The period of time following the death of a parent is typically filled with grief, loss, and other heightened emotions. It can be easy to forget that there are also practical and legal matters that need to be addressed, such as probating the decedent’s Last Will and Testament. If you have reason to question the validity of your parent’s Will, however, it is imperative that you act on your concerns in a timely manner or you could lose the right to contest the Will at all.
Probate Basics
Probate is the name given to the legal process for validating and administering a decedent’s will. Probate serves several important functions, including:
- Identifying and inventorying estate assets
- Notifying creditors and providing the ability to file claims against the estate
- Authenticating the Last Will and Testament
- Ensuring that gift and estate taxes are paid
- Litigating any challenges to the Will
- Distributing the estate assets to the intended beneficiaries and/or heirs of the estate
In the State of New York, Surrogate’s Court has jurisdiction over the probate of an estate. As such, Will contests are also filed and litigated in Surrogate’s Court. There are several factors you must consider in order to determine if you have the legal right to contest your parent’s Will.
Do You Have Standing to Contest the Will
The first factor when contemplating a Will contest is whether or not you have “standing” to initiate the litigation. Standing is a legal term that refers to a person’s legal right to bring the action in question. In the State of New York, standing requires you to have a “pecuniary interest”. A pecuniary interest, in turn, is defined as an interest relating to money. With that in mind, the following persons have standing to contest a will:
- Distributees (heirs at law) who would receive less under the Last Will and Testament than they would receive if there were no Will; and
- Beneficiaries who would receive less under the purported Will than they would under a prior Last Will and Testament.
As a child of the decedent, you would be considered a distributee because you are a legal heir. Therefore, if you receive less under the Will admitted to probate than you would receive under the state’s intestate succession laws, you have standing.
Do You Have Grounds to Contest the Will?
Simply being unhappy about the inheritance you were left in the Will (or the lack of inheritance) is not sufficient legal grounds on which to pursue a Will contest. Instead, the contestant must allege one of the legal grounds on which a Will may be declared invalid in the State of New York including:
- Undue Execution — the Will was not properly executed according to the requirements of the State of New York
- Revocation — the Will was revoked by the Testator, either by an overt act that was intended to revoke the Will or by finding a subsequent valid Will.
- Incapacitation – this refers to the Testator’s lack of testamentary capacity to execute a Will at the time the Will was executed.
- Fraud – meaning that the Testator was induced by fraud in the making or the execution of the Will.
- Undue Influence – someone exerted undue influence upon the Testator during the making or executing the Will.
Are You Contesting the Will Within the Time Frame Allowed by Law?
All states impose a time frame, or statute of limitations, within which a contestant must pursue a Will contest or lose the right to do so. In New York, the Executor of the Will typically notifies all beneficiaries and heirs of the intent to probate the Will. Along with the notification, the Executor will likely ask you to sign a waiver, effectively acknowledging that you do not contest the Will. Do not sign this waiver without first consulting with an experienced probate attorney. If you do not sign the waiver, the Executor will send you a Probate Citation which is similar to a summons. It will have the date and time when the Will is to be presented for probate. If you wish to contest the Will, you, and/or your attorney, must be present at this hearing or you lose the right to contest the Will forever.
Final Consideration – Is There a No Contest Clause?
Does the Will include a no contest clause? If so, it does not legally prevent you from pursuing a Will contest; however, you should consider the consequences of challenging the Will if there is one. A “no contest” clause, also referred to as an ‘In Terrorem’ clause, is a provision in the Will that disinherits anyone who pursues a Will contest. For a no contest clause to be effective, the potential challenger must be gifted something in the Will so that he/she has something to lose. For example, if you stand to inherit $100,000 under the terms of your parent’s Will, you forfeit that inheritance if you pursue a Will contest and you are not successful. No contest clauses are upheld in New York and are governed by the Estates, Powers and Trusts Law Section 3-3.5; however, there are certain statutory limits to their power. Before proceeding when a no contest clause is present you need to weigh the potential gain against the known loss as well as the likelihood of prevailing.
Contact Rochester Probate Attorneys
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about contesting your father’s Last Will and Testament, contact the Rochester probate attorneys at the Law Office of Michael Robinson, P.C. by calling 585-374-5210 to schedule an appointment.
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