New York Estate Planning & Elder Law Blog
When a deceased individual, known as a decedent, leaves a Will, family members and friends that have reason to believe something may be wrong with that Will may be able to have a court rule that the Will is invalid in some situations. The following are examples of common situations in which a person may have reason to ask a court to overturn a Will, most of which can be avoided by working with an attorney to create a valid Will.
The Will Does Not Comply with Law
There are several specific requirements the person making a Will, known as the testator, must comply with for a Will to be valid in New York. Basically, these include:
- The Will must be signed by the testator (either directly or via their direction while the person signing is in their presence);
- This signature must appear at the end of the Will;
- The signature must occur in the presence of two witnesses;
- The testator must communicate to the two witnesses that they are witnessing the testator’s Will; and
- This must take place within a specified time frame.
When these requirements are not adhered to, as can often be the case with do-it-yourself wills created without the supervision of an attorney, there may be grounds to contest the Will in court.
The Will Is Not Current
Sometimes, a testator may wish to create a new Will that considers certain life events that have caused the testator to wish to revise a Will. When this happens, the most current will supersedes other another previous Will. If an individual believes a Will is not the most current version, they can bring this issue to the court’s attention.
The Will Was Forged
Unfortunately, there are people that are ready and willing to take advantage of others, including their own family. Sometimes, they may create a Will and forge a person’s signature in order to benefit themselves. When this type of circumstance or other fraudulent circumstances surround a Will, it can provide reason for the court to overturn the Will.
The Will Was Created Under Pressure
Creating pressure on an individual to do something they may not have otherwise done is referred to as coercion, duress, and/or undue influence. While not technically forgery since the testator is making the Will, using this type of influence is still illegal. If a person believes a testator was pressured into creating a Will or disposing of assets in a certain way, they may be able to contest that Will in court.
The Testator Lacked Capacity to Make a Will
If an individual lacks the mental capacity to make a Will, then any Will made in this condition will be deemed invalid. This does not necessarily mean that a person has a mental illness when creating the Will, but instead refers to their capacity to understand the following:
- What assets belong to them;
- Who their family members are; and
- The content of their Will.
Often, mental incapacity is the result of a lengthy physical illness or the advanced stages of dementia or other cognitive impairments.
The Will Was Created Under False Pretenses
Different than both forgery and undue influence, a Will might also be created under false pretenses. For instance, if something was promised to the testator in return for the Will or if someone fooled the testator into signing a Will by claiming it was a different document, proving this might provide enough evidence to a court to overturn the Will.