Will Contest Lawyer Explains How Will Contests Work

will contest lawyer

A will contest lawyer’s job is to win. Whatever side we are on, we always emphasize the strength of or client’s case and the weakness of the opposing case. In many ways, litigation is like politics – it’s no coincidence that most politicians are lawyers by training. A will contest is a formal challenge before the probate court that a will is invalid. Will contests are a time-consuming and costly litigation process that carries risks. For this reason, it is important to get the advice of a will contest lawyer in every step of the process.

Grounds for Will Contests

There are several grounds to contest a will, such as improper execution, lack of testamentary capacity, lack of testamentary intent, undue influence, forgery, improper revocation, or fraud.

Improper Execution

Most states, including New York and Florida, require the following in order for the will to be valid and legally enforceable: (a) the will must be in writing; (b) the will must be signed by the testator; (c) the will must be witnessed by at least two competent witnesses; and (d) the testator must have testamentary capacity.

Florida, unlike New York, has a requirement that witnesses both be present in each other’s presence.

The testimony of the attesting witnesses and the attorney who supervised the execution of the will is important in establishing due execution. If there appears to be an infirmity in one of the requisites, case law will reflect how courts in that state treat that infirmity.

For example, in Florida, the court denied the admission of a will to probate when the testator, among other things in the totality of circumstances, signed the will with only his first name, when he usually signs with his first and last name. Bitetzakis v. Bitetzakis, 264 So. 3d 297, 298 (Fla. 2d DCA 2019).

In New York, although it is required that the testator declare to the witnesses that the instrument he is signing is his will, the Court has held that an express declaration is not required for as long as sufficient information is conveyed to the subscribing witnesses during the execution ceremony that the testator is aware that the instrument he signed is his will. Matter of Beckett, 103 N.Y. 167; Matter of Hedges, 100 A.D.2d 586 (1984).

Lack of Testamentary Capacity

Testamentary capacity refers to the testator’s legal and mental capacity to make a will. The testator must be at least 18 years of age and of sound mind. When determining mental capacity, it is enough that the testator possessed a sound mind or at a lucid interval at the time of signing of the will, even if there are instances before or after of an unsound mind. The required testator’s mental capacity is a lower standard of capacity.

In both New York and Florida, the testator’s testamentary capacity is considered based on the following factors: (a) whether the deceased understood the nature and consequences of executing a will; (b) whether the deceased knew the nature and extent of the property he was disposing of; and (c) whether the deceased knew the natural objects of his bounty and his relations with them. Natural objects of the testator’s bounty may refer to the decedent’s intestate heirs and closest relatives or friends.

Testamentary capacity is generally presumed, and the testimony of the subscribing witnesses regarding the testator’s capacity can overcome medical records that show testator having some issues of impairment or confusion.

Insane delusion, however, has been a ground for denying the probate of a will. In Re: Honigman, 168 N.E.2d 676 (N.Y. 1960), the testator cut out his wife from the will because of his obsessive baseless suspicion that his wife was unfaithful. The jury verdict, which was affirmed by the Court, found the testator to be suffering from insane delusion.

Other factors that may be used to question capacity are late-life diseases such as alzheimer’s and dementia or brain injuries, disability, or intoxication (including prescribed medication) which could contribute to diminished mental capacity.

Undue Influence

There is undue influence when a beneficiary of the will exerts improper influence amounting to moral coercion, convincing the testator to leave estate assets to him or her.

It is easier to establish undue influence if the following factors are present:

  1. Susceptibility. The testator had a weakness (physical, mental, or financial) that made them susceptible to influence;
  2. Opportunity. The wrongdoer had access to the testator and an opportunity to exert influence; (e.g. taking care of testator, excluding everyone else, cutting off testator’s communication with their family and friends so that the wrongdoer can have total control of the testator)
  3. Active participation. The wrongdoer actively participated in drafting the will; and
  4. Unnatural disposition. There is an unnatural (unexpected) result.

A common law presumption of undue influence can possibly be established if:

  1. Confidential relationship. A confidential relationship existed between the testator and the wrongdoer, such as
    1. Attorney/client
    2. Clergy/congregant
    3. Conservator or guardian/conservatee or ward
    4. Parent/child
    5. Physician or therapist/patient or client
  2. Active participation. The wrongdoer actively participated in the drafting the will; and
  3. Unnatural disposition. There is an unnatural result.

