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New York Grounds For Contesting a Will

Under New York estate law, a will contest is the process for challenging the validity of a will. However, there are limitations as to who has the legal right to contest a will, and there are limitations as to the ground for contesting a will. In other words, the New York Surrogate’s Court will dismiss an objection to a will that is based on a “feeling” that something was not right about how the will was made or based on anger about the terms of the will. As a New York will contest lawyer will explain, in general people have the right to dispose of their property in any way that they choose, regardless of how it may appear to others or how it may impact others. A will challenge will be heard by the Surrogate’s Court only in cases where the objectant puts forth information that tends to raise questions as to whether the will was made under illegal circumstances. In addition, only those who have an immediate, direct financial interest in the estate will have the legal standing to challenge a will in probate court. If you have concerns about the validity of the will of a loved one, contact a New York will contest lawyer at the Law Offices of Stephen Bilkis & Associates. With over 20 years of experience successfully representing clients in estate matters before the New York Surrogate’s Court, we can help ensure that your legal rights are protected.

Undue influence undue influence

One of the most common grounds for contesting will is a allegation that at the time the testator made a will, he (or she) had been illegally manipulated by another person who sought to make the testator make a will that he would not have otherwise made. Typically, concerns over undue influence arise when the testator is in a vulnerable position and is reliant on another person who, as a result, is in a position of power with respect to the testator. Oftentimes the testator becomes isolated with only the manipulator having access to him. With an undue influence case, the pressure put on the testator to change his will may not be overt. Instead the manipulator may, over the course of time, lead the testator to believe negative thoughts about the testator’s family who was to benefit from his will. The manipulator would then lead the testator to instead leave his estate or a portion of his estate to the manipulator.

Factors that the Surrogate’s Court will take into consideration include whether the alleged manipulator was present at the execution of the will, whether the alleged manipulator recommended the attorney who drafted the will, whether the alleged manipulator had prior relationship with the attorney who drafted the will, whether the alleged manipulator found the witnesses, whether the new will was created and executed in secret, whether the alleged manipulator kept the will, and whether the bequest in the will were particularly unusual or deviated significantly from the provisions in the prior will.

In the Matter of Besdansky, 2011 NY Slip Op 50557(U), the will was contested based on undue influence. In this case the decedent was a resident of an assisted living facility. At the age of 89-years old, after living in the facility for less than a year, the decedent changed his will to leave a substantial amount of his estate to two employees of the assisted living facility. The public administrator filed an objection to probating the decedent’s will based on undue influence. Surrogate’s Court concluded that the public administrator, the objectant, presented sufficient facts that tended to show evidence of undue influence. The objectant showed that the proponents of the will were in a position of power relative to the vulnerable testator. He also presented evidence that shortly after becoming a resident at the facility, he gave gifts totaling $500, 000 to the proponents and added their names to his financial accounts. This was contrary to evidence of decedent’s frugal habits. The drastic change in the testator’s lifelong frugal habits was clear circumstantial evidence of undue influence. In addition, reports from a doctor who examined the testator indicated that he suffered from dementia.

Keep in mind that merely asking a testator to be remembered in his (or her) will is not illegal. Nor is merely having the opportunity to exert influence. For there to be manipulation that rises to the level of illegal undue influence, the manipulator must use his position of power to convince the testator to make a will that he or she would not otherwise make.

Evidence of more than one will

When a testator creates a new will, the prior will, if any, would be automatically revoked. Thus, a valid ground for contesting a will is producing a later executed, valid will. One way to avoid a will contest or confusion based on having more than one will is to revoke a prior will by physically destroying the original and all copies. Ripping the will, burning it, marking all the pages, are definitive ways of revoking a will.

Another consideration when evidence of a later dated will is produced is whether the later will was made under illegal circumstances. If it appears that no one, including close family members, was aware of the will except the person who stood to benefit most from the new will, that may be an indicator that undue influence, duress, or fraud may have been involved in the creation of that will. If you believe this to be the case, immediately raise your concerns with an experienced New York will contest lawyer who can advise you on how to proceed with challenging the validity of the later will. While secrecy surrounding the new will is a factor that the court may consider, other evidence of illegal acts surrounding the execution of the new will may be required before the Surrogate’s Court judge will declare it to be invalid.

