Contesting A Will

Contesting a Will

There are a variety of reasons or grounds to contest a will. Will contests often take place when there are blended families. Second families as a result of second marriages often complicate issues in estates.

Wills Need to be Properly Executed

New York has very specific requirements with regard to the preparation and execution of a will. The will must be signed by the person making the will at the end. It must be witnessed by at least two (2) witnesses who sign the will at the end of the document. The failure to have the will properly executed by the individual making the will and two (2) witnesses is a grounds for challenging the will. The will also must be clear and precise as to who receives the assets of the maker of the will.

Not Competent to Make a Will

The person writing the will must have testamentary capacity. If he or she is delusional, senile, of unsound mind or doesn’t know what he or she is doing at the time the will is written, there is a basis for setting the will aside. To make a valid will the person making the will must understand the nature and extent of his or her assets, who his or her children are, who their next of kin are and what they are doing when they execute the will.

Fraud, Duress and Undue Influence

The person making the will needs to have independent ability to make decisions concerning who will receive his or her assets. If an individual is coerced or compelled to execute a wilI the will can be set aside. Proving fraud, duress and/or undue influence requires a lot of legal skill and specific knowledge of the laws concerning contested wills.

Difficulty in Setting a Will Aside

Elliot Schlissel

If someone seeks to probate a will, if the will is properly executed, there is presumption the will is valid. Challenging a will means proving to a court the will is either improperly executed, the maker of the will is mentally incompetent or there was fraud, duress or undue influence. The burden of proof to set aside a will falls upon the individuals challenging the will. It should be pointed out the large majority of wills submitted to probate are accepted by the court and only a very small minority are set aside in contested probate cases.

The law offices of Schlissel DeCorpo LLP for more than 30 years have been probating wills and litigating will contests. Our office offers free consultations and we have offices in Queens, Nassau and Suffolk Counties and we can be reached at: 516-561-6645, 631-319-8262 and 718-350-2801. You can e-mail me at: Elliot@sdnylaw.com.

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