There is a strong presumption of undue influence if the testator makes a donative transfer to

  1. Drafter. The person who drafted the will;
  2. Care custodian. A care custodian of a testator who is a “dependent adult”;
  3. Fiduciary. A person in a fiduciary relationship with the testator, like an accountant, banker, lawyer or financial adviser.

Florida courts consider three main factors in undue influence: (a) the testator and the undue influencer had a confidential relationship; (b) the undue influencer is a substantial beneficiary of the testator’s estate; and (c) the undue influencer took an active role in procuring the will.

In New York, the following factors must be proven with preponderance of evidence: (a) motive to influence the testator; (b) opportunity to influence the testator; and (c) actual exercise of undue influence.

Although the presence of a close familial relationship might negate a claim for undue influence, it does not rule out the presence of undue influence, because this can be perpetrated by a relative, friend, caretaker, adviser, or someone in a position of trust to the testator.

In Matter of Paigo, 53 A.D.3d 836 (2008), the Court held that the sister of the decedent exerted undue influence upon him based on the following facts: (a) the decedent signed the will after surgery and one day after his release from intensive care; (b) ) the sister was the only person present when the decedent expressed his desires regarding the disposition of his estate; (c) the sister prepared the will; (d) the sister chose the three witnesses; (e) the sister was named executor of the will; (f) the sister was a substantial beneficiary, together with her parents and two other siblings; and (g) the children of the decedent were cut out from the will.

In Re Estate of Carpenter, 253 So.2d.697 (Fla. 1971), the Court provided several criteria to be considered in determining the beneficiary’s active procurement of the will as undue influence: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.

Today, a lot of the will contests revolve around undue influence. Because of the voluminous case law on undue influence in will contests in the different states, it is best to consult a skilled will contest lawyer in your state to ensure that you get proper legal advice and guidance in challenging a will.


When a will is procured by fraud, it is denied probate. Fraud can occur in two ways: (a) fraud by way of execution; or (b) fraud by inducement. In fraud by execution, the decedent does not know that what he is signing is his will. In fraud by inducement, a beneficiary makes substantial misrepresentations to the testator, making the testator change the disposition of his property in a manner different that he would have, if not for that statement.

To assert fraud, a false statement must knowingly be made, and the false statement caused the creation of that will or its provision.

Above are just some examples of grounds in invalidating and contesting a will. Other grounds are improper revocation, forgery, and duress, to name a few. Different grounds and different criteria exist, depending on the state and the case law existing in such state. When deciding whether to contest a will, one must consider the time, emotions, and expenses utilized towards a will challenge. The legal expenses of the proponent of the will are generally charged to the estate, while the objectant’s legal expenses shall be paid on his own account. These factors should be considered when deciding to file a will contest. A will contest lawyer can help evaluate the evidence to give advice on the likelihood of success of the challenge to the will.

Normally, to save expenses and time, will contests, especially when the evidence of the objectant is strong, result to settlements. Settlements are a good compromise and a win-win solution for both parties to save on the expenses of litigation.

Period For a Lawyer to File Will Contest

The period to file a will contest is known as the statute of limitations. Once this period has lapsed, the right to file a will contest, as a general rule, no longer exists. Different states have different statutes of limitations to file a will contest.

In New York, there is no statute of limitations barring a party from moving to vacate a probate decree. Matter of Gori, 129 Misc 541 [Sur Ct, Bronx County 1927]; Application by Cipolla-Keefer for an Order Vacating the Probate Decree in the Estate of Jeanne Hoolan, 2008 NY Slip OP 32702 (U). However, an application to vacate a probate decree is granted only in extraordinary circumstances because vacating a decree disrupts the orderly administrative process and creates uncertainty and nonfinality with respect to judicial proceedings. In Re Estate of Olga Sfouggatakis, 2009 NY Slip Op 50595 (U).

Because of the absence of a statutory period for limitation for contesting wills in New York, practitioners consider the date listed in the citation to appear before the probate court (which is the return date) as the period where an objection to the admission of the will for probate must be filed. In the petition for probate and issuance of letters testamentary, the petitioning party (normally the executor) is required to list the interested parties in the petition. The interested parties include the beneficiaries in the will offered for probate and the intestate heirs of the decedent (called distributees), even if they are not listed as a beneficiary in the will. The executor will usually attempt to get a waiver of service of citation from the interested parties to make the probate proceedings run faster. The intestate heirs are normally also beneficiaries of the will, and they execute these waivers in order to hasten the proceedings. However, if the intestate heir or a beneficiary from a prior or later-dated will has been excluded from or will receive less in the will that is admitted for probate, they normally do not sign waivers and wait for a citation to be issued by the court. On return date listed in the citation, these interested parties can appear before the probate court to contest the will in New York.

