A family patriarch from Brooklyn passes away. His grieving children begin settling his affairs. Then comes the shock: a new will, executed just weeks before his death, surfaces. It dramatically alters the distribution of his assets, leaving one child with nothing and a new acquaintance as a primary beneficiary. Suddenly, the family is not just managing grief. They are preparing for a fight in Surrogate’s Court.
In my years of practice, I have seen this scenario play out time and again. An estate plan is a final expression of a person’s wishes—a vehicle for transferring a lifetime of work to the next generation. But when that plan is thrown into doubt by allegations of fraud, undue influence, or incapacity, the result is estate litigation. This is not just another lawsuit. It is a deeply personal conflict that can fracture families and consume the very legacy it was meant to protect.
The Foundation of a Will Contest
In New York, a last will and testament is presumed valid. The burden of proof falls on the person challenging it—the objectant. This is not a matter of disagreeing with the decedent’s choices. The law provides specific grounds to contest a will, and each requires a high threshold of evidence.
The most common challenges we see are:
- Lack of Testamentary Capacity: The objectant must prove the person making the will (the testator) did not understand the nature of their actions. Did they know they were signing a will? Did they have a general understanding of their assets? Did they know who their natural heirs were? A momentary lapse in memory is not enough; the evidence must show a fundamental lack of comprehension when the will was signed.
- Undue Influence: This is one of the most difficult claims to prove. It requires showing that a person in a position of trust exerted such psychological control over the testator that the will reflects the influencer’s wishes, not the testator’s. It is more than persuasion; it is a level of coercion that subverts free will.
- Improper Execution: Executing a will is a formal ceremony with strict legal requirements. The testator must sign the will at the end, declare it as their will before two witnesses, and those witnesses must also sign within 30 days. A failure to adhere to these formalities can invalidate the entire document.
The discovery process in these cases is critical. We often begin by examining the people involved in the will’s creation. Under Surrogate’s Court Procedure Act (SCPA) § 1404, we have the right to question the attesting witnesses and the drafting attorney before filing formal objections. Their testimony reveals the circumstances of the signing and often determines if a challenge has merit.
The Fiduciary’s Duty to Defend
When a will is challenged, the nominated executor is in a difficult position. They are not a neutral party; they have a fiduciary duty to defend the will and carry out the testator’s wishes. This means using estate assets to hire legal counsel and actively participate in the litigation.
This role of stewardship is often misunderstood. The executor cannot simply step aside and let the beneficiaries fight it out. They must act prudently to protect the estate from depletion while defending the will they were entrusted to probate. At the same time, if the executor knows of a legitimate issue with the will, they cannot ignore it. Their primary duty is to the estate itself.
Litigation can also arise after a will is admitted to probate. Beneficiaries may sue a trustee or executor for mismanaging assets, self-dealing, or failing to provide a proper accounting. In these cases, the fiduciary is personally on the line. We represent both fiduciaries defending their actions and beneficiaries who need to hold a fiduciary accountable. The standard is high—a fiduciary must act with the utmost loyalty and care.
Beyond Winning: A Deliberate Approach to Conflict
Estate litigation is emotionally and financially draining. The process can take years, and legal fees can significantly reduce the assets available for distribution. It forces family members to testify against one another, airing private grievances in a public forum. There are times when a fight is necessary to correct a true injustice. But we also counsel our clients that “winning” in court can sometimes feel like a loss for the family.
A prudent approach requires a clear-eyed assessment of the likely outcomes. Is the evidence strong enough to meet the legal standard? What is the potential financial cost versus the potential gain? Are there opportunities for a negotiated settlement that could preserve family harmony and protect the bulk of the estate? Sometimes, the most intentional act of stewardship is finding a resolution outside the courtroom.
Our work is to provide that objective analysis. We prepare every case as if it will go to trial, gathering evidence and building a strong legal argument. But we also see our role as counselors, helping clients make deliberate, informed decisions about their family’s future.
If you are a fiduciary tasked with defending an estate or a beneficiary concerned about the validity of a will, your first step is to get a clear assessment of your legal position. My firm offers a confidential consultation to review the relevant documents and discuss the realities of a potential contest in Surrogate’s Court.
