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How to Win a Will Contest in New York

You know that your loved one did not mean to make a will that puts you in a disadvantage. Yet, someone just went ahead and filed a document with the Surrogate’s Court presenting it to be your loved one’s will that does just that. Now it will be up to you and your New York estate attorney to prove that the will is defective and needs to be set aside by the court.

You have multiple lines of argument to make your case. Each line of argument is called a “ground.”

This is an explanation of the most commonly used grounds for overturning a will in New York, coupled with some pro tips on winning a New York will contest.

The legal reasoning is explained in some detail and can get a little involved, but not to worry – it gets easier once you get into it. If you would like to oppose a will and wish to ask me a question, I am only a phone call away at (212) 233-1233. You can also send me an email.

If this condensed and digested material seems easy and winning seems within easy reach, do not be lured into a false sense of comfort. Never go into a will contest without experienced trial counsel, lest you be crushed by the other side’s skilled defense. This article is just a taste of the battle ahead.

1. The person who died was not well enough to make a will

Mental Incapacity – To show mental incapacity to make a will, you will need to prove that the person who died did not understand one or more of the following:

  1. what they own
  2. who their relatives and friends are
  3. what is in their will.

Dementia Disorders – A will challenge based on lack of mental capacity has a higher chance of success when the person who made the will suffered from a dementia disorder.

  • Alzheimer’s – this is the biggest cause of dementia. Early onset can start as early as the age of 40 or 50, and progresses with age. It destroys a person’s cognitive functioning and may cause them to lose the capacity to make a will.
  • Vascular Dementia – often caused by a stroke, results from obstruction of blood flow to the brain
  • Parkinson’s Decease – degeneration of nerves in the brain.
  • Frontotemporal Dementia – deterioration and shrinkage in front and side areas of the brain
  • Dementia due to head injuries
  • Dementia due to HIV or medications

Changes in memory and behavior in older adults usually point to dementia. The gradual cognitive decline caused by a degenerative condition eventually results in the loss of mental capacity required to make a will. The more dementia progresses, the harder it becomes for a person to make decisions. Therefore, the later the stage of Dementia, the more likely it is for the will challenge to succeed.

Mental Illness – Mental illness in and of itself does not mean that the decedent lacks capacity. In order for a will challenge to work, the objectant to the will is going to have to show how the mental illness played a role in the making of the will. Some examples of mental illness that can impact the capacity to make a will are:

  • Depression – The will maker feels hopeless and passive and does not care what happens to their estate. The elderly often suffer from depression towards the ends of their lives, and the depression can be exacerbated by family conflicts relating to their inheritance.
  • Paranoia – The pervasive distrust of paranoia patients can make it easier to manipulate and “triangulate” them into excluding some people from their will.
  • Bipolar – The mood swings experienced by a bipolar patient can be exploited to influence the terms of their will, especially when it comes to time for will execution.
  • Schizophrenia – The delusions and distorted reality experienced by schizophrenia patients can be exploited to manipulate the patient into making a will bequest. More about schizophrenia here.

Personality Disorders – personality disorders do not automatically mean that the decedent lacked capacity, but they can still make a big difference in a New York will contest. For example, a “Cluster C” Dependent Personality Disorder can make the decedent more vulnerable to being unduly influenced into making a will, due to symptoms such as

  • excessive dependence on others
  • submissive behavior
  • fear to have to provide self-care
  • difficulty disagreeing with others and
  • tolerance of poor or abusive treatment.

Weak Physical State – A will challenge of this kind can also be applied to wills of decedents who were in such a week physical state that it can be said that their physical state adversely influenced their mental capacity.

Mind-Altering Pharmaceuticals – The fact that the decedent was on strong mind-altering pharmaceuticals during the will execution can play a difference when it can be shown that the decedent’s altered state influenced the making of the will. Sedatives, anti-psychotic and pain medications can push a person’s mental state over the edge of capacity.

“Drifting in and Out” and “Lucid Moments” – Some people, as they get older, may drift in and out, sometimes lucid and sometimes not. If you are contesting the will, you will try to win by showing that the decedent was never lucid at all, or was only lucid on rare occasions and the time of the making of the will was not one of those occasions. Those defending the will are going to say that the time of will execution was a “lucid moment.”

