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How a will might be challenged in court

New York residents may have heard of a person's will being contested but might not know what is involved in the process. A will can be contested after it is admitted into probate. There are strict time periods within which such a challenge can be mounted, and they vary among the states.

Beneficiaries named in the will or in a previous will along with spouses, children or others who are next of kin are allowed to challenge a will. Such a challenge usually alleges either that the testator was not mentally competent at the time that the will was prepared or that the testator was under the undue influence of another person at the time.

In some cases, the burden of proof might be on the will's proponent rather than its challengers. Medical records, witness testimony and financial records may all be introduced during the challenge as evidence. A will could be dismissed and the testator declared intestate, meaning that the assets will be distributed in accordance with the state's intestacy laws, or a previous will might be admitted instead.

A do-it-yourself will might be more vulnerable to legal challenges. A testator might use legal terms incorrectly in a way that invalidates the will or makes the testator's wishes unclear. As a result, it is often advisable to seek the advice and counsel of an estate planning attorney when thinking about preparing such a document. Legal counsel can often assist in preparing a will that is validly executed and attested to and thus less likely to be successfully challenged.

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