Ideally, when you probate a Last Will and Testament also known as a “Will”, there are no issues that require litigation. Unfortunately, there is always the chance that something may go wrong, leading to one or more heirs choosing to initiate a Will contest, questioning the validity of the Will or the capacity of the person who executed the Will. Here are five things you need to know about contesting a Will:
- Any heir or immediate relative can potentially contest a Will
- A Will contest can be initiated by anyone who is either set to directly inherit under a Will, or who would benefit in the event that a Will is successfully contested. This typically includes any of a decedent’s biological children, as well as other immediate family members. People who would not be impacted by a Will contest cannot typically ask to contest a Will.
- Contesting a Will requires showing there is something wrong with it
- In order to legally contest a Will, you must be able to demonstrate that there is some reason to contest its validity. This typically means there must be some issue with the Will itself, such as a failure to fulfill necessary legal requirements like the need for two or more impartial witnesses to the signing of the Will. Alternatively, it may mean there is some issue with how the Will was created, such as concerns over undue influence or a lack of testamentary capacity on the part of the deceased.
- A Will can be partly or entirely invalidated due to a Will contest
- As a result of contesting a Will, it is possible for the Will to partly or entirely be invalidated by the court. In the event a Will is partly invalidated, the rest Will be enforced as normal. If a Will is entirely invalidated, then the estate Will be treated as though there was never a valid Will to begin with.
- Without a valid Will, property falls into intestacy by default
- When someone contesting a Will is successful, one of two things happens. If there is another Will that is deemed to be valid, such as a previous version of the Will, that Will can be probated instead. If there is no valid Will, the property Will fall into intestacy, meaning it Will be distributed according to the state intestacy statute.
- A Will contest is legally complicated, making legal counsel essential
- If you are either planning on contesting a Will, or are a party to a Will that someone else has contested, you should make sure you have legal counsel to represent you. A Will contest is incredibly complicated at the best of times, and you should not try to handle it alone. The sooner you call an attorney, the sooner they can work on your case.
Whether for yourself or for a loved one, estate and elder law planning can be overwhelming and emotionally taxing. The legal professionals at Hobson-Williams, P.C. will advise you on the options available to you, and help you establish a plan that best suits your needs. Call (718) 210-4744 or visit our contact page to speak to one of our attorneys and learn how Hobson-Williams, P.C. can help you gain the peace of mind that comes from being prepared for the future.
Written by Tanya Hobson-Williams
Appointed to the bench by the Board of Trustees in 2008, and elected in 2009, Tanya Hobson-Williams was the first African-American Female Justice in the Incorporated Village of Hempstead. Tanya Hobson–Williams obtained her B.A. in Government and Politics from St. John’s University and her law degree from Benjamin N. Cardozo School of Law.
Tanya Hobson-Williams has an active elder law practice assisting senior citizens in obtaining Medicaid for Home Care and Nursing Home Care. She routinely lectures at senior citizen centers, assisted living facilities, law schools and counsels families on a variety of topics of concerns to families caring for the elderly.
