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The death of a family member can evoke a range of emotions—sadness, grief, regret, or even relief when a decedent’s last illness and suffering has been hard or long.

After the family member’s death, some issues may surface that other family members did not foresee.  When the Last Will and Testament of the decedent is presented to the Surrogate’s Court for probate, each person and entity named in the Will must receive notice of the probate proceeding, and a copy of the Will.  Those documents also must be sent to everyone who would receive a share of the decedent’s estate if there were no Will—effectively, the closest living relatives, who are known in probate law as “distributees.”

What if I Was Left Out of a Will?

So what can happen if the Will “left someone out” who is a distributee? Or what if a significant other or friend was under the impression, however vague, that they would be included in the estate distribution?  That is when the disappointment begins and ill feelings and even anger take root.  Questions surface like: Why was I left out? Why did my sibling get a greater share than I did?  Why was my younger sibling named as executor of the estate, instead of me?

Under the law, a decedent has the right to name whomever they want to inherit his or her estate, and, with one notable exception,[1] can leave out anyone they want. Given this presumption, in most cases a court will grant probate to Wills (that is, approve and find them valid) and allow the estate to be distributed just as the decedent intended and prescribed in the Will. When a Will has been drafted by an attorney after careful consultation with the decedent to discern their true desires and is signed by the decedent with the required formalities, the likelihood of a successful probate of that Will is high.

Can I Contest the Will?

But there are exceptions that may be worth exploring. The facts and circumstances surrounding the signing of a Will may fuel suspicion:

• Was the Will signed near the time of death, when the decedent was not well, and suffering from debilitating illness or disability (like advanced dementia) that affected decedent’s mental capacity?
• Did the Will change the dispositional plan of a prior Will? And if so, why?  Does the Will run counter to the longstanding giving patterns and relationships of the decedent?
• Does the Will grant a greater share of the estate to a caregiver (a relative or otherwise) who became close to the decedent near the end of life? Is that preference legitimate, or is it the result of undue influence on the decedent at a time when he or she was vulnerable to overbearing suggestions?

Some of these issues may be worth exploring with legal counsel familiar with estate administration and Will contests. New York law provides an opportunity for a potential objectant to question under oath the drafter and the two witnesses to a Will, to explore all the circumstances surrounding the Will’s creation and execution.

If enough questions arise, formal objections to the Will can be filed, with a further opportunity to dig deeper, obtain medical and financial records, and even proceed to a hearing or trial for a definitive ruling on the validity of the Will.

What if it's Not a Will, But a Trust?

Similar issues can arise with respect to Trusts established as substitutes for a Will, and the same concerns about the competence of the Trust’s creator, or the undue influence upon him or her with respect to the terms of the Trust, can also be the subject of court proceedings.

MCCM’s estate litigation team has years of experience both in defending Wills against attack from disappointed relatives, and in contesting the probate of Wills where it becomes clear that something is amiss.  We will be happy to consult with you to provide proper guidance in deciding what to do.

McConville Considine Cooman & Morin, P.C. handles a wide variety of civil litigation matters. For estate litigation-related questions, please contact our litigation lawyers: Kevin S. Cooman at (585) 512-3502 or kcooman@mccmlaw.com; or Kristen M. McCormick at (585) 512-3526 or kmccormick@mccmlaw.com.

[1] In New York, a spouse may not be fully disinherited.  The law provides that a husband or wife omitted from a distribution under the Will may nevertheless assert a right to an “elective share”—a  minimum percentage of estate assets depending upon how many children the decedent has, and whether there is a pre-nuptial agreement or waiver of the elective share.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.