Unequal Inheritance in New York: Can You Challenge a Parent's Will?

By Albert Goodwin, Esq., New York estate litigation attorney. Last updated: 2025.

Your parent died. The will, or the bank records, show that a brother or sister is getting far more than you. This article is written for you, the child who received less, and it answers one question: what can you do about it under New York law?

The short answer is that New York lets a parent leave children unequal shares, or nothing at all. An unequal split is not, by itself, a legal claim. You have a case only if the will or the lifetime transfer that created the inequality is itself defective. The sections below explain where to look for that defect, what the law requires you to prove, and how the process runs in Surrogate's Court.

If you are a parent trying to leave unequal shares without starting a fight, see our page on advanced New York estate planning techniques. This page does not cover planning.

Unequal inheritance is legal in New York

New York has no forced heirship for children. A competent adult may write a will that gives one child everything and another child nothing. The will does not need to state a reason. The only person with a guaranteed share of a New York estate is a surviving spouse, who may claim an elective share under EPTL 5-1.1-A (the greater of $50,000 or one-third of the net estate). Children have no comparable right.

If your parent died without a will, the rule flips. Under EPTL 4-1.1, children of an intestate decedent take equal shares (after the spouse's share, if any). In an intestate estate, an unequal result usually comes from assets that passed outside the estate, such as joint accounts or beneficiary designations. Those are discussed below.

So the first thing to establish is how the inequality was created. There are three common sources:

• The will itself: the document names unequal shares or leaves you out.
• Non-probate assets: a joint bank account, a payable-on-death account, a retirement plan beneficiary form, or a deed that put a sibling's name on the house.
• Lifetime transfers: money or property your parent gave a sibling before death, with or without an intent to count it against that sibling's share.

Each source has its own rules and its own proceeding. The analysis for a will is different from the analysis for a joint account, and you may need both.

Challenging the will: the four grounds New York recognizes

A will offered for probate in New York can be rejected on four grounds. A parent's preference for one child is not one of them. You need evidence that fits at least one of the following.

1. Improper execution (EPTL 3-2.1)

A New York will must be signed at the end by the testator, in the presence of at least two attesting witnesses or acknowledged to each of them, and the testator must declare to the witnesses that the document is their will. The witnesses must sign within thirty days of each other. A will that fails any of these steps is void regardless of what the testator wanted.

The proponent (the person offering the will) bears the burden of proving due execution. If an attorney supervised the signing, the court applies a presumption that the formalities were followed, and the attesting witnesses' affidavit under SCPA 1406 adds further weight. Execution challenges succeed most often with homemade wills, wills signed in hospitals without a lawyer, and wills where one witness never saw the testator sign.

2. Lack of testamentary capacity

The proponent must also prove the testator had capacity. The New York standard comes from Matter of Kumstar, 66 N.Y.2d 691 (1985). The testator must have understood, in a general way, (a) the nature and consequences of making a will, (b) the nature and extent of their property, and (c) the people who would naturally be expected to inherit, meaning their family.

The bar is low. A parent with early dementia, a terminal illness, or a history of confusion may still have had capacity on the day of signing. What matters is the testator's condition at the moment of execution. Medical records from around the signing date, the drafting attorney's notes, and the attesting witnesses' recollection are the main sources of proof. A will that misnames or omits a child the testator saw regularly, or that misdescribes major assets, can be evidence that the third element was missing.

3. Undue influence

This is the ground most children think of when a sibling who lived with the parent ends up with the estate. The standard was set in Matter of Walther, 6 N.Y.2d 49 (1959). Influence is undue only when it amounts to "a moral coercion, which restrained independent action and destroyed free agency," or an importunity "which could not be resisted," so that the will reflects the influencer's wishes rather than the testator's.

