COVID-19 Update: We are open and serving our clients. Learn More >>>
Member of:
Justia Lawyer Rating
American Association for Justice
Union Plus

New York Who Can Challenge a Will?

A will contest is a formal objection to the validity of a will that is filed with the New York Surrogate’s Court during a probate proceeding. The death of a loved one and probating of his (or her) will is an emotional time. Learning what is in a will, coupled with a variety of emotions and complicated family dynamics may lead to questions about the validity of a will. However, before filing an objection to a will, it is important to understand that New York has rules related to who can challenge a will. If you are not a person who can challenge a will because you do not have the legal standing to do so, the court will dismiss your objections even if they are valid. If you are concerned that a will of a loved one is not valid, contact a skilled New York will contest lawyer at the Law Offices of Stephen Bilkis & Associates. With over 2 decades of experience representing beneficiaries, heirs, and fiduciaries in complex matters before the New York Surrogate’s Court, we will ensure that your interests are protected.

Legal standing

The legal concept of “standing” refers to having sufficient connection to a matter to support participation in a legal action. It is the threshold issue in challenges to the validity of wills. If standing is not established, the party seeking to invalidate a last will and testament will find that the Surrogate’s Court will dismiss his or her objection without any consideration of the merits. Whether an individual has standing is based on whether the objectant will suffer financial harm should the will be probated. As a New York will contest lawyer will explain, the financial harm must not be speculative or tenuous, but actual and immediate.

Who can challenge a will

In an estate case involving contesting a will, those with legal standing typically include the beneficiaries named in the challenged will, beneficiaries of a prior will, and intestate heirs.

Beneficiaries. Beneficiaries under the challenged will have legal standing to contest a will if their financial position would improve under a prior will. They would also have standing to opposed a will challenge as they would stand to lose financially if the will challenge is successful.

Beneficiaries under a prior will. Beneficiaries under a prior will would have standing to contest a will as their financial position would improve if the will contest is successful and the prior will is probated. For example, Sarah wrote a will in 1987 that left her best friend since childhood, Joyce, $100,000. In 2010 80-year old Sarah began to show signs of dementia. Three years later she was needed full time care, and a live-in caregiver was hired. In 2014, unbeknownst to Sarah’s family and friends, Sarah executed a new will. While some of her family members received small bequests, Joyce and others who were beneficiaries of the 1987 will received nothing under the new will. The caregiver and the caregiver’s son, however, received $250,000 each. Joyce as well as any other beneficiary of the 1987 will would have standing to challenge the 2014 will.

However, there are circumstances where the beneficiaries of a prior will would not have standing. For example, Kyle wrote a will in 1980 leaving his entire estate to his wife, his 3 children, his brother, and his sister. This wife and his 3 children were to each receive $1 million, while his brother, Kevin, and his sister, Kathy, were to each received $250,000. In 1990 Kyle had a falling out with his brother. They stopped speaking. The next year, still angry at his brother, Kyle ripped up the original will and made it clear to his family that that will was invalid because he no longer wanted to leave his brother anything. A few months later Kyle executed a new will. His brother received nothing. Upon Kyle’s death the following year, when Kyle’s will was submitted to probate, Kevin filed an objection based on a number of issues. The court dismissed Kevin’s objections for lack of standing. Because Kyle expressly revoked the prior will by destroying the original and made his intention clear to several family members, Kevin did not have standing based on being a beneficiary of a prior will.

Intestate heirs. An intestate heir is a relative of the decedent who under New York’s intestate succession statute would stand to inherit if the decedent passed away without a will. Such a person would fall into the class of who can challenge a will because if the contested will is determined to be invalid, intestate heirs stand to benefit financially because they would be entitled to inherit the decedent’s estate. Under New York law, intestate heirs are typically the decedent’s surviving spouse and children. If the decedent has no children or other descendants, but has a surviving spouse, then the surviving spouse will inherit the entire intestate estate. If the decedent does not have a surviving spouse, but has children, then the children will share equally in the estate. If the decent leave both children and a surviving spouse, then the spouse would be entitled to the first $50,000 of the estate as well as 50% of the remaining estate. The children will share in the other 50%. In the absence of children or surviving spouse the statute provides an order of priority as to which other relatives will be entitled to inherit.

Despite the fact that the surviving spouse is always entitled to an intestate share—in fact the largest intestate share, it is possible for the spouse (or any intestate heir), to effectively contract away standing to challenge a will. This was demonstrated in a 2017 case that was before the Manhattan Surrogate’s Court. In the case of the Will of Alibayof, the wife of a deceased testator sought discovery, indicating her intention to challenge her husband’s will. The proponent of the will objected to her discovery request based on the separation agreement between the wife and her deceased husband. In the separation agreement the wife waived her right to contest the decedent’s will. As a result, even though the wife technically had standing, she contracted it away. She was prohibited from objecting to the will and the court dismissed her discovery demands. The Will of Alibayof is an example of how complex the issue of who can challenge a will can be, and why it is critical to working with an experienced New York will contest lawyer if you are involved in a will challenge matter as an objectant, proponent, or other interested party.

