A will can be contested by an attorney in a New York probate proceeding on a number of grounds:
- Lack of Proper Formalities/Undue Execution. A will can be contested in New York if the will was not properly executed. Proper execution of a will requires that the will be signed by the testator at the end of the will. There must be two witnesses to the will, and the testator must sign in the presence of each witness or the testator’s signature must be acknowledged to each witness as the testator’s signature. Both witnesses have to sign within 30 days of each other. The testator must declare to each witness that the document is the testator’s will. A will can be contested in New York on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements.
- Undue Influence. Undue influence occurs when the testator is unduly compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. To establish undue influence in New York, you must show motive, opportunity, and the actual exercise of undue influence. Undue influence challenges to wills in New York are very fact specific. Common hallmarks include a testamentary gift that is unnatural, a testator with a weakened mental state, and a beneficiary with a controlling hold over the testator. Perhaps relatives that were once close to the testator have been excluded from the testator’s will after the beneficiary became a controlling force in the testator’s life.
- Revocation: A later will revoked the will at issue. To revoke a will, a testator can destroy the will or cross out the testator’s signature. A will can also be revoked in New York by making a new will.
- Lack of Testamentary Intent or Capacity. Under New York law, a testator is required to have mental competency to make a will. This means the testator must generally understand his assets, the natural objects of his bounty, and the implications of executing the will. The testator must know he is executing a will. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.
- Fraud. Sometimes a will is created as a result of fraud. The testator is the victim of a fraud perpetrated upon him that led the testator to create a will that does not reflect the testator’s true wishes. Perhaps someone convinced the testator of something knowing it to be untrue, causing testator to change testator’s will. For example, an unscrupulous child could tell a parent lies about a sibling to cause that sibling to be disinherited. Examples of such fraud could be that the sibling has been convicted of a crime, has engaged in illegal or immoral acts, or has said derogatory things about the testator. If the will has been prepared based on the fraud, the will can be set aside in a successful will contest.
The time for contesting a will in New York can be short. If a petition is filed to admit a will to probate, notice must be sent to the testator’s heirs. Many times a waiver will be sent to the testator’s heirs, asking the heir to waive any objections to the probate of the will. If you want to contest the will, do not sign the waiver. If you do not sign the waiver, then a citation will eventually be served on you by a process server. The citation will state the date, time, and place that the testator’s will will be offered to the court for probate. If you want to contest a New York will, you will have to object at this time and show up at the citation hearing.