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Contesting a Will in New York
A will has no legal effect in New York until the Surrogate’s Court admits it to probate. A will contest is the proceeding in which someone with a stake in the estate asks the court not to admit it, because the person who signed it lacked capacity, was pressured or deceived, did not sign it properly, or did not sign it at all. The executor named in the will defends it. The court decides on evidence, most of it in records that already exist: the drafting attorney’s file, the medical chart, the witnesses’ recollections and the bank statements.
This page explains who can contest, the deadlines that apply, the grounds that succeed, how the case moves from the first court date through trial, and what it costs. The will contests guide has a short self-assessment and a page on each topic. Call us at 212-233-1233 or email [email protected] if you have a will or a citation in hand and want to know where you stand.
Who Can Contest a Will
New York limits will contests to people whose share of the estate would be larger if the will failed. The court calls this standing, and it is the first thing checked. Being upset with the will is not enough; being adversely affected by it is the test.
| Person | Standing? | Why |
|---|---|---|
| Spouse or child | Yes | They are distributees, the people who would inherit without a will, so any will that gives them less than intestacy affects them. |
| Parent, sibling, niece or nephew, more distant relative | Only if no closer relative survived | A sibling is a distributee only if there is no spouse, child or parent; a niece or nephew only if their parent, the decedent’s sibling, has died. |
| Beneficiary of an earlier will | Yes, if the new will gives them less | Anyone cut out of or reduced in a later will is adversely affected by it, related or not. |
| Executor named in an earlier will | Generally no | A person whose only interest is commissions cannot object without the court’s leave. |
| Friend, caregiver, or relative behind closer relatives, not in any earlier will | No | They would receive nothing even if the will failed. |
See who can contest a will, excluded children, and nieces and nephews for the details of each situation.
The Deadlines
When the executor files the will for probate, everyone with standing must be notified. That notice arrives in one of two forms. A waiver and consent asks you to agree to the will’s admission; do not sign it if you have doubts, because signing gives up your right to object. A citation orders you to appear on a stated return date if you object. The return date is the first deadline, and it runs from the citation, not from when you learned of the will.
You do not have to appear in person. An attorney can appear for you, and in most cases the appearance is made by filing a notice of appearance and a request for the SCPA 1404 examinations before the return date. Some courts will accept a written request from an unrepresented person; call the court’s probate department before the return date rather than assuming. What you cannot do is let the return date pass without appearing or filing anything, because the will is then admitted by default.
Once you have appeared and taken the SCPA 1404 examinations, objections are due within ten days after the examinations are completed, unless the court sets a different date. If no examinations are taken, objections are due by the return date. Objections filed late are rejected and the will is admitted. See filing objections.
If the will has already been admitted, the only route is a motion to vacate the probate decree. That requires a reasonable excuse for not objecting in time, a showing that the objection has merit, and prompt action once you learned of the decree. The odds fall with every month, though a person who was never served with the citation is in a much stronger position.
The Grounds That Win
Objections must state specific grounds. The court does not deny probate because a will is unfair; it denies probate because the will was not validly made. These are the grounds New York recognizes, with the page that explains each.