Some estate attorneys and medical professionals hold the view that the “lucid moment” concept is out of date with the modern understanding of metal capacity.  Their view is that since a person has no mental capacity it doesn’t “return” to them on some occasions. However, at this time New York courts still consider “lucid moments,” so this is an important factor to consider in New York will challenges.

Pro tip: Circumstantial Evidence – In a New York will contest, you do not have to prove that the decedent lacked capacity on the exact day of the will signing. The will challenger can use circumstantial evidence to show that the decedent lacked capacity during that time period.
Pro tip 2: Obtain Medical Records – The most effective strategy for challenging the decedent’s mental capacity is to obtain medical records from the medical providers and then go through the medical records and see if there are any notes that point to incapacity, such as evaluations from medical personnel and check for a list of Alzheimer’s or dementia medications, sedatives and antipsychotics.
Different forensic and analytical tests will be used to asses the mental capacity of the person who died. The decedent might have been administered a Mini-Mental Exam or the Clock Test while they were still alive. After their death, when an in-person mental exam cannot be administered, we can still use models of mental capacity such as PARADISE – 2 to argue that the decedent had impaired brain function at the time of the events in question.

2. The person who died was manipulated into making the will

Undue Influence connotes manipulation and meddling in the decedent’s estate plan. In legal terms, pressure to make a will is called coercion and manipulation is called undue influence. Proving undue influence involves proving that the people that the decedent trusted took advantage of him and manipulated him to make the will to their benefit.  Read more about undue influence.

Duress – On rare occasions, we see cases where the person who died was forced or coerced into making the will. Read more about duress.

Pro tip: Prove a Confidential Relationship – A common strategy of people challenging a will based on undue influence is to prove that the person benefiting from the will had a confidential relationship with the decedent. That makes it easier to show that the person benefitting from the will was in a position of influence and had the opportunity to pressure the person who made the will. In some situations, a confidential relationship may reverse the burden of proof and make it the job of the person defending the will to prove that there was no undue influence as opposed to the challenger of the will having to prove that there’s undue influence. The confidential relationship “power-up” does not work well when the beneficiary of the will is a relative, but can make a big difference when the person benefitting from the will is a caretaker or other professional helping the person making the will.

3. The will is a forgery

If any part of the will is determined to be forged, be that the text of the will or anyone’s signature, the will is invalid. If you think that a will was forged, read our thorough article on will forgery methods and red flags.

How Wills are Forged – To win based on forgery in New York, a will contestant needs to prove that the signature on a will is forged or imported from another document, or the text is manipulated. When we say manipulated, we mean the pages are replaced or the text is changed.

Handwriting Expert – We win forgery will challenges by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert would compare the handwriting on the will and would say that it’s not a close enough match. The handwriting expert would also determine if the handwriting on the will belongs to someone else, such as the person benefiting from the will.

Pro tip: – A forgery trial can easily become a battle of the experts. Getting the most presentable and authoritative expert can make the difference between winning and losing.

4. The beneficiaries obtained the will by lying

To win a will contest based on fraud, we will need to show that the beneficiaries knowingly misled the decedent in order to make him sign the will. We do that, and the will can be overturned and declared invalid.

Fraud in Factum – One type of fraud is misleading the decedent about the will itself. Beneficiaries slip a will under a guise of a different document or mischaracterize what is in the will and have the testator (make of the will) unknowingly sign it.

Fraud in the Inducement – Another type of fraud is misleading the testator about circumstances outside of the will. The can be fed misinformation about friends and relatives or about other circumstances in their lives.

Unscrupulous individuals, especially psychopaths with narcissistic personalities, are very good at using manipulative tactics. Their favored ways of manipulating vulnerable seniors are

  • triangulating – encouraging the victim’s negative thoughts about a close person and
  • gaslighting – providing a false view of reality to the victim

Those techniques are being used all the time to manipulate trusting older adults into leaving opportunistic charlatans an unfair share of the inheritance at the expense of the vulnerable person’s family and true wishes.

