Estate Litigation FAQs for Our Clients

In these Frequently Asked Questions, our estate litigation attorneys provide helpful information and useful perspective on many of the most common questions and concerns. If your loved one died without a will or if you wonder if you need to contest some element of the estate, start here to find out more about your rights and options.

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  • FAQ: Will Contests - Do I have grounds for contesting a will? (Part 4 of 6)

    FAQ – Will Contests: Do I have grounds for contesting a will?  (Part 4 of 6)

    Grounds for Contesting a Will

    Undue Execution
    Revocation
    Incapacitation <<<<

    Fraud
    Undue Influence

    In the previous posts in this series on will contests in New York, we discussed who may contest a last will and testament and on what grounds a will may be contested.  In this Part 4, we will go into further detail on the third ground on which a last will and testament may be contested  – incapacitation aka lack of testamentary capacity.  Incapacitation is the claim that the Testator did not have the testamentary capacity required to execute a last will and testament.  Remember, the information below focuses on will contests in New York and more specifically on will contests in New York City.

    Lack of Testamentary Capacity:

    In order to be deemed to have the capacity necessary to execute a will, a testator must generally understand:

    1. What property he owns;
    2. Who are the natural objects of his bounty; and
    3. That he is executing a will and its implications.

    The standard for testamentary capacity is a relatively low one when compared with the standard for capacity to execute a contract.  The Testator need only have testamentary capacity at the time the will was executed.  So, a testator who suffered from senility could be deemed to have had testamentary capacity if, at the time the will was executed, he was experiencing a lucid interval.

    Only experts and the witnesses to the will can offer their opinion as to whether the decedent had testamentary capacity at the time the will was executed.  Other parties can testify about the decedent’s actions but cannot offer their opinion as to whether the testator possessed the capacity required to execute a will.

  • Who inherits property and assets when there is no will?

    When a person passes away in New York without a will (intestate), the heirs at law are entitled to receive the decedent’s assets.  

    Who are the Heirs?

    If the decedent had no will, then the heirs are determined by New York State Law:

    • If the decedent is survived by a spouse and no issue, then the entire estate goes to the spouse.
    • If the decedent is survived by issue but no spouse, the issue will split the estate evenly.
    • If the decedent is survived by both a spouse and issue, the spouse gets the first $50,000.00.  Then, the spouse gets half of whatever is remaining (the “residuary”) and the decedent’s issue split the other half equally.

    For example, let’s assume the decedent had a spouse and three children and the decedent’s estate is worth $230,0000.00.  The spouse gets $50,000.00 of the top, leaving $180,000.00.  Then, the spouse gets half of what is remaining, here $90,000.00.  This leaves $90,000.00 to be split equally among the decedent’s three children, so each child would receive $30,000.00.  The surviving spouse receives a total of $140,000.00 ($50,000.00 + $90,000.00).

    Let’s keep going.

    • If the decedent is survived by no spouse and no issue, then the entire estate goes to the decedent’s parents equally. If only one parent survives the decedent, then the entire estate would go to the surviving parent of the decedent.
    • If the decedent is not survived by a spouse, issue or parents, then the estate goes to the decedent’s siblings and children of pre-deceased siblings (nieces/nephews) in equal shares.

    For example, let’s assume that the decedent had 4 brothers and sisters, A, B, C and D.  C passed away a number of years before the decedent and had one child, E.  Let’s assume that the decedent’s estate is worth $100,000.00.  The estate would be divided into 4 equal shares of $25,000.00 and A, B, D, and E (child of pre-deceased sibling, C) would each get a share.  Now, assume the same facts except now assume that C passed away before the decedent but did not have children.  In this scenario, the estate would only be divided into 3 shares and A, B and D would each receive an equal share.

    Let’s go even further.

    • If the decedent is not survived by a spouse, issue, parents, siblings or children of predeceased siblings, then the estate goes to the decedent’s grandparents, with half going to the maternal grandparents and the other half going to the paternal grandparents. But grandparents rarely survive their grandchildren, so usually, the estate goes to the issue of pre-deceased grandparents (aunts, uncles, or 1st cousins), again half to the maternal side and half to the paternal side.

    Let’s again assume that the estate is worth $100,000.00 and the decedent was survived by 2 cousins on the maternal side and 4 cousins on the paternal side.  The estate gets divided into 2 equal parts ($50,000.00 for maternal and $50,000.00 for the paternal). On the maternal side there are 2 cousins, so each would receive $25,000.00.  On the paternal side, however, there are 4 cousins, so each paternal cousin would receive $12,500.00.

    Lastly.

    • If the decedent is not survived by any of the above, then the estate goes to the great-grandchildren of the decedent’s grandparents (1st cousins once removed), half to the maternal side and half to the paternal side.  Like the example above, the paternal side and maternal side each receive equal halves of the estate.  Then, cousins on each side would divide that one-half share equally by the number of first cousins on that side.

  • FAQ: Will Contests - Do I have grounds for contesting a will? (Part 5 of 6)

    Grounds for Contesting a Will

    Undue Execution
    Revocation
    Incapacitation

    Fraud <<<<
    Undue Influence

    This segment of our series on will contests in New York brings us to fraud as a ground for contesting a last will and testament.  Remember, the information below focuses on will contests in New York and more specifically on will contests in New York City.

    Fraud:

    The person challenging the validity of the decedent’s will has the burden of proving that fraud was committed.  In order to prove fraud, the objectant to the will must show by clear and convincing evidence that a false statement was made to the testator that induced him to make a will, and that he disposed of his property differently than if the fraudulent statement had not been made.  There must be a clear link between the fraudulent statement and the making of the will.

  • FAQ: Will Contests - Do I have grounds for contesting a will? (Part 6 of 6)

    Grounds for Contesting a Will

    Undue Execution
    Revocation
    Incapacitation
    Fraud
    Undue Influence <<<<

    The final part of this series on will contests in New York focuses on undue influence as a ground for contesting a will.  Undue influence is one of the more common grounds and is often associated with incapacitation.  This is due to the fact that a testator who is, or may be, incapacitated is particularly vulnerable to undue influence.

    Undue Influence:

    Undue influence is the final ground for contesting a will. The Objectant has the burden of proving that undue influence was exerted.  Undue influence is defined as ‘influence that amounts to true moral coercion that destroys the Testator’s ability to act independently.’  The Objectant must produce substantial evidence that the testator’s actions did not reflect his actual wishes.

    Undue influence is a question of fact, and in order to prove undue influence, the Objectant must show that the person who exerted undue influence was a beneficiary under the will, that he participated in the preparation or execution of the will, and that he exercised influence over the testator.

    The court will consider many factors, including the relationship between the testator and the person who allegedly exerted undue influence, the opportunity for exerting that influence, the physical and mental condition of the testator, the testator’s contact with family members or loved ones, the testator’s dependence on the influencer, and the provisions of the will along with the provisions of any prior will.  This is not an exhaustive list of factors, and the court will consider any relevant circumstances.

    In most cases, a showing of motive and opportunity alone are not enough to support a finding of undue influence. However, if the testator made a gift to someone in a confidential relationship with him (such as an attorney, nursing home employee, doctor or guardian) and the Objectant can provide some other piece of evidence that could point to undue influence (for example motive and opportunity), then the jury can infer that undue influence was used even though no direct proof is offered.