Persuasion, affection, and ordinary family pressure are not enough. The objectant bears the burden of proof. Because direct evidence is rare, New York courts allow undue influence to be shown circumstantially through facts such as:

• The beneficiary arranged the lawyer, drove the parent to the appointment, or sat in on the meeting.
• The beneficiary isolated the parent from other children, controlled the phone, or screened visitors.
• The parent was physically or mentally dependent on the beneficiary for daily care, medication, or finances.
• The new will departs sharply from an earlier will or from the parent's stated intentions.
• The beneficiary held a power of attorney and used it around the time of the will.

Where the beneficiary stood in a confidential relationship with the testator (caregiver, agent under a power of attorney, financial manager) and was involved in procuring the will, New York courts draw an inference of undue influence and require the beneficiary to explain the gift. See Matter of Putnam, 257 N.Y. 140 (1931), which applied this rule to an attorney-drafter who was also a beneficiary. The inference does not shift the ultimate burden, but it forces the favored sibling to come forward with evidence.

For a worked example involving a caregiver, see what to do when a relative left everything to a caretaker.

4. Fraud

Fraud requires proof that someone knowingly made a false statement to the testator that caused the testator to sign a will they otherwise would not have signed. A sibling who told the parent that you had stolen from them, or that you refused to visit when in fact you were being kept away, may have committed fraud in this sense. The objectant must prove each element, including that the parent relied on the lie. Fraud claims are often pleaded together with undue influence because the same facts support both.

What the will says about why you got less

Some wills state a reason for the unequal split: "I leave my son less because I paid for his medical school," or "I have provided for my daughter during my lifetime." A stated reason that is true makes a contest harder because it shows the testator knew the natural objects of their bounty and made a deliberate choice. A stated reason that is false, such as a debt that was repaid or a gift that never happened, can be evidence of fraud or of a mistaken belief induced by another sibling.

If the will does not state a reason, that silence is neither helpful nor harmful on its own. The court will not speculate about motive.

The in terrorem clause: what you can do without losing your share

Many New York wills contain a no-contest clause, also called an in terrorem clause. It provides that any beneficiary who contests the will forfeits what the will gives them. If you received something, even a small share, the clause is a serious threat. New York enforces these clauses.

EPTL 3-3.5 creates safe harbors. The following steps do not trigger forfeiture:

• Examining the attesting witnesses, the person who drafted the will, the nominated executors, and the proponents under SCPA 1404.
• Objecting to the court's jurisdiction.
• Refusing to join in a petition for probate or declining to sign a waiver.
• Asking the court to construe the will's terms.
• Contesting on the ground that the will is a forgery or was revoked by a later will, if you had probable cause.
• Bringing a discovery proceeding under SCPA 2103 or participating in an accounting.

The practical effect is that you can investigate before you decide. The SCPA 1404 examinations let you question the drafting attorney and the witnesses under oath, obtain the attorney's file, and review the parent's medical records, all without forfeiting your bequest. Only the filing of objections on grounds outside the safe harbor puts your share at risk.

If the will gives you nothing, the clause has no effect on you. You have nothing to forfeit.

Joint accounts: the Banking Law 675 presumption and how it is rebutted

A large share of unequal inheritance cases in New York involve no will contest at all. The will says equal shares, but the parent's largest asset was a bank account titled jointly with one child, and that child kept it. This is often the "unintended" unequal inheritance: the parent added a child to the account to help pay bills, not to make a gift.

Banking Law § 675 provides that when an account is opened in the names of two people "in form to be paid or delivered to either, or the survivor," the deposit becomes the property of both as joint tenants, and the survivor takes the balance on death. The statute makes this presumption "conclusive" as between the bank and the depositors, but as between the survivor and the estate it is rebuttable. See Matter of Kleinberg v. Heller, 38 N.Y.2d 836 (1976).

To rebut the presumption, the estate (through the executor, or through you if the executor refuses to act) must show by clear and convincing evidence that the account was opened for convenience only and that the parent did not intend to make a gift of survivorship. Facts that support a convenience finding:

• All deposits came from the parent; the child never contributed.
• The parent kept the passbook or statements and controlled the account during life.
• The child used the account only to pay the parent's bills, never for personal expenses.
• The child was added at a time when the parent was ill, hospitalized, or had just lost a spouse.
• The parent told others, or wrote, that the money was to be shared.
• The bank signature card shows the account was opened before survivorship language was explained, or the parent never signed a card with survivorship terms.

