Wills don’t have to be fair. An individual can leave his or her assets to practically anyone. (There is an exception for disinherited spouses, who are protected by statute and entitled to a share of a deceased spouse’s estate, even though the surviving spouse has been written out of the will.) There is no legal basis for challenging a will simply because you didn’t receive a bequest to which you feel entitled. However, there may be other grounds for challenging a will.
For example, one basis for challenging a will is that a beneficiary named in the will exerted undue influence on the decedent during the preparation of the will. Undue influence can be shown to exist if, prior to death, the individual was very sick and dependent on a caregiver who receives an unusually large inheritance. A claim of undue influence also can be supported where the beneficiary took action to prevent other heirs from seeing or communicating with the decedent prior to death.
Illness in seniors can affect the mind and the ability to make reasonable decisions. A will may be challenged on grounds of incapacity if it was made when the individual was suffering from dementia or taking medication that diminished their decision-making capacity.
There are specific execution formalities which must be followed in order for a will to be valid. These formalities vary from state to state and include things such as the way the document is prepared, how it’s signed, the number of witnesses, and whether the witnesses can be named in the will as beneficiaries. Failure to properly comply with the required execution formalities may serve as the basis for challenging a will.
Another situation where a will might not be followed is when it is inconsistent with other testamentary-type documents. For example, if your will leaves all your assets to one person but your life insurance policy names a different beneficiary, the designation in the life insurance policy will generally override the will. The same is true for beneficiaries named in pension documents, annuities, IRAs, and other retirement accounts.
Elliot Schlissel is an attorney licensed to practice in the State of New York. His law firm, with offices in Nassau County, Suffolk County and Queens County, practices in family law & divorce, criminal law, personal injury matters, bankruptcy, and foreclosure defense.