Legal Question in Wills and Trusts in New York

Yes, you can contest the will.

Whether you will be successful will depend on various factors. Before I go into those factors, I should tell you that it is important that you promptly consult with an attorney. Show the attorney a copy of the will and be prepared to answer an array of questions about your father's condition (both physical and pyschological) at the time of the execution of the will, and about a variety of familial issues. For instance, you mentioned that both your parents have passed away -- was the will executed a short time after your mother's death? If so, your father may have been especially vulnerable to pressure from others.

Assuming that the will was properly executed and witnessed (which, of course, should be part of the analysis), the next question is whether your father was competent to make a will. Competence to make a will requires that he understood the nature and extent of his assets and the persons who would receive bequests under the will. .

If it appears that he was competent to make a will, the next question is whether there was any fraud or undue influence. This essentially scrutinizes whether he was somehow forced, tricked, or unduly pressured to execute the will.

In my view, undue influence, coercion, and the like are all species of a lack of competence, because it has always seemed to me that a person cannot be pressured into making a will that inappropriately includes or excludes a person unless the person's competency is impaired.

You say that you are "not even stated as a child." The fact that there is no reference to you in the will may raise questions about your father's competency at the time of the execution of the will.

There should also be attention focused on whether there was a previous will, and, if so, who were the legatees under that prior will.

I fully understand that the fact that you were left out of your father's will raises pragmatic issues (about finances), but also raises emotional and family issues.

As I said above, it is important that you promptly consult with an attorney. Look for any attorney who is experienced in probate contests. If you would like, I would be happy to meet with you and review the will and the surrounding circumstances and we can determine from there whether it would be wise to contest the will. Should you wish to contact me, you can do so at (212) 791-6240 or [email protected].

Good luck to you.