The general bases for challenging a Will are:
– Lack of capacity of the individual executing the Will
– Lack of proper execution of the Will
– Undue influence
– Duress or coercion
An individual cannot challenge a Will simply because they do not like what it says. To successfully challenge a Will, the individual challenging the Will has the burden of proving one or more of the above elements.
Read more below or watch our video.
Standing to challenge a Will:
In order to challenge a Will, you must have “Standing” to do so. An individual has standing if they have a close familial relationship with the person executing the Will, such that the challenger would inherit from the decedent’s estate, if it were not for the Will. For example, if a person has a spouse and children, the spouse and children have standing to challenge the Will, because without the Will, they would stand to share the inheritance in proportions established under the law. Below, find NY Law on who inherits an individuals property if they die without a will, and in reading this law, you will know who has a right to challenge a will in particular cases.
Universal Citation: NY Est Pow & Trusts L § 4-1.1 (2012)
§ 4-1.1 Descent and distribution of a decedent’s estate
The property of a decedent not disposed of by Will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8.
Distribution shall then be as follows:
(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the great grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.
(b) For all purposes of this section, decedent’s relatives of the half blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime.
(d) The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled.
The Witecki Law Office provides the following estate planning services: Wills and Trusts, Asset Protection, Medicaid Planning, Elder Law, Powers of Attorney, Probate and Administration, Guardianships, and Health Care Proxies.