Authored by: Dorothy J. Santos

In order for a person to contest a Will in New York, he or she must have grounds – that is, a reason based in the law that the Will is invalid and should not be admitted to probate.  The most common grounds for challenging a Will are improper execution, lack of testamentary capacity, and undue influence.  Although each of these common grounds are often (or almost always) alleged in the beginning of a Will contest, lack of testamentary capacity and undue influence are the most hotly-litigated grounds.

Due Execution – Not Just a Formality…

A Will must be properly executed to be valid.  In New York, the requirements for due execution are as follows: (1) the deceased must have signed the Will (or directed another to sign the Will in his or her presence) at the end thereof, (2) the deceased must have signed (or acknowledged that he or she signed or directed another to sign) in the presence of two witnesses, (3) the deceased must have declared the document to be his or her Will, and (4) the witnesses must have signed the Will as witnesses at the request of the deceased.  When an attorney supervises the execution of a Will, the proponent of the Will is entitled to a presumption of regularity.

Lack of Testamentary Capacity – Who? What? Where?

The deceased must have also possessed testamentary capacity when he or she signed his or her Will.  The Courts in New York look to the following three factors to determine that the deceased had the requisite capacity to sign a Will:  (1) the deceased understood the nature and consequences of executing a Will, (2) the deceased knew the nature and extent of the property he or she was disposing of, and (3) the deceased knew the natural objects of his or her bounty and his or her relations with them.  What is interesting to note is that the natural objects of one’s bounty are not necessarily the same as one’s distributees (or heirs) under New York law.

Undue Influence – Whose Will is it Anyway?!

If a Will is the product of undue influence, it is invalid and will not be admitted to probate.  A Will may be invalidated on the ground of undue influence if there was: (1) motive, (2) opportunity, and (3) the actual exercise of undue influence.  The influence exercised must rise to a level of coercion that restrains the free will and independent action of the deceased in a forceful way.  The inquiry into whether a Will is a product of undue influence is extremely fact-rich and involves the examination of the deceased and his or her circumstances, the Will, and the person(s) alleged to have exercised the undue influence.

Although many Wills are admitted to probate in New York without a contest, there are many contested probate proceedings.  For example, in a recent New York County case, a Will was challenged on the grounds of lack of due execution, lack of testamentary capacity, undue influence, and fraud.  In Will of Robin Moles, the deceased’s nephew, a beneficiary under a prior Will, challenged a Will in which the deceased left her $8,000,000 estate to her long-time friend and companion.  After examining each of the grounds, Surrogate Nora S. Anderson dismissed all of the deceased’s nephews’ objections.

In other Will contests, the proponents of the Will have a longer road.  For example, in a recent Kings County case, a Will was challenged on the grounds that the deceased lacked testamentary capacity and that the Will was a product of undue influence practiced upon the deceased by the proponents of the Will.  In Estate of Ralph Besdansky, the purported Will nominated the proponents as the Executors and gave the deceased’s entire estate to them.  The proponents of the Will were administrative officials of the assisted living facility where the deceased had been living prior to his death.  Surrogate Diana A. Johnson found that there were issues of fact raised as to both grounds and denied the proponents’ motion for summary judgment dismissing the objections.

The three common grounds for contesting a Will discussed herein are part and parcel to many Will contests.  Each ground is sufficient to knock out a Will on its own, but are often pled by the contestant’s attorney in conjunction with each other.