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New York How to Fight Probate

Probate is the legal process that involves a decedent’s last will and testament being filed A probate contest is a legal action in the Surrogate’s Court during which someone objects to the validity of a last will and testament. When someone passes away testate, the first step in the process of settling his (or her) estate is for the executor named in the will to file the will with the New York Surrogate’s Court in the county in which the decedent resided, and request that the will be entered into probate. This essentially means that the executor is requesting that the Surrogate accept the will as valid and allow the executor to go about the business of settling the decedent’s estate based on the terms of that will. However, just because the executor submits the will to the Surrogate’s Court and supports its validity does not mean that it is valid. Others have the legal right to challenge the executor’s petition based on evidence that the will is not valid. The Surrogate’s Court job is to review the evidence and make a determination about the validity of the will. Whether you are a beneficiary, heir or an executor, if you are involved in a dispute over a will, it is wise to contact an experienced New York probate contest lawyer who will ensure that your legal rights are protected throughout the case.

Probate contest

A probate contest is a formal challenge to the validity of part or all of a will. A probate contest is initiated in the Surrogate’s Court that has jurisdiction over the probate proceeding by the filing of an objection to probate. While probate contests are relatively rare in New York, they do happen. When they do occur, they result is typically a delay in the administration process and a delay in asset distribution.

Not just anyone has the legal right to initiate a probate contest. According to section 1410 of the New York Surrogate’s Court Procedure Act, an objector to a will must have standing to do so. This means that the person must have an interest in the case. Typically this means that only beneficiaries named in the will, beneficiaries of a previous will, and intestate heirs have the right to file an objection to probate.

Reasons for contesting a will

The death of a loved one and the probating of his (or her) will often brings to light a wide range of emotions, including anger or incredulity over the contents of a will. While the first thought of an aggrieved person may be to claim that the will is fake, forged, or executed under illegal circumstances, there are only a few reasons, if proven, that the court will invalidate a will.

  • Mental incapacity. For a will to be valid, the testator must have had the mental capacity to execute a will. This means that the time that he executed his will he must have had understood what it means for him to make a will. He must have understood what he owns. He does not have to be able to recite every piece of real and person property that he owns, but he does need to have a good idea of the size of his estate and the types of property that it contains. For example, if a testator is worth over $100 million and most of that wealth is in real estate that he owns in several parts of New York, that testator would not have the mental capacity to make a will if he has no idea that he owned any real estate and had no idea that he was worth anywhere close to that much money. Another part of the test for mental capacity is that the testator must understand who “understand the natural objects of his bounty” are. In other words, as an experienced New York probate contest lawyer will explain, he must understand who his relatives are. This does not mean that he needs to know all of his extended family. It means that he must know the relatives who are his next of kin, or who would be the obvious recipients of his property. He must also understand what is in the will that he wrote. For example, if the testator decides to give 50% of his substantial estate to a charitable organization and not give any to his children, he must understand that that is what the will says.

    Lack of mental capacity will challenges are not unusual in cases where the testator had Alzheimer’s, vascular dementia, Parkinson’s disease, frontotemporal dementia, and traumatic brain injuries. However, it is important to understand that just become someone has a diagnosis of a condition that is associated with cognitive decline does not mean that the person would automatically not have the ability to make a will. Mental capacity is measured at the time the will is executed.

    If you are an executor or another interested party facing a will challenge based on claims of mental incapacity, with the help of an experienced New York probate contest lawyer, there are strategies to show that that testator did indeed have the requisite mental capacity to make a will. Such strategies include:

    • Testimony from the witnesses who observed the testator signing the will
    • Testimony from those who spent time with the testimony around the general time that the will was made
    • Testimony from the testator's doctor or evidence from the testator’s medical records. In fact, if you anticipate a challenge to your will based on mental capacity, have your doctor present at the execution of your will and request a letter from your doctor confirming that you were not mentally incapacitated at the time you executed your will.
  • Undue Influence. Undue influence means that at the testator was manipulated into making a will. In other words, in the days, weeks, or months leading up to the testator executing a will or codicil, the manipulator took proactive steps to lead a vulnerable testator to believe that it he or she should change his will in a manner favorable to the manipulator.

