Where There’s a Will …

There are only a handful of valid reasons to contest a will, and feeling slighted is not on the list. 

“There can be a lot of hurt feelings around wills,” says Theresa Balducci, who practices estate planning and probate law at Kelley Drye & Warren. “Especially if, let’s say, the parents favored one child. But just because something’s unfair doesn’t make it illegal.”

Here in New York, the grounds for contesting a will are quite narrow. Perhaps the most common claim, Balducci says, is questioning the “testamentary capacity” of the person whose will it is—the testator.

And that, explains estate planning and probate attorney Dana L. Mark, at Smith, Gambrell & Russell, is “a little different than just being mentally competent. You can probably think you’re Napoleon,” she says with a laugh, “but if you know who your family is, what your assets are, and that you’re making a will, an attorney could say, ’Yeah, you’re competent.’

Testamentary incapacity is not an easy argument to win. “Especially with early dementia or early Alzheimer’s … you could one day have a really bad day and not have capacity, and then the next day be very lucid and understand enough in order to have capacity,” notes Balducci. To prove lack of capacity, she says, you often need evidence to support that claim, such as witnesses, medical records or “somehow a record of their actions of that day, something like a police report that they were lost wandering around.”

Another ground for contesting a will is if the person was under duress. “That’s “basically some kind of threat or pressue,” says Mark. This is true, she says, even if the threat is emotional rather than physical. “You know, ‘I’m not going to  come visit you anymore, I’m not going to take care of you, you’re going to die all alone in your house unless you name me as a beneficiary in your will.’”

Subtly different is undue influence: a claim that someone took advantage of a vulnerable person. Mark offers an example: “keeping the testator isolated from family/friends. This can arise in the case of overreaching caregivers.”

Fraud is another category of claims, and it can take many forms. “It could be someone telling the testator, who wants to leave it to X, that X died 10 years ago, when in fact they’re not dead,” Mark says.

Balducci describes a more common type of fraud: “Someone messes with it somehow: writes a fake will or inserts a page.” 

“This is why,” adds Mark, “we always staple the will at the will-signing.” In New York, the court will ask for an explanation if a will is unstapled. “And if you can’t explain it, then the will won’t be probated,” Balducci adds.

A will can also be contested on the basis of improper execution. If you’ve ever had a parking ticket dismissed because there were errors in the way it was written up, you understand how this works. 

As Balducci explains, “There are so many formalities that have to be followed in New York law. The execution of a will is very ceremonial, meaning that there are very specific steps that have to happen. If the statute is not followed, then the will won’t be valid. The most black-and-white is that you need to have two witnesses.”

If not, says Mark, “It can have all the other bells and whistles, but it won’t pass muster as a valid will.”

And, of course, any will believed to have been later revoked or superseded can be contested.

Finally, even if you’re certain you have valid grounds, you may not have legal standing. “Not everybody can contest a will,” Mark notes. “People don’t understand that they have to be in a certain position to have the right to come into court.” There are complexities to this, but “it’s generally the people who would inherit if there was no will, and those who could be adversely affected by the will.”

Before You Go

When writing a will, here are a few tips to help make sure your intentions are carried out:

• Don’t write a DIY will. Balducci advises, “Online forms are great in some areas of law, but I don’t think in executing a will it is necessarily a great thing, because there are so many formalities for execution that do have to be followed.” 
• Add an In Terrorem clause to discourage your heirs from fighting over your estate. Its message, Mark explains: “If you contest the will, you lose your bequest.”
• Be transparent. “If you’re not treating everyone equally, this could lead to hard feelings down the road,” Balducci says. “I would encourage a conversation, while you’re alive, as to why, and explain to them what you plan on doing and what everyone’s going to get and why.”