Estate and Business Planning Legal Blog

Sunday, October 11, 2020

Contesting a Will: Does it Make Sense?


Clients will often approach an attorney when they discover that a will of a family member is being probated in the courts. In fact, when an Executor offers a will for probate, he/she is required to send the decedent's next of kin a copy of the will.  Family members then have an opportunity to see the will and either accept it or contest it.  Of course, not all family members are required to be sent a copy of the will.  The law in New York sets forth who the next of kin are and, therefore, required to be notified.  For example, if a person is married, then his/her spouse and children are considered the only next of kin.

Successfully contesting a will is not an easy matter, and it can be a costly process.  Just because someone leaves you out of their will does not mean the person was not competent to make a will.  In fact, the law generally does not obligate a decedent to leave money to any family members, except for a spouse.  Therefore, a person can disinherit all of his/her children and that person has the right to do so.

There are only a few grounds upon which one can contest a will.  For example, if you can prove that the decedent was not of sound mind when he/she executed the will, you may have a successful case.  The burden of proof, however is on the person contesting a will.  One could also allege that the will was not properly executed, but that is an extremely rare occurrence and at least when the execution of a will is supervised by an attorney, there is a presumption that it was executed properly and it is almost impossible to rebut that presumption.  The other grounds is fraud and/or undue influence.  One contesting a will on these grounds must show that the decedent was so under the influence of another (or defrauded), that he/she was not acting of their own volition.  Again, the burden of proof is on the contestant and it is a high burden.

Contesting a will is also an expensive proposition, as you generally need an attorney to handle it for you.  Again, the likelihood of success is generally not great.  Although one may not be happy that one was omitted from a will, it is not enough that one is disappointed. One must have grounds to contest a will.




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