Should You Contest a Will?
Any person who is affected by a Last Will and Testament or a Trust may contest a will, or, challenge the Will, after it is submitted to the court for approval. A Will contest is a type of estate litigation where an individual will question the validity of a will on various grounds. A NYC estate litigation attorney or a Will Contest Attorney can help you contest a Will.
Who Can Contest a Will in New York?
Generally, the following people can contest a will:
- Someone who would have inherited more if there had been no will (also known as a distributee, i.e. a disinherited child, spouse, or sibling) and
- Someone who would have inherited more under a prior will (a beneficiary).
When Can You “Contest a Will” in New York?
Wills can be contested on several grounds.
An objectant/challenger to a Will may successfully “Contest a Will” if they can show:
- The Will was not properly executed because the strict requirements of EPTL 3-2.1 have not been met.
- The Will was not properly written because it excludes property or a party.
- The Will is a forgery because it was not signed by the Decedent.
- The Decedent was not competent when Will was executed, perhaps because the Decedent suffered from a mental illness, such as dementia or was undergoing psychiatric treatment. (Note that an individual may be able to execute a Will even after they have been adjudicated incapacitated and had a guardian appointed for them.)
- The Decedent was unduly influenced by an individual with whom the Decedent was close
How Can I Prevent a Will Contest?
If you believe that your Will may be contested, either because you have disinherited your heirs, or because you have made disparate distributions among your heirs, or because a potential challenger believes you lacked capacity when you signed the Will, then there are a few techniques you can employ to ensure your assets pass in accordance with your wishes. You can:
- Use an “in-terrorem” or no-contest clause;
- Use Trusts, instead of Wills;
- Avoid Probate by holding your assets jointly or designating beneficiaries;
- Have a psychiatrist or physician examine you immediately prior and after your Will Execution and write a letter advising as to your capacity level;
- Stack Wills – execute multiple Wills which will then require the objectant to spend time and money on protracted litigation to set aside multiple Wills before they can inherit.
Will Inserting an “in terrorem” clause in the Will Prevent a Will Contest?
The short answer is: not necessarily.
An “in terrorem” or “no contest” clause is essentially a forfeiture clause in a Will. It says that if a person who is benefiting from the Will turns around and contests the terms of that Will, then that person will forfeit their bequest under the Will. A no contest clause is intended to deter a beneficiary from contest a Will. Whether the clause will be a sufficient deterrent will depend on the facts and circumstances of the situation.
In terrorem clauses are not foolproof and in fact carry some element of risk. The biggest downside of using an “in terrorem” clause is that it exposes the nominated executor and the proponent of a Will to depositions during the pre-objection discovery phase of the Probate Process. Additionally, there are a number of steps that a potential objectant can take notwithstanding the existence of the in terrorem clause. For example, the objectant can still seek discovery of financial and medical records. The objectant can also question the witnesses to the Will, the attorney draftsman, and the nominated executor.
What are the Steps to “Contest a Will”?
Typically, after a Will is offered for probate, an objectant will receive a Citation in the mail. The objectant will typically not sign a Waiver and Consent. The objectant will then appear on the return date of the Citation and will ask for pre-objection discovery pursuant to SCPA 1404. Depending on the County, the case may, thereafter, immediately be assigned to a Court Attorney who will then set down a date by when pre-objection discovery should be complete.
The parties will then engage in pre-objection discovery, including discovery demands, notices to examine, and depositions of the witnesses and attorney draftsman. Pre-objection discovery is limited to a three year period preceding the execution of the Will and two years following the execution, or the death of the testator, whichever is later. If the Will contains an “in terrorem” clause, then the objectants may also have an opportunity to question the nominated executor of the Will. If, after discovery is complete, the objectant wants to move forward with the Will contest, then the objectant will file Objections in Court, along with an Affirmation of Timeliness.
Following the filing of the Objections, the objectant will obtain and serve a Citation on all beneficiaries in the Will. Following the return date of this next citation pursuant to SCPA 1411, the parties will appear for a conference at which point they will set a full discovery schedule. This is also an opportunity for the parties to determine whether there are any avenues for settlement. If a settlement cannot be reached, then the parties will continue to engage in discovery, including document production, non-party subpoenas, depositions, and interrogatories. After discovery is complete, the parties can file their motions for summary judgment or motions to dismiss. Various motion practice can also be employed during the interim period. If summary judgment is denied, or if a settlement cannot be reached, then the parties will proceed to trial.
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