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Contesting a Will in New York
When someone dies in New York, their will must go through probate. If you feel that someone is filing an invalid will, you can place a hold on the process and initiate a will contest.
Probate is conducted in the Surrogate's Court of the county where the deceased person lived.
As part of the probate process, the court will schedule a specific day for anyone who objects to a will to come in and let the court know. This is when you or your attorney can come in and start the will contest.
In most courts, you must come in in person. In some courts this can be done remotely.
Do not miss that date.
If you have an attorney, they will find out the date. If not, you can call the court.
To begin a will contest, appear before 9:30 AM on the scheduled day and inform the court you're filing a will contest. To play it safe, get in touch with the court beforehand and let them know you are planning to object to the will, ask them if you have to come in in person, and ask them if there is anything you need to do.
Critical Deadlines for Will Contests
Missing either of these two deadlines permanently forfeits your right to contest a will in New York:
Do Not Miss the Initial Hearing. You must appear at the first Surrogate's Court hearing, or the probate will proceed. There are no second chances on this.
Do Not Miss Your Deadline to File Objections. This comes later in the process. You must file written objections within 10 days after completing the oral examinations (SCPA 1404) of the will's witnesses and drafting attorney.
Typical Grounds for Contesting a Will in New York
In New York, there are specific legal grounds for contesting a will. The most common grounds are lack of testamentary capacity, where the person making the will did not understand the effect of the will, undue influence, where someone improperly influenced the person into making or changing their will, and deficient execution, where the will wasn't properly signed and witnessed according to New York law. There are also objections for fraud, forgery and revocation.
Stages of a Will Contest
Contesting a will in New York involves several critical stages:
First Hearing
You appear at the first hearing and declare your intention to contest.
Demands for Documents
You send out written demands for documents, such as emails, notes, and other evidence that shows your will contest has merit. You send out demands for medical records to the facilities that treated the decedent, to look for evidence of lack of capacity or of the involvement of people who are probating the will. You send out a subpoena to the attorney who drafted the will for all notes they have.Examinations of the Will's Witnesses and Attorney Who Drafted It
After you receive answers to those demands, you examine the witnesses to the will and the attorney who drafted the will. Examine means you ask them questions under oath while a court reporter is writing everything down. The reporter writes everything down in shorthand, and everyone receives a written transcript afterwards.
Filing Objections
If you feel that the probe yielded some indication that the will is not valid, you file objections to the will. There is a deadline to do so - you must file objections within the 10-day deadline.
The objections must state the reasons you are contesting the will, and specific grounds such as lack of capacity, influence, lack of execution.
Discovery & Settlement
During the discovery and settlement phase, both sides exchange more documents and information related to the case. More people are deposed, mostly parties to the case but also other people who were involved in the decedent's life or in the will drafting process.
At the same time, you and your adversaries conduct settlement discussions from time to time. The court supervises both the discovery and settlement process. The court encourages resolution of the case and prompt exchange of discovery demands and responses.
Legally, whoever you send notices to are required to cooperate in the process, provide documents and provide true answers under oath, even if it's not convenient or puts them in a bad light. The proponents of the will are required to share documents with you and appear for examinations even if it hurts their chances of probating the will.
Mediation
Mediation may be available depending on the county. In some counties, mediation is required.
Trial
Many cases in New York get resolved before trial, either through settlement, through one of the parties giving up, or through a motion. A minority of cases do get to trial.
Objectants to a will typically request a jury trial. However, most will contest trials in New York are bench trials decided by a judge only.
If the cases is high value, parties sometimes bring expert witnesses such as medical experts or handwriting analysts.
Who Can Contest a Will in New York
New York law restricts who can challenge a will. You must have "standing" - meaning you would receive more either under a previous will or under New York's intestacy laws. Standing typically applies to relatives who would inherit under New York's intestacy law if there was no will, as well as prior beneficiaries who received more under an earlier will than under the current will. Being excluded from a will alone doesn't give you the right to contest - you must prove you would receive more under a previous will or under intestacy.
New York Will Contests Costs & Timeline
Timeline Factors
Will contests in New York can range in time from about a year to a few years. Complex cases may take many years. Factors that affect the duration include things like the court backlog in your specific county, a complex case, many parties involved, and just people being unreasonable.
Typical Costs
Attorney fees vary by the experience and reputation of the attorney or firm. Typical will contest attorney fees in NYC and other major cities area start at about $500 per hour on average. A retainer deposit of at least $5,000 is required to get started. Many attorneys charge more than that, with some charging thousands of dollars per hour.
Attorneys' fees in a will contest in New York can add up to tens of thousands of dollars, in some cases hundreds of thousands. The bigger the estate, the more reason to hire a legal team that has the capacity and the track record to conduct the will contest.
Court Fees are minimal, $75-$150. There are no filing costs in the Surrogate's Court.
Expert fees are a factor in some cases, although most will contests do not use experts. Experts typically charge by the hour, and the fees for top experts can approach the fees of some attorneys.
