Objections to Probate in New York (SCPA 1410): What They Must Say and When They Are Due

Objections are the document that turns a probate proceeding into a will contest. Until they are filed, the Surrogate's Court is simply being asked to admit a will. Once they are filed, the court cannot admit the will without a trial or a settlement. Because the objections carry that much weight, New York law is particular about who may file them, when they are due, and what they must say. We have prepared and defended against objections in the Surrogate's Courts of New York City, Nassau, Suffolk and Westchester since 2008, and this page explains how the process works.

Who may file objections

The rule is stated in one sentence: any person whose interest in property or in the estate of the decedent would be adversely affected by the admission of the will to probate may file objections (SCPA 1410). In practice that means three groups of people.

• Distributees. The people who would inherit if there were no will at all: the spouse, the children, and if there are none, parents, siblings and more distant relatives in the order set by the intestacy statute (EPTL 4-1.1). A distributee who receives less under the will than under intestacy is adversely affected.
• Beneficiaries under an earlier will. If a prior will gave you more than the will now being offered, admitting the new will hurts you, and you may object. You do not need to be a relative.
• Beneficiaries under the offered will who would take more if it failed. Someone who is named in the will but whose share would be larger under intestacy or a prior instrument has standing as well.

The statute excludes people whose only interest is the hope of being paid. A person nominated as executor in an earlier will, whose only stake is the commission that office would pay, generally cannot object on that basis alone. Nor can a friend or relative who was simply left out and would take nothing under intestacy or a prior will. Being disappointed is not the same as being adversely affected. We cover standing in more depth on our page on whether a will can be contested.

When objections are due

The probate petition is accompanied by a citation, which is the court's summons. The citation has a return date. The basic rule is that objections must be filed on or before the return date of the citation, or by any later date the court fixes.

In most contested cases, the deadline is extended by the examination process. An interested person may examine the attesting witnesses, the attorney who drafted the will, and in some cases the nominated executor before deciding whether to object (SCPA 1404). Where those examinations are held, objections are due within ten days after the examinations are completed, unless the court sets a different date. "Completed" means the last examination has been held and, in most courts, the transcript has been delivered; if there is any doubt about when the clock started, we ask the court to fix the date in writing rather than guess.

Extensions are common but never automatic. If the medical records have not arrived, a witness cannot be produced, or the drafting attorney's file is incomplete, we ask the court, before the deadline passes, for an order extending the time to file. Courts usually grant a reasonable extension when the request is made in time and for a real reason. They are far less forgiving of a request made after the date has gone by, and a will can be admitted on default while an objectant is still thinking it over. Read more on our page on SCPA 1404 examinations.

What objections must contain

Objections are a pleading, not a letter. They must be in writing, verified under oath by the objectant (or in limited circumstances by the attorney), and they must state the grounds on which the will is challenged. The recognized grounds in New York are:

• Lack of due execution. The will was not signed and witnessed as the statute requires (EPTL 3-2.1).
• Lack of testamentary capacity. The decedent did not understand the nature of the act, the property being disposed of, or the natural objects of their bounty.
• Undue influence. The will reflects someone else's wishes imposed on the decedent, not the decedent's own.
• Fraud. The decedent was induced to sign by a knowing misrepresentation.
• Duress. The decedent signed under threat or coercion.
• Forgery. The signature is not the decedent's.
• Revocation. The will was revoked by a later will or by a physical act (EPTL 3-4.1).

Each ground should be pleaded as a separate numbered objection. Courts and adversaries treat a single paragraph that lumps every ground together as a sign that the objectant has no case. The objections do not need to prove the case, but they must give fair notice of what is claimed. If we allege undue influence, we identify who exerted it. If we allege lack of capacity, we describe the condition. If we allege improper execution, we say what went wrong at the signing. Objections that are too vague can be dismissed or met with a demand for a bill of particulars, and objections that are too specific can be used to limit what we prove at trial, so the drafting takes judgment.

What filing objections does

The moment objections are filed, the proceeding changes character. The proponent can no longer obtain a decree by submitting the witnesses' affidavits. The court must either try the objections or approve a settlement.

