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  • Nicole J. Zuvich

Wills can be challenged during the probate process

Updated: Sep 27

New York residents may believe that wills are binding legal documents that cannot be questioned or set aside upon the death of the people who created them. To some extent this belief is true: wills do represent the wishes of the deceased and when they are valid are executed in accordance with those wishes. However, when a will is actually or perceived to be invalid, it may be contested during probate.

This post does not provide its readers with legal advice. Any questions that readers have about challenging or contesting wills in the probate courts of New York should be directed to estate planning and probate attorneys. The contents of this post are informational but may not discuss all possible circumstances that can influence will contest proceedings.

Capacity and the validity of a New York will

Wills require individuals to meet certain conditions in order to draft and execute valid testamentary documents. For example, individuals generally must be adults to create wills, and they must be of sound mind or possess testamentary capacity to take on the process. Testamentary capacity is a term that refers to a person’s ability to understand what their will accomplishes and how their assets will be treated upon their death.

If a person lacks testamentary capacity when they draft and execute their will then it may be possible to argue that they did not understand what they were doing. If a person does not understand what their will purports, then it may be possible to allege that they did not intend to draft it as it was written before their death. Testamentary capacity is often a basis for will contests and challenges.

Wrongful pressure and influence during the will creation process

Duress and undue influence are damaging practices that can alter how wills are drafted and prepared. For example, when a person uses threats or force to compel another person to change their will for the benefit of the aggressor, it can be hard to claim that the testator intended for the aggressor to be a beneficiary. When these and other wrongful tactics are used to influence wills, individuals may have arguments for having wills set aside.

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