A client came into our office last month with his mother’s will. He was shocked—the entire estate, including the family home in Brooklyn where he grew up, had been left to a caregiver he had met only twice. His mother, who had been suffering from dementia, signed this new will just three weeks before she passed away. He came to us with a simple, painful question: “Is this right? Is there anything I can do?”
This is a situation my firm and I have seen many times. The grief of losing a parent is compounded by the confusion and suspicion that their final wishes were not their own. Contesting a will is not about disagreeing with a parent’s choices—it’s about questioning whether the document presented to the Surrogate’s Court is a valid expression of their intent.
Who Has the Right to Challenge a Will?
Before we discuss the reasons for a challenge, the first question is always one of “standing.” In New York, not just anyone can object to a will. You must be an interested party—someone who stands to lose financially if the will is admitted to probate. Typically, this means you are either a beneficiary in a prior will or you would be an heir under state law if there were no will at all (an intestate distributee).
If you were left one dollar in the new will, but a million dollars in the previous one, you have standing. If you are a child who was completely disinherited, you have standing because you would inherit if the will were invalidated. A close friend or a more distant relative with no direct financial stake, however, generally cannot initiate a contest. The court’s logic is clear: the process is for those with a tangible, pecuniary interest in the outcome.
The Legal Grounds for a Will Contest
Once standing is established, a will contest must be based on specific legal grounds. Simply feeling that the will is unfair is not enough. The law presumes a will is valid unless the objectant can prove otherwise. In my practice, these challenges almost always center on one of four arguments.
1. Improper Execution
New York’s Estates, Powers and Trusts Law (EPTL) is very specific about how a will must be signed and witnessed. Under EPTL § 3-2.1, the testator must sign the will at the end, in the presence of at least two attesting witnesses. The testator must also declare to the witnesses that the document they are signing is, in fact, their will. If these formalities were not strictly followed—if a witness was not present for the signature or if the testator did not make the proper declaration—the will can be invalidated on those grounds alone.
2. Lack of Testamentary Capacity
This is a medical and legal question. The person signing the will—the testator—must have had the mental capacity to understand what they were doing. This does not mean they needed to be in perfect health. The standard is whether, at the moment of signing, they understood the nature and extent of their property, knew who their natural heirs were, and understood that they were signing a will to dispose of that property upon their death. A diagnosis of Alzheimer’s or dementia does not automatically invalidate a will, but it is powerful evidence to consider in a capacity challenge.
3. Undue Influence
This is perhaps the most common and difficult ground to prove. Undue influence is more than just advice or persuasion. It is a form of coercion—often subtle and psychological—that overpowers the testator’s free will and substitutes the will of another. We often see this in cases involving an isolated, vulnerable person and a dominant individual in a position of trust, like a caregiver, new friend, or even a family member. The key is demonstrating that the will reflects the influencer’s desires, not the testator’s.
4. Fraud or Forgery
Fraud occurs when a testator is intentionally misled into signing a will. For example, they might be told they are signing a different document, or false statements might be made about a loved one to convince the testator to disinherit them. Forgery is simpler: the signature on the will is not the testator’s. Both are direct attacks on the authenticity of the document itself.
The Reality of a Will Contest in Surrogate’s Court
I am always direct with clients about the road ahead. A will contest is a serious piece of litigation. It is not a simple objection; it is a lawsuit filed in Surrogate’s Court that can be expensive, lengthy, and emotionally draining for a family already in mourning.
The process begins with formal discovery, including what are known as SCPA 1404 examinations. This allows the objectant’s attorney to question—under oath—the witnesses to the will, the attorney who drafted it, and the executor named in it. This is a critical step for uncovering evidence of incapacity or influence. From there, the case can proceed through motions and, eventually, to a trial.
It is also important to be aware of “in terrorem” or no-contest clauses. Many wills include a provision stating that any beneficiary who contests the will and loses will forfeit their inheritance entirely. While these clauses are enforceable in New York, they have exceptions. They are not a shield for wills procured by fraud or undue influence.
Challenging a will is an act of stewardship—an effort to protect a loved one’s true legacy. It is a significant undertaking, but when the circumstances demand it, it can be the only way to see that justice is done.
If you have received a probate citation or have reason to believe a loved one’s will is not valid, the first step is a deliberate analysis of the document and the facts surrounding its creation. We can provide a preliminary case review to help you understand your position and the potential grounds for a challenge under New York law.
