Wills in the State of New York can be contested. The probating of the will by the executor of the will gives the potential contestants of the will the ability to appear in court and advise the court they are contesting the will. There are a number of grounds which can serve as the basis for contesting a will. Here are some of the grounds which can be asserted in a petition to the Surrogate’s Court to set a will aside:
- The will was not properly executed. For a will to be properly executed in the State of New York, it must be signed by the testator at the end and witnessed by two witnesses. At the time of the execution of the will, all three of the parties must be in the room at the same time. If the strict formalities under New York State Law concerning the execution of a will are not complied with, the will can be set aside.
- The will is a forgery. A forged will is a will executed by someone other than the testator who seeks to create the will. With wills prepared by law offices it is extremely difficult to allege a forgery defense in the courts in New York. However, wills which are prepared by the testators themselves, or by individuals or by other parties who are not lawyers, have a greater potential at being challenged as forgeries.
- Lack of testamentary capacity. The person who is having the will prepared must be competent on the date the will was executed. Challenges for lack of capacity can be based on the person writing the will having Alzheimer’s disease, dementia, mental illness or that they were taking prescription or non-prescription drugs which would have prevented them from having a clear mind and being capable of making decisions related to the distribution of their assets and/or to their loved ones in a will.
- Undue influence, fraud or duress. In each of these situations the person writing the will may have been deprived of the independent ability to make their own decisions with regard to the terms and conditions in the will.
Purpose of Probate
The purpose of the probate process is to determine the validity of the will. When the will is determined to be valid, properly executed, and/or there are no challenges to the will, the court will accept the will into probate, appoint the executor and let the executor move forward with the payment of debts, obtaining the estate’s assets, and distributing the assets to beneficiaries.