For a more detailed breakdown of all potential costs involved in contesting a will, see our comprehensive guide: How Much Does It Cost to Contest a Will?
Is It Worth Contesting a Will?
Before investing time and money in a will contest, consider these factors:
When It Makes Sense to Contest
- Strong Evidence: You have compelling evidence of incapacity, undue influence, or improper execution
- Significant Financial Impact: The difference between what you receive under the will versus what you should receive justifies the cost and time
- Witnesses Available: Key witnesses are willing and able to testify on your behalf
- Recent Suspicious Changes: The will was changed shortly before death under questionable circumstances
When It May Not Be Worth It
- Weak Evidence: You lack concrete proof and are relying mainly on suspicions
- Small Estate Value: Legal costs would consume most or all of any potential recovery
- Time Constraints: The emotional and time investment outweighs potential benefits
- Family Relationships: Preserving family harmony is more important than the inheritance
- Strong Opposing Evidence: The will was properly executed with clear documentation of testator's capacity
Success Rates
In our experience, about two-thirds of will contests result in the contestant receiving more than they would have without contesting. However, success depends heavily on the quality of evidence and the specific circumstances of each case. Most successful contests either settle before trial or involve clear evidence of wrongdoing.
Defending a Will
If you're a beneficiary or executor facing a will contest, these defensive strategies can help protect the validity of the will:
Legal Defenses
Effective strategies to defend against will contests include challenging the contestant's legal standing to bring the case, demonstrating that the testator had sufficient mental capacity, showing proper execution with witnesses and formalities, establishing that the testator acted independently without undue influence, and invoking in terrorem (no-contest) clauses if present in the will.
Protective Measures
When defending a will, gather supportive elements such as testimony from the drafting attorney about the testator's condition, medical opinions confirming sound mind at time of execution, witness accounts of the testator's clear intentions, documentation showing absence of pressure or manipulation, and evidence of consistent estate planning intentions over time.
Settlement Considerations
When defending a will, important factors to consider include litigation costs versus the value of the contested bequest, the emotional toll and impact on family relationships, the probability of successful defense, potential for compromise solutions, and the time frame for resolution which often spans 1-3 years if fully litigated.
New York Surrogate's Courts
Each NYC borough has its own Surrogate's Court where will contests are filed and heard. You must file in the court where the deceased person lived. Here's where to file in each borough:
Manhattan (New York County)
31 Chambers Street
Phone: (646) 386-5000
Brooklyn (Kings County)
2 Johnson Street
Phone: (347) 404-9700
Queens County
88-11 Sutphin Boulevard
Phone: (718) 298-0500
Bronx County
851 Grand Concourse
Phone: (718) 618-2300
Staten Island (Richmond County)
18 Richmond Terrace
Phone: (718) 675-8500
For those in the counties surrounding New York City, here are the Surrogate's Courts where will contests are filed:
Nassau County
262 Old Country Road
Mineola, NY 11501
Phone: (516) 571-1500
Suffolk County
320 Center Drive
Riverhead, NY 11901
Phone: (631) 852-1713
Westchester County
111 Dr. Martin Luther King Jr. Blvd
White Plains, NY 10601
Phone: (914) 995-3100
Frequently Asked Questions
What percentage of contested wills are successful?
About two-thirds of will contests result in the contestant receiving more than without contesting. See our "Is It Worth It" section above for detailed factors that affect success rates.
What are the most common grounds for contesting a will?
The most common grounds for contesting a will are undue influence, lack of capacity and lack of due execution. In New York, lack of due execution is an easier ground to win than in many other states. That is because New York has many will execution requirements that other states do not.
What qualifies as contesting a will?
Showing up at the first hearing, and subsequently filing timely objections to the will qualifies as contesting a will. Getting more than you would have without the will contest qualifies as success.
What invalidates a will in NY?
A will in NY is not valid until it's admitted to probate. So if you successfully prevent a will from being admitted to probate, you have effectively invalidated it. But you do not have to completely invalidate a will in order to be successful in a will contest.
Is contesting a will stressful?
Stress is a state of mind. Having said that, any litigation can be a stressful experience, including will contests.
What is undue influence in a will?
Undue influence is exerting pressure on someone to make a will to the point that the person made a will that they did not necessarily want to make. What exactly is undue influence varies on a case-by-case basis - it's a fluid concept.
How to contest a will in New York?
To contest a will in New York, you have to show up at the first hearing, examine the attorney who drafted the will and the witnesses to the will, obtain and review evidence that you are entitled to, file timely objections to the will, conduct negotiations and settlement and possibly a trial.
Can a will be contested if a sibling is left out?
A sibling who is left out can file a will contest. To win or obtain a favorable settlement, the sibling would have to show that they have sufficient grounds to contest the will.
If you are interested in either contesting or defending a will, you can get in touch with us at the Law Offices of Albert Goodwin. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
