Will Contest Attorney in New York City

Cases where people contest a will are a very subtle and precise area of law. Skills and experience matter. A lot.

In these cases, people claim poor mental state, pressure from others, or not following the rules while making the will.

So what do these cases look like? They're hotly litigated. They involve a lot of steps. We look at the facts, review documents, and ask questions under oath. There are a lot of arguments and a lot of court hearings. There are challenges from both the court and the other side. There is a lot of argument, and there is also a lot of negotiation.

That's why you shouldn't go through this alone. We know New York law, we know the courts, and we know what works. We have an excellent track record of results. If you're facing a will contest, we can help. We'll review your situation and explain your options.

You can contact us by phone at 212-233-1233 or by email at [email protected].

The Grounds for Contesting a Will in New York

Not every disappointment can be turned into a will contest. New York recognizes a limited number of legal grounds on which a will can be challenged, and the burden of proof is on the person opposing the will. The four main grounds are improper execution, lack of testamentary capacity, undue influence, and fraud or forgery. A will contest typically combines two or three of these in a single set of objections.

Improper execution. EPTL § 3-2.1 requires that a will be signed at the end by the testator, in the presence of two witnesses, both of whom must sign within 30 days of each other. The testator must declare the document to be his or her will. If any of these formalities is missing or defective, the will cannot be admitted to probate. This sounds like a technicality, but it is often where will contests begin – witnesses cannot remember the signing, the witnesses signed at a different time and place than the testator, or the will was prepared by a non-attorney who failed to follow the rules.

Lack of testamentary capacity. The testator must be at least 18 years old and of sound mind. Sound mind means the testator understood the nature and extent of their property, knew the natural objects of their bounty (family members who would normally inherit), and understood that they were making a will. The standard is not high, but it can be defeated by medical evidence showing dementia, delirium, intoxication, or other cognitive impairment at the time of execution.

Undue influence. When a person with confidential access to the testator – a caregiver, a new friend, a child who isolated the testator from other family – exerts pressure that overcomes the testator's free will, the resulting will is the product of undue influence and not the testator's true intent. Undue influence cases turn on circumstantial evidence: the relationship between the testator and the alleged influencer, opportunity to influence, motive, suspicious circumstances around the will signing, and changes from prior estate plans.

Fraud and forgery. Less common but more dramatic. Fraud occurs when the testator was deceived about material facts that affected their estate plan. Forgery means the testator did not actually sign the will. These claims require strong proof – usually expert handwriting analysis, evidence of the testator's whereabouts at the time, or testimony from witnesses to the deception.

Who Can Contest a Will

Only a person with standing can object to a will. Standing means a financial interest that would improve if the will were rejected. The typical objectants are: distributees who would inherit under intestacy if there were no will, beneficiaries under a prior will that would take effect if the current will were rejected, and creditors of the estate in some circumstances. A disinherited relative who is not a distributee under intestacy and has no prior will to point to generally lacks standing.

Standing should be analyzed before any contest is filed. If you do not have standing, you cannot bring the contest, no matter how strong the underlying facts might be. We screen for standing in every initial consultation.

The Procedure of a Will Contest

A will contest begins after a petition for probate has been filed. The proponent serves a citation on all distributees and beneficiaries of any prior will. The recipients have a chance to appear, demand 1404 discovery (named for SCPA § 1404), and ultimately file formal objections to probate.

SCPA § 1404 examinations are a unique feature of New York will contests. They allow potential objectants to depose the witnesses to the will, the drafter of the will, and sometimes the proponent and other relevant individuals before deciding whether to file formal objections. The examinations are typically not transcribed for use in court but they are used to evaluate whether grounds exist. After the 1404 examinations, the objectant decides whether to file formal objections and proceed with the contest or to drop the matter.

If objections are filed, the case enters a litigation track. Full discovery follows – document demands, depositions, subpoenas to medical providers, banks, prior attorneys, and others. The parties may move for summary judgment if the facts on one or more issues are not in dispute. If summary judgment does not resolve the case, it proceeds to trial before the Surrogate, sometimes with a jury on factual issues.

In Terrorem Clauses

Many wills contain an "in terrorem" or no-contest clause that purports to disinherit any beneficiary who challenges the will. New York law gives effect to these clauses, but with significant exceptions. A beneficiary who has probable cause to believe the will is the product of forgery or who is doing certain limited types of investigation can sometimes preserve their inheritance even while taking actions that might otherwise trigger the clause. Anyone considering a will contest who is also named as a beneficiary should evaluate the no-contest clause carefully before filing objections.

Strategy and Settlement

Will contests rarely go all the way to a contested trial. Most settle, sometimes after the 1404 examinations and sometimes after full discovery. Settlement usually involves a reallocation of the estate among the contestants and beneficiaries in exchange for the contest being withdrawn. We approach every contest with a clear sense of the strength of the case on both sides and a realistic view of what a settlement should look like. Sometimes the right move is to push hard to trial; sometimes it is to take a reasonable share early. We tell clients honestly which path makes sense.

What to Bring to Your Initial Consultation

If you are considering a will contest, gather as much of the following as you can before your first meeting:

• A copy of the will if you have one.
• Any prior wills you are aware of.
• Information about the testator's family – names of children, spouses, siblings, and parents.
• Notes about the testator's mental and physical condition in the months and years before death.
• Names of doctors who treated the testator and any hospitals where the testator was admitted.
• Information about the people who were close to the testator – including anyone who may have isolated them or controlled their access to family.
• Records of any financial transactions that seem unusual.

The more information we have at the outset, the more accurate our initial assessment can be.

Defending a Will Against a Contest

We also represent proponents – executors and beneficiaries who need to defend a will against an attack. The defense of a will is in some ways the mirror image of the contest: gather evidence of capacity, document the execution, line up witnesses who knew the testator, and demonstrate that the will reflects the testator's true wishes. We have defended wills in cases that settled favorably and in cases that went to trial.

Talk to a Will Contest Attorney

Will contests are time-sensitive. Deadlines run from the date of service of the citation. If you have received a citation in a New York probate proceeding or if you are considering challenging a will that you believe is invalid, call us promptly. We will evaluate your situation, explain the available paths forward, and tell you what we think your case is worth.