Who Can Dispute the Will?

The Facts: My sister died recently. In her Will she left 50% of her estate to friends and 50% of her estate to a charity. I feel she should have left her estate to her family.

The Question: As her sibling, can I contest the probate of her Will?

The Answer: Whether you can contest the probate of your sister’s will depends on whether you have “standing.” For purposes of this article, standing is defined as a legally protectable right or interest in your sister’s estate. The law provides that an individual has standing to contest the probate of a Will if that individual would inherit from the estate if the person who died had died without a Will. In other words, you can contest your sister’s Will if you would inherit from her estate if she had died intestate.

To determine if you have standing to raise objections to the probate of the Will, you need to look at the relationships between your sister and the people who survived your sister. You then need to look at the intestacy statute. If your sister was survived by a spouse, children/grandchildren (known as her “issue”) or a parent, the intestacy statute provides that they would be in line ahead of you to inherit her estate. As a result, you would not have standing to contest her Will. However, if your sister was not survived by a spouse, issue or a parent, you and your siblings and/or the children of any predeceased siblings would be in line to inherit her estate. Under those circumstances, you would have standing to contest the probate of your sister’s Will. If you were successful, your sister’s estate would be divided between you and your siblings and/or their issue in accordance with the intestacy statute.

Even if you have standing to contest your sister’s Will, you must have valid grounds for objecting to its probate. While space limitations preclude me from going into detail about what constitutes valid grounds for contesting a Will, suffice to say that the fact that you may feel that your sister should have left her estate to her family does not constitute grounds for a Will contest.

If you believe a Will contest is in order, I suggest you consult an attorney with experience in estate administration who can advise you as to the legal grounds necessary for contesting a Will and assist you in your efforts to overturn your sister’s Will.

This article first appeared in the July 9, 2014 issue of the Times Beacon 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.