5. The will was not made correctly

To be valid, a will needs to be executed in compliance with New York’s formal requirements. A will shown not to be properly executed can be successfully challenged, contested, overturned and invalidated by the Surrogate’ Court.

The formal requirements that need to be met are as follows:

  1. The will has to be signed by the testator (or in their direction and in their presence)
  2. the signature must be at the end of the will
  3. two witnesses are required
  4. the will has to be signed in the presence of each witness
  5. the testator must have communicated to the witnesses that they are witnessing a will
  6. the entire ceremony must have been completed within 30 days of the testator’s signature

To be valid, a will has to be executed in accordance with New York will execution formalities. The most common will challenges involve problems with witnessing the will and problems with the testator declaring it to be their last will and testament to the witnesses.

In the modern world where ceremony has very little place, it is interesting to see how ceremony, procedure and something remarkably close to tradition or etiquette can make or break a legal document of utmost importance.

Pro tip: Will Printed from the Internet vs. Attorney-Drafted Will – A will that is printed out from the internet or filled out in a store-bought form is easier to challenge than a will drafted by a respected law firm. This is because the attorney who made the will would testify that the formal requirements of will execution were met.

6. The will was revoked

A will can be revoked by physically destroying it or by crossing out the signature.

A will that cannot be found is presumed to be revoked unless proven otherwise.

A will can also be revoked by making another will. If the decedent made another will, and he made that other will after the one you are challenging, the later will wins. If the later will is overturned, then you would either try to challenge the will before that one or leave it in place, depending on the situation.

We can combine reasons (grounds) for overturning a will

When It Rains, it Pours –  It is rare that you would initially present a Will challenge with only one ground. In fact, in the beginning stages of a will challenges, we often plead every possible ground for a New York will challenge, hoping that we find one that sticks at later stages of the case. This is called “alternative pleading.” If it looks like the decedent was not well enough to make a will, we would say that this diminished mental state made the decedent vulnerable to being misinformed or pressured to make a Will. We will also point out that the will was made in a hurry and was not properly executed.

Although some fact patterns present an opportunity for a laser-sharp focus on a single issue, the most common strategy is still to plead every possible Will challenge ground and see which one of them turns out to be more successful.


If you are involved in a will contest, contact a New York estate attorney. You will describe the circumstances of the making of the will and air out the case. An estate attorney can determine whether the proposed objections have merit, and may request a court-supervised examination of those involved before deciding whether it is worth your while to invest in a full-blown will contest.

We settle most many contests before trial. If settlement is not possible, the sides exchange documents and information and ultimately proceed to trial, where the judge or the jury decide whether the will is valid or should be overturned.

Remedies for a Defective Will – During a will contest, the court will decide at a trial whether will is valid. The executor is not permitted to distribute the estate until the trial is finished. If the court finds the will to be invalid, the court will do one or more of the following:

  • Not admit the will
  • Admit only a portion of the will
  • Admit an earlier will in its place
  • Not admit any of the wills, and distribute assets among the decedent’s relatives as if there was no will.
Deadline Alert: Once the will is admitted to probate, it will be too late to challenge it. Act before the first hearing in the case.

Vulnerable individuals are constantly taken advantage of when it comes to making wills. People who are physically disabled, cognitively impaired, isolated, confused and depressed can fall prey to unscrupulous relatives, caretakers and so-called “friends” with ulterior motives. A victim of will fraud often loves, relies on, and fully trusts the person who misleads them. If you believe that your loved one has been taken advantage of, you may be able to overturn their so-called “will” through a will contest in New York Surrogate’s Court. But at the same time, some people are wrongly accused of influencing a will maker when the will maker acted on their own volition. This is why we have the court system and the New York attorneys who practice before the court every day – to resolve those disagreements and let loved ones move on with their lives.

I have been litigating New York will contests for more than a decade. If you are involved in one, give me a call and I will be happy to talk to you about it. My name is Albert Goodwin and you can call me at (212) 233-1233 or send me an email. Thank you for reading my article and I look forward to speaking with you.

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