The estate does not sit frozen in the meantime. The nominated executor may apply for preliminary letters testamentary (SCPA 1412), which allow them to collect assets, pay bills, sell property with court permission where needed, and file tax returns while the contest proceeds. A preliminary executor generally may not make distributions to beneficiaries, and the court can restrict the letters or require a bond where the objectant shows a reason. We often ask for those restrictions when the preliminary executor is also the person accused of undue influence.

Filing objections also opens full discovery. The examinations under SCPA 1404 are limited to the will's execution and the decedent's condition around that time, and to a three-year window before and two years after (or the date of death) unless the court extends it. Once objections are filed, the ordinary civil discovery rules apply: document demands, depositions of the proponent and beneficiaries, subpoenas to hospitals, banks and nursing homes, and expert disclosure. What that evidence typically looks like is described on our page on the evidence needed to contest a will.

Who has to prove what

The burden of proof depends on the ground, and it shapes how we draft.

Because the proponent carries the burden on execution and capacity, those objections are the least expensive for an objectant to raise and the ones the proponent must answer with proof. Undue influence is the ground most often pleaded and the hardest to prove, because it is almost always proved by circumstantial evidence.

The no-contest clause

Before filing, we check whether the will contains an in terrorem or no-contest clause. New York enforces these clauses, and a beneficiary who files objections and loses can forfeit what the will gave them. The statute carves out safe harbors (EPTL 3-3.5): conducting SCPA 1404 examinations does not trigger the clause, and neither does objecting on the ground of forgery, or on the ground that the will was revoked by a later will, provided the objection is made in good faith and with probable cause. Objecting on other grounds, such as undue influence or lack of capacity, is not protected. If you take something under the will and the will has a no-contest clause, that calculation has to be made before the objections are signed, not after. Our page on no-contest clauses goes through the analysis.

How objections are filed and served

Objections are filed with the clerk of the Surrogate's Court in the county where the probate proceeding is pending, with the filing fee, and a copy is served on the attorney for the proponent and on every other party who has appeared. Where the estate includes a charitable beneficiary, the Attorney General is served as well. If the objectant wants a jury, the demand is made in the objections or by a separate demand within the time the statute allows (SCPA 502); a jury demand made late is waived.

What happens the day after

Filing is the beginning, not the end. In the weeks that follow, the court sets a conference, usually before a court attorney-referee, and issues a scheduling order for discovery. The parties exchange document demands, take depositions, and obtain medical and financial records by subpoena. When discovery is complete, the objectant or proponent files a note of issue and the case is placed on the trial calendar. Most contested probates settle somewhere along this path, often at the court's pre-trial conference.

Withdrawing objections

Objections can be withdrawn, and often are, as part of a settlement. The withdrawal is by stipulation, signed by the objectant and the proponent and submitted to the court. The court will want to know whether anything was paid for the withdrawal, because a payment to an objectant affects the other beneficiaries, and because the guardian ad litem for any minor or unknown party must have an opportunity to be heard. An objectant should not sign a withdrawal without a written agreement setting out what they receive in return.

Common mistakes

• Missing the return date. The citation date is a real deadline. A person who neither appears nor objects can find the will admitted on default.
• Signing a waiver and consent. Proponents circulate waivers to avoid serving a citation. A signed waiver is very hard to undo. Do not sign one if you have any doubt about the will.
• Boilerplate objections. Objections that recite every ground in the statute with no facts invite a motion and signal weakness to the court.
• Objecting without standing. If you would take nothing without the will, your objections will be dismissed and you will have paid to learn that.
• Objecting when the earlier will is worse for you. If the will now offered is denied probate, the next document in line is the prior will, or intestacy. We always work out what you would receive under each alternative before objecting.

How we can help

We represent objectants and proponents in contested probate proceedings throughout New York City, Long Island and Westchester. We calculate standing and the effect of every alternative outcome before objections are filed, conduct the SCPA 1404 examinations, draft objections that state a case rather than a formula, and take the matter through discovery to settlement or trial. If you have received a citation or a waiver, or you believe a will that is about to be probated is not what the decedent intended, call us at 212-233-1233 or email [email protected].