| Ground | What must be shown | Who bears the burden |
|---|---|---|
| Lack of capacity | At the moment of signing, the testator did not understand what they owned, who their family was, or what the will did. A diagnosis of dementia is evidence, not proof; see dementia. | The estate must prove capacity; the objectant must come forward with evidence against it. |
| Undue influence | Someone substituted their wishes for the testator’s: motive, opportunity, and a will that does not make sense without the influence. A beneficiary in a confidential relationship who procured the will must explain it. | The objectant. |
| Duress | Threats or coercion rather than persuasion. | The objectant. |
| Fraud | The testator was deceived about what they were signing or about facts that changed the plan. | The objectant. |
| Forgery | The signature is not the testator’s, or pages were substituted. The attesting witnesses and a handwriting expert decide it. | The estate must prove due execution; the objectant needs concrete proof of forgery. |
| Improper execution | The formalities of EPTL 3-2.1 were not followed: signature at the end, two witnesses who signed within the same 30-day period, a declaration that the document is the will. New York has more formalities than most states, and this ground wins more often here. | The estate, though an attorney-supervised signing is presumed valid. |
| Revocation | The testator revoked the will by a later will or by a physical act, or the original cannot be found and is presumed revoked. See lost wills and dependent relative revocation. | The objectant. |
| Insane delusion | A fixed false belief with no basis in fact that produced the disposition. | The objectant. |
How a Will Contest Unfolds
- The citation and your appearance. The executor files the petition and the original will. You are served with a citation. Before the return date, your attorney files a notice of appearance and a demand for the SCPA 1404 examinations. Nothing about the will is decided on the return date; it is the point at which you are either in the case or out of it.
- Demands for records. Before the examinations, you demand the drafting attorney’s file and the medical records from every doctor, hospital and facility that treated the decedent. The court’s rules limit this pre-objection discovery to three years before the will was signed and two years after, or the date of death if sooner, unless the court expands it for special circumstances.
- The SCPA 1404 examinations. You examine the attesting witnesses and the attorney who drafted the will, under oath, before a court reporter, at the estate’s expense. Where the will has a no-contest clause, the nominated executor and the proponent can be examined too. This is the free look: it tells you whether there is a case before you commit to one, and it does not trigger a no-contest clause. See SCPA 1404 examinations.
- Objections. If the examinations show a real problem, you file verified objections stating each ground separately and specifically, within ten days after the examinations end. Filing objections stops the will from being admitted until the contest is resolved, though the court will usually issue preliminary letters so the estate can be administered in the meantime.
- Discovery. Both sides exchange documents and take depositions: the parties, caregivers, family members, the decedent’s doctors and financial advisors. The proponents must produce records and appear for examination even when it hurts them, and so must you. See evidence and discovery.
- Settlement and mediation. Most contests settle after discovery, at a conference before the court attorney or in mediation, which some counties require. A settlement is written into a stipulation the court so-orders, with releases from everyone. See settlement.
- Trial. Cases that do not settle are tried before the Surrogate or, if a party demands one by the return date, a jury. Expert witnesses, usually a physician or a handwriting examiner, appear in the larger cases.
- Decree and appeal. The court admits the will or denies probate. If probate is denied, an earlier will may be offered or the estate passes by intestacy; see after a will is denied probate. Either side may appeal to the Appellate Division.
What It Costs and How Long It Takes
A contest that ends after the SCPA 1404 examinations, because the examinations showed there is no case or because the estate settled to avoid one, costs a fraction of a contest that goes through discovery. A contest that goes to trial takes one to two years and, in a backlogged county or a case with many parties, longer. The variables are the court’s calendar, the number of parties, the volume of records, and whether anyone is being unreasonable.
| Cost | What to expect |
|---|---|
| Attorney’s fees | We bill contested matters at $600 per hour against a retainer. Where the estate is large enough and the case is strong, we take will contests on a contingency basis. Other firms in New York City charge from several hundred to more than a thousand dollars an hour. See what it costs to contest a will. |
| Court fees | Modest. The Surrogate’s Court charges a fixed fee for filing objections and small fees for certified copies; there is no filing fee for the 1404 examinations. |
| The examinations | The estate pays the court reporter for the SCPA 1404 examinations. You pay only your own attorney. |
| Experts | Not needed in most cases. A physician reviewing the chart or a handwriting examiner bills by the hour, and the leading experts charge as much as the lawyers. |
| The estate’s defense | The executor’s lawyer is paid from the estate, which means partly from your share if you win a portion of it. That is one reason most contests settle. |
Is It Worth Contesting?
A contest is worth bringing when the evidence is concrete, the difference between what the will gives you and what you would otherwise receive justifies the cost, and the witnesses who know what happened are willing to say so. Recent, unexplained changes to a long-standing plan, a new beneficiary who was involved in making the will, and a signing at a hospital bedside or without a lawyer are the facts that make a contest strong. See the chances of winning.
