The estate litigation lawyers at DiVernieri, DiVernieri and Cotter, LLP provide representation to clients in Staten Island and surrounding areas in matters related to will contests. Whether you are questioning the legitimacy of a will or require assistance defending against a will contest, we are here to assist you.
Our primary objective is to aid clients in developing comprehensive estate plans that safeguard their assets and loved ones. We understand that disputes regarding wills and trusts are not uncommon, but we urge our clients to attempt to resolve them through negotiation. Nonetheless, we are always prepared to engage in litigation when necessary, having a proven track record of safeguarding the interests of estate planners, executors, and beneficiaries, both in and out of the courtroom. To speak with an experienced will contest lawyer, please contact us today.
To contest a will, it is important to have "standing," which means that the person challenging the will must have a valid interest in the estate, such as being a beneficiary, heir, or potential inheritor under the will. Being unhappy with the distribution plan under the will is generally not sufficient grounds for a will contest.
Under New York law, a will can only be challenged for specific reasons, including improper execution, lack of testamentary capacity, undue influence, and fraud. Improper execution occurs when a will is not written and signed by the testator, but instead by someone else in their presence. Testamentary capacity requires that the testator be of sound mind at the time of creating and executing the will, meaning they are aware of their assets and understand the consequences of their decisions. Undue influence can occur when someone with control over the testator's care or finances influences the decision-making process during the creation of the will. Fraud can happen when the testator is presented with a legal document and is misled about its content and purpose.
Additionally, a will can be contested if an interested party questions the competency or behavior of the executor. Executors are fiduciaries and must act in the best interests of the beneficiaries; if they fail to do so, they may be held liable for misconduct. If a will is successfully contested, the probate court can declare it invalid and direct the estate to be distributed according to the intestacy laws of New York.
To prevent a will contest, there are several measures you can take, such as:
Many individuals delay creating a will until they experience physical or mental decline, which can increase the likelihood of a will contest based on a lack of testamentary capacity. To prevent this, it is advisable to draft your will when you are mentally and physically healthy, so that your capacity to make decisions cannot be challenged later.
To avoid potential claims of undue influence, it's advisable not to have beneficiaries present when consulting with your estate planning attorney. Once the will is in place, you should discuss the distribution plan with your loved ones and explain the details. This transparency can help prevent misunderstandings or disputes down the line.
A no contest or "in terrorem" clause can serve as a deterrent for a beneficiary or heir who may be considering a will contest. It is important to note, however, that while New York courts have recognized the enforceability of such clauses, a will contest can still be pursued if there is probable cause to challenge the validity of the will, such as claims of undue influence or lack of testamentary capacity.
It's important to note that creating a will is not a one-time event. Your will should be reviewed and updated periodically to reflect changes in your life, such as marriage, home ownership, having children, and retirement. Our team of wills attorneys offers ongoing guidance to clients to ensure that their estate plans remain current.
The most effective way to prevent a will contest is to work with a skilled attorney during the estate planning process. This can help you avoid common pitfalls in estate planning and bolster the validity of your will.
DiVernieri, DiVernieri and Cotter, LLP has the capability to handle estate litigation cases and defend clients in will contests. However, our preference is to resolve disputes through negotiated settlements. Our focus is on providing the best representation possible and protecting our clients' interests. If you are in need of legal assistance, please do not hesitate to contact our office to schedule a consultation.