In Florida, on the other hand, Florida Statute §733.212 provides a statute of limitations of three (3) months from the time notice of the will’s administration is served or received to contest a will. This time frame is shortened to 20 days when a formal notice of administration has been received before the will has been admitted to probate.

Due to the different statutes of limitations of states, it is best to consult with a will contest lawyer in that particular state to determine whether the period to contest or challenge the will has lapsed.

Whether or Not Your Lawyer Should Contest a Will

Contesting a will is a time-consuming, emotionally draining, and expensive process. Because of the expenses associated with a will contest, it is better to first know whether one has enough evidence to support the legal basis in challenging the will. For example, if one is raising the issue of testamentary capacity, one needs to gather evidence of medical records, depositions of witnesses, financial records, and other documents that can support the allegation that the testator lacked testamentary capacity when he executed the will.

Fortunately, in New York, SCPA 1404 allows for a discovery process similar to a fishing expedition in gathering evidence for an interested party to decide whether or not to file formal objections to the will. Under SCPA 1404, the potential objectant can formally request to obtain sworn testimony from the attorney drafter and the attesting witnesses, including discovery and review of papers relating to the decedent’s medical issues, financial issues, and estate planning matters. Documents subject to discovery, however, are only limited to three years prior to execution of the will and two years after or the date of death of decedent, whichever is earlier, under New York’s Uniform Surrogate’s Court Rule 207.27. This 3/2 rule was made because the relevant time period to determine any basis for disallowing the will would have occurred at that time. After reviewing these documents, the interested party can decide whether or not to file formal objections to the admission of the will for probate.

Unfortunately, in Florida, there is no provision similar to New York’s SCPA 1404;s pre-litigation discovery. The interested party with standing to contest the will has to gather the supporting documentation through discovery procedures after contesting the will.

For these reasons, when one is deciding whether or not to contest a will, the following points should be considered: (a) the reasons for contesting the will; (b) the probability of success; (c) the period it will take to get a decision; and (d) the expenses and costs of litigation. An experienced will contest lawyer can help one evaluate the case to determine the likelihood of winning and to help guide the decision on whether or not to initiate a will contest.

The Issue of Standing

Before one should consider filing a will contest, one should first determine whether he or she has standing to challenge the will. Those who have standing are those who are interested parties. An interested party is someone who will experience financial damage if the will is determined to be valid and admitted to probate.

Generally, the interested party would be an intestate heir or a beneficiary of a prior or later dated will. An intestate heir is a person who will inherit from the decedent, if the decedent died without a will (otherwise known as intestate). Most states have their own laws determining who is allowed to inherit if the decedent died intestate. Normally, the intestate heirs are the spouses and children, or if none, the parents, and if none, the siblings. A beneficiary of a prior or later dated will has standing if the beneficiary was named in the prior or later dated will, and the beneficiary stands to receive more in that will.

A will will be denied probate if there is a later-dated duly executed will that reflects the testator’s latest intentions. If a will is denied probate and there is no later dated will, the prior will will be admitted to be probate. If there is no prior will, the intestate heirs will inherit the estate.

If you are considering a will contest, it is best to consult with a will contest lawyer qualified in your state to see whether you have standing and to evaluate whether your challenge can succeed in court.

If you are an heir who has been left out of a will, feel that you’ve been unfairly provided for, suspect that undue influence has been exerted upon the testator, or can prove through a comparison of handwriting that the signature in the will is not the testator’s, immediately consult a will contest lawyer in your state. There are statutes of limitations regarding the period to contest a will, and once this has lapsed, one might not be given another chance. Should you need advice in this regard, we, at the Law Offices of Albert Goodwin, are here for you. Our lawyer, Albert Goodwin, is a will contest lawyer who is licensed to practice in both New York and Florida. You can call us at 1-800-600-8267 or send us an email at [email protected].

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001

Tel. 212-233-1233

[email protected]

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