Cona Elder Law

An elder law attorney contesting a will

Grounds for Contesting a Will in New York


When an individual passes away with a Last Will and Testament, the Will is submitted to the  Surrogate’s Court for a probate proceeding. This court proceeding results in the Surrogate (the judge) determining if the Will is valid.  If the Will is valid, it is considered “admitted to probate” by the Court and the terms of the Will are followed. As such, the estate assets are distributed according to the Will.  

However, before a Will can be admitted to probate, certain individuals are provided with an opportunity to appear in Court and to investigate the facts and circumstances surrounding the preparation and signing of the Will, which can lead to a Will contest challenging the Will’s validity.

What is a Will Contest?

A Will contest means that an heir, beneficiary, family member or other dissatisfied individual objects to the validity of a Will. There are various potential reasons for an individual to object to a Will’s validity. 

Typically, before any objections are filed, the dissatisfied individual has an opportunity to get information, including documents concerning the deceased person’s finances, medical status, and a copy of the attorney’s file who drafted the Will. The dissatisfied individual will also have an opportunity to ask questions under oath of the attorney who drafted the Will as well as the witnesses to the Will, and possibly of others depending on the facts and circumstances of the case.  

After this information gathering, the dissatisfied individual will determine if it makes sense to file objections to the Will and commence a Will contest proceeding.

Who Can Challenge a Will?

Under New York’s laws, only certain individuals have the ability or “standing” to challenge the probate of a Will.  To have standing, it is required that the individual has a financial interest in and is adversely affected by the probate of the Will. Those considered to have a financial interest are: 

  1. The deceased person’s heirs (called “distributees”) who would inherit less under the Will than they would if no Will existed (pursuant to New York’s intestacy law).
  2. Beneficiaries under a prior Will who receive less if the current Will is deemed valid.

5 Reasons to Contest a Will in New York

There are several reasons to contest a Will. Some hinge on the actions of the testator, the person who signed the Will, and some are related to the action of another person, such as a beneficiary or other person who exerted fraud or undue influence over the testator. Below is an overview of the most common grounds:

1. Improper Execution

A common reason to contest a Will’s validity is that the Will was not properly executed pursuant to the laws of New York. 

In order for a Will to be considered properly executed, the following requirements must be met:

  1. The testator must sign the Will at the end of the document;
  2. The testator must sign the Will in the presence of two witnesses;
  3. The testator must declare to each of the two witnesses that the document is the testator’s Will; and
  4. The two witnesses must sign the Will at the request of the testator and in the presence of the testator. 

This formal Will execution process is not to be taken lightly. If it is demonstrated through the investigative process that any of the above did not occur, the Will can be contested on improper execution grounds.

2. Undue Influence

One of the most common reasons to contest a Will is undue influence.  This is often found in situations where an individual persuades the testator to change their Will in favor of that person at the expense of other family members or beneficiaries. Often, the person exercising undue influence has created a relationship of trust, confidence and reliance of the testator upon them such that the testator feels obligated to leave them the bulk of their estate. 

If the facts presented demonstrate that the testator was unduly influenced, the Will can be contested on undue influence grounds.

3. Lack of Testamentary Capacity

Another ground for a Will contest is lack of testamentary capacity.  The standard required for a testator to have capacity to sign a Will is relatively low, especially when compared to the capacity required to enter into a contract. 

To have the capacity to sign a Will, a testator should have a general understanding of (1) their assets and property, (2) their family members, heirs and beneficiaries, and (3) that they are signing a Will and they understand what it means to do so.

For example, even if a testator has been diagnosed with dementia or Alzheimer’s disease, it does not automatically mean they lack the capacity to sign a Will. A testator only needs to have a lucid moment or interval at the time the Will is signed and they will be found to have had testamentary capacity.

However, if it appears that the testator lacked testamentary capacity to sign the Will, the Will can be contested on this ground.

4. Fraud

Another reason for contesting a Will is fraud. To prove that the Will is a product of fraud, the person objecting has the burden of proving all elements of fraud by clear and convincing evidence. Fraud can include situations where the testator thought he or she was signing another document, such as a Power of Attorney or reverse mortgage application, and not a Will, or that the signature on the Will is not in fact the testator’s. Fraud also includes situations where a beneficiary or other person convinces the testator to change their Will to leave everything or substantially all assets to that person or otherwise change their Will contrary to their original intent.

If the Will appears to be a product of fraud, the Will can be contested on this ground.

5. Revocation

Another reason to contest a Will’s validity is revocation, meaning that the Will admitted for probate is not the last or most current Will. In New York, a Will can be revoked by the testator or at the testator’s direction during his or her lifetime.  

A Will can be revoked by 1) signing a new Will, 2) the destruction of a current Will (ripping it up, tearing, cutting, burning or otherwise destroying it), or 3) a writing by the testator clearly indicating an intention to revoke the Will.

If it is determined through the investigative process that any of the above has occurred, the Will can be contested on revocation grounds. A properly revoked Will cannot be admitted to probate.

The First Step to Challenging a Will in New York

The first step to contesting a Will in New York is to work with attorneys who concentrate in estate litigation like the experienced and knowledgeable attorneys at Cona Elder Law.  With over two decades of estate litigation experience, we will guide you through the Surrogate’s Court process, conduct the investigative work, and assist you in determining if your case has the requisite grounds to contest a Will. 

Estate litigation in New York is complex, with many different types of causes of action, court proceedings, burdens of proof and statutes of limitations. In this highly specialized area of law, it is imperative that you work with the trust and estate litigation team at Cona Elder Law. 

Our dedicated estate litigation attorneys will zealously fight for your rights in court. Our decades of probate, administration and litigation have taught us how to balance empathy, savvy and moxie with cost-effective solutions to bring you and your family top-notch estate litigation representation. Contact the Long Island elder law, probate and estate litigation attorneys at Cona Elder Law to secure the skilled attorneys you deserve.  Contact us at 631.390.5000 today!

About the Author Cona Elder Law

Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.

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