A son calls my office from Brooklyn. His father passed away a month ago, and a will he’d never seen before has just surfaced. It was signed two weeks before his father’s death, while he was in hospice care, and it leaves the entire estate to a home health aide. The new will disinherits both him and his sister, reversing a plan his father had maintained for over 30 years. The son’s question is simple and urgent: “Can I fight this?”
The answer is yes, but it’s a fight with strict rules. In my decades of practice, I’ve seen that the grief of losing a parent can be compounded by the shock of a suspicious will. The law provides a path to challenge such a document, but New York’s Surrogate’s Court doesn’t take this lightly. The court presumes a will is valid. The burden of proving otherwise falls squarely on the person lodging the objection.
Who Has the Right to Object?
Before the court will hear an objection, the person making it must have standing—a direct financial interest in the outcome. In New York, this generally limits a will contest to two types of parties:
- Distributees: These are the individuals who would inherit from the estate under state intestacy laws if the will did not exist—typically the closest living relatives, like a spouse or children.
- Beneficiaries of a Prior Will: If you were named as a beneficiary in a previous, valid will but were cut out or had your share reduced in the newer, contested will, you have standing.
If you don’t fall into one of these groups, the court will not hear your objections, no matter how valid they might seem. A close friend, a concerned neighbor, or a stepchild not legally adopted generally lacks the standing to initiate a contest.
The Four Primary Grounds for a Will Contest
Once standing is established, the objectant—the person challenging the will—must prove one of four specific grounds. Simply feeling that a will is “unfair” is not enough to have it thrown out. The argument must be rooted in a recognized legal deficiency.
1. Improper Execution
This is the most technical ground. New York Estates, Powers and Trusts Law (EPTL) § 3-2.1 sets out strict formalities for how a will must be signed and witnessed. The will must be in writing, signed at the end by the testator, and this signature must be witnessed by at least two people. These witnesses must sign their names within a 30-day period. If any of these steps were skipped or performed incorrectly, the will can be invalidated for improper execution.
2. Lack of Testamentary Capacity
This argument centers on the testator’s mental state at the moment the will was signed. It is not about whether they had dementia or a psychiatric diagnosis. The legal standard is specific—the testator must have understood three things:
- The nature and extent of their property—what they owned.
- The natural objects of their bounty—who their family members and loved ones were.
- The nature of the document they were signing—that it was a will that would dispose of their property upon death.
Proving a lack of capacity often requires medical records and testimony from those who observed the testator’s condition around the time the will was executed.
3. Undue Influence
This is one of the most common—and most difficult—grounds to prove. Undue influence is more than just persuasion or advice. It is a form of coercion, often subtle, that subverts the testator’s free will and substitutes the will of another. We often see this in situations involving a vulnerable, isolated individual and a person in a position of trust and power—like the caregiver in my client’s story. The objectant must show that the influence exerted amounted to “a moral coercion, which restrained independent action and destroyed free agency.”
4. Fraud or Forgery
Fraud involves direct deception. It can occur in two ways. Fraud in the execution is when the testator is tricked into signing the will, believing it is some other document. Fraud in the inducement is when the testator is intentionally fed false information that directly causes them to change their will—for example, being told a child had stolen from them when it wasn’t true. Forgery, of course, is when the signature on the will is not the testator’s at all.
The Reality of a Will Contest Proceeding
Challenging a will initiates a formal proceeding in Surrogate’s Court. It is not a quick or simple process. It begins with filing formal objections after the will is offered for probate. What follows is a period of discovery, where we gather evidence, review medical and financial records, and conduct depositions—known in Surrogate’s Court as SCPA 1404 examinations—of the witnesses to the will, the attorney who drafted it, and the person accused of undue influence.
These cases are emotionally taxing and can be financially demanding. They often place family members in opposition to one another during a time of grief. The decision to contest a will must be a deliberate one, made with a clear understanding of the high legal bar that must be cleared and the personal costs involved.
If you find yourself in a situation where a loved one’s final wishes appear to have been compromised, the first step is to preserve your rights. Deadlines in Surrogate’s Court are strict. If you have received a citation to appear in court for a probate proceeding, you must act. The most prudent course is to have an experienced attorney review the will, the surrounding facts, and any prior estate planning documents to assess the viability of a potential contest.
