Sep 8, 2023 Contesting a Parent’s Will
The death of a parent provokes deep feelings among surviving children. Whether they were distanced emotionally or enjoyed a close relationship with their recently deceased mother or father, they will be surprised and hurt to learn that their late parent excluded them from their last will and testament.
When a child is excluded from a parent’s will in New York, the child has legal recourse to challenge the will that was submitted to the Surrogate’s Court for probate. This blog post explains who has the legal right to challenge a will in New York and what facts they need to prove to invalidate a will.
Ely J. Rosenzveig & Associates has extensive experience protecting their clients’ interests in the New York Surrogate’s Court system. The firm prepares a thoroughly integrated estate plan to achieve the client’s goals and acts to enforce those decisions through skilled litigation when necessary.
Whether contesting a will or working to uphold its validity, Ely J. Rosenzveig & Associates provides the full scope of legal representation with the highest degree of professionalism. If you have questions about challenging a will or defending a will that is being challenged, contact Ely J. Rosenzveig & Associates for the answers that you need.
Who Can Contest a Will in New York
To contest a decedent’s last will in New York, a party must have legal “standing.” Only litigants who can show that they have a genuine financial interest in the outcome of the matter are permitted to challenge a will in the Surrogate’s Court.
To demonstrate that the person has a financial stake in contesting the will, they must fit into one of the following categories:
- Those who would have inherited a greater amount if the decedent had no will (under the laws of intestate succession), or
- Those whose financial interests are diminished by the will or any part of the will, or
- Those who would have inherited a greater amount under the terms of a previous will.
What Do You Have to Prove to Invalidate a Will in New York?
A will is valid under New York law if the attorney supervising the document’s execution observes the following formalities:
- the will is in writing,
- the testator signed at the end of the will,
- the testator signed the will in the presence of two witnesses,
- both witnesses signed the will and affixed their addresses,
- the testator declared openly that they intended the document to be their last will and testament.
Suppose an attorney oversaw the execution of the will and attests that the signing complied with the required procedures. In that case, the party challenging the validity of the will has the burden of overcoming the legal presumption that the will is valid.
Grounds to Contest a Will in New York
New York law continues to value the testator’s intentions and pays deference to the text of their will, taken as a whole, whenever possible. Only if the party contesting the will presents substantial evidence exposing a material flaw in how the will was drafted or executed will the Surrogate’s Court consider invalidating it.
The limited grounds that could justify a ruling that invalidates a will in New York include the following:
- The will was not executed in the manner required by NY,
- The testator did not possess the required soundness of mind and memory (testamentary capacity) to execute the will,
- The testator would not have signed the will but for the undue influence of another person,
- Fraud was involved either in the execution of the will or its presentation to the court.
Obstacles to Contesting a Parent’s Will in New York
Although a family member who is an heir-at-law or a person who would have received a greater share of the decedent’s estate under the terms of an earlier will can legally contest a will in probate, significant obstacles may stand in the way of a successful challenge.
Many people include an “in terrorem” clause in their last will to dissuade any disgruntled person from contesting the will if they feel they received less than they deserved. This clause provides that any person named in the will who formally objects, contests, or challenges the will or any part of the will shall forfeit any share or other interest in the estate. It is as though the person challenging the will predeceased the testator.
An “in terrorem” clause only works to discourage will contests when the prospective challenger is named and provided for in the will. Were they to be excluded from the will entirely, the person launching a challenge would have nothing to lose by contesting the will.
New York Law’s Strategy to Minimize Groundless Will Contests – SCPA §1404
Members of the testator’s family or other parties who expected to receive a larger share of the decedent’s estate are often motivated to formally contest the will. To succeed, they need to prove to the court that the will was improperly drafted or executed, that the testator lacked the mental capacity to make a will, or that another individual applied undue influence on the testator to cause them to create the will as it exists.
But filing a formal objection to the will may trigger an in terrorem clause only to result in the challenger learning that no substantial grounds existed to contest the will. To resolve these cases without the need to conduct a full will contest litigation, New York provides for the disgruntled party to engage in pre-litigation discovery.
Pre-litigation discovery is a process in which the party who suspects the will to be invalid can interrogate the witnesses to the will, the person who prepared the will, at least two of the people who witnessed the testator’s signature, and other parties whom the court thinks might have material evidence regarding matters relevant to the inquiry. If the will has an in terrorem clause, the named executor can also be examined as well as the will’s proponents.
By permitting the pre-litigation discovery process to reveal the circumstances in which the will was created, executed, and presented, the party contemplating launching a challenge can learn whether there are any grounds supporting their prospective will contest.
Get New York’s Experienced Will Contest Attorneys
 N.Y. Surr. Ct. Proc. Act § 1410