A few weeks after his mother’s funeral, a son from Queens receives a copy of her will and is stunned. For decades, he and his sister were to inherit the family home equally. But this new will, signed just a month before her death while she was in declining health, leaves the entire estate to a neighbor he barely knows. The signature looks shaky, and the witnesses are strangers. This is the moment a family must consider the difficult path of a will contest.
In my years of practice, I have seen how a suspect will can disrupt a family’s sense of order and justice. Challenging a will is not a decision to take lightly. New York courts operate on a strong presumption that a signed and witnessed will is valid. The law respects a person’s right to dispose of their property as they see fit—even if the choices seem unfair. The burden of proof falls squarely on the person objecting to the will, the “objectant,” to prove it is invalid. It is a high bar.
Grounds for a Will Contest in New York
Mere disappointment is not enough to overturn a will. Surrogate’s Court requires evidence of specific legal grounds for a challenge. Objections almost always fall into one of a few established categories.
The most straightforward challenge is based on improper execution. A will must be executed in strict compliance with New York’s Estates, Powers and Trusts Law. Specifically, EPTL § 3-2.1 requires that the testator—the person making the will—sign it in the presence of at least two attesting witnesses, or acknowledge their signature to them. Those witnesses must also sign the will within a 30-day period. If these formalities were skipped, the will can be invalidated on those grounds alone.
Another common ground is lack of testamentary capacity. This argument centers on the testator’s mental state at the moment they signed the will. To have capacity, the law requires three things: they must understand they are signing a will, know the general nature of their property, and recognize the “natural objects of their bounty”—their closest family members. A person can have memory lapses or even a dementia diagnosis and still possess the required capacity. The objectant must prove that, at that specific time, the testator lacked this fundamental understanding.
Undue Influence and Fraud
Perhaps the most emotionally charged claims are those of undue influence. This is more than persuasion. Undue influence 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 these claims arise when a testator is isolated and dependent on a single caregiver or a new acquaintance who suddenly benefits from a last-minute change to the estate plan.
To prove undue influence, an objectant must show the influencer had a motive, an opportunity, and actually exerted this influence to procure the will. When a confidential relationship exists, such as between a dependent person and their sole caregiver, the court scrutinizes the situation more closely, sometimes shifting the burden to the beneficiary to prove the will was a freely made act.
Finally, a will can be challenged on the grounds of fraud or forgery. Fraud occurs if the testator was tricked into signing the will, believing it was some other document. Forgery is simpler: the signature on the will is not the testator’s. Proving forgery can involve forensic handwriting experts, but it remains a difficult claim to substantiate without clear evidence.
The Reality of the Contest Process
A will contest begins with filing objections in the Surrogate’s Court where the will was offered for probate. This triggers a pre-trial discovery process governed by the Surrogate’s Court Procedure Act (SCPA). One of the most important tools is the SCPA 1404 examination, which gives the objectant the right to question the attesting witnesses and the drafting attorney under oath. This testimony can be crucial in uncovering evidence of improper execution or undue influence.
The process involves exchanging documents, taking depositions, and preparing for a potential trial. The vast majority of these cases settle. The process can be long and emotionally draining for a family already grieving. It is a serious undertaking, and its prospects must be weighed with sober judgment. Stewardship of a legacy sometimes means fighting for what is right, but it also means being prudent about the costs—both financial and emotional—of that fight.
If you believe a loved one’s final wishes were compromised, the first step is an objective analysis of the facts. Before taking formal action, our firm conducts a preliminary case assessment, reviewing the will and the circumstances of its signing to determine if viable grounds for a challenge exist under New York law.
