unfairly left out of the will. Who are these interested persons? In New York, you must be either a distributee under EPTL § 4-1.1 or a beneficiary from a prior will who has either been left out or received something less in the new will.

Who are distributees under EPTL § 4-1.1

You can claim you have been unfairly left out of the will if you are a distributee under EPTL § 4-1.1. Who the distributees are depend on who survived the decedent. Under said provision, the following are the distributees who stand to receive something if the decedent died without a will. These distributees are usually the only family members who can claim to have been unfairly left out of the will:

If decedent is survived by: The following persons shall receive decedent’s estate:
Spouse and issue (children and their descendants) $50,000 plus ½ to spouse, and balance to children or children’s descendants by representation
Spouse and no issue Everything to the spouse
Issue and no spouse Everything to the issue by representation
No spouse, no issue Everything to the surviving parents
No spouse, issue, or parents Everything to the issue of the parents by representation
No spouse, issue, parents, or parents’ issue To the grandparents or issue of grandparents by representation, ½ each to the paternal and maternal side

Special considerations for a spouse

If you are a spouse who has been unfairly left out of the will, New York law gives you special consideration. You can elect to receive either $50,000 or 1/3 of the net estate, whichever is higher. The computation of the net estate includes testamentary substitutes such as gifts in contemplation of death, gifts made within one year prior to decedent’s death, Totten trust accounts, joint bank accounts, property held jointly or payable to another on death, assets where decedent retained a life estate, retirement accounts, payable on death or transfer on death accounts, and assets where decedent held a general power of appointment. If you are a spouse who has been unfairly left out of the will, call us immediately at 212-233-1233 or send us an email at [email protected].

Whether you have a strong case for contesting a will

Another primary consideration in making a decision to contest a will is whether you have a strong case. Legal expenses in will contests can be very expensive, especially if the case drags on for a long time. You need to know the chances of your case being successful or not.

Sometimes, in will contests, when you have a strong case, the other party (the executors and the beneficiaries) will decide to settle instead of dragging out the case for a long time. The other parties know that dragging out a case will deplete everyone’s funds, including that of the estate which pays for the defense in the will contest. For this reason, having a strong case to contest the will is an important consideration in deciding whether to continue litigating your claim.

SCPA 1404 probe

In New York, SCPA 1404 probe will allow you to discover information from documents and witnesses regarding the execution of the will. This discovery procedure will allow you to know whether or not you have a strong case for actually contesting the will.

What is a strong case for contesting the will? A strong case would be sufficient evidence to prove that the testator was unduly influenced by the beneficiary into making that will, the testator lacked testamentary capacity at that time to execute the will, the testator did not observe the proper state formalities in executing the will, the testator was forced or constrained to execute the will, or the beneficiary used fraud to deceive the testator into executing the will.

The good news about SCPA 1404 probe is that the cost for witness deposition and document discovery is borne by the estate. You will still, however, bear the cost for your own legal expenses, unless you ultimately prove that the will should be denied probate. In that case, you can be reimbursed your legal expenses because you did the estate a favor by ensuring that an unauthentic will was not admitted to probate.

Time limitations in SCPA 1404 probe

When you try to obtain documents and witness depositions regarding the execution of the testator’s will, you are limited to a time period between three years prior to the execution of the will and two years after or until the testator’s date of death, whichever is shorter. This is known as the 3/2 rule.

For example, if the testator executed his will on September 2018, you are limited to discovering documents executed and asking the witnesses things that transpired between September 2015 until August 2020 or until date of the testator’s death, if the testator died earlier than August 2020. So if the testator transferred property to your sibling, for example, on August 2015, you will not be able to discover this document under SCPA 1404 probe because it is outside the time limitation of the 3/2 rule.

Documents you can discover in SCPA 1404 probe

Examples of documents you can discover under SCPA 1404 probe are the following documents within the 3/2 rule: medical records, pharmacy records, gift tax records, decedent’s address book, photographs, attorney’s file and notes taken during the drafting of the will, billing records, estate tax returns, and other similar and relevant documents.

