Contesting a Will

Question: My mom had a Will from 10 years ago that left everything equally to me and my siblings. Right before she died, I found out my brother made her sign a new Will that left everything to him. I don’t think she understood what she was signing. What should I do?

Answer: You may want to start the process to contest the new Will signed by your mom shortly before she died. If your brother sends you a Wavier and Consent form to probate the new will, do not sign it. The first step in contesting the Will is to determine if you have a legal basis to contest the Will. The legal basis’ to contest are: your mom did not follow the proper procedure as required by the law when she sign the Will; your mom lacked capacity or did not understand what she was signing when she signed the Will; the Will contains a mistake; or the Will is the result of fraud, undue influence, duress, or an insane delusion. Once you determine which legal basis applies, you must file objections with the Surrogate’s Court stating your legal basis for contesting the Will.

If you do not know all the facts surrounding the signing of the Will and do not know which legal basis your Will contest should be based on, you are given an opportunity to obtain more information before you formally file objections with the Court. Specifically, a person considering whether to file objections to a Will can obtain documents and testimony from the witnesses to the Will and the attorney that drafted the Will for your mom. This information obtained could be crucial in deciding whether to start a contest and decide if there is a basis upon which a Will can be invalidated.

Most of the time the Court does not invalidate a Will as there is a preference to ensure that the decedent’s desires as expressed in their Will are fulfilled. Where there is proof that a Will is not valid, a person contesting a will can succeed. However, it is important to keep in mind that a Will contest can be a lengthy and costly affair and could create bitterness among family members. The guidance of an experienced estate administration is important when dealing with this kind of legal battle.