The basics of challenging a will in New York State

by | Aug 12, 2015 | Probate Litigation |

The foundation of any well-considered estate planning begins with forming a valid and enforceable will. A will is basically a written document that provides a basis of what you want to happen with your property after you die. In New York, a person who creates the will is known as the testator. The individuals you wish to grant authority to carry out your wishes are known as executors.

Problems sometimes arise after a testator dies because potential heirs to the will, known as beneficiaries, can challenge a will based on several factors. It’s important for you to know that a will contains the power to transfer your interests in money held in bank accounts, stocks and bonds, furniture and even your home and other property. Depending on the value of your estate, it’s easy to see why potential heirs may wish to examine the validity and legality of your will in a process known as probate litigation. Here are some of the most common types of contests to wills made in probate court:

–Lack of capacity. This type of argument basically questions the mental faculties of the testator at the time he or she forms the will. In other words, a person suffering from dementia such as advanced Alzheimer’s disease may not have necessarily had the requisite state of mind when drafting one’s will.

–Improper execution. This type of argument is best when challenging the actual formation of the will with regard to New York State laws. A good example of this is whether the testator’s signing of the will was witnessed by other individuals.

–Undue influence. This type of challenge asserts the theory that the testator created provisions or made changes in the will as a result of pressure from someone else. For example, the children of an elderly millionaire who were recently removed as beneficiaries from a will might argue that the testator’s new romantic partner may have unfairly convinced him or her to implement those changes just prior to the millionaire’s death.

Of course these are just a few of the types of challenges that may present themselves if you are currently considering probate litigation. An estate planning attorney who is experienced in New York estate planning law can consult with you regarding the specifics of your case and help you determine whether a challenge may be warranted.

Source: American Bar Association – Law Trends and News – Fall 2008 VOL. 5, NO. 1, “Estate Planning,” Karen S. Gerstner, accessed Aug. 11, 2015