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What are the Chances of Contesting a Will and Winning in New York City
If you are thinking about contesting a will, start from the premise that it is an uphill battle. Will contests do succeed, but only on strong grounds and with careful preparation, and most of them end in a settlement rather than a verdict. This page explains why the odds run against the contestant, which cases tend to win, what a contest costs at each stage, and how to decide whether yours is worth bringing. If you want help with that decision, our will contest attorneys can assess your grounds.
Why Contesting a Will Is an Uphill Battle
The law presumes that a will is valid. As the contestant, you bear the burden of overcoming that presumption with strong evidence. The recognized grounds for invalidating a will are improper execution, forgery, fraud and undue influence (with lack of capacity closely related), and each must be supported by compelling proof, not suspicion. New York law generally favors honoring the testator’s wishes, so a court will overturn a will only on convincing evidence of incapacity, undue influence or another recognized ground.
The practical hurdles are just as real. Will contests often drag on, and the longer they run the more they cost in legal fees, with no guarantee that you will win or recoup what you spent. Contesting a will almost always does permanent damage to family relationships; even a contestant who wins pays an emotional price. With so many hurdles, most will contests fail outright, which is why an honest assessment at the outset matters more than anything else.
What Usually Happens
Precise statistics on will contest outcomes are hard to come by, but the general picture is consistent: most will contests do not succeed at trial. The presumption of validity, the high evidentiary burden, the cost of litigation and the procedural complexity all tilt outcomes toward upholding the will.
The success picture is more complex than trial wins, however, because most contests never reach a verdict. Many settle for some payment to the contestant, even when the contestant might not have won at trial, because the proponent will often pay something to make the case go away. Strong contests typically settle before trial because the proponent wants to avoid the risk of losing. Weak contests sometimes settle for nuisance value to end the litigation. The cases that go all the way to trial tend to be the ones where the parties’ assessments of strength differed so much that no settlement could be reached. For most contestants, the realistic goal is a settlement that improves their position relative to the existing will; full trial success is the exception.
Which Contests Succeed and Which Fail
Whether a case fits the success profile or the failure profile is the first thing to work out before committing to a contest. The same facts cut both ways.
| Factor | Contests that tend to succeed | Contests that tend to fail |
|---|---|---|
| Timing and mental state | The will was signed in the last months of the testator’s life, particularly during a hospitalization or after cognitive decline, and physicians documented dementia, delirium or other impairment around the time of execution. | The will was signed during a period of clear competence. |
| Relationship to earlier plans | The new will dramatically changes long-standing arrangements without obvious cause; the change itself is suspicious. | The will is consistent with the testator’s long-stated wishes. |
| The favored beneficiary | The favored beneficiary isolated the testator from other family members in the period before the will change. | The favored beneficiary had a documented close relationship with the testator over many years. |
| How the will was prepared and signed | A do-it-yourself or non-attorney will, signed in the favored beneficiary’s home, brought to the testator by that beneficiary, witnessed by that beneficiary’s friends. | Prepared by an experienced estate attorney with a proper execution ceremony, a self-proving affidavit and full witness participation. |
| The contestant’s motivation | A genuine, evidence-backed concern about the will’s validity. | Disappointment with the result rather than a real question about validity. |
The 1404 Examinations Are the Pivot Point
The examination phase under SCPA § 1404 is the critical strategic pivot in most contests. Before the examinations, the contestant usually has only suspicions and limited information. Afterward, the contestant has direct testimony from the will witnesses, the drafting attorney and others. Sometimes the examinations reveal that the case is much stronger than expected; sometimes they reveal weaknesses that make pursuing the contest unwise. Most experienced will contest attorneys recommend the examinations as a low-cost way to evaluate the case before committing to formal objections.
How to Improve Your Chances
Act quickly, so that you do not miss the deadline to object, and retain a will contest attorney early enough to assess whether you have valid grounds. In the objections themselves, plead every possible ground. After discovery has produced more evidence, we can narrow the case to the one or two issues that actually have traction.
Then build the evidence. Deposing the personal representative and the attesting witnesses may reveal lies, inconsistencies or improper execution of the will. Medical records confirming the testator’s mental state, other impairments, or the taking of mind-altering medication can provide strong proof of incapacity. As the picture forms, weigh the costs and benefits honestly: how strong and convincing is your evidence, what is the estate worth, how much time will you spend, and what will the legal fees be?
