A Will contest is a challenge brought by a decedent’s heirs to challenge the validity of their Last Will and Testament. In many states, including New York, any of the decedent’s heirs (next of kin) can bring a lawsuit to contest a Will. The only legal reasons for a will to be contested are limited to lack of mental capacity of the testator, (person making the Will), another person’s undue influence over the testator, fraud or improper execution of the Will. However, many will contests are brought not for one of these reasons but simply because a family member doesn’t agree with the will. Any of your heirs can easily contest a Will by stating one of these reasons and even if it is not true the Court will allow them their chance to contest. The most common scenario for a will contest is when an heir is disinherited (or left less than other heirs) contests the will. Merely acknowledging an heir in your will or leaving an heir a small sum does not preclude that heir from contesting your will. In some cases, even when an estate is distributed equally to all of your next of kin problems can arise. Some heirs may feel that they are entitled to more than equal shares based upon decisions and actions made during your lifetime.
Most Will contests take place during the Probate Court process. As part of the Probate process, your executor must notify and send a copy of your Will to all of your heirs, regardless of whether they are named in the Will. In New York, your heirs are your spouse, children and any children of a pre-deceased child. If you aren’t married and have no children, the pool of persons who can contest your will is extended to your parents and their heirs if they are deceased, including your siblings and the children of any deceased siblings (nieces and nephews). If there are no heirs of your parents, then your heirs become the descendants of your grandparents, all the way down to first cousins once removed. In NY, any of the testator’s next of kin can contest a will by simply filing objections in Court during the Probate. Once a will is contested, the decedent’s assets are frozen and cannot be distributed to the beneficiaries of the Will until the will contest is completed. Most contested Will proceedings take years to complete and end up costing tens of thousands of dollars in legal and court fees. In most cases, the Will contests are settled after years of litigation and the heir who contested the Will usually ends up with a settlement from the estate, even if they had no legal grounds. In order to limit the possibility of a Will contest, you should take steps to try to carefully draft your will. You should use an attorney with experience in the area to guide you in making your will. In addition, the best way to avoid a will contest is to try to avoid the Probate process altogether by drafting a Living Trust and placing your assets in a living trust. You should speak to an experienced attorney to get more information on Will Contests and avoiding Will Contests for you and your family.
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