A contest is not worth bringing on suspicion alone, or where the estate is small enough that legal fees would consume the recovery. The SCPA 1404 examinations exist so that you can find out which kind of case you have before deciding. In our experience, about two-thirds of the contests we take on end with the objectant receiving more than the will gave them, nearly always by settlement, and the ones that succeed are the ones with records behind them.
If the will contains a no-contest clause, the calculation changes. The examinations are safe, but filing objections and losing can forfeit what the will did leave you, unless the objection is for forgery or a later will and was brought in good faith with probable cause. See no-contest clauses.
Defending a Will
If you are the executor or a beneficiary and objections have been filed or threatened, the will’s defense is your responsibility and the estate pays for it. The burden of proving that the will was properly executed by a competent testator is on you, so the work starts with the attesting witnesses and the drafting attorney, whose file and testimony carry most contests. An attorney-supervised signing is presumed valid, and the objectant then has to prove influence, fraud or forgery with more than suspicion. See defending a contested will.
Where the Case Is Heard
A will is filed in the Surrogate’s Court of the county where the decedent lived, whatever the addresses of the executor and the beneficiaries.
| County | Address | Phone |
|---|---|---|
| New York (Manhattan) | 31 Chambers Street | (646) 386-5000 |
| Kings (Brooklyn) | 2 Johnson Street | (347) 404-9700 |
| Queens | 88-11 Sutphin Boulevard, Jamaica | (718) 298-0500 |
| Bronx | 851 Grand Concourse | (718) 618-2300 |
| Richmond (Staten Island) | 18 Richmond Terrace | (718) 675-8500 |
| Nassau | 262 Old Country Road, Mineola | (516) 571-1500 |
| Suffolk | 320 Center Drive, Riverhead | (631) 852-1713 |
| Westchester | 111 Dr. Martin Luther King Jr. Blvd., White Plains | (914) 995-3100 |
Frequently Asked Questions
What percentage of will contests succeed?
No court publishes a figure. In our own cases, about two-thirds of objectants end up with more than the will gave them, almost always through settlement. The number depends entirely on the evidence; a contest with the drafting attorney’s notes and the medical chart on its side is a different case from one built on suspicion.
What are the most common grounds?
Undue influence, lack of capacity and improper execution, usually pleaded together. Improper execution succeeds more often in New York than elsewhere because New York’s formalities are stricter.
Can a sibling who was left out contest the will?
Only if the sibling is a distributee, meaning the decedent left no spouse, child or parent, or if the sibling was a beneficiary of an earlier will. Otherwise a sibling has no standing, however unfair the will seems.
Do I have to go to court on the return date?
Not in person, in most cases. Your attorney appears for you, usually by filing a notice of appearance and a request for the SCPA 1404 examinations before the date. What you cannot do is ignore the date.
What happens if I win?
The will is denied probate. If there is an earlier valid will, it is offered for probate instead; if not, the estate passes under the intestacy statute. Winning a contest is only good news if what comes next is better for you, which is why we look at the earlier will and the intestacy shares before filing objections.
What is undue influence?
Pressure that overcame the testator’s free will, so that the will expresses someone else’s wishes rather than the testator’s. It is rarely proved directly; it is proved through motive, opportunity, isolation, a beneficiary’s involvement in making the will, and a disposition that makes no sense otherwise.
Can a will be contested after it has been admitted?
Only by a motion to vacate the decree, which requires a reasonable excuse, a meritorious objection and prompt action. It is difficult, and it gets more difficult with time. A person who was never served with the citation has the best chance.
If you are contesting or defending a will, the Law Offices of Albert Goodwin can help. Call us at 212-233-1233 or send us an email at [email protected]. Bring the will if you have it, the citation or waiver if you received one, and the dates.
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience 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].
