Contesting a Will

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.

Mental Capacity

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

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.

Duress

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.

With offices throughout the New York City metropolitan area, including Queens and Nassau counties, the Law Offices of Elliot S. Schlissel represents individuals, parents and grandparents in estate planning and elder law matters throughout the New York City area.

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