Will Contests in New York

Where Do You Stand?

Four questions. Your answers determine whether you have standing, how much time you have, and which grounds are worth pursuing. Nothing you enter here leaves your browser.

How a New York Will Contest Unfolds

Every contested probate follows the same path. Knowing where you are on it tells you what to do next and how much time you have.

1. 1

   The petition and the citation

   The person named as executor files the will with a probate petition. Everyone who would inherit if there were no will, and anyone cut out of an earlier will, must be notified. That notice is either a waiver and consent, which you should not sign if you have doubts, or a citation with a return date. The return date is the first deadline.

2. 2

   SCPA 1404 examinations

   Before you have to commit to objections, you can examine the witnesses to the will and the lawyer who drafted it, under oath, at the estate’s expense. This is the free look. It tells you whether there is a case, and it does not trigger a no-contest clause. See SCPA 1404 examinations.

3. 3

   Objections

   If the examinations show a real problem, you file objections stating the grounds: lack of capacity, undue influence, fraud, duress, forgery, or improper execution. Objections are due by the return date or within the time the court sets after the examinations. Miss it and the will is admitted. See filing objections.

4. 4

   Discovery

   Both sides exchange documents and take depositions. Medical records, the drafting attorney’s file, bank records, and the testimony of caregivers and family usually decide the case. See evidence and discovery.

5. 5

   Settlement or trial

   Most contests settle once discovery shows each side its odds. Those that do not are tried before the Surrogate or, on request, a jury. See settlement and chances of winning.

6. 6

   Decree and what follows

   The court admits the will or denies probate. If probate is denied, an earlier will may be offered, or the estate passes by intestacy. Either side can appeal. See after a will is denied probate.

Can You Contest?

• Who Can Contest a Will

  Standing belongs to people whose share would be larger if the will failed: distributees, and beneficiaries of an earlier will. Being upset is not enough; being adversely affected is the test.

• Deadlines, Process and Grounds

  The return date, the time to file objections, what happens if the will was already admitted, and the grounds that succeed in New York.

• Excluded Children

  A parent can disinherit a child in New York, but a child always has standing to ask why. What an excluded son or daughter can and cannot do.

• Nieces and Nephews

  Standing depends on who else survived. When a niece or nephew is a distributee, and when they are not.

• Chances of Winning

  What the numbers look like, which grounds tend to succeed, and the facts that make a contest strong or hopeless.

• What It Costs

  Hourly and contingency arrangements, what the estate pays for, and how the cost compares with what is at stake.

The Grounds

• Lack of Capacity

  The person did not understand what they owned, who their family was, or what the will did. The estate has to prove capacity; medical records and the witnesses decide it.

• Dementia

  A diagnosis is not the end of the question. What matters is the person’s condition at the moment of signing, and how to prove it.

• Undue Influence

  Someone substituted their wishes for the decedent’s. Motive, opportunity and a will that does not make sense are the elements; a beneficiary in a position of trust shifts the burden.

• Duress

  Threats or coercion rather than persuasion. Less common than undue influence and proved differently.

• Fraud

  The decedent was deceived about what they were signing or about facts that changed the plan.

• Forgery

  The signature is not the decedent’s, or pages were substituted. Handwriting experts and the attesting witnesses are the proof.

• Insane Delusion and Mistake

  A will driven by a false belief with no basis in fact, or one that does not say what the decedent meant. Narrow grounds, but real ones.

• Improper Execution

  Two witnesses, a signature at the end, a declaration that this is the will. When the formalities of EPTL 3-2.1 are missed, the will fails regardless of intent.

• Beneficiary as Witness

  A beneficiary who witnessed the will may lose the bequest, though the will itself survives.

• Handwritten Wills

  New York admits unwitnessed handwritten wills only for members of the armed forces and mariners at sea, and only for a limited time.

• Lost or Destroyed Wills

  A will last seen in the decedent’s possession and not found is presumed revoked. Overcoming that presumption, and probating a copy.

• Divorce and Revocation

  Divorce revokes bequests to a former spouse automatically. Other revocations require a new will or a physical act.

• Dependent Relative Revocation

  When a will was revoked only because the decedent believed a new one was valid, and the new one fails, the old one may be revived.

The Process

• SCPA 1404 Examinations

  Examining the witnesses and the drafting attorney before objections are due, at the estate’s expense and without triggering a no-contest clause.

• Filing Objections

  What objections must say, when they are due, how to get more time, and what happens the day after they are filed.

• Evidence and Discovery

  Medical records, the attorney’s file, financial records, and witness testimony. Who has the burden of proof on each ground.

• Guardian ad Litem

  When the court appoints a lawyer for a minor, an incapacitated person, or unknown heirs, and what that means for the case.

• Recovering Estate Assets

  When property left the estate before death, or after it, a discovery and turnover proceeding brings it back.

• Settlement

  How will contests settle, what a settlement agreement must cover, court approval, and the tax side of a compromise.

• Appeals

  Appealing a Surrogate’s Court decree to the Appellate Division: deadlines, grounds and prospects.

• After a Will Is Denied Probate

  An earlier will, intestacy, or a settlement that does neither. Who inherits, who administers, and what happens to gifts already made.

Defending a Will

• Defending a Contested Will

  The executor’s duties when objections are filed, proving due execution and capacity, and using the estate’s resources to defend the decedent’s plan.

• No-Contest Clauses

  In terrorem clauses are enforceable in New York, but the law carves out what a beneficiary can do without forfeiting: SCPA 1404 examinations, and more.

Related Contests

• Codicils

  Challenging an amendment without challenging the will, and what happens to the will if the codicil fails.

• Trusts

  Trusts are contested in Supreme Court or Surrogate’s Court on the same grounds, with different procedure and no citation to warn you.

• Deed Transfers

  A house moved out of the estate before death can be recovered if the transfer was procured by incapacity, undue influence or fraud.

• Life Insurance Beneficiaries

  Beneficiary designations pass outside the will, and are challenged on their own.

• Transfer-on-Death Accounts

  Joint and payable-on-death accounts that swallowed the estate, and how to bring them back.

• Software-Made Wills

  Online and app-generated wills fail most often on execution. What to look for.

Working With Us

We represent objectants and executors in the Surrogate’s Courts of Manhattan, Brooklyn, Queens, the Bronx, Staten Island, Nassau, Suffolk and Westchester. We take the SCPA 1404 examinations ourselves, we build the case from the medical and financial records, and we try the cases that do not settle. Where the numbers justify it, we take contests on a contingency basis.

Call 212-233-1233 or email [email protected]. Bring the will if you have it, the citation or waiver if you received one, and the dates. Deadlines run from the return date, not from when you first learn of the will.