The stress of losing a loved one often re-opens old emotional wounds in a family. And if a relative’s will doesn’t seem to distribute property in a way that is “fair”, some family members may be tempted to contest it.
However, it is important to keep in mind that not everyone can contest a will. Plus, those who can only have a few legal rationales available to have the will invalidated.
Not everyone is eligible to contest a will
To contest a will, a person must have what is known as “standing”. Typically the challenger is someone who is a disinherited “heir-at-law”. If someone dies without creating a will, their property passes to certain individuals according to state law. In most cases, these people are close relatives: a spouse, children, and grandchildren. These people are “heirs-at-law”. If they are left out of their relative’s will, they could have standing to contest it.
In addition, someone named in a prior will has legal standing to contest the current will. In any case, even if someone has standing they are not guaranteed the ability to contest the will. They also must be able to show the will was invalid.
What makes a will invalid?
Being unhappy with the details of a relative’s will is not enough to have grounds for a legal contest. A will can be invalidated only for specific reasons outlined in state law, usually relating to either the creation of the will or the mindset of the testator. In New York, a will can be invalidated because of:
- Undue execution: New York law requires a person to sign or otherwise acknowledge their will at the end of the document, in the presence of two witnesses.
- Revocation: A person can revoke their will either by purposely destroying it or by creating a new will.
- Lack of capacity: A person must be at least 18 years old and “of sound mind and memory” to create a valid will. If someone understands the necessary details of what they are signing, they are usually seen as having the requisite capacity.
- Fraud: This is difficult to prove since the testator cannot testify about why they signed the document. But, if there is evidence they were tricked into signing the will it can be invalidated.
- Undue influence: If someone put the testator under extreme duress and the will was created or changed because of that pressure, the will may be invalid.
Challenging a will is a complicated process. Proving invalidity is difficult and the personal representative of the estate will defend the existing will. Be sure to consult an attorney experienced in will contests before entering the process of challenging a relative’s final wishes.
Source: NY Est Pow & Trusts L §§3-1.1, 3-2.1, 3-4.1 (2017)