Under the rules of intestate succession, there is a specific definition of who is a “child.” Biological children are entitled to an intestate share and would have legal standing, unless the child was adopted out to another family. Legally adopted children have the same rights as biological children and, thus, have legal standing. On the other hand foster children and stepchildren who were never legally adopted would not be entitled to an intestate share and as a result, would not have standing to challenge a will. For example, Joe Smith died and left a will that left his spouse 50% of his substantial estate, left his son 5% of the estate, and left the remaining 45% of the estate to a close family friend. Both the spouse and the son were surprised at the amount of money left to the neighbor. They were even more surprised at how little was left to the son, Mark. However, the spouse, decided against challenging the will as her bequest left her very comfortable financially. On the other hand, Mark filed an objection to probate. The executor, the proponent of the will, argued against Mark’s objection on the grounds of standing. Mark responded that he had standing as the decedent’s adopted son. However, upon review of the records, Mark was never formally adopted and had no standing to challenge the will.

Loss of standing

A beneficiary, beneficiary of prior will, or legal heir who does have standing can lose standing based on a “no contest” clause in a will, or through a contract.

No contest clause. A no-contest clause, also referred to as an “in terrorem” clause is language in a last will and testament that voids a bequest of any beneficiary who challenges the validity of a will. While some jurisdictions do not uphold no-contest clauses, New York does. In the 2007 case before the Nassau County Surrogate’s Court, of Matter of Bernstein 2007 NY Slip Op 04625, a daughter who was a beneficiary of her father’s will, had previously brought a petition to contest the will. She stood to inherit $20,000. The will contained a no-contest clause which provided that anyone challenging the will would forfeit any interest they might otherwise have had under the will. By violating the no-contest clause, petitioner lost any interest she might have had in her father's estate. It is important to note that this case was not about a will contest, but about the petitioner filing a petition for the construction of her father’s will. The Surrogate’s Court concluded that she did not have standing to bring a petition for construction because she had previously contested the will in violation of the no-contest clause. In other words, once the petitioner unsuccessfully challenged the will, she also lost any standing which she might have otherwise had to bring any legal proceeding in the matter.

Contract. Whether the person is a spouse, child, or someone else, a beneficiary of a will can contract away his (or her) right to challenge a will as did the wife in the Will of Alibayof. Unlike an in terrorem clause, when someone contracts away the right to object to a will, the person does not necessarily lose his or her testamentary gift he does file an objection to the will. The objection will merely be dismissed. In addition, the person will retain the right to file other types of petitions in the matter. However, before proceeding with any type of objection or petition in an estate matter, to ensure your legal rights are protected, contact an experienced will contest attorney in New York.

Preventing a will contest

While there is no way to guarantee that no one will contest a will, there are strategies to reduce the likelihood that no one object to your will, and if someone does, that the objection will be unsuccessful. A well-drafted last will and testament that is consistent with the requirements of New York estate law is more likely to withstand a will challenge. If any bequests are unusual or if there is any family discord, making clear to all family members in advance, particularly those who might feel slighted may minimize the likelihood of a will contest. In addition, including language in the will explaining potentially controversial bequests or explaining why someone was left out may also minimize the likelihood of a will contest or the success of a challenge.

Contact the Law Offices of Stephen Bilkis & Associates

Regardless of the close relationship that a person might have had with a decedent, he or she still may not have the legal right to challenge a will. There a specific factors that the Surrogate’s Court will look to to determine who can challenge a will. If you are concerned about the validity of a will or are a proponent of a will that is being challenged, it is important that you are represented by a skilled will contest attorney serving New York who has the knowledge and resources to ensure that your legal rights are protected. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in matters relating to wills, trusts, and other estate matters in New York Surrogate’s Courts. 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: Manhattan, Bronx, Westchester County, Long Island, Nassau County, Queens, Staten Island, Brooklyn, and Suffolk County.

Client Reviews
Mr. Bilkis handled both my father and mother's estate issues through very difficult times he was compassionate kind and understanding. In fact the whole firm showed great empathy. Despite the emotional hard time we were having that quickly and efficiently handle all the matters that were necessary to get us the result we desired. Can't recommend them enough. B.B.
From the very first phone call to Stephen Bilkis' office, the staff was extremely polite and helpful in assisting me. Mr. Bilkis was honest and upfront with me from the beginning in what he projected the outcome of my case would be; in the end we got better results than either of us anticipated. He was very genuine and compassionate in understanding my situation and how this legal matter could effect not only myself but my family as well. I highly recommend this law firm and will most definitely continue using them for any future legal needs. Jarrett
Stephen has handled numerous estate matters, criminal matters and family court matters effectively and with a goal-oriented approach. He gets great results and is a