Legal Question in Wills and Trusts in New York

Re: Children unmentioned in will

The child has the right to contest, but in New York the child would have to burden of proving that the intent of the father was to include him as a distributee, and the failure to mention him in the will was oversight. A father has the right to disinherit a child so long as he intended to do so.

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Re: Children unmentioned in will

Stephen is correct, although the answer may be more complicated. Anyone can contest a Will, although a contest is time consuing and costly. If the excluded child is not mentioned, many grounds can be asserted to support a claim that the exclusion was inadvertent, not intended. Most attorneys, when drafting a Will where a child is to be disinherited, mention the child by name and make some statement on why the child is being excluded (this can be simply a statement stating I am making no provision for my son/daughter "X" for reasons known to both of us, or I am making no provision for my son/daughter "X" as I have otherwise provided for him/her). In some instances attorneys will leave the child to be excluded some nominal amount, without explaining anything (e.g., I give my son/daughter "X" the sum of $1.00). This recognizes that the parent considered the child and has decided to exclude him/her, except for the nominal amount, and makes a contest very difficult, but one can still be brought, using grounds such as undue influence or incompetency, but then the burden of proof shifts to the excluded child.