Contesting a Will Created by a Software Program or App in New York

Reviewed by Albert Goodwin, Esq., New York estate litigation attorney. Last updated: June 2024.

Online platforms and mobile apps such as LegalZoom, FreeWill, Trust & Will, Quicken WillMaker, and Nolo make it easy to generate a will in minutes. The software can produce a polished document, but it cannot do the one thing that most often determines whether a will survives a challenge in New York: supervise a proper execution ceremony. That gap is exactly what makes software- and app-created wills uniquely vulnerable to contest — and it is the focus of this page.

This article is the specialized resource on our site for wills generated without attorney supervision. For the general legal standards that apply to any will challenge, see our overviews of will contests and wills in NYC. Here, we concentrate on the defects that are distinctive to do-it-yourself, template, and electronically generated wills.

Why software and app wills are more vulnerable to a contest

A software program drafts language, but it does not stand in the room when the will is signed. In New York, that distinction is decisive for two reasons.

No attorney-supervised due-execution presumption

When an attorney supervises the signing of a will, New York courts apply a presumption that the will was properly executed in compliance with the statutory formalities. This presumption — recognized in long-standing New York case law and reinforced by the procedures surrounding SCPA 1406 (self-proving affidavits) — places the burden on the objectant to overcome it.

A will created by an app or online template almost never benefits from this presumption, because no attorney supervised the ceremony. The proponent who offers the will for probate must then affirmatively prove that every formality of EPTL 3-2.1 was satisfied. For a homemade or downloaded will, that proof is frequently missing, contradicted, or impossible to reconstruct years later.

Self-proving affidavit gaps

Many online templates either omit the self-proving affidavit under SCPA 1406 entirely or include a form that the witnesses never properly complete before a notary. Without a valid self-proving affidavit, the proponent must locate the original attesting witnesses and obtain their testimony under SCPA 1405. DIY testators often used friends, neighbors, or relatives as witnesses who later cannot be found, do not recall the signing, or contradict one another — each of which can be developed into an objection.

The execution defects that recur in DIY and online wills

EPTL 3-2.1 requires that a New York will be: (a) signed at the end by the testator; (b) signed or acknowledged by the testator in the presence of at least two attesting witnesses; (c) accompanied by the testator's declaration to the witnesses that the document is his or her will ("publication"); and (d) signed by both witnesses within one 30-day period at the testator's request. Software wills frequently fail one or more of these requirements in predictable ways:

• No publication. The single most common defect: the testator never told the witnesses the document was a will. Online instructions are easy to skim, and many people sign in front of witnesses who never understood what they were attesting to.
• Signature not at the end. Printed templates sometimes leave dispositive language, addenda, or instructions below the signature line, raising EPTL 3-2.1(a) problems about whether the will was signed "at the end."
• Witnesses not present together or did not sign within 30 days. DIY signings are often informal, with witnesses signing at different times or off-site.
• Interested witnesses. Where a beneficiary also served as a witness, EPTL 3-3.2 may void that beneficiary's gift unless two other disinterested witnesses are available. People drafting alone frequently use a beneficiary as a convenient witness.
• Pages reordered or altered after signing. Loose-leaf printed templates make it easy to question whether the probated pages are the pages that were actually executed.

Electronic wills, e-signatures, and remote witnessing in New York

Some apps advertise fully "digital" or electronically signed wills. New York readers should be cautious. New York has not adopted a general electronic wills act, and EPTL 3-2.1 contemplates a physically signed instrument with witnesses. A will that exists only as an electronic record, signed with a digital signature and never printed and wet-signed in the presence of witnesses, faces a serious risk of being denied probate.

Remote witnessing raises a related issue. During the COVID-19 emergency, New York temporarily authorized remote, audio-video witnessing of wills under a series of executive orders. Those orders were time-limited and have expired; they do not provide a permanent basis for video-witnessed execution. A will signed during that window may need careful analysis of whether the specific emergency procedures were followed, while a will video-witnessed outside any authorized period is exposed to challenge for failing the in-person presence requirement. If an online platform let a testator sign over video, the manner of witnessing should be scrutinized closely.