There may be valid reasons for having more than one will such as having property in more than one jurisdiction. However, having more than one will may result in untended complications. To avoid problems during probate that attend having more than one will, contact an experienced will contest attorney in New York to help you created an overall estate plan that takes into consideration all of your property, wherever located, and any other issues and considerations specific to your financial and family situation.


Fraud is a broad term that can be used to describe a number of illegal acts involved in the making of a will. When it comes to a will, fraud would exist if someone made at least one specific false statement to the testator which led the testator to change his will. If the person did lie to the testator, but the testator did not change the will based on the false statement, there would be no basis for a will contest based on fraud. In addition, a fake will or a forged will would also amount to fraud.

Proving that a will is fraudulent can be difficult. There are factors that the Surrogate’s Court will consider that tend to point to fraud. For example, if there are inequitable distributions to similarly situated family members without any illogical reason, fraud might be involved. Testators tend it leave the same or similar distributions to similar relatives. Children typically all receive the exact same portion of a parent’s estate. A testator typically leaves all his (or her) nieces and nephews the same distribution. If one distribution is wildly different for no logical reason, a red flag would be raised. Another factor that the court would consider is where the will was created and witnessed by relative strangers and it also had peculiar bequests. In other words, if the circumstances surrounding the creation and execution of the will were odd, and the bequests deviated greatly from a prior will or what would be expected, then the Surrogate’s Court might agree that fraud might have been involved, and further investigate should be permitted.


Duress refers to someone threatening the testator or committing a wrongful act such as physical violence in order to get the testator to make a will favorable to the coercer. While duress is similar to undue influence, the two types of illegal acts are different. Duress differs from undue influence in that duress involves more of an overt threat or the action performance of a wrongful act such as physical violence that coerced the testator. Undue influence typically does not involve threats but more subtle manipulation. Will contests based on duress typically also involve an allegation of undue influence.

In Matter of Rosasco, 2011 NY Slip Op 50673(U), decided by the Manhattan Surrogate Court, the decedent’s will was challenged based on an allegation of duress. The objectant produced evidence of a pattern of physical violence and threats of violence by the proponent of the will that resulted in fear on the part of the testator that if she changed her will to disinherit the proponent, he would be violent toward her and other members of the family. On the basis of this evidence, the Surrogate’s Court allowed the case to move forward toward a trial.

Lack of mental capacity

Under New York estate law, in order for a will to be valid, the testator must have been of sound mind and memory at the time the will was executed. This means that the testator must not have suffered from a mental capacity such that he or she did not understand what it meant for him (or her) to write a will. Specifically, at the time of executing a will, the testator must have understood the nature of his estate, must have understood who his natural heirs were, must have understand what it means to make a will, and must have understood the effect of his will.

While evidence that the testator suffered from a condition such as traumatic brain injury, vascular dementia, or Alzheimer’s would be a factor that the Surrogate’ Court would consider, suffering from such a condition does not necessarily mean that the decedent did not have mental capacity at the time that he (or she) executed the will.

Witness not of sound mind

New York law requires that at least two witnesses be present at the will signing and that those witnesses also sign the will. The witnesses must be qualified. They must be at least 18 years old. And just like the testator, they must not have been mentally incapacitated at the time that they witnessed the will.

Contact the Law Offices of Stephen Bilkis & Associates

A will contest is a complicated process. It involves more than a belief that something untoward occurred in the testator’s will-making process. Without compelling evidence the Surrogate’s Court is loathe to invalidate a document that appears to be the duly executed last will and testament of a decedent. Whether you considering objecting to a will, or you are preparing to defend a will, it is critical that you proceed with the counsel of an experienced will contest attorney serving New York. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in complex estate matters related to contested wills and other probate litigation issues. Contact an attorney in our office at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Queens, Staten Island, Brooklyn, Manhattan, Bronx, Westchester County, Long Island, Nassau County, and Suffolk County.

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