The drafting and execution of a Will are unlike other areas of law because it is not immediately legally significant. Instead, it is only effective once the testator passes away. Upon the death of the testator, family members and friends that have reason to believe something may be wrong may argue the Will is invalid, and if successful, the decedent’s property will then pass through intestacy. Because of this, errors and events that may lead to the Will eventually become contested are important to look out for at the time of the execution of a Will. Working with an estate planning attorney is one of the ways a testator can help to minimize any future issues with the Will.
One of the most common reasons a Will is challenged is that it doesn’t meet the statutory requirements for a valid Will. In New York, the requirements for a valid Will are governed under New York Estate, Probate, and Trust Law § 3-2.1 (EPTL 3-2.1). Under the EPTL, the Will must be signed by the testator either directly or via their discretion while the person signing is in their presence. This signature must appear at the end of the Will (although it is commonly followed by an attestation clause for the witnesses). Additionally, the signature must also be in the presence of two witnesses. The testator must communicate to the two witnesses that they are witnessing his or her Will. Finally, the witnesses must witness within a specified time frame.
One of the most common challenges under the statutory requirements involves the witnessing of the Will. There has been an abundance of New York cases in which the witnesses were not in the presence of the testator when it was signed, the testator did not advise them that they were witnessing a Will, and whether or not both witnesses must be present at the same time. These issues are less likely to occur if the Will is prepared by and the execution is overseen by an attorney.
In some cases, after the testator creates their Will, certain life events may occur that make them wish to revise the Will. In this case, the most current Will supersedes any previous Will. Often, individuals challenge Wills claiming that it is not the most current Will. Again, this can be minimized by having an attorney prepare and keep a record of the Wills.
Another common way a Will is challenged is by claiming that the testator created the Will under pressure. A Will is a contractual document that cannot be created under coercion, duress, or undue influence. It is not uncommon for family members or loved ones to influence individuals as to how they should draft their Wills. If someone believes that the testator was pressured into creating the Will and distributing the assets in a certain way, then it will be grounds to dispute or contest the Will. Similarly, if a Will is created under false pretenses it can be used to overturn a Will. For instance, if something is promised to the testator in return for a bequest or if they are fooled into signing the Will by claiming it was a different document, the Will may be overturned.
Lastly, one of the most common ways a Will is challenged is that the testator lacked the capacity to make the Will. If there was a lack of capacity on behalf of the testator in creating the Will, then it will be deemed invalid. Mental illnesses and a diagnosis of dementia do not automatically trigger a lack of capacity. The court will determine whether the testator had the capacity to understand: (1) what assets belong to them; (2) who their family members are; and (3) the content of their Will. If it can be proven that the testator lacked capacity at the time of execution of the Will, then a challenge will likely be successful.
Creating a Will assures an individual that their assets will be distributed as they wish upon their death. A failure in the procedure in the drafting of a Will can render the Will invalid. If a Will is found to be invalid, then the decedent’s assets will be distributed through the laws of intestacy. One the reason for creating a Will is because the testator is not happy with the way their assets will be distributed through intestacy. Therefore, making sure that your Will is drafted and executed properly is of the utmost importance when thinking about your future estate. Seeking help from an elder law or estate planning attorney can help minimize any possible future challenges to your Will.
It’s important to realize that a Will always requires Probate in order to be effective and even if your plan is to avoid Probate, a Will is still required just in case.
At Tully Law, PC, we understand that estate planning can be both emotional and overwhelming. Our attorneys are available to advise you on complex estate planning issues to minimize the possibility of these types of problems. We will take the time to review your goals and circumstances and do our best to ensure that your assets are protected and your wishes will be carried out as per your estate plan. For more information regarding our services or to schedule a consultation, call (631) 424-2800.
