A son in Queens receives a call from his late mother’s attorney. The will she signed just three months before her death is entirely different from the one she had kept for twenty years. It disinherits him and his sister, leaving a seven-figure estate to a home health aide nobody in the family had met before her final illness. This is not a scene from a movie—it’s the beginning of a will contest, one of the most difficult challenges a family can face.
A will is offered for probate in Surrogate’s Court with a petition to have it declared the decedent’s final, valid testament. But if a rightful heir believes the document is invalid, they can object. This objection turns a straightforward administrative process into full-blown litigation. The family home, the investments, the personal keepsakes—everything is frozen until the court decides which will, if any, reflects the true intent of the person who passed.
In my practice, I have seen these disputes derail the stewardship of a family’s legacy. They are not merely about money; they are about fairness, memory, and a lifetime of relationships put under a microscope. An executor or beneficiary caught in this situation must first understand the grounds for the fight.
Grounds for a Will Challenge
A will is presumed to be valid. To overcome this presumption, an objectant—the person challenging the will—must prove their case on specific legal grounds. Disliking the will’s terms or feeling that they are unfair is not, by itself, a reason the court will entertain. The challenge must be based on the circumstances surrounding the will’s creation.
The most common grounds we see in New York include:
- Improper Execution: The law is strict about how a will must be signed and witnessed. Estates, Powers and Trusts Law (EPTL) § 3-2.1 lays out the formal requirements. The person signing (the testator) must declare it is their will, sign in the presence of two witnesses, and those witnesses must also sign, all within a 30-day period. Any deviation can invalidate the entire document.
- Lack of Testamentary Capacity: The objectant must prove that the testator did not understand the nature of their assets, who their natural heirs were, or the consequences of signing the document. This is more than just showing old age or a failing memory. It requires demonstrating a fundamental lack of comprehension at the moment the will was executed.
- Undue Influence or Duress: This is the most frequent—and most difficult to prove—claim. It alleges that a third party exerted such immense pressure on the testator that the will reflects the influencer’s wishes, not the testator’s. It’s a high bar that requires showing coercion so great that it destroyed the testator’s free will.
- Fraud or Forgery: This claim asserts that the testator was tricked into signing the will by a false statement, or that the signature on the will is not theirs at all.
The law provides a powerful tool for investigating these claims. Under Surrogate’s Court Procedure Act (SCPA) § 1404, an interested party can examine the attesting witnesses—and the attorney who drafted the will—before formally filing objections. This pre-objection discovery is a critical phase for gathering the evidence needed to build a case.
The Executor’s Fiduciary Duty
If you are named as the executor in a will that is being challenged, you have an immediate and critical role. You are not a bystander. You are a fiduciary, tasked with defending the will and preserving the estate’s assets. This is a duty owed not to any single beneficiary, but to the estate itself and to the wishes of the person who appointed you.
This means you must retain legal counsel to represent the estate in the litigation. You must also act as a prudent custodian of the estate’s assets—paying necessary bills and protecting property, but refraining from making any distributions until the court gives you the authority to do so. It is a position that requires impartiality, diligence, and a steady hand, especially when other family members are at odds.
The litigation costs, including the estate’s attorney fees, are typically paid from the estate itself. This often surprises beneficiaries, who learn that the very assets they are fighting over are being used to fund the fight. It is one of the harsh realities of a will contest—the longer it goes on, the more the legacy shrinks.
The Human Cost of Estate Litigation
A will contest is a legal process, but it is also a deeply personal one. Depositions require family members to answer intensely personal questions under oath. Private medical records become public exhibits. The emotional toll can be immense and, in many cases, the damage to family relationships is permanent.
For this reason, we often explore settlement. A negotiated agreement can give all parties a degree of certainty and control that a trial cannot. It allows the family to write their own ending rather than leaving it to a judge who did not know the decedent. While settlement is not always possible, it is almost always worth considering as a way to preserve both the financial and emotional legacy of the family.
The goal is not to “win” at all costs, but to find a deliberate and intentional path forward that honors the decedent while protecting your rights. Stewardship.
If you are an executor needing to defend a will, or a beneficiary who has serious doubts about the validity of a loved one’s estate plan, the first step is to get an objective assessment of the document and the facts. We regularly provide a confidential case review to help fiduciaries and family members understand their legal standing and chart a prudent course of action.
