For most people, the primary reason for creating a Last Will and Testament is to ensure that their wishes are honored, and their assets are distributed according to their intentions. A Will can, however, be contested which can drag out the probate process and could eventually lead to the Will being declared invalid. While there is no way to ensure with certainty that your Will won’t be contested, the Long Island attorneys at Eghrari Law Firm explain what you can do to decrease the likelihood of a Will contest.
What Happens When Someone Contests a Will?
The estate you leave behind when you pass away must go through the legal process known as “probate.” Probate serves to identify, value, and eventually transfer your estate assets to the beneficiaries named in your Will. Probate is also when a decedent’s Last Will and Testament is authenticated. After a Will is submitted for probate, any “interested person” may challenge the validity of the Will. State law determines what grounds may be used to challenge the validity of a Will. If the contestant is successful, the Will is declared invalidate and the court will look for a previous valid Will to use to distribute the estate assets. If one is not located, the state’s intestate succession laws will determine what happens to the estate assets. If the contestant is not successful, the probate process continues using the Will submitted to the court.
Things You Can Do to Decrease the Likelihood of a Successful Will Contest
Unfortunately, there is no way to ensure that a Will contest will not be initiated after you pass away. The law allows any “interested person” to pursue a Will contest. An “interested person” usually refers to beneficiaries under the current Will, beneficiaries under a previous Will, legal heirs, and creditors of the estate. Although you cannot prevent a Will contest, there are things you can do that will help diminish the chance of someone pursuing a Will contest, including:
- Properly Draft and Execute Your Will: One of the simplest ways to prevent a Will contest is to ensure that your Will is properly drafted and executed. Working with an experienced estate planning attorney is the best way to make sure that your Will is properly drafted and that it complies with the legal requirements of the State of New York. Conversely, relying on a DIY Last Will and Testament form increases the likelihood of a Will contest.
- Prove Testamentary Capacity: A common ground for contesting a Will is the claim that the Testator (the person who created the Will) lacked testamentary capacity at the time of execution. To prevent this, help prove that you did not lack testamentary capacity when you created your Will by having a physical done and procuring a letter from your physician attesting to your mental capacity. You can also consider recording a video of yourself discussing the contents of your Will and your reasons for specific bequests, further demonstrating your clarity of mind.
- Avoid the Appearance of Undue Influence: Another basis for contesting a Will is undue influence, where someone exerts pressure on the Testator to benefit from the Will. To mitigate this risk, avoid involving beneficiaries in the drafting process. Meet with your attorney privately to discuss your wishes and ensure that your decisions are free from outside influence.
- Consider Including a No-Contest Clause: Including a no-contest clause, also known as an “in terrorem” clause, in your Will can be an effective deterrent against challenges. This clause states that any beneficiary who contests the Will loses their inheritance. By way of illustration, imagine that your sister receives $10,000 under the terms of your Will but stands to inherit $500,000 under the state intestate succession laws. If there is a no contest clause in your Will, your sister can accept the guaranteed $100,000 inheritance or risk losing everything by contesting your Will.
- Minimize Surprises: It is up to you whether you share the details of your Will with loved ones; however, surprises can lead to conflict. If you plan to make significant changes to your estate plan or disinherit an expected beneficiary, consider discussing this with them beforehand. While these conversations can be difficult, they can prevent shock and resentment that may lead to a Will contest. If face-to-face discussions are not feasible, leaving a Letter of Instructions can provide clarity. A Letter of Instructions, while not legally binding, can provide valuable context and reduce the chances of a successful contest by demonstrating that your choices were intentional and well thought out. It also offers you the opportunity to provide context for decisions made in your Will.
Can We Help You Avoid a New York Will Contest?
For more information, please join us for a FREE estate planning seminar. If you are interested in decreasing the likelihood of a Will contest after you pass away, contact the Long Island estate planning attorneys at Eghrari Law Firm by calling us at 631-265-0599 to schedule your appointment.
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