We try to settle will contests before trial. If settlement is not possible, the parties exchange further documents and information and the case progresses to trial, where the judge or jury decides whether the will is valid. In our experience, most cases settle where the will’s execution was not supervised by an attorney or where there is strong evidence of improper execution or incapacity. If the case does go to trial, the arguments must be clear, persuasive and grounded in facts and evidence.
What a Settlement Looks Like
When settlement is the realistic goal, the negotiation typically focuses on the percentage of the estate the contestant will receive in exchange for dropping the contest; whether the other beneficiaries’ shares are reduced proportionally or the favored beneficiary alone bears the reduction; how taxes are allocated among the parties; confidentiality and release provisions; and the timing and mechanics of distribution. A skilled negotiator can often produce settlement value that approaches what a successful trial would have yielded, with the cost and certainty advantages of avoiding trial.
Mistakes That Undermine a Contest
The tactical errors we see most often are filing without adequate factual investigation, pursuing claims based on speculation rather than evidence, failing to evaluate a no-contest clause before objecting, letting emotion drive litigation decisions, refusing reasonable settlements out of personal animosity, failing to coordinate with other potential contestants, and underestimating the cost of the litigation.
Is It Worth Contesting? A Cost-Benefit Framework
Suppose you are the closest living relative and you have been left out of the will. Whether a contest is worth bringing comes down to three numbers: what you would receive if the will were set aside (under a prior will or under intestacy), how likely that outcome is, and what it will cost to get there. A contest makes sense when the expected benefit substantially exceeds the expected cost, and not otherwise.
Cost depends on the stage at which the case ends
Legal fees scale with how far the contest goes. The earlier the parties settle, the lower the fees, so an honest read of the personalities involved (will they settle early, or never?) is part of the calculation. As a rough guide:
| Stage at which the case ends | Rough legal fees |
|---|---|
| Settled before anything is filed | High three or low four figures |
| Settled after the initial probe (the SCPA 1404 examinations and record subpoenas) | Low four to five figures |
| Settled during full discovery | Low to mid five figures |
| Tried to verdict | High end of five figures or more |
Fee arrangements
Will contests are usually handled on an hourly basis, with rates in New York commonly running several hundred dollars per hour and an initial retainer deposit applied against those fees. In exceptional cases, typically a strong case involving an estate worth at least several hundred thousand dollars, a lawyer may take the contest on a contingency, in which the fee is a percentage of the recovery (commonly one-third) paid only if the contest produces a settlement or award, in place of hourly billing.
The initial probe usually answers the question
In our experience, the initial probe decides whether a contest is worth pursuing. The 1404 examinations and the decedent’s medical records show the testator’s mental status and susceptibility at the time of execution and reveal whether a lawyer drafted the will and supervised its signing. That stage typically costs in the high four to low five figures, depending on the volume of records, and it is money well spent if it prevents a hopeless contest or confirms a strong one.
Fee recovery if you win
If your objections succeed and the will is denied probate, you can ask the Surrogate to award your attorney’s fees from the estate, on the theory that keeping an invalid will out of probate benefited the estate. Such awards are discretionary, not automatic, and are more likely where the contest plainly served the estate rather than only the objectant. If the contest fails, you bear your own fees.
Frequently Asked Questions
How much does it cost to contest a will in New York?
It depends on the fee arrangement and how far the case goes: from the low four figures for an early settlement to the high five figures or more for a matter tried to verdict. The initial probe alone usually runs in the high four to low five figures.
Can I contest a will on a contingency fee?
Sometimes. Contingency arrangements are offered in exceptional cases where the evidence is strong and the estate is large enough to justify the risk. Most will contests are billed hourly.
Does the estate pay my legal fees if I win?
The court may award fees from the estate to a successful objectant whose contest benefited the estate, but the award is within the Surrogate’s discretion. Do not count on it when deciding whether to proceed.
Talk to Us Before You Decide
In most instances, accepting the will is less costly, emotionally and financially, than challenging it. But if unfair circumstances kept the deceased from expressing their true last wishes, a contest may be justified. Understand the risks first. If you would like us to look at your situation, call us at 212-233-1233 or email [email protected].
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].
