Law Office of Brendan P. Kearse
48 Wall Street
New York, NY 10005
Ph: (212) 425-6244
Sometimes people disagree about something as basic as whether a deceased person had a Will, whether they had one but revoked it or signed a new Will later, whether they signed the Will at a time they lacked capacity (due to illness, senility, etc.), or whether the true last Will or gifts contained in it were obtained by someone’s “undue influence” (i.e., improper pressure).
A Will contest usually starts where somebody has a hunch that something smells fishy. For example: “Ray never told me he was leaving his nurse $250,000” or “Why would my brother have cut me out of the Will and left everything to our cousin? We weren’t fighting.” (A related proceeding often starts because someone thinks: “Hey, Ray had a Will. How come no one’s going to court to get it probated?”) Thus, the first step is always somebody trusting his or her instincts, gathering some information and calling a lawyer.
On the other hand, you may be the named Executor in the Will and you are trying to get the Will probated (accepted by the court as valid) but someone is fighting it. In such a situation, your lawyer Will help you respond to the questions from the objectant to the Will and his lawyer while trying to prove that their concerns are mistaken or unfounded. Unfortunately, Will contests are sometimes filed by people who are simply upset that they didn’t “get anything” under the Will. It bears repeating therefore, that only spouses are entitled to receive a certain amount from someone else’s Will (called the spouse’s “elective share”) and that children, parents and everyone else can legitimately be cut out entirely.
If there was no Will, however, law will determine who gets the deceased person's property. Many people are surprised to learn, for example, that if a husband or wife dies without a Will and with a spouse and children, New York law, for instance, states that the spouse will get the first $50,000 plus one-half of what remains but that the children will share the other half, even if they are infants. If you want to cut one of your children from your Will, therefore, consult an attorney, because that child will have a strong incentive to contest your Will: if he can get it rejected for probate, he will get part of the children’s half.
What a lawyer will do when contestng a Will:
He will examine the Will.
He will appear on your behalf when the Will is being offered for probate, effectively telling the judge that this Will might be defective even though it was signed in front of witnesses or may otherwise appear correct.
The judge will permit the lawyer to examine the witnesses to a purported Will in sworn depositions, asking questions like: “Did the person who made the Will appear to be frightened, pressured or bullied into signing the Will? Who was there? Did he seem like he was in command of his faculties that morning? Did he appear to be on medications? Did he remember who his family members were and what he owned? Did he know he was signing a Will?”
The lawyer may go on to file with the court his formal objections to the probate of the Will and then begin subpoenaing the testimony and documents or email of other persons who knew the decedent or who may be at the root of the problem. Sometimes this clarifies that there is no problem, sometimes it reveals real misdeeds.