Since 1990, Banking Law § 678 has allowed banks to open accounts expressly designated as "convenience accounts." Such an account carries no survivorship right, and the balance belongs to the estate. If your parent's account was opened under § 678, the inquiry ends there. Ask the bank for the signature card and account agreement; they are the first documents to obtain.

A joint account claim is usually brought as a discovery and turnover proceeding under SCPA 2103 and 2104, or raised as an objection in the executor's accounting. For more on the procedure, see discovery and turnover proceedings in New York and what happens to a bank account at death with no beneficiary.

Lifetime gifts and advancements under EPTL 2-1.5

Children who received less often point to the sibling who got the down payment, the tuition, or the business loan. Can those lifetime transfers be counted against the sibling's share?

Under New York law, generally no, unless the parent documented the intent. EPTL 2-1.5 defines an advancement as an irrevocable gift intended by the donor as an anticipatory distribution in satisfaction of the donee's share of the estate. The statute then requires that the intent be proved by a writing contemporaneous with the gift, signed by the donor, or by a written acknowledgment signed by the donee. Oral statements by the parent, even to several witnesses, do not satisfy the statute.

If the writing exists, the advancement is charged against the sibling's share, in both intestate and testate estates. If it does not, the gift is simply a gift, and the sibling takes their full share on top of it.

Lifetime transfers are still worth examining for two other reasons. First, a transfer made when the parent lacked capacity, or procured by undue influence, can be set aside and recovered for the estate through a turnover proceeding, with the same standards discussed above. Second, a transfer made by a sibling acting under a power of attorney, for the sibling's own benefit, is a breach of fiduciary duty under General Obligations Law § 5-1505 unless the power expressly authorized gifts to the agent. See our page on abuse of a power of attorney.

Caregiver compensation: when a sibling claims the extra share was earned

A sibling who cared for the parent may argue that the larger share, or a separate payment from the estate, is compensation for years of unpaid work. New York law presumes that services rendered by a family member to a relative are gratuitous. To recover for caregiving as a creditor of the estate, the sibling must prove an express agreement for payment, and must file a claim under SCPA 1803. Without a written caregiver agreement, these claims usually fail.

The reverse is also true. If your sibling received a bequest that the will describes as payment for care, and the care was in fact minimal or paid for separately, that discrepancy is evidence in a fraud or undue influence case.

How a contest proceeds in New York Surrogate's Court

The following is the usual sequence when a child objects to a parent's will in a New York county Surrogate's Court. Timelines vary by county; the courts in Kings, Queens, and New York counties carry heavy calendars.

1. Citation: the proponent files the will and a probate petition. Every distributee (a person who would inherit if there were no will, which includes every child) must be served with a citation or sign a waiver. Do not sign a waiver if you are considering a contest. The citation states a return date.
2. Appearance: you or your attorney appear on the return date and request SCPA 1404 examinations. The court will set a schedule.
3. SCPA 1404 examinations: the attesting witnesses, the drafting attorney, and if needed the nominated executor are deposed. You obtain the attorney's file and, by subpoena, the parent's medical and financial records for the period around execution (the Uniform Rules generally limit this window to three years before and two years after the will date, subject to court order).
4. Objections: if the examinations support a contest, you file verified objections. Under the Uniform Rules for Surrogate's Court (22 NYCRR Part 207), objections are generally due within ten days after the examinations are completed, or by a date the court sets. Missing the deadline can bar the contest.
5. Discovery: full disclosure under the CPLR follows, including depositions of the favored sibling and other witnesses.
6. Summary judgment or trial: the proponent will often move for summary judgment. If issues of fact remain, the matter proceeds to trial. Either side may demand a jury on the issues of capacity, undue influence, and fraud.
7. Settlement: most contested probates settle, often after the 1404 examinations or after discovery. A settlement is approved by the court and the will is admitted with the agreed changes.

