A recent meeting with one of my clients caused me to think about what it means to contest a will. Some people have misconceptions about who can mount a challenge to a person’s will or estate plan, and how those documents can be protected from such a challenge. 

Only spouses and children (known as legal heirs) have the right to challenge a will or estate plan under New York law. For example, if I was married with three children, my wife, and three children would be my legal heirs. I would still be free to leave my assets to whomever I wish, but my heirs will always have a legal right to contest the will. 

One of the most common ways that clients think they can effectively disinherit someone from their will—and guard against a challenge—is to leave that person $1. The idea being that, by leaving an heir $1, it proves that the deceased acknowledged the existence of the heir in question, and deliberately chose to disinherit him or her for all intents and purposes. But he or she can still contest the will. 

There are only a handful of ways to do so in New York, and one of them is to assert that the deceased was not competent when the will was written. So, as in the example above, if I have three children and only name two of them in my will, the third child can make an argument that his or her absence on my will is a sign that I lacked the competence necessary to draft a legitimate will.

If I were in that situation, I would look carefully at two ways to discourage challenges to my will:

1. Leave the person “something worth losing” in conjunction with a no-contest clause. A will can include a no-contest clause that states if an heir challenges the will and loses, then they will not get anything at all. Obviously, if I am not leaving anything to this particular heir, or if I only leave $1, then the no-contest clause is not going to have any real value. Instead, I might choose to leave that heir something worth losing; $20,000 and a no-contest clause is enough to force most people to think very carefully before challenging a will.

2. Set up a living trust. A living trust will not extinguish a legal heir’s ability to challenge a will, but if it is done properly, probate can be avoided. In probate, a will has to go through court processes, and there is a ready-made forum in which heirs have the ability to make things difficult and challenge the will—but if an heir were to challenge your living trust, he or she would actually have to hire a lawyer and start an action, which is cost-prohibitive in many cases.

If you want to make sure that you and your family are protected from challenges to your will or estate plans, please contact us at (800) 680-1717.

Frank L. Buquicchio
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
800-680-1717