How to investigate and challenge a software-created will

Because these wills usually lack the attorney-supervised presumption, discovery is often where the case is won or lost. Under SCPA 1404, before filing formal objections, an objectant may examine the attesting witnesses, the person who supervised execution (if any), and the will's preparer, and may obtain the decedent's relevant records. For a DIY or app will, this examination frequently reveals:

• that no one actually supervised the signing;
• that the testator never published the document as a will;
• that witnesses cannot confirm the testator's signature or their own presence;
• account and download metadata showing who actually created the document and when.

If the SCPA 1404 examinations expose an execution defect, the will can be denied probate without ever reaching questions of capacity or undue influence.

Other grounds still apply

Using software is not, by itself, a ground to contest a will. The traditional grounds — lack of testamentary capacity, undue influence, fraud, and forgery — apply to a software-made will exactly as they apply to any other. For a full discussion of those grounds, see our will contest overview. Two points are worth noting in the software context:

• Undue influence is easier to develop where one person controlled the app account. When a beneficiary set up the online account, entered the dispositions, and arranged the signing, courts examine motive, opportunity, and actual exercise of influence. In Matter of Paigao, 53 A.D.3d 836 (3d Dep't 2008), the Appellate Division upheld a finding of undue influence where the beneficiary prepared the will, selected the witnesses, was named executor, and was a substantial beneficiary while the decedent's children were excluded — a fact pattern that maps closely onto a relative who manages an elderly testator's online will.
• Capacity records are obtainable through SCPA 1404. Where the testator was elderly or ill, medical records can be developed to support a capacity objection, especially when paired with undue influence or fraud.

Should you contest? Practical considerations

A will contest is not just a trial; many are resolved through negotiated settlement or mediation after SCPA 1404 discovery reveals each side's strengths and weaknesses. Contests can take months to years and carry real financial and emotional cost. The right strategy depends on the size of the estate, the strength of the execution evidence, and what you would otherwise receive. An experienced estate litigator can tell you candidly whether to pursue, settle, or step back.

Frequently asked questions

Are LegalZoom and other online wills valid in New York?

They can be — but validity depends entirely on how the document was executed, not on the software that produced it. If the testator complied with EPTL 3-2.1 (signed at the end, before two witnesses, with publication, witnesses signing within 30 days), an online will can be admitted to probate. The problem is that DIY signings frequently fail one of those formalities, and there is no supervising attorney to establish the due-execution presumption.

Can you contest a will made with an app?

Yes. An app-created will is contested on the same grounds as any other will — most commonly improper execution, and also capacity, undue influence, fraud, or forgery. Because app wills usually lack attorney supervision and may have incomplete self-proving affidavits, improper-execution challenges are often the strongest avenue.

Is an electronically signed (e-signature) will valid in New York?

New York has not enacted a general electronic wills statute, and EPTL 3-2.1 contemplates a physically signed will witnessed in person. A will that was only e-signed and never executed in front of witnesses in the manner the statute requires is at high risk of being denied probate.

What is the strongest argument against a DIY will?

For most homemade or template wills, improper execution under EPTL 3-2.1 — frequently the absence of publication or a defective self-proving affidavit under SCPA 1406 — is the strongest line of attack, because the proponent must prove proper execution without the benefit of the attorney-supervision presumption.

Speak with a New York estate litigation attorney

Software- and app-created wills present a distinct set of execution problems under New York law, and the outcome often turns on facts that only surface through SCPA 1404 discovery. Whether you are considering contesting a will produced by an online program, or you are an executor preparing to defend one, the Law Offices of Albert Goodwin can evaluate the execution, the witnesses, and your options. We have offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected] to discuss your matter.