Challenging a Will

A probate judge’s duty is to determine and implement the intent of the person who made a will. Usually, the judge does this by reading the language in the will. However, in rare cases, there may be evidence that the language in a will doesn’t reflect the intent of the person who drafted the will, or that the will itself is legally flawed and therefore unenforceable.

Any person who is affected by a will (that means heirs, primarily) may challenge a will once it is in probate in what is called a “will contest,” but the challenge may only be based on specific, limited grounds that are difficult to prove:

  • Lack of mental capacity—someone claims the person who made the will (the decedent) was not of sound mind and memory at the time he made the will;
  • Lack of validity—someone claims the will does not comply with the validity requirements that it be signed, attested to, and witnessed by two people;
  • Undue influence—this occurs primarily with older people who are suffering from reduced mental capacity or other disability. A will may be challenged when a person in a position of influence steered the drafting of the will in a direction that didn’t reflect the true intent of the person making the will;
  • Duress—when someone uses certain extreme pressure (like threat of violence) to influence how someone writes a will, the will can be challenged; and
  • Fraud—fraud occurs when a person makes intentionally false statements to a person drafting a will, and the false statements influence the content of the will.

How can I tell if there was duress, undue influence or fraud in the making of a will?

Duress, undue influence and fraud can be difficult to prove because there are frequently no witnesses; however consider the following examples where there may be fraud, undue influence and duress:

  • Fraud: Mary’s husband has died and they had no children. She wants to leave her estate to her deceased brother’s four adult children in equal parts. She only knows the whereabouts of three of the children because the fourth had moved away long before. The three siblings agree to tell Mary that their other sibling is dead in order to gain a third of Mary’s estate, even though they know he is alive. Mary splits her estate among the three siblings.
  • Undue Influence: Joe has been Sam’s full-time caretaker since Sam suffered a debilitating stroke. Though Sam is mentally fit, he cannot walk, bathe himself, feed himself or talk very well. Sam had drawn up a will leaving his entire estate to his two sons, who both live overseas. Joe continuously told Sam that his sons were good-for-nothings who didn’t care about their father. Joe also played on Sam’s sympathies by complaining of his poverty. Joe encourages Sam to disinherit his sons, telling him he should leave it to someone, like himself, who would appreciate his possessions. After this had been going on for several months, Sam agrees and disinherits his sons in favor of Joe.
  • Duress: Bill tells Judy that if she doesn’t write her will to his liking, he will kill her family. She complies with his wishes.

What happens when a will is challenged?

If a will contest is successful, the judge may determine that part or parts of the will are invalid or that the will is invalid in its entirety. With regard to the parts that are invalid, or the entire will if that is the case, the court will treat the decedent as if he had not left a will, and the distribution will be made to the heirs according to New York’s law of intestacy, rather than according to the terms of the unenforceable will.

I want to challenge a will:

  • Determine your interest in the estate, with or without a will.
  • Gather relevant documents or other evidence that you believe makes the will unenforceable.
  • Get in touch with an experienced estate and trust lawyer.

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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