The death of a close family member, particularly your mother, is never easy. Unfortunately, in the midst of your grief and suffering there are practical and legal matters that must be addressed, such as the probate of her estate. Dealing with probate can be a frustrating and time consuming endeavor under the best of circumstances; however, what happens if someone contests your mother’s Will? A Will contest can turn a relatively simple probate into a lengthy and costly process.
In the State of New York, any interested person may file a Will contest. An interested person generally includes beneficiaries under the Will admitted to probate, legal heirs of the estate and creditors of the estate. Contrary to popular belief, however, a Will cannot be contested simply because an heir was left out or isn’t happy with his/her inheritance. To contest a Will you must allege grounds on which the Will could be invalidated, including:
· Fraud – may allege that provisions in the Will are based on lies told to the Testator or that the Testator signed the Will under the belief that he/shewas signing something else.
· Lack of testamentary capacity – alleges that the Testator did not have the requisite mental capacity to execute a Will at the time the Will was signed.
· Lack of formalities in execution – alleges that one or more of the formalities required under New York state law were missing, such as signing in front of witnesses.
Once a Will contest has been filed the judge will conduct a preliminary review. If it appears that the allegations have any merit at all, the contest will proceed. The entire probate process effectively comes to a halt at that point because the Will contest must be litigated to conclusion before probate can move forward. If the contest is successful all, or part, of the Will is invalidated. The court will then look to a previous Will to use to probate the estate. If there is no prior valid Will the New York intestate succession laws will be used to determine what happens to the decedent’s estate assets.
If you have additional questions or concerns about how a challenge to a Will is handled during probate, or about estate planning in general, contact the experienced New York estate planning attorneys at The Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.