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How to Win a Will Contest in New York

If you believe that something is wrong with a New York will, you may be able to overturn it through a will contest in the Surrogate’s Court.

Reasons for challenging a Last Will and Testament are called “grounds.” In this post, we’ll list the grounds for overturning a will. We’ll also offer some pro tips on winning a New York will contest based on those grounds.

1. The person who died was not well enough to make a will

Mental Incapacity – Many people who make wills don’t have the mental capacity to do so. If the decedent in your case is one of those people, then you can have the court overturn their will. You will need to prove that the decedent was not of “sound mind” at the time the will was made. More precisely, you will need to prove one or more of the following three things:

that the decedent did not understand

  1. what they own, or
  2. who their family are, or
  3. what is in their will.

Alzheimer’s – A will challenge based on lack of mental capacity works best when applied to wills of decedents who suffered from dementia or mental illness and decedents who were in the later stages of Alzheimer’s.

Weak Physical State – A will challenge of this kind can also be applied to wills of decedents who were in such a week physical state that it can be claimed that they lost their mental capacity.

Mental Illness – Mental illness in and of itself does not mean that the decedent lacks capacity. In order for a will challenge to work, the objectant to the will is going to have to show how the mental illness played a role in the making of the will.

Strong Pharmaceuticals – If the decedent was on strong pharmaceuticals during the will execution, the will can be overturned if we will be able to show that the decedent’s altered state influenced the making of the will.

“Drifting in and Out” and “Lucid Moments” – Some people, as they get older, may drift in and out. If you are contesting the will, you will try to win by proving that the will was executed during the testator’s unsound time, not during the “lucid moments”. If the decedent was well sometimes and sometimes wasn’t, the decedent was drifting in and out of having an unsound mind. The will is valid only if the decedent executed it during the time period when the decedent had clarity.

Some estate attorneys and medical professionals hold the view that the “lucid moment” concept is out of date with the modern understanding of metal capacity.  Their view is that since a person has no mental capacity it doesn’t “return” to them on some occasions. However, at this time New York courts still consider “lucid moments.”

Pro tip: Circumstantial Evidence – For a will contest, a person does not have to prove that the decedent didn’t have capacity on the exact day of the will signing. The will challenger can use circumstantial evidence to point to a general time period, let’s say the year before the will signing, depending on the condition.
Pro tip 2: Obtain Medical Records – The most effective strategy for challenging the decedent’s mental capacity is to obtain medical records, go through them and see if there are any notes that point to incapacity.

2. The person who died was pressured to make the will

Undue Influence – In legal terms, pressure to make a will is called coercion and undue influence. Proving undue influence involves involves proving that the people that the decedent trusted took advantage of him and pressured him to make the will to their benefit.  Read our thorough article on undue influence.

Duress – If the decedent was influenced through coercion or duress, the will can be invalidated and overturned.

Pro tip: Prove a Confidential Relationship – A common strategy of people challenging a will based on undue influence is to prove that the proponent of the will had a confidential relationship with the decedent. That makes it easier to show that the proponent of the will was in a position of influence and had the opportunity to pressure the will maker. In some situations, a confidential relationship may reverse the burden of proof and make it the job of the person defending the will to prove that there was no undue influence as opposed to the challenger of the will having to prove that there’s undue influence.

3. The will is a forgery

If any part of the will is determined to be forged, be that the text of the will or anyone’s signature, the will is invalid. If you think that a will was forged, read our thorough article on will forgery methods and red flags.

How Wills are Forged – To win based on this ground, a will contestant needs to prove that the signature on a will is forged or imported from another document, or the text is manipulated. When we say manipulated, we mean the pages are replaced or the text is changed.

Handwriting Expert – We win forgery will challenges by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert would compare the handwriting on the will and would say that it’s not a close enough match.

Pro tip: – A forgery trial usually becomes a battle of the experts for the Will proponent and the objectant.

4. The beneficiaries obtained the will by lying

If we can show that the beneficiaries misled the decedent in order to make him sign the will, the will can be overturned and declared to be invalid.

Fraud in Factum – Fraud can mean misleading the decedent about the will itself, such as slipping a will under a guise of a different document or such or mischaracterizing what is in the will and having the decedent sign it.

Fraud in the Inducement – Fraud can also mean misleading the decedent about circumstances outside of the will, such as misinformation about friends and relatives. Fraud is challenging to prove, but possible if the right evidence can be found.

5. The will was not made correctly

A will that was executed in a way that did not comply with New York’s formal requirements will not be valid. Such will can be overturned.

The formal that needed to be met are are:

  1. The will had to be signed by the testator (or in their direction in their presence)
  2. the signature must be at the end of the will
  3. the will had to be signed in the presence of each witness
  4. the testator must have communicated to the witnesses that they are witnessing a will
  5. two witnesses are required
  6. the entire ceremony must have been completed within 30 days of the testator’s signature

To be valid, a will has to be executed in accordance with New York will execution formalities. The most common will challenges involve problems with witnessing the will and problems with the testator declaring it to be the last will and testament to the witnesses.

Pro tip: Will Printed from the Internet vs. Attorney-Drafted Will – A will that is printed out from the internet or filled out in a store-bought form is easier to challenge. A will drafted by a respected law firm is harder to challenge.

6. There is a later will that overrides this will

If the decedent made another will, and he made that other will after the one you’re challenging, the later will wins. If the later will is overturned, you’d either try to challenge the will before that one or leave it in place, depending on the situation.

We can combine reasons (grounds) for overturning a will

When It Rains, it Pours
–  It is rare that you’d present a Will challenge with only one ground. In fact, in the beginning stages of a will challenges, we usually plead every possible ground, hoping that we find one that sticks at later stages of the case. If it looks like the decedent was not well enough to make a will, we would also say that this diminished mental state made the decedent vulnerable to being misinformed or pressured to make a Will. We will also point out that the will was made in a hurry and was not properly executed.

Although some fact patterns present an opportunity for a laser-sharp focus on a single issue, the most common strategy is still to plead every possible Will challenge ground and see which one of them is more successful.

Here’s our quick guide to will contests: Will Contests in New York: An Overview (PDF)



If you are involved in a will contest, contact a New York estate attorney. You will describe the circumstances behind the making of the will. The attorney will determine whether the proposed objections have merit, and may request a court-supervised examination of those involved before deciding whether it is worth your while to invest in a full-blown will contest.

We settle most will contests before trial. If settlement is not possible, the sides exchange documents and information and ultimately proceed to trial.

To learn more about will contests in New York, read our article, Will Contests in New York: An Overview (PDF). Give us a call at (212) 233-1233 if you wish to discuss your case.

Remedies for a Defective Will – During a will contest, the court will decide at a trial whether or not a will is valid. The executor is not permitted to distribute the estate until the trial is finished. If the court finds the will to be invalid, the court will do one of the following:

  • Not admit the will
  • Admit only a portion of the will
  • Admit an earlier will in its place
  • Not admit any of the wills, and distribute assets among the decedent’s relatives as if there was no will.

Deadline Alert: Once the will is admitted to probate, it will be too late to challenge it. Act before the first hearing in the case.

Call the Law Offices of Albert Goodwin at (212) 233-1233 today.  Make an appointment to evaluate your chances of succeeding in a will contest.