Witnesses you can depose in SCPA 1404 probe

You are limited to examining the following persons in SCPA 1404 probe, at the cost of the estate: (a) the witnesses; (b) the person who drafted the will; (c) the nominated executor; and (d) any other person with substantial and relevant knowledge subject to the issuance of a court order.

During deposition, we try to figure out whether it was indeed the testator who really executed the will. We ask questions regarding the drafting of the will: who contacted the attorney regarding the execution of a will, to whom did the attorney send the drafts of the will, how were changes made to the drafts, who paid for the attorney, whether the testator was with someone else when he met with the attorney to discuss his will, whether the procedure appeared to be hurried, how fast was the will executed from the time of the first meeting. For the witnesses, we ask specific questions about execution: what the testator was wearing, where everyone was seated, what was said during the execution, when and where did the testator and the witnesses sign, who was present in the room during signing. This will allow us to discover whether all the elements of due execution have been observed.

How to know whether you have a strong case for contesting the will

If the testator unfairly left you out of the will, here are the things to look out for to see whether you have a strong case in contesting the will:

  • Was the will drafted by an attorney? Was the will’s execution supervised by an attorney?

If the will was drafted and its execution was supervised by an attorney, New York law presumes that the will was executed regularly. An attorney with expertise in wills will ensure that the will is drafted with a correct attestation clause and a self-proving affidavit. This strengthens the presumption that the will was executed regularly and that the testator had testamentary capacity. Although you can overturn this presumption, it is more difficult. Usually, in cases where an attorney did not draft or supervise the execution of the will, there is a stronger likelihood that the executor and the beneficiaries will settle instead of dragging out the will contest.

  • Is there an attestation clause signed by the witnesses? Does the attestation clause observe the language required by the statute to be declared in such attestation?

An attestation clause serves as prima facie evidence that that will was duly executed. To overcome this, you must submit conflicting proof that there was no due execution. Under New York law, the attesting witnesses must state that the testator’s signature was affixed or acknowledged in their presence, and that they signed as witnesses at the request of the testator.

  • Is there a self-proving affidavit?

The self-proving affidavit can be submitted in lieu of the witnesses’ live testimony and provides prima facie showing of the testator’s testamentary capacity. If there is an attestation clause but no self-proving affidavit, the witnesses must submit their testimonies to court regarding the execution of the will and the testator’s competency to execute a will. If there is a self-proving affidavit, as described in SCPA § 1406, the witnesses do not need to appear before the court anymore to testify as to the execution of the will. An attorney with expertise in drafting wills will ensure that a will is executed together with an attestation clause and a self-proving affidavit.

If there is no self-proving affidavit, the will has usually not been drafted or its execution has not been supervised by an attorney. In this case, the proponent-nominated executor has the burden of proving that the will was executed. In order not to drag out the case and incur more legal expenses, parties will usually settle.

  • Was the testator under medication or suffering from illness when he executed the will?

During SCPA § 1404 probe, you will be able to discover the medical records of the testator at the time the will was executed. Here, you will know whether you have grounds for claiming that the testator could have been easily and unduly influenced because of his medical weaknesses.

  • Is there a confidential relationship between the beneficiary and the testator?

If a confidential relationship exists between the beneficiary and the testator (for example, the beneficiary is the testator’s attorney, financial advisor, accountant, doctor, nurse, clergy, nursing home director), the burden is reversed. It becomes the primary beneficiary’s burden to prove that the will was duly executed without undue influence.

These are some things to look out for when deciding if there are grounds to contest the testator’s will, especially if the testator left you with nothing. Although the above list is not exclusive, it gives you an idea on whether you can have a strong case for contesting the will. Some of this information, you will know at the onset, while some will be known after discovery in the SCPA § 1404 probe. A lawyer will be able to help you analyze whether you have a strong case or not.

Should you need assistance in contesting a will, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001
[email protected]