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Can a Child Contest a Will if Excluded?

a will

If your parents died leaving a will, and upon examination, you see that your name is not in the will, you are probably wondering now can a child contest a will if excluded? The answer is that a child can bring a will contest, but it would be up to the child to prove that the will contest has valid grounds.

Who can contest a will?

Under New York law, only those who have a pecuniary interest in the admission of the will for probate have legal standing to contest the will. Who are these persons with a pecuniary interest? They are people who would be financially affected in an adverse manner if the will was admitted to probate. Given this definition, the following people have been considered as interested persons with pecuniary interest and standing to object to a will:


A distributee is a relative of the decedent who stands to inherit under the laws of intestacy – when decedent dies without a will. The order of preference on who will inherit from decedent intestate is provided in EPTL 4-1.1. Usually, they are the spouse and the children. In their absence, the parents are the distributees. If there are no parents, spouse, or children, the siblings are the distributees.

These distributees can contest the will because they are financially interested – they have a pecuniary interest. The distributees will inherit when the decedent is considered to have died without a will.

For example, if you were an only child and your father died without a surviving spouse, you stand to inherit the entire estate if your father died without a will. But if in the will, your father left his entire estate to his mother (your grandmother) without leaving anything to you, you can object to the will.

What if you were estranged from your father? You haven’t talked to your father in a decade. Your father died without a surviving spouse, leaving the entire estate to his mother (your grandmother). Can you contest the will? Yes, you still can bring a will contest, but again, it would be up to you to prove that a will is not valid.

What if your father died, but was never married to your mother? There was no formal acknowledgment that you were his child. In his will, he left the entire estate to his mother. Can you contest the will? In order to have standing, you have to first prove that you are indeed the decedent’s child and entitled to inherit under intestate laws. Only after proving this can you be allowed to contest the will. Proof can take the form of an acknowledgment of paternity during the lifetime of the father or scientific evidence, such as a DNA test.

A beneficiary in a later or prior will

A person, even if not a distributee or related to the decedent, can still contest the will if the person was a beneficiary in a later or prior will. The beneficiary of a later or prior will can contest the will that is being offered for probate only when that beneficiary will receive less when the current will is admitted for probate.

For example, Beneficiary A is a beneficiary in the 1980 and 1982 wills of the decedent. In both wills, Beneficiary A will receive the same amount – $10,000. Can Beneficiary A contest the will? No, because he will not be financially affected with the admission of the 1982 will to probate. He stands to inherit the same thing.

What if Beneficiary A, who is supposed to receive $15,000 in the 1980 will, is only left with $5,000 in the 1982 will, can Beneficiary A contest the will? In this case, Beneficiary A can contest the will because he will be financially affected – he stands to lose $10,000 –if the 1982 will is admitted to probate.

Reasons a child can contest the will if excluded

The burden of proof to prove that the will should not be admitted is upon the objectant or challenger of the will. New York case law has provided many reasons why a child can contest the will if excluded:

The child was accidentally omitted because the will was made before the child was born or adopted

If you were accidentally and not intentionally omitted from the will as an after-born child, EPTL § 5-3.2 provides for the rules on what an after-born child will receive.

The will was not executed correctly

If the will was not executed under the supervision of an attorney, there is no presumption that the will was properly executed. Contesting the will may be easier.

If the will is not accompanied with a self-proving affidavit executed by the witnesses, the witnesses still need to testify to prove the will.

The decedent lacked testamentary capacity

Testamentary capacity requires that a person be of sound mind and at least 18 years of age. The lack of testamentary capacity is usually bolstered by medical records showing lack of mental capacity on the part of the testator. These medical records would show whether the testator was taking mind-altering pharmaceuticals or suffering from dementia, Alzheimer’s, schizophrenia, or other similar illnesses or disorders.

Review of medical records is limited to three years prior to the date of the will and two years thereafter, or from the date of decedent’s death, whichever is the shorter period. This 3/2 rule is found in Rule 207.27, Uniform Surrogate Court’s Rules.

The decedent was subjected to undue influence in the execution of the will

Undue influence happens when another person exerts improper influence upon your parent, amounting to moral coercion and convincing your parent to leave a substantial part of the estate to him. This is the often-used ground for contesting a will.

The will is a forgery

Forgery occurs when the signature in the will is not your parent’s signature. It can be proven by handwriting experts who can compare signatures and provide expert testimony.

The will was procured through fraud

The will is procured through fraud either by way of execution or by inducement. It is fraud by execution when a person asks your parent to sign a document, and your parent signs thinking the document was something other than his will. There is fraud by inducement when a false misrepresentation is made upon your parent, making your parent change the distribution of his estate because of this misrepresentation. For example, when someone tells your parent that you have died and because of this statement, your parent did not leave anything for you in the will, there is fraud by inducement.

In all cases, when objecting to the will, evidence presented should be limited to the 3/2 rule: 3 years before the execution of the will and two years thereafter or until the testator’s death, whichever is shorter.

Who pays for the will contest of a child who has been excluded from a will?

When a child who has been excluded contests the will, the first step is to request for an examination under SCPA § 1404. Except for atotrney’s fees, the costs of the SCPA § 1404 examination are paid for by the estate. This allows the child to determine whether a full will contest should be made based on the evidence obtained in the SCPA § 1404 examination.

The SCPA § 1404 examination allows you to:

  • Examine the attorney who drafted the will and the attesting witnesses
  • Request the decedent’s medical and financial records three years prior to the execution of the will until 2 years after the will’s execution or until the decedent’s death, whichever is shorter

Once completed, you have 10 days to file an objection to the will.

Should the child contest the will if there is a no-contest provision in the will?

The SCPA § 1404 examination is not yet a will contest because an objection to the will has not yet been filed. It is merely a precursor to an objection because it allows you to gather evidence to see if there are substantial grounds to contest the will. Thus, the SCPA § 1404 examination does not trigger the no-contest provision (in terrorem clause) in the will.

A no-contest provision (in terrorem clause) directs the forfeiture of a beneficiary’s inheritance in the will, in case such beneficiary contests the will and loses. If you were completely excluded from the will, then you have nothing to lose by contesting the will because there is no inheritance in the will to forfeit.

Should the child settle the will contest?

Will contests are expensive. You should take into consideration what you are going to potentially receive as against how much lawyer’s fees and court costs you would spend in a will contest. The SCPA § 1404 examinations will give you a good idea on whether there is enough evidence and legal basis to push through with your will contest.

Ultimately, when your case is strong, especially when the will was not drafted under the supervision of an attorney, the executor of the estate will settle the will contest, instead of waste precious estate resources paying lawyers to defend the will contest.

Aside from the financial aspect of a will contest, it can also be emotionally draining to be in conflict with family members. For this reason, it’s always better to study a will contest in totality and all its aspects before deciding to pursue it.

If you are a child who has been excluded by the parent from the will, do not despair. You have remedies. It is important to immediately consult with a will contest lawyer to discuss your options. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.