Will Contests in New York

To contest a will in New York, you must have two things: (a) legal standing; and (b) grounds.

Legal Standing to Contest a Will

To have legal standing to contest a will, you must have a pecuniary interest in the will. A pecuniary interest is a financial interest. This means that if the will is admitted to probate, you will suffer an adverse financial consequence. Thus, persons with legal standing to contest the will are those persons with pecuniary interest, usually limited to beneficiaries and distributees.


A distributee is an heir who stands to inherit if a person dies without a will. In New York, the distributees are identified under EPTL § 4-1.1.

If you are a distributee, you are most likely going to receive a notice from the executor that the will is going to be offered for probate. The executor will most likely ask you to sign a waiver and consent that you agree to the admission of the will. If you do not sign this, the executor will request the court to issue you a citation.

If you are a distributee and you are going to contest the will, you must appear in court on the date stated in the citation with your lawyer.


A beneficiary of a prior will only has standing if the will’s admission to probate will cause the beneficiary to suffer an adverse financial consequence.

For example, if the beneficiary of the current will and the prior will stands to receive the same amount in both wills, that beneficiary will not have standing to contest the current will since the beneficiary will not suffer any adverse financial consequence from the admission of the current will to probate.

However, if the beneficiary of the prior will stands to receive more than what is being offered in the current will, the beneficiary has standing to contest the current will being offered for probate.

Grounds to Contest the Will

The most common grounds to contest the will are: improper execution, lack of testamentary capacity, undue influence, duress, revocation, forgery, and fraud.

Improper execution

A will, in order to be admitted to probate, must be properly executed. The following circumstances raise the presumption that the will was properly executed:

  • Will was drafted and its execution was supervised by an attorney.
  • The will contains an attestation clause executed by the witnesses.

In New York, there are requirements for making a will. A will must be in writing, signed by the testator at the end in the presence of two witnesses, stating to the witnesses that the document the testator is signing is his will. The witnesses must also sign the will within 30 days of the testator’s signing.

One of the most common reasons for denying the admission of a will to probate under improper execution is the failure of the testator to declare to the witnesses that the document he is signing is his will.

Lack of testamentary capacity

Testamentary capacity requires the person to understand:

  • What they own;
  • Who their relatives and friends are; and
  • What is in their will.

Testamentary capacity is presumed and it is the objectant’s burden to prove lack of testamentary capacity.

Lack of testamentary capacity can be proven through medical records. This will show if the testator was suffering from a mental illness or under mind-altering medication at the time the will was signed.

Undue influence

Undue influence is one of the most common grounds in contesting a will.

Undue influence occurs when a beneficiary exerts influence upon the testator to leave a substantial portion of his estate to the beneficiary.

Proving undue influence requires three elements:

  • Motive;
  • Opportunity; and
  • Actual exercise of undue influence.

There can be a common-law presumption of undue influence if there is a confidential relationship between the beneficiary and the testator.


Duress is a less common ground for contesting a will. It requires the use of force, threats, or violence to coerce and overpower the testator into making a will.


A will can also be contested when it has been revoked. There are several ways a will can be revoked:

  • Destruction;
  • Execution of a later will or codicil

With the advent of computers, codicils are not as common these days because replacing a will is as easy as making changes in a computer software like Microsoft Word and printing it out, unlike in olden times where it required manually typing everything out in a typewriter.


Forgery occurs when the signature in the will is not the signature of the testator and was not signed in the presence and under the direction of the testator.

Proving forgery requires signature samples of the testator and the presentation of a handwriting expert who can provide an analysis of the signature samples and the forged signature in the will.


Fraud as a ground to contest the will can be in factum or in inducement.

  • Fraud in factum: The testator was led to believe that he was signing a document other than a will.
  • Fraud in inducement: The testator was induced into signing a will that had provisions in favor of a beneficiary because the beneficiary misrepresented certain circumstances and without such misrepresentation or misinformation, such provisions would not have been present.

When to File the Will Contest

Aside from having legal standing and grounds to file a will contest, the objectant must file the will contest timely. Although there is no set time on when to contest a will, it is usually when one receives a citation to appear before the court that the person is required to appear before the court and begin the process of deciding whether to object or not.

If you want to know more about these grounds in detail, you can click here for more information.

Should you need assistance in contesting a will, the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY, and Queens, NY. You can call us at 212-233-1233 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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