The call often comes a few weeks after the funeral. A son learns his elderly mother, living in her Brooklyn apartment, signed a new will just days before her passing—leaving her entire estate to a caregiver he barely knows. The original will, which he saw years ago, split the estate evenly among her children. He feels betrayed, certain his mother was pressured. Now, he’s facing a fight in New York Surrogate’s Court, and his grief is compounded by a sense of profound injustice.
In my years of practice, I’ve seen this scenario and its variations play out countless times. Estate litigation is not like other legal disputes. It’s deeply personal, fought between family members or those who were once trusted. The emotional stakes are just as high as the financial ones. A successful strategy isn’t about courtroom theatrics; it’s about a deliberate, methodical approach grounded in the law and a clear understanding of what a judge needs to see.
Beyond “What’s Fair”
The first conversation I have with a potential client often revolves around fairness. “My father would never have wanted this,” they’ll say. And they are almost always right. But Surrogate’s Court doesn’t operate on feelings or what we believe a loved one would have wanted. It operates on evidence.
Our job is to bridge that gap—to translate a family’s legitimate sense of injustice into a legal argument supported by provable facts. In a will contest, the law provides specific grounds for a challenge, such as:
- Lack of Testamentary Capacity: Did the person signing the will understand the nature of their assets and who their natural heirs were?
- Undue Influence: Was the person coerced or manipulated by someone in a position of trust, overpowering their own free will?
- Improper Execution: Was the will signed and witnessed according to the strict formalities required by New York law?
- Fraud: Was the person deceived into signing the document?
Simply being upset about an unequal distribution is not enough. The entire case hinges on our ability to build a factual record that supports one of these legal claims. This is where the real work begins.
Discovery Is the Battlefield
Most estate disputes are won or lost long before a trial. The critical phase is discovery—the formal process of gathering evidence. This is not a passive exercise. It is an active, and sometimes aggressive, investigation into the circumstances surrounding the contested will or trust.
A key tool in our arsenal is the examination of individuals involved in the will’s creation. Under Surrogate’s Court Procedure Act (SCPA) § 1404, we have the right to question—under oath—the attesting witnesses to the will and the attorney who drafted it. This is a crucial early opportunity to uncover inconsistencies. Was the person who signed the will lucid? Who was in the room? Who paid the lawyer? The answers to these questions can form the foundation of a case.
From there, our investigation expands. We subpoena medical records to establish a timeline of cognitive decline. We obtain financial records to trace suspicious transactions. We depose the person who benefited from the new will, forcing them to explain their relationship and actions under penalty of perjury. Each document, each testimony, is a piece of a larger puzzle. Our strategy is to assemble that puzzle so clearly that a judge—or the opposing party—can see the undeniable picture of what truly happened.
The Fiduciary’s Duty of Stewardship
Not all estate litigation involves challenging a will. Many disputes arise after the fact, targeting an executor or trustee who is failing in their duties. An executor is a fiduciary—a person legally and ethically bound to act in the best interests of the estate and its beneficiaries. This is a role of profound trust and responsibility.
Stewardship.
When that trust is broken, we step in to hold the fiduciary accountable. We see executors who self-deal, selling estate property to themselves for less than fair market value. We see trustees who make reckless investments or fail to distribute assets to beneficiaries in a timely manner. In these cases, our strategy is to demand a formal accounting, where the fiduciary must justify every single transaction to the court. If they cannot, or if their actions show a clear breach of their duty, we will petition the court to have them removed and surcharged for any damage they caused.
A well-drafted estate plan is a testament to a life’s work. When that plan is undermined by undue influence or mismanaged by a faithless fiduciary, the fight to set things right is a fight for that person’s legacy. It’s a fight we take very seriously.
If you are an heir who suspects a will is invalid or a beneficiary concerned about an executor’s actions, the first step is to organize the facts. Create a clear timeline of events, gather any documents you have—prior wills, letters, emails—and schedule a confidential assessment to review the merits of your case.
