Q: I thought I was due to inherit from a family member, but then I learned that I was not included in the will. I hear litigation can be expensive and time-consuming. How do I know if it is worth it to challenge the last will and testament?

A: If you are considering challenging the probate of a last will and testament, there are several factors to consider in determining whether you have legal standing to challenge the will and whether a will contest is worthwhile.

Do You Have Legal Standing to Contest a Will?

Generally, only certain individuals have the legal standing to challenge a will. These include:

Adversely Affected Individuals: Someone who is adversely affected by the will’s provisions. This could be someone mentioned in the will, but who received less than expected based on prior wills, promises, or understandings.
Intestate Heirs: Individuals who would inherit if the decedent did not have a will.
Fiduciaries: Fiduciaries whose role is changed by the will.

Key Factors in Challenging a Will

Departure from Previous Estate Plans: Does the last will show a significant departure from the decedent’s longstanding estate plan or testamentary scheme?
Testamentary Capacity and Undue Influence:

Did the decedent have testamentary capacity at the time the will was made?
Was the decedent susceptible to undue influence?

Procedural Considerations in Contesting a Will

New York Law mandates specific formalities during a will execution ceremony. The Surrogate Court reviewing the will must determine the validity of the document issuing Letters Testamentary.

When a will is prepared by an attorney, it typically includes a “self-proving affidavit.” This affidavit asserts that the decedent was of sound mind when the will was made and that it was executed according to statutory requirements. A self-proving affidavit can make contesting a will more challenging.

Gathering Information for a Will Contest

To gather more information about the will execution and the individuals involved in drafting the document, parties are entitled to:

Examine Under Oath: Take examinations under oath of the attorney-draftsperson and witnesses to the will.
Access Documents: Gain access to the attorney’s file, notes, correspondence, and other documents related to the preparation of the will.

When these depositions are taken before filing written objections with the Surrogate’s Court, the estate bears the cost of producing the attorney-draftsperson, witnesses, and obtaining the transcript of the proceedings.

Consult with an Experienced Estate Litigation Attorney

It is crucial to consult with an experienced estate litigation attorney if you believe there are grounds to contest a will. An estate litigator will review procedural requirements and factual circumstances to determine if there is a sufficient basis to contest a will.

For more personalized advice and assistance, please feel free to contact our office. We are here to help you understand your rights and options in probate litigation and will contests.