The call often comes from a place of shock and deep personal pain. A parent has passed away in Manhattan, and during the first reading of the will, an adult child discovers they have been completely disinherited. The inheritance they may have expected—or depended on—has been left to a sibling, a new spouse, or a caregiver who appeared late in life. The immediate question is always the same: “Can they do that? Can I fight this?”
In New York, the law grants individuals “testamentary freedom.” This gives a person the right to distribute their property as they see fit, including the right to intentionally exclude a child. No law requires a parent to leave an inheritance to their adult children. But that right is not absolute. It applies only if the will is a valid expression of the parent’s true, uncoerced intentions.
When a child is written out of a will, the focus of any legal challenge is not on fairness, but on validity. The dispute centers on one question: was this document the product of your parent’s own mind, or was it the result of something else?
Grounds for Contesting a Will
When we represent a client challenging a will, we do not argue that the parent’s decision was unfair. Surrogate’s Court is not a court of emotion. Instead, we must present evidence that the will is legally invalid based on specific grounds. The burden of proof rests entirely on the person challenging the will—the “objectant.”
The most common grounds we examine are:
- Lack of Testamentary Capacity: The law requires the person signing the will (the testator) to possess a basic level of understanding. They must comprehend they are signing a will, have a general idea of their assets, and know their closest family members—the “natural objects of their bounty.” This is not a high bar. A person can have memory loss or physical frailties and still have capacity. A challenge requires medical records and testimony showing they lacked this fundamental understanding at the moment the will was signed.
- Undue Influence: This is the most frequent, and perhaps most difficult, ground to prove. Undue influence is more than persuasion. It is a form of coercion—often subtle and psychological—that overpowers the testator’s free will. We look for a confidential relationship where one person held a position of dominance, such as a caregiver who isolates the parent, manages their finances, and is suddenly named the primary beneficiary. It’s a pattern of control that results in a will reflecting the desires of the influencer, not the parent.
- Improper Execution: A will is a formal document. Under New York’s Estates, Powers and Trusts Law § 3-2.1, the will must be signed at the end by the testator in the presence of two witnesses, who must also sign their names within a 30-day period. If these formalities are not followed precisely, the entire will can be invalidated. A challenge can succeed not on the drama of undue influence, but on a flawed signing ceremony.
- Fraud or Forgery: In rarer cases, a will can be challenged if it was procured by fraud—the testator was tricked into signing it—or if the signature is an outright forgery.
The Sobering Reality of a Will Contest
A will contest is not a simple lawsuit. It is an emotionally and financially taxing undertaking for everyone involved. It forces family members into adversarial positions and can take years to resolve in Surrogate’s Court. Before starting down this path, it is critical to understand the risks.
One of the most potent tools a will-maker has is the in terrorem clause, or a no-contest clause. This provision states that if any beneficiary challenges the will and loses, they forfeit any inheritance they were set to receive. New York law, under EPTL § 3-3.5, generally upholds these clauses. If you were left $10,000 and you contest the will hoping for more but fail, you risk losing that $10,000. It is a powerful deterrent designed to prevent frivolous challenges and preserve the testator’s final wishes.
The decision to contest a will must be a deliberate and prudent one, based on strong evidence, not just on feelings of being wronged. Stewardship of a family’s legacy sometimes means accepting a difficult outcome, and other times it means fighting to correct a true injustice.
Assessing Your Position
The first step in any potential will contest is not filing a lawsuit, but gathering information. When a will is submitted for probate, the court issues a “citation” to all interested parties, including children who have been disinherited. This document provides a deadline for you to appear and state your objections.
Ignoring this notice is the worst possible action. Time is critical. The first conversation with an estate litigator should focus on the probate petition, the will itself, the deadlines you face, and an honest assessment of whether sufficient grounds exist to move forward.
