Being left out of a will can hurt your feelings and finances if you expected some money or property to come your way upon the death of a family member.

It happens more often than expected that after someone has passed, one or more potential beneficiaries learn that they have been left out of the will. There are times when this news comes to light prior to the death of the benefactor.

If you have found out you will be left out of a will or estate plan, we will discuss below some steps you can take to determine what has changed what options may exist for reversing the decision.

Can a Will be Changed while the Testator is alive?

The simple answer to that question is yes, your uncle can change his Will and leave you out. “Every person eighteen years of age or over, of sound mind and memory, may by Will dispose of real and personal property and exercise a power to appoint such property,” New York State Senate.

Wills are rarely a one-time deal and done. Many updated versions may take place before being finalized. Anyone with a Will can add and remove people as they wish. However, in New York State, a Will does not become legal until the testator has died and the Will has passed through probate, and the wishes carried out.

What can you do – if the relative is still alive?

Up until the point your uncle or other potential benefactors dies, you can talk to them and try to find out why you have been removed from the Will. Understanding the reasoning behind your removal from the will may help you address the issue.

  • If it is a misunderstanding or disagreement, an open conversation can often help clear the air.
    • There is the possibility that your relative did not cut you from their Will out of spite but because they have different goals for their estate after they pass.
  • You may believe that your relative is now mentally incapacitated. As a result of the incapacity, you believe that he is being taken advantage of by unscrupulous people by, amongst other things, being forced to change the Will without clear desire or understanding of why he is doing so. If that is the case, you may apply to court for a Guardianship order to help him. This can have an effect of overturning the previously executed Wills.

If you do not find out you have been cut from a Will until after a relative has passed, you might still consider the following options.

What can you do – after the Testator died?

Do you have a case? Under New York State Law, a Will can be contested by a natural heirs (spouse, children, grandchildren, siblings, etc.) or people included in the Will or codicil or previous Will or codicil.

There must also be a valid reason for contesting a Will. It cannot be challenged simply because someone is upset or angry about being left out of a will.

Contesting a Will can be an expensive endeavor. You will need to pay for lawyers’ fees, court costs, and possibly other associated expenses. If what you are hoping to get from the Will is not worth all the money you are putting in, it may not be worth it.

There is also an emotional cost to contesting a Will, even if you have the legal standing to do so. Contesting a last Will and testament is likely to upset other family members who benefited from the Will. Many families have been driven apart by disputes over the disbursement of assets after the death of a family member. Are you prepared for the potential emotional costs?

The Process for Contesting a Will

There are three things that, if proven, could nullify the will. To contest a will, you will need to prove at least one of these things existed:

  • Coercion—Proving that the testator was forced to write the Will under pressure or duress from someone else.
  • Fraud—The will can be invalidated if it is established that someone else created the Will rather than the testator listed.
  • Diminished capacity—You must be able to show that the testator was not of sound mind when changing the will due to such causes as Alzheimer’s or dementia. Diminished capacity is the most difficult to prove under New York law.

As the person contesting the will, the burden of proving these points falls to you.

According to Estate of Kumstar, 66 N.Y.2d 691, 1985, there are three ways to establish diminished capacity.

  • Did the Testator understand the nature and consequences of executing a Will?
  • Did the Testator know the general nature and extent of his or her property?
  • Did the testator know the identity of those who were the “natural objects of his or her bounty,” and did the testator understand their relationship with the same?

No matter what grounds you choose, contesting a will can be difficult. Allegations brought by you will go against the statements of attesting witnesses. If the will was executed properly, you would need an experienced estate litigation attorney to build a strong case.

Key Points

  • Your uncle can choose who he wants to include and leave out of his Will
  • The will cannot be contested until after his death
  • Think carefully before contesting about the costs involved and whether you have a legal basis for contesting the will
  • Proving any allegations is up to you, the contester

In Summary

It is important to remember that your relatives have a right to leave their estate to whomever they see fit. If you are considering pursuing the contesting of a Will, make sure it is for the right reasons and you  have a good case.  If you think one or more of the three reasons for validly contesting a will existed or if your relative is now incapacitated and being forced to change the Will, contact our office for a consultation.

Katya Sverdlov, CFA, Esq.
Sverdlov Law PLLC
30 Wall Street, 8th Floor, New York, NY 10005
Phone: 212-709-8112
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