The call I dread is the one that comes a week after a funeral. It’s usually from an adult child, confused and hurt. A parent’s will has surfaced, and it is not what anyone in the family expected. A last-minute change benefits a new acquaintance or a single sibling, disinheriting others who were close to the parent for decades. The family home in Brooklyn, intended as a generational touchstone, is now promised to someone outside the family. This is the moment a simple estate administration turns into a protracted legal battle—a will contest in New York’s Surrogate’s Court.
When this happens, my first job is to separate grief from legal standing. While a surprising or seemingly unfair will is painful, “unfairness” is not a valid reason to challenge it. The law gives a person—the testator—broad freedom to dispose of their property as they see fit. Our work in challenging a will must be grounded in specific legal arguments that prove the document does not reflect the true, free will of the person who signed it.
Grounds for a Will Contest
A will is presumed to be valid. The burden of proof falls on the person challenging it, the objectant. In my practice, a few core arguments form the basis of nearly every legitimate will contest. These are not mere technicalities; they go to the heart of whether the testator was acting of their own volition and with a clear mind.
The most common challenge is based on a lack of testamentary capacity. This means we must show that the testator, at the moment they signed the will, did not understand the nature and extent of their property, who their natural heirs were, and the basic function of the document they were signing. This is a high bar. A person can have memory lapses or even a dementia diagnosis and still possess the required capacity on the day the will was executed. Evidence is key—medical records, witness testimony, and the drafting attorney’s own notes become critical.
Another powerful objection is undue influence. This occurs when a person in a position of trust manipulates the testator into creating a will that benefits the influencer. It is more than persuasion. It is a form of coercion that substitutes the influencer’s desires for the testator’s own. We often see this in cases involving caregivers or a new romantic partner who isolates an elderly individual from their family. The court looks for a pattern of control and a will that represents a radical departure from the testator’s previously expressed wishes.
Finally, there are challenges based on the execution of the will itself. New York’s Estates, Powers and Trusts Law (EPTL) sets out strict requirements. The will must be signed at the end by the testator in the presence of two witnesses, who must also sign their names. The testator must declare to the witnesses that the document is their will. A failure to follow these formalities can invalidate the entire document.
The Realities of Estate Litigation
Filing an objection is only the first step. Before a will contest reaches a trial, there is a crucial discovery phase. Under Surrogate’s Court Procedure Act (SCPA) §1404, an objectant has the right to examine the attesting witnesses and the attorney who drafted the will. This pre-trial discovery is where the strength of a case is often won or lost. We depose the witnesses to uncover the circumstances of the signing. Was the testator alert? Who else was in the room? Did the testator seem to understand what they were signing?
This process is invasive and emotionally draining for a family. It forces private medical records into the open and puts personal relationships under a microscope. It is also expensive. Litigation requires attorney’s fees, court costs, and often the expense of expert witnesses, such as geriatric psychiatrists who can offer an opinion on mental capacity.
My role is to provide a clear-eyed assessment of the odds. I am honest about what the law can and cannot do. Sometimes, the evidence simply is not there, and proceeding would only deplete the very estate the family is fighting over. In other cases, the evidence of undue influence or lack of capacity is so compelling that a settlement becomes a prudent path for the estate’s executor to consider. Stewardship means preserving the legacy, and sometimes that means avoiding a fight that would destroy it.
The Executor’s Fiduciary Duty
The executor—the person named in the will to manage the estate—is at the center of these disputes. An executor has a fiduciary duty, the highest duty of loyalty under the law, to act in the best interests of the estate and its beneficiaries. This duty requires them to defend the will against a contest if they believe it to be valid.
However, litigation can also arise from the executor’s own actions. Beneficiaries may sue to remove an executor for mismanaging assets, self-dealing (e.g., selling estate property to themselves at a low price), or failing to provide a proper accounting of the estate’s finances. This is a separate form of estate litigation that can occur even when the will itself is not in dispute. The court takes breaches of fiduciary duty very seriously and has the power to remove an executor and hold them personally liable for any financial harm to the estate.
Whether you are a beneficiary who suspects a will is invalid or an executor facing a challenge, the process is adversarial by nature. It forces family members onto opposite sides of a courtroom and can take years to resolve. The goal must be to proceed deliberately, based on evidence and sound legal counsel, not just emotion.
If you are considering a will challenge or are an executor tasked with defending one, the first step is a frank review of the document and its creation. Schedule a consultation with my office, and we will provide an honest assessment of your legal position.
