Wills can be contested. However, it is very difficult to contest a will. When a person makes a will, he or she must know what they are doing, know the natural objects of their bounty (their children and loved ones) and have testamentary capacity. Another ground for contesting a will is if someone uses undue influence, fraud or duress to trick someone or convince someone to put specific terms in a will.
In New York State, wills need to be executed in a very specific manner. They must be acknowledged by their maker before two witnesses. The Testator (person who writes the will) must publish the will to the witnesses. There must be a will ceremony and all the individuals in the room must remain in the room during the will execution process.
When a Will is prepared by an attorney familiar with the drafting of wills, it creates a presumption of the legitimacy of the execution process.
In the State of New York one needs to only have a fleeting moment of mental capacity to write a will. An individual can have dementia, be forgetful, but have one good day where he or she knows what they doing and that is enough to write a will.
Fraud or undue influence usually involves someone in a position of trust, usually a friend, loved one or neighbor who takes advantage and manipulates a sick, elderly or vulnerable person to leave them all or more than they should receive in the estate.
An individual writing a Will must have free will. This means he or she must not have been under pressure to name someone as a beneficiary. Duress refers to a situation when someone is either threatened, forced or was placed in a position where he or she did not have the ability to make a knowing intelligent decision without pressure being applied from a third-party concerning the terms of his or her Will. Individuals who are sick, or infirm are more susceptible to being pressured while making a Will then healthy individuals.
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Law Offices of Elliot S. Schlissel
Wills, Trust & Estate Attorneys
479 Merrick Road
Lynbrook, NY 11563
Toll Free: 1.800.344.6431
In the five boroughs: 718.350.2802
In Nassau County: 516.561.6645
