Wills do not have to be fair. An individual has the absolute right to dispose of his or her property at the time of his or her death the way he or she sees fit. This means a mother or father can disinherit his or her children. Husbands can disinherit their wives and vice versa.
However, it should be noted in the State of New York a spouse has a right of election against the estate of his or her spouse. This right of election allows the disinherited spouse to obtain one third of the estate of the predeceased spouse. There are very specific rules concerning the exercising the of right of election. An attorney should be consulted when a spouse feels he or she is receiving less than their fair share of an estate.
In will contests judges usually find wills to be valid unless the challenger successfully proves to the court the will was not properly executed or there was fraud, duress, undue influence or that the individual lacked mental capacity to write a will.
What Happens When a Will is Invalidated?
If the entire will is held to be invalid and there is a prior will, the prior will controls the inheritance scheme. The prior will would then need to be probated. In the event there is no prior will and the will is held to be invalid all assets would pass under the statutory frame work of intestacy (dying without a will).