Will Contest Services in NYC
What is a will contest?
A will contest is a surrogate’s court proceeding to challenge the validity of a Will. The NY Estate’s Powers and Trusts Law Section 3-3.5 cites the Contest Rules. To initiate an action, one must be an “interested party” to have “standing” or “the right to contest the will.”
To have standing, a party can qualify in a number of ways:
- He must be a distributee or natural heir to the estate.
- Named as an heir or executor in a prior Will
- Guardian in a prior Will
- Guardian of an heir
How does one contest a will?
Once a party can establish standing to Contest the Will, there are three grounds to object to a Will. If you establish any one of these criteria, the will can be nullified and the Estate will be probated based on the last (prior) Will if one exists, or the Estate will be distributed to the closest living heirs.
The three grounds for contesting a Will are:
- Material defect in Will, itself
- Undue Influence in the execution or
- Lack of Testamentary Capacity.
A Material Defect could be any one of a number of circumstances—such as:
- Lack of two valid witnesses
- No signature from the decedent
- A partially destroyed document
- Missing the original Will
A Copy of a Will cannot be probated, with one exception if it can be proven that the original Will was destroyed AFTER the death of the decedent and that the decedent never intended to revoke or destroy his/her Will.
Will contests are difficult to establish, primarily due to the evidentiary problems; mainly because the party who made the Will is unavailable, and the Dead Man Statute prevents the introduction of statements made by the dead man or the decedent.
A well experienced litigating estate and wills lawyer can evaluate the likelihood of success of a Will contest. Jeffrey Weinstein has over twenty-five years experience contesting and drafting Wills and Trusts.