    When determining if undue influence existed, the Surrogate’s Court may take the following into consideration:

    • The relationship between the testator and the person accused of manipulation. If the person was in a position of power over the testator, then those circumstances may be ripe for the person to manipulate the testator
    • The opportunity to exert undue influence. For example, if the circumstances are such that the person and the testator spent a great deal of time alone, there would be a greater likelihood that the person used that “alone time” to manipulate the testator.
    • The testator's ability to resist undue influence. If the testator was in a vulnerable or needy position with respect to the person accused of manipulation, there is a greater likelihood that person would be able to manipulate the testator. For example, a caretaker responsible for providing a disabled testator meals would be in a position to manipulate the testator.
    • Whether there is a bequest in the will that demonstrates undue influence, such as leaving the person a proportionately large distribution compared to that which was left to the testator’s next of kin.

    Undue influence is different from simple influence. Merely showing affection to a relative or a dear friend is not undue influence. It is even acceptable to request that a testator leave you property in his or her will. The fact that a testator left a testamentary gift, even large one, to someone as a sign of gratitude for service or acts of kindness without more is not a sign of undue influence.

    To invalidate a will or part of a will based on undue influence, the Surrogate must conclude that the testator would not have executed the will but for the improper influence of the manipulator.

  • Improper execution. To be valid in New York, a will must be executed in the manner prescribed in the New York Estates, Powers & Trusts Law. Otherwise, the Surrogate’s Court will invalidate it. For a will to be valid in New York, the will must be signed at the end by the testator. It is also acceptable for someone else to sign the will for the testator, as long as it is done so in the presence of the testator and at the direction of the testator. There must be two witnesses who are present at the signing of the will and the testator must communicate to the witnesses that they are witnessing the signing of his (or her) will. The most common reason for challenging a will based on improper execution is related to the witnesses. Thus, it is important to make sure that there are two qualified witnesses who are actually present when the testator signs the will.

Revoked will

A revoked will is an invalid will. If an interested party comes forward with a later dated will that appears to be valid, then the Surrogate’s Court will treat any prior wills as having been revoked.

No contest clause

A no contest clauses, also referred to as an “in terrorem“ clause, is a type of limitation on disposition that voids a testamentary gift if the beneficiary contests the will. According to Estates, Powers and Trusts Law section 3-3.5, no contest clauses are valid in New York. In other words, the effect of a no contest clause is that if a beneficiary contests the will, he loses the right to receive any bequest under the will.

As a skilled probate contest attorneys in New York will explain, there are exceptions to this general rule. According to the statute, a no contest clause cannot be used against someone who merely assets an objection to the jurisdiction of the court in which the will was offered for probate. A no contest clause will not be violated if an infant or incompetent contests a will. Also, there would be no violation of a no contest clause if a person engages in discovery under section 1404 of the Surrogate’s Court Procedure Act.


In the Matter of Singer, 13 N.Y.3d 447 (N.Y., 2009), Rabbi Joseph Singer executed a last will and testament that left his estate to his daughter Vivian, his son Alexander, and Alexander’s sons. The will included a no contest clause that stated that if any of the beneficiaries contested or attempted to contest the will, he or she “shall forfeit and cease to have any right or interest whatsoever under this Will or under the revocable.” There was a second no contest clause specifically addressed to Alexander. It again stressed that if Alexander violated the no contest clause, not only will he not get anything, neither will his children.

Contact the Law Offices of Stephen Bilkis & Associates

A probate contest is not only legally complicated, but emotionally draining for those involved. If you are involved in a probate contest, to ensure the best possible result based on the particular circumstances of your case, it is critical to have experienced representation. The seasoned probate contest attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have years of experience working closely with beneficiaries, heirs, and executors on complex probate and estate administration matters. We are here to help. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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