For most people, a primary motivation for creating a Last Will and Testament is to ensure that their estate assets are distributed according to their wishes after they are gone. If that Will is invalidated, however, that State of New York ultimately decides what happens to your assets. Knowing that, it seems wise to do what you can to prevent challenges to your Will. Toward that end, a Harrison estate planning lawyer at the Law Offices of Kobrick & Moccia discusses tools and strategies to help prevent a Will contest.
What Does It Mean to Challenge a Will?
Your estate will likely go through the legal process known as “probate” after your death. Ultimately, probate results in the distribution of a decedent’s estate assets; however, another function of the probate process is litigating any challenges to the decedent’s Will. If someone does challenge the validity of the Will by filing a Will contest, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the Will is declared invalid and the state intestate succession laws will be used to probate the estate. If the Will contest is unsuccessful, the probate process continues using the terms of the Will to distribute estate assets. After going to trouble of executing a Will, no one wants the terms of that Will to effectively be ignored after they are gone.
How Can a Will Be Invalidated?
Contrary to what many people believe, a Will cannot be challenged based solely on the fact that a beneficiary isn’t happy with the inheritance they received (or didn’t receive) according to the terms of the Will. To succeed in a Will contest in the State of New York, a contestant must prove at least one of the following legal grounds on which the Will can be declared invalid:
- Lack of testamentary capacity
- Undue influence
- Fraud
- Forgery
- Improper execution
Tools and Strategies to Help Prevent a Will Contest
You cannot guarantee that your Will won’t be contested. Nevertheless, there are a few things you can do that will make a successful Will contest less likely, such as:
- Do not use a D0-It-Yourself Will form. The DIY route may sound like a great way to save time and money when creating your Will; however, DIY legal documents are typically riddled with ambiguities and errors, making litigation more likely down the road. Working with an experienced attorney gives you the benefit of professional advice and oversight as well as providing another disinterested witness who can testify to your state of mind in the event “lack of testamentary capacity” is alleged in a Will contest.
- Leave behind a Letter of Instruction. This is a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain controversial bequests that might lead to a Will contest.
- Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will. State laws vary with regard to how they approach no contest clauses. New York does enforce no contest clauses as governed by The Laws of New York § 3-3.5.
Contact a Harrison Estate Planning Lawyer
Please feel free to download our FREE estate planning worksheet. If you have additional questions or concerns about how to prevent a Will contest, contact a Harrison estate planning lawyer at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.
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