How to Contest a Will in New York

Here’s how to contest a will in New York, step by step:

Step 1: Show up on the scheduled day and ask the judge to place a hold on the will

A will does not take legal effect unless it’s ratified by a Judge. You can put off that ratification by showing up in the correct courtroom on the correct day at 9:30 am, waiting for your case to be called, and telling the judge to put a hold on the will. How will you know what day to show up on? You can get in touch with the court and they will let you know. Whatever happens, do not miss that hearing. If you miss it, you forfeit your opportunity to contest the will.

Step 2: Conduct a probe

The probe will involve taking a deposition of the witnesses of the will and the attorney who was involved with the will. (A deposition is examination under oath that’s recorded by a stenographer). The probe will also involve getting records - most importantly, the file of the attorney who made the will and the hospital records of the person who died.

Step 3: Figure out your strategy

After you’ve done the probe, you’ll likely have enough information to decide figure out your strategy. There are several strategies we can use, depending on what we know about the situation and the information we receive from the probe.

Strategy A: Claim the the document is not even a will

If the document was not made correctly, you can claim it’s not a will, just a worthless piece of paper. For example, if the decedent did not sign it, or one of the witnesses did not witness it.

Strategy B: Claim that someone manipulated the decedent

In this strategy, you claim that someone manipulated the decedent to write will they did not want to write.

Strategy C: Claim that the decedent did not have a mental capacity to make a will

Typically, it would be an older decent with reduced capacity, suffering from dementia or Alzheimer’s.

Step 4: File the Objections

You would prepare a document entitled “Objections” and file it with the clerk of the court, and provide copy to everyone involved in the process. The objections is a document that outlines your objections to the will. It typically lists the grounds for your objections, such as undue influence, lack of capacity, fraud, duress and lack of due execution. You have to file the "Objections" document within 10 days of completing the depositions. If you miss this deadline, you forfeit your objections and lose the will contest.

Step 5: Obtain Evidence Using Discovery

This involves examining everyone under oath, and possibly you yoursel being examined under oath. It also involves getting information from various sources, and you having to provide information in form of answers to interrogatories and document requests. A lot of this would have already been done by now, at the probe stage above.

Step 6: Obtain a Favorable Settlement

At this point in time, the court typically schedules a conference to try to get the parties to settle. Many NYC will contest cases do end up settling, but there is no guarantee.

Step 7: ... or Win a Trial

If settlement doesn’t happen and the objecting did not give up, a trial happens. The proponent of the will has to prove that the will was made correctly. If the contestant wants to win a will contest, they will have to prove that there’s something sufficiently wrong with the will to render it not valid, as we’ve explained above. Both sides will be able to call witnesses and show documents to the judge or the jury.

Typically, you will not be able to testify to any conversations with the decedent.

If the proponent of the will proves that it was signed by the decedent and witnessed by two witnesses, and the decedent had the basic capacity to understand things, the will is assumed to be valid, unless proven otherwise. This is why will contests are an uphill battle and a win is far from a guarantee. But with strong evidence and persuasive argument, a will contest win is possible.

Obviously this is a very simplified version of a drawn-out, complicated and subtle process. You should not try to do this yourself. You would not know what questions to ask at a deposition, what questions to list on interrogatories and what documents to ask for and from whom. Even if you had a list of deposition questions, it would not be useful to you because during depositions you have to think on your feet, in real time, and only experienced attorneys are able to do that. You do not know how to draft and serve objections. And once you get to trial, you do not have experience in examining witnesses and making objections to testimony and evidence.

If you’re looking for a will contest attorney, we at the Law Offices of Albert Goodwin are available for hire. You can call us at 212-233-1233.