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Avoiding challenges to your will in New York

Effective estate planning can take a lot of care and thought. The last thing anyone wants is to have the estate tied up in probate court, with the assets steadily dwindling as they go to fund legal costs.

While every case is different and you cannot possibly predict all potential problems that might arise in the future, well-drafted will and trust documents can help you avoid some of the most common types of probate litigation. An experienced attorney can help translate your intentions into effective language that covers the details.

Formal requirements

Relatives may go to court to attack the validity of the will. This type of action can stem from technical issues with the draft or from allegations that the testator lacked mental competence. In some cases, accusations of fraud or undue influence may arise. To reduce the chances that someone will claim the will is invalid, it is important to meet the formal requirements. In New York, this includes proper signatures by the testator and two witnesses. While an oral will or an unwitnessed handwritten will may be valid in some limited circumstances, the provisions of these instruments can be hard to prove later.

Testamentary capacity

A testator may possess the mental capacity to make a will even if he has some degree of cognitive or memory impairment. The testator must understand the property involved, be aware of his family relationships and know what it means to leave the assets to a particular person. When the testator's mental capacity becomes an issue in later litigation, proof on either side can involve testimony from medical experts, treating physicians and others. If you know a provision in your will may seem strange or uncharacteristic, you may want to set forth your reasoning, undergo an evaluation or take other steps to communicate you know what you are doing.

Whether or not you anticipate disputes about the terms of your will and/or trusts, you can benefit from consulting a knowledgeable lawyer who can come up with effective strategies that offer the best chance of making sure everything goes according to plan.


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