Will Contests

Any person who is affected by a will may challenge the will after it is submitted to the court for approval. This is called a “will contest.” There are several reasons your will may be challenged after your death. That is why it is important to make sure you follow all the rules for making a valid will. Some of the ways your will may be challenged include:

• Lack of mental capacity: in which someone claims you were not of sound mind at the time you made the will;
• Lack of validity: in which someone claims you did not follow all the proper steps in making the will, such as having it signed and witnessed;
• Undue influence: in which someone claims you only made the will because you were in a weakened mental state and you were influenced by someone stronger to divide your property in a way that goes against your wishes;
• Duress: in which someone claims you only made the will because you were under extreme pressure by someone or something to divide your property in a way that goes against your wishes; or
• Fraud: in which someone claims you only made the will because another person lied to you and it influenced how you divided your property in a way that goes against your wishes.

Duress, undue influence, and fraud can be difficult to prove because there are often no witnesses. But in the following examples there may be fraud, undue influence and duress:

• Fraud: Mary’s husband has died and she 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 larger share 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 his tenant, Judy, that if she doesn’t write her will to his liking, he will evict her. Judy writes a will leaving everything to him.

If a will contest is successful, the judge may say that all or parts of the will are invalid and cannot be used to divide your property. The court will then divide your property and money as it sees fit, which may be as if there were no will at all. In that case, your estate would be divided according to New York’s law of intestacy.

Legal Editor: Jill A. Kupferberg, March 2015 (updated March 2016)