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Will Contests: Who, When and How?

Contesting a will involves a formal challenge to the validity of the will. The challenge to the will can be based on the failure of the execution ceremony to meet the appropriate statutory requirements. Another avenue for challenging a will involves allegations of the testator – the party making the will – not having the mental capacity to understand what he or she was doing at the time the will was executed. Wills also can be challenged for fraud, duress or undue influences in the State of New York.

Who Can Contest A Will?

The issue of who can contest a will deals with the concept of standing. Individuals who receive assets from a will are called beneficiaries. Beneficiaries have the standing to challenge a will if they feel their are not being treated appropriately. Individuals who would have inherited under intestacy (if there was no will) can also challenge wills.

In the event an individual dies without a will he or she is considered to have died intestate. Intestacy is a statutory scheme of inheritance for individuals who do not have wills. The intestacy scheme is based on blood lines. For example, children inherit from their mothers and fathers, and if there are no children, then the brothers and sisters of the individuals who died inherit and so forth down the line.

Grounds for Contesting a Will
There are a number of theories that can be used to contest a will. Fraud or trickery is one of these theories. If the person creating the will could have been tricked or deceived into writing the will and/or the terms of the will a will can also be challenged.

Duress is another ground for challenging a will. This happens when the individual is threatened into writing a will.

Lack of mental capacity is also a basis for challenging a will in New York. This involves situations where the individual either due to mental illness, infirmity, or taking drugs that alter his or her ability to make informed decisions, executes a will. Another ground for challenging a will is called undue influence. This is usually a case were a trusted individual, friend, relative or caretaker engages in a scheme for the purpose of having a will created for that individual’s own benefit.

Should you have questions about wills contact the wills attorneys at the law office of Elliot Schlissel by email or at 1-800-344-6431.

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