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Can you Contest A Will: the Ins and Outs of a Will Contest

A person close to you has died, leaving a will. You later learn that you have been omitted from the will. Can you contest the will?

Who can contest a will?

Only a person with legal standing can contest a will. A person with legal standing is someone who will be financially affected by the admission of a will. Given this definition, there are only three types of persons who can contest a will:

  • an heir entitled by law to inherit if the decedent died without a will;
  • a beneficiary in a prior will; or
  • a beneficiary in a later will.

In all the above cases, the person can only contest if he stands to receive more when the will was not admitted, as opposed to being admitted. For example, if the beneficiary in a previous will would have gotten $10,000 but would receive $20,000 in the current will being offered for probate, the beneficiary does not have standing to contest the current will because he is not negatively impacted financially by the admission of the will.

The same logic applies for an heir. If the heir would have gotten $10,000 intestate but was named in the will to receive $20,000, then the heir does not have standing to contest the will.

Other considerations in contesting the will

Just because you have standing does not mean you should immediately contest the will. Having a solid ground to contest the will is key to being successful in setting the will aside.

In New York, SCPA 1404 (4) allows the examination of the attorney-draftsman, the attesting witnesses and the nominated executor, with costs borne by the estate, before the filing of the formal objections to contest the will. Under SCPA 1404, you can also request documents, such as medical records, and information through written interrogatories, that can help you decide whether there is sufficient ground to formally object to the will.

Gathered evidence under SCPA 1404 allows the potential objectant to craft a strong argument that can be used to formally contest a will.

Grounds to contest the will

Improper execution

One ground to contest a will is when the will was not properly executed. Under New York law, if the will includes a self-proving affidavit by the attesting witnesses or if the execution was supervised by an attorney, there is a presumption that the will was properly executed.

Proper execution means that the will (a) must be signed at the end by the testator, or by another person in the name of the testator and under the testator’s presence and direction; (b) must be signed by the testator in the presence of two attesting witnesses or acknowledged by the testator to each of the two attesting witnesses that the signature in the will is his signature; (c) the testator must, at any time during the execution and attestation, declare to the two attesting witnesses that the instrument that he signed is his will; and (d) the two attesting witnesses both attest the testator’s signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence address at the end of the will.

The most common reason a will would be denied probate due to improper execution is when the testator did not declare to the witnesses that what he is signing was his will. Although the testator need not declare it himself, there must be evidence showing that the testator affirmed to the witnesses that he was signing his last will and testament.

If the will was a do-it-yourself will completed with the help of an internet template and executed without an attorney, you may have a strong argument for improper execution. The best evidence for improper execution would be the testimonies of the attorney-draftsman and the attesting witnesses.

Lack of testamentary capacity

Even if the will was executed in accordance with the state’s formalities, one can still contest it if the testator executed it without testamentary capacity. Testamentary capacity refers to the testator’s legal and mental capacity to make a will. The testator must be at least 18 years of age and of sound mind. Testamentary capacity is generally presumed but doubt on the mental capacity of the testator can be provided by medical records. If the testator was old, taking mind-altering pharmaceuticals, and/or suffering from Alzheimer’s, depression, dementia, schizophrenia, and other similar illnesses or disorders, medical records can be obtained under SCPA 1404 prior to filing an objection to contest the will. These medical records can provide indications of, not only testator’s illnesses but, medications, sedatives, and antipsychotic drugs that the testator was taking at the time he signed the will.

Although this ground alone is difficult to prove, when combined with undue influence, duress, or fraud, the basis to contest the will becomes stronger.

Undue Influence

There is undue influence when a beneficiary of the will exerts improper influence amounting to moral coercion, convincing the testator to leave estate assets to him or her.

In New York, the following factors must be proven with preponderance of evidence: (a) motive to influence the testator; (b) opportunity to influence the testator; and (c) actual exercise of undue influence.

Although the presence of a close familial relationship might negate a claim for undue influence, it does not rule undue influence, because undue influence can be perpetrated by a relative, friend, caretaker, adviser, or someone in a position of trust to the testator.

In Matter of Paigo, 53 A.D.3d 836 (2008), the Court held that the sister of the decedent exerted undue influence upon decedent based on the following facts: (a) the decedent signed the will after surgery and one day after his release from intensive care; (b) ) the sister was the only person present when the decedent expressed his desires regarding the disposition of his estate; (c) the sister prepared the will; (d) the sister chose the three witnesses; (e) the sister was named executor of the will; (f) the sister was a substantial beneficiary, together with her parents and two other siblings; and (g) the children of the decedent were cut out from the will.

Today, a lot of the will contests revolve around undue influence. Undue influence, raised with the testator’s diminished mental capacity due to old age, illness, mental disorder, intoxication, or presence of antipsychotic drugs, can be a strong ground for contesting the will. One can argue that the testator’s old age, illness, or mental disorder substantially diminished his mental capacity in a way that allowed another person to easily exert undue influence upon him.


When a will is procured by fraud, it is denied probate. Fraud can occur in two ways: (a) fraud by way of execution; or (b) fraud by inducement. In fraud by execution, the decedent does not know that the document he is signing is his will. In fraud by inducement, a beneficiary makes substantial misrepresentations to the testator, making the testator change the disposition of his property in a manner different that he would have, if not for that statement. To assert fraud, a false statement must knowingly be made, and the false statement caused the creation of that will or its provision.

For example, there is fraud by way of execution when the testator, who is of old age, was led to believe by his caregiver that the document he was signing was an employment contract, when in reality, it was a will that left his whole estate to his caregiver. An example of fraud in inducement can be as extreme as the sister of the testator telling the testator that the testator’s child died in a car accident, and as a result, the testator left his whole estate in the will to his sister. In the same case between the testator, the testator’s sister, and the testator’s child, the fraud could be as subtle as the testator’s sister telling the testator that the child was committing acts which the testator would find to be disgraceful, such as prostitution, robbery, theft, when in fact, it was not the truth, leading the testator to leave a substantial portion of his estate to his sister, and excluding the child from the will.

Fraud, coupled with an allegation of the testator’s diminished mental capacity, can be a strong ground for contesting a will. The testator’s diminished mental capacity makes it easier for fraud to be committed against him.


There is forgery when the signature in the will is neither the signature of the testator nor the signature of a person whom the testator has directed to sign for him in his will. Forgery is proven by handwriting experts who can compare the signature of the testator with the signature in the will. Because forgery can only be proven by experts, it is important to get a the most authoritative expert in the industry.

The complex procedure of contesting a will

Contesting a will does not only include legal standing, but more importantly, having strong arguments for the will contest. The best way to ensure you will succeed in a will contest is to get the best estate litigation lawyer ‚Äď someone with experience who can guide you through the process.

Winning a will contest is not just about actually going through trial and securing a favorable judgment. Getting a good financial settlement as a result of mediation can also be considered winning a will contest. The results of the discovery procedures under SCPA 1404 will show the lawyer the strengths and weaknesses of one‚Äôs case ‚Äď whether it would be wise to pursue the will contest or enter into mediation. Will contests are not cheap and can be time-consuming, ranging from several months to years. One must weigh the financial costs and emotional strain of pursuing a will contest, and whether these legal costs would be less than what one would have received from the estate. Sometimes, it‚Äôs better to just let go.

A good estate litigation lawyer will help you win, if evidence is strong and the case is winnable, and will tell you to stop or mediate, if the case is weak. If you are considering a will contest or you are an executor who will defend a will contest, 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.