The Who, What, Why Etc. of Contesting a Will

Clients often express concern that a dissatisfied family member may contest the probate of their Will. While a Will contest can be costly both in terms of money and time, only certain individuals can object to the probate of a Will and only certain grounds for objecting are acceptable.

A person is able to file objections to the probate of a Will provided he has legal standing to do so. Such standing is limited to individuals who have a financial interest in the decedent’s property and whose interest will be adversely impacted if the Will is admitted to probate. Examples of individuals who may have standing to contest the probate of a Will are the decedent’s spouse and children, anyone named as a beneficiary in the Will and anyone who would inherit from the decedent’s estate if the decedent died without a Will. Even if the Will provides that anyone contesting the Will forfeits his/her inheritance (an in terrorem clause), such a clause does not deny an individual of standing. Of course, if the individual unsuccessfully contests the Will, he may forfeit any interest he had in the decedent’s estate.

The result of a successful Will contest is a decree from the Court finding the Will invalid and denying its admission to probate. A Will may be denied admission to probate if there is evidence 1) that the decedent lacked testamentary capacity i.e.: that he did not understand what he was doing when he signed the Will, 2) that someone exerted undue influence on the decedent, essentially forcing the decedent to include in the Will terms that do not reflect the decedent’s wishes, or, 3) that the Will was not executed properly. These are the only legal grounds for contesting the probate of a Will. An individual does not have grounds for contesting a Will simply because he feels cheated or he believes that another beneficiary is undeserving.

A Will contest starts when the individual wishing to contest the Will (the “objectant”) appears in court and requests that he be allowed to “depose” or question under oath the drafting attorney and the individuals who witnessed the execution of the Will. Provided the objectant has standing, the Court will direct that depositions be scheduled.

Assuming the testimony at the depositions provides evidence to support a Will contest, the objectant has ten (10) days following the depositions in which to file written objections to the Will. The objections must specifically state the legal grounds for contesting the probate of the Will. For example, the filing may state that the decedent lacked testamentary capacity based upon his advanced dementia or that the Will was not properly executed because a witness did not actually see the decedent sign the Will. As mentioned above, an objection based upon a perceived unfairness in how the decedent decided to distribute his assets is not sufficient.

Many potential Will contests are abandoned after the depositions when the objectant realizes that he has no legal basis on which to proceed. However, where objections are filed, the probate of the Will cannot proceed until the parties reach a settlement or the Surrogate determines that the Will is valid. If a Will is found invalid, the decedent’s estate will either pass as if he died without a Will, or will pass in accordance with a prior Will that is admitted to probate. Although Will contests can be time consuming and expensive, they are not common. Most Wills are admitted to probate without objection and letters testamentary are issued within a short period of time.

The best way to avoid a Will contest is to engage in estate planning when your testamentary capacity cannot be questioned, to retain an experienced attorney of your own choosing to draft your Will and supervise its execution and to provide that attorney with an explanation for any Will provisions that may be perceived as unfair or unusual. The more information the attorney has, the better prepared she will be to convince the Court of the validity of your Will.

This article first appeared in the January 6, 2011 issue of the Times Beacon Record Newspapers.

Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.