What to do When One Aunt or Uncle Leaves Everything to One Niece or Nephew

When an aunt or uncle leaves everything to one niece or nephew, it is common to resent that person’s inheritance and feel that you have been treated unfairly. This scenario only happens when the aunt or uncle leaves a will. If there is no will, the next of kin who all share the same degree of relatedness to said uncle or aunt inherit equally.

When you are the next of kin of an aunt or uncle who has left everything to one niece or nephew, you can contest the will. In New York, EPTL § 4-1.1 provides for the next-of-kin who is entitled to inherit from a deceased person when such person dies without a will.

Generally, if the deceased person leaves a spouse and issue (children and descendants) and dies without a will, the spouse and issue inherit. If there are no spouses and issue, the parents inherit. If there are no spouses, issue, or parents, the siblings inherit. And if there are no spouses, issue, parents, or siblings, the siblings’ issue inherits. These rules only apply when the deceased person dies without a will. If there is a will, courts will follow the wishes of the deceased person, as stated in the will.

When the aunt or uncle leaves everything to the niece or nephew and the aunt or uncle has a spouse, children, parents or siblings, the closest kin has the right to contest the will. The presence of the spouse and children excludes the parents or siblings from having the right to contest the will. The absence of the spouse and children but presence of the parents excludes the siblings from having the right to contest the will.

If you are a niece or nephew of your aunt or uncle, your aunt or uncle died with no spouse, children, parents, or siblings, and left everything to one niece or nephew, you have the right to contest the will because you are the closest living kin.

Having the right to contest the will, however, is different from having a strong case to contest the will.

A will contest can be an expensive battle since, without an amicable settlement, it has to go through trial. There are two major grounds to contest the will, either by claiming that the will was not properly executed, or by going into the essence of the will and claiming that it was a product of forgery, undue influence, or the lack of the testator’s testamentary capacity.

Claiming that the will was improperly executed means that it was not executed in accordance with state formalities. In New York, when a will includes a properly executed and worded attestation clause and the execution was supervised by an attorney, there is a presumption of due execution. This presumption, however, can be rebutted. Improper or due execution can easily be proved by a deposition of the attesting witnesses and the attorney draftsperson. In New York, the costs of deposing the witnesses and attorney draftsperson are usually covered by the estate under SCPA § 1404.

Claiming that the will was a product of forgery, undue influence, lack of the testator’s testamentary capacity or a combination of any of the three needs more evidence. Usually, this will require the production of medical records to show the testator’s mental fitness at the time the will was executed and witness depositions regarding any opportunity and actual exercise of undue influence by the beneficiary upon the testator.

In the case of the niece or nephew, you must show that the niece or nephew had the opportunity and actually exercised undue influence upon the aunt. This may be easier to prove when the aunt or uncle and the niece or nephew lived in close proximity towards each other, or that the niece or nephew even isolated the aunt or uncle from other relatives. It is a little bit difficult to prove when the niece or nephew and the aunt or uncle live in two different states.

Deciding whether to contest the will or not depends on the unique circumstances of the case, the value of the estate, and the strength of your evidence. Ultimately, it is the prerogative of your aunt or uncle to decide who gets their assets. However, if you feel strongly that the provision in their will leaving everything to one niece or nephew is not the true will of your aunt or uncle, consult with a lawyer regarding your options. Should you need assistance, 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].