The process of probating a loved one’s estate can be incredibly draining, even when everything goes smoothly. However, there are circumstances when it becomes necessary to contest the probate process in court. Here are just some of the reasons you may want to do just that:
- Lack of testamentary capacity
- One of the most common claims in a will contest is the idea that the testator (the person who created the will) lacked testamentary capacity. In simple terms, this means that when the testator created the will, he or she was not mentally sound enough to form a valid will. As a result, it can be necessary to contest or file objections to the probate process to avoid an otherwise invalid will from being implemented.
- Undue influence
- Another common claim in probate disputes is “undue influence.” This is the idea that the last will and testament does not, in fact, reflect the testator’s own desires, but rather the wishes of someone who exerted pressure on them to change their will so as to receive a favorable outcome. This type of will contest can arise if someone close to the testator, such as a caretaker or family member, unexpectedly gets a larger share of the estate than was expected.
- Witnesses were not disinterested
- In New York, every will must be signed in the presence of two disinterested witnesses. To be disinterested, a witness must neither be set to inherit under the will, nor have any ability to inherit if the will is invalidated (such as their immediate family members). If one or more witnesses is not disinterested, meaning they may personally benefit from the will (or from the will being invalidated), it may be time to contest the probate process.
- Forgery or Fraud
- Another potential issue may arise if the testator’s signature on the will is not genuine or pages of the will are replaced, altered or modified. Also, there could be a claim of fraud if the testator was deceived into signing the will or to make changes to the will and did not understand what he or she was doing.
- Executor misconduct
- Sometimes, a challenge to probate is not the result of anything written in the will or any other estate document, but instead is a result of misconduct on the part of the executor or other fiduciaries. They may be negligent in carrying out their duties, missing critical deadlines or failing to file important paperwork, or they may actively abuse their authority to their own benefit. If that happens, you will need an estate law attorney to help you navigate through any legal issues that arise.
The Virdone Law Firm is here to assist Long Island families with all of their family law and estate law issues. We pride ourselves on providing unparalleled legal representation with a foundation in personalized client service. To learn more or schedule a consultation at our Westbury office, give us a call at (516) 570 - 3875, or visit our contact page.