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Knowing about will contests can help you avoid them

If you are like many New York adult children who are helping their parents with estate planning issues as they age, you likely have talked to them about making their Last Wills and Testaments. If they have not yet done so, however, it will be helpful for you to know about New York will contests so you can help your parents avoid one.

To begin with, only certain people can challenge a will, including the following:

  • Anyone named in it
  • A close relative who the will does not name
  • Anyone named in a will that your parent executed prior to or subsequent to the will being challenged
  • Anyone who would inherit by intestacy if your parent had died without making a will 

New York intestacy laws

Only certain people inherit under New York’s intestacy laws. The spouse and children, whether natural or adopted, of your deceased parent have first claim to inherit from him or her. Your parent’s other relatives, such as parents, siblings, etc. only have a right of intestacy inheritance if your deceased parent has no surviving spouse and children.

Common grounds for challenging a will

The most common reasons why someone could successfully challenge your deceased parent’s will are the following:

  • Your parent lacked the testamentary capacity to make the will.
  • Your parent was under someone’s undue influence at the time he or she made the will
  • The will was improperly signed or witnessed
  • Your parent did not rescind a will he or she made prior to the one someone is challenging
  • Your parent made a will subsequent to the one being challenged

Testamentary capacity

Testamentary capacity means that at the time your parent makes his or her will, he or she has the mental capability to understand the following:

  • What a will is in general
  • What property he or she is bequeathing by will
  • That property’s extent and reasonable value
  • Who he or she is providing for in the will
  • Who New York law expects him or her to provide for
  • How all of the above work together to result in a legally valid property distribution

Not surprisingly, questions of testamentary capacity could arise if someone believes your parent was senile, insane, under duress, suffering from dementia or under the influence of alcohol or drugs, prescription or illegal, at the time he or she made the will.

Undue influence

The question of undue influence usually comes up if your parents have a live-in caregiver or are in a nursing home at the time they make their wills. If you feel that your parents are relying too much on the advice of someone with whom they are in daily contact and/or who is providing the majority of their daily care, you should speak with them about this possibility and get their assurances to the contrary before they make their wills. If necessary, you may even need to consider replacing the person who you believe has gained too much influence and control over your parents’ decisions.

Improper signing or witnessing

In New York, your parents must sign the will in a precise manner, and there are specific rules for witnesses as well. Your parent must sign it in the presence of two witnesses and state to them that he or she, in fact, fact signing his or her will. Once your parent signs the will, the two witnesses each must also sign it and write in their respective addresses.

Prior and subsequent wills

Another common challenge is that the decedent executed another will before or after the one someone is contesting, and that will is the real one. To avoid this situation, make sure that your parents destroy any old will(s) and all copies thereof whenever they make new ones. In addition, make sure the new wills specifically state that all previous wills are null and void. 

A will contest is something that can, and often does, tear a family apart. Making sure your parents’ wills, and your own as well, are properly drafted, executed and witnessed can save substantial future heartache and acrimony.

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