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  • Nicole J. Zuvich

What happens in a will contest in New York?

Updated: Sep 27

Many New Yorkers have probably heard the term “will contest,” but very few understand the full meaning of the term. An understanding of the legal bases for a will contest can help a lay person avoid the mistakes that can provide the legal reasons for attacking the validity of a will.

The basics

A New York will can be attacked on several grounds, but whichever grounds are presented to the court must be proved by a preponderance (the greater weight) of admissible evidence. Any person who has an interest in the estate of the deceased person may commence a will contest.

Failure to follow the formalities

To be valid and enforceable in a New York court, a will must abide certain formalities. First and foremost, a will must be signed by the maker (known as the “testator”) and witnessed by two disinterested persons. The testator must have what is called testamentary capacity at the time of execution; testamentary capacity is the mental ability to understand the consequences of signing the will and asking the court to enforce its terms. The failure to follow these steps will almost certainly lead the court to declare the will invalid and unenforceable.

Fraud, duress, and undue influence

Perhaps the most common reasons for attacking the validity of a will are lack of mental capacity, fraud on the testator, undue influence, and duress. Mental capacity was covered in the previous paragraph. Fraud is another common ground for attacking the will; in essence, this claim asserts that one of the heirs who received a devise under the will lied to the testator or made some other kind of material misrepresentation to the testator to persuade the testator to give property to the person making the misrepresentation. Undue influence is the use of some form of coercion to persuade the testator to give assets to the person exercising the undue influence. Duress consists of a threat to the mental, physical, or financial well-being of the testator in order to convince the testator to make a bequest demanded by the person attempting to exercise the duress.

Any person who suspects that the will of a friend or relative was subject to one or more of the improper actions outlined above may wish to consult a lawyer who is experienced in estate law for an evaluation of the evidence and an opinion as to whether a will contest is likely to succeed.

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