Wills can be challenged by potential heirs when they are of the opinion they have not received what they are entitled to from the estate of the decedent. Wills can also be challenged with regard to the handling of the administration of the estate by the executor.
The Probate Process
When an individual dies, the process whereby a court determines the validity and/or acceptability of the Will is called the probate process. During a probate proceeding, a loved one or other heir can appear in court and challenge the Will. There has to be an appropriate statutory or case law basis for challenging the Will. The general feeling that the individual should have received a greater portion of the decedent’s assets is not sufficient to be successful in these proceedings. Some of the bases for challenging a Will are as follows:
- Lack of testamentary capacity. There is a requisite amount of mental acuity necessary for an individual to prepare a Will. Individuals who are on medication, have debilitating illnesses, or are suffering from Alzheimer’s, dementia, or other illnesses which affect one’s mental acuity at the time the Will is executed can be a basis for challenging the Will.
- Undue influence or fraud. In these situations the individuals challenging the Will can show that a caregiver or other individual exercised such dominion over the senior citizen that he or she did not have free will or ability to make an independent decision with regard to who would be the appropriate beneficiaries of his or her estate. The individual challenging the Will must show the decedent was tricked into making the Will or that his or her wishes are not what is written in the Will.
- The Will was not properly executed. New York State has very specific requirements with regard to the appropriate manner to prepare a Will, execute the Will, have the Will witnessed and signed by the decedent. The decedent has to acknowledge before the witnesses that this is his or her Will and it carries out his or her wishes. In cases where the Will was not properly executed or prepared by an attorney familiar with the appropriate statutory formalities concerning the execution of a Will, the Will can be challenged based on the failure to comply with the appropriate statutory execution provisions.
- The Will was forged. In cases involving forgeries the next of kin of the decedent must prove to a court that his or her signature on the Will is false and not that of the loved one who has passed away.
Determination in the Probate Process
During the course of the probate process, the court will entertain any of the aforementioned arguments concerning the validity of a Will and other arguments which are raised. The court can set the entire Will aside or just set a portion of the Will aside. Hopefully either you or other family members will not be forced to experience the difficulties involved in challenging a Will.
Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He has represented individuals concerning Will contests throughout the New York area for more than 35 years.