Reviewed by Natasha H. Applewhite, Esq.
Key Takeaways
- A no-contest clause does not stop you from investigating.
- You can depose the drafting attorney and witnesses under oath before deciding whether to object.
- Doing that first protects your inheritance. Filing objections first does not.
- Undue influence, lack of capacity, improper execution, fraud, and forgery are separate grounds.
If you are an interested party in a will, such as a beneficiary or an heir, you may contest its validity if you believe there to be discrepancies. Such contesting causes the will to enter the estate litigation process. So before you put yourself through this lengthy process, it is important that you can confirm that you have valid grounds to contest the will and that you are aware of the risks that come with doing so. For more information on this matter, continue reading to see how an experienced Long Island estate planning lawyer at Barrows Levy PLLC can be of assistance.
Who Is Qualified to Contest a Will in New York State?
Essentially, if you were named as a beneficiary in the will, you have the right to contest a will and sue for a just inheritance.
Additionally, you qualify to contest a will if you are an heir who would have inherited under the will if it were free of discrepancies. For example, if you are an heir who was omitted from the will, left with a disproportionate share of the inheritance, or would have received a share of the estate through the laws of intestacy, you have legal standing to challenge the will in question.
What Are Examples of Valid Grounds to Contest a Will?
By New York law, a will would be considered invalid and thus suitable to contest for the following reasons:
- The decedent was incapacitated when they wrote the will.
- The decedent was influenced by coercion, threats, bribery, or otherwise fraud when they wrote the will.
- There were insufficient witnesses when the decedent wrote the will.
- There is an existence of a later valid will.
Improper Execution
New York imposes specific requirements for signing a will, and failure to meet these requirements is one of the most common grounds on which a will is contested. The testator must have signed the will, or directed someone to sign the will in their presence, in front of two witnesses who then sign at the testator’s request. The testator must also tell the witnesses that the document is their will before signing.
One important matter to know before pursuing this ground: if an attorney supervised the execution, the person offering the will for probate is entitled to the presumption that this matter was handled correctly. While this does not end the inquiry, it means that an attorney-supervised will is harder to challenge on execution alone as opposed to a homemade one.
Lack of Testamentary Capacity
The standard to prove lack of testamentary capacity is more narrow than most people assume. What must be shown is that the testator did not understand the nature and consequences of making a will, the property they were disposing of, or the natural objects of their bounty, meaning the family members who would typically be expected to inherit the assets.
Substantial changes made close to the ends of life typically draw scrutiny for this reason. Wills rewritten in the final weeks of life, particularly one that is drastically different from previous versions of the will, raise the question as to whether or not the testator understood what they were doing.
Undue Influence
Undue influence means that there was pressure that influenced the testator’s judgment, not merely persuasion or a strained family dynamic. Someone contesting the will must show that the testator was susceptible to influence, and the person accused has the opportunity to exert this influence, and they actually did.
The circumstances that support these claims generally involve a confidential relationship. This is most often an adult child or trusted caregiver who has taken over the finances and medical decisions of the testator, followed by a new will that moves assets towards that individual. Evidence tends to be circumstantial by nature, drawn from the testator’s condition, their prior intentions, and how far the new will departs from them.
Fraud and Forgery Are Separate Grounds
These are often grouped with undue influence, but these are separate and distinct grounds:
- Fraud: The testator was deceived, either about what they were signing or the facts that shaped how their property was left in the will.
- Forgery: The signature was not the testator’s at all, or the document was altered after signing.
The distinction has practical consequences, because a contest brought on forgery grounds falls within a statutory exception to the no-contest clause discussed below.
Does New York State Recognize the No-Contest Clause in a Will?
Namely, the no-contest clause in a will states that if a beneficiary or an heir chooses to challenge a will and ultimately loses their lawsuit, they will be disinherited and unable to claim what they were initially granted. New York state recognizes and enforces this clause in an attempt to prevent the contesting of a will.
New York State will not enforce no-contest clauses without limits, however, which is where most are confused. EPTL § 3-3.5(b) establishes conduct that cannot trigger forfeiture, regardless of the clause’s wording. Courts also interpret these clauses narrowly, and do not favor forfeiture of assets.
The protected conduct includes:
- Preliminary examinations under SCPA § 1404, meaning depositions of the attorney who drafted the will, the attesting witnesses, the nominated executors, and the people offering the will for probate
- Objecting to the jurisdiction of the court where the will was offered
- Disclosing information about the document to the court or the other parties
- Refusing to join the probate petition or to sign a waiver
- Contesting on the ground that the will is a forgery or was revoked by a later will, where brought with probable cause
- Objections brought on behalf of a beneficiary who is a minor or incompetent
The first matter can entirely change the decision, as you can examine the drafting attorney and witnesses under oath, analyze what the evidence actually shows, and then determine if you want to file objections. This means a beneficiary considering if a contest is worth the risk does not have to make this judgment without any information.
Nonetheless, although you may be eligible to and believe you have valid grounds to challenge a will, the risk may outweigh the reward in the long run. However, it is important to note that if you are not a beneficiary of the will and sue for an inheritance, the no-contest clause will not affect your case because you were not set up to inherit anything in the first place.
If you require further guidance, contact one of our skilled attorneys at Barrows Levy PLLC today.
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