A son in Brooklyn receives a citation from Surrogate’s Court. His mother, who for 80 years was meticulous about her affairs, has apparently left her entire brownstone to a “friend” she met in her final months. The will, signed just weeks before her passing, disinherits her only child. For this family, and many others across New York, the grieving process is suddenly interrupted by a profound sense of injustice. The document feels wrong, and the question becomes: what can be done?
When a situation like this arises, my first conversation with a family is about managing expectations. Contesting a will is not a simple matter of fairness. The court’s primary duty is to honor the final wishes of the person who passed—the testator. A will that has been properly signed and witnessed is presumed to be valid. The burden of proof falls entirely on the person challenging it, known as the objectant.
Our work is not to rewrite a family’s history, but to determine if the document presented to the court is a true and final expression of the testator’s intent, or if it is the product of something else. Stewardship.
Grounds for a Will Challenge
In my practice, successful will contests are never built on emotion alone. They are built on evidence that supports one of a few specific legal grounds. Simply being left out of a will or receiving a smaller share than you expected is not, by itself, a reason for the court to intervene.
The most common grounds we evaluate include:
- Improper Execution. New York has very strict rules for how a will must be signed. Under Estates, Powers and Trusts Law (EPTL) § 3-2.1, the testator must sign the will at the end, in the presence of two witnesses. Those witnesses must also sign their names, within a 30-day period, after seeing the testator sign or after the testator acknowledges their signature. If any step in this formal ceremony was missed, the will can be invalidated.
- Lack of Testamentary Capacity. The person signing the will must have had a baseline understanding of what they were doing. This doesn’t mean they needed to be in perfect health. We look for evidence that they understood, in general terms, the nature and extent of their assets, who their natural heirs were (their closest family members), and the practical effect of the will they were signing. A diagnosis of dementia is not an automatic disqualifier, but it does require a deeper inquiry into their state of mind on the day the will was executed.
- Undue Influence. This is the most frequent and often the most difficult ground to prove. It occurs when a person in a position of power or trust uses that influence to subvert the testator’s own wishes and substitute their own. It is more than just advice or persuasion. It is a form of coercion that can be subtle and insidious, often leaving a trail of isolation, dependency, and unusual financial transactions.
The Role of Duress and Fraud
Less common, but equally serious, are cases involving duress or fraud. Duress is a direct threat—“sign this will, or else.” It is rare, but it happens. Fraud is a deception. For example, a testator might be told they are signing a lease or a power of attorney when the document is, in fact, a will. Both are direct attacks on the integrity of the document and, if proven, will cause the court to reject it.
Building the Case in Surrogate’s Court
Once objections are filed, the legal process begins. One of the first and most critical steps is conducting examinations under Surrogate’s Court Procedure Act (SCPA) § 1404. This statute allows us to question, under oath, the attorney who drafted the will, the witnesses who were present at the signing, and the person who is trying to probate the will—the petitioner.
This is where the foundation of a case is built. We ask detailed questions about the testator’s physical and mental condition. We probe the relationship between the testator and the main beneficiary. We scrutinize the drafting attorney’s notes and records. Was the testator alone with the attorney when discussing their wishes, or was the new beneficiary in the room?
From there, we gather other forms of evidence—medical records from treating physicians, financial statements showing a sudden change in patterns, and testimony from friends and family who knew the testator well. It is a deliberate, methodical process of reconstructing the testator’s final months to present a clear picture to the court.
These contests are demanding, both financially and emotionally. They require a clear-eyed assessment of the facts and a prudent strategy from the outset. The law cannot heal every family wound, but it can provide a path to correct a documented injustice and protect a generational legacy.
If you have received notice of a probate proceeding and have reason to believe the will does not reflect your family member’s true intent, the most important first step is to note the deadline to object. The next is to organize the will and any related documents for a confidential review of your potential standing and grounds to file an objection.