A contested probate in New York City commonly takes a year or more from citation to resolution; the sample NYC probate timeline shows the uncontested baseline. Costs depend on the fee arrangement, which may be hourly or, where the estate is large enough, contingent. Ask about fees before you begin.

Deadlines you cannot miss

• Objections to probate must be filed by the return date of the citation or within the period the court sets after SCPA 1404 examinations. There is no general statute of limitations that lets you reopen a will years later; once a decree of probate is entered, you must move to vacate it under SCPA 509 and CPLR 5015, which is difficult.
• A claim to recover a joint account or lifetime transfer for the estate is subject to the ordinary limitations periods (six years for most claims under CPLR 213, three years for conversion under CPLR 214), running from the transfer or the death depending on the theory.
• Objections to an executor's accounting must be filed by the date in the citation for the accounting proceeding. If you suspect the executor is ignoring improper pre-death transfers, you can petition to compel an accounting under SCPA 2205. See estate accounting lawyers.

Three illustrative scenarios

The scenarios below are composites drawn from the kinds of matters that come through New York Surrogate's Courts. They are not descriptions of specific clients or outcomes, and the law is applied to the facts of each case.

The Brooklyn joint account

A mother in Bensonhurst adds her son to her savings account after a hospital stay so he can pay her rent and utilities. Her will leaves everything equally to the son and a daughter. At death the account holds most of her money. The son, as survivor, claims it under Banking Law § 675. The daughter's path is a turnover proceeding under SCPA 2103, in which the estate tries to prove by clear and convincing evidence that the account was for convenience: all deposits were the mother's, the son never used the funds for himself, and the mother told her sister the money was to be split. The signature card and the account history are the first evidence to obtain.

The Queens caregiver's new will

A father in Flushing executes a new will eight months before death, leaving the house to the daughter who moved in to care for him and a token sum to his two sons. The daughter found the lawyer and drove him to the office. The sons were told the father did not want visitors. The sons' path is SCPA 1404 examinations of the drafting attorney and witnesses, followed by medical records. The caregiver's confidential relationship and involvement in procuring the will supports a Putnam inference, which the daughter must answer with evidence that the gift was the father's free choice. Whether that evidence exists decides the case.

The Manhattan tuition dispute

A parent on the Upper West Side paid one daughter's graduate tuition and told the family it would "come out of her share." The will divides the estate equally and says nothing about tuition. The other daughter asks that the tuition be charged as an advancement. Under EPTL 2-1.5 there is no contemporaneous signed writing, so the tuition cannot be charged. This scenario has no legal remedy, and knowing that early saves the family money and time.

When an unequal inheritance should be accepted

Not every unequal result is a case. A will that was prepared by an independent lawyer, signed with two witnesses, by a parent who was managing their own affairs, and that gives a plausible reason for the split, will almost always be admitted to probate. A joint account that the parent opened years earlier with a child who also deposited money will almost always go to the survivor. An honest assessment at the outset, after reviewing the will, the signature cards, and the medical history, is the most useful service a lawyer can provide, even when the answer is that there is nothing to pursue.

Related pages

• New York will contest attorney: the general grounds and procedure for contesting any New York will.
• Inheritance dispute attorney in NYC: disputes between beneficiaries and executors beyond the will itself.
• Are beneficiaries entitled to a copy of the will?: how to get the document before you decide.
• Beneficiary and executor conflicts: when the favored sibling is also the executor.
• Joint bank accounts and inheritance tax: the tax side of survivorship accounts.

Talk to a New York estate litigation attorney

If you received less than your siblings and believe the will or a joint account does not reflect what your parent intended, we can review the documents and tell you whether you have grounds under New York law. The Law Offices of Albert Goodwin handles probate contests, turnover proceedings, and accounting objections in the Surrogate's Courts of New York, Kings, Queens, Bronx, Richmond, Nassau, and Suffolk counties. Call 212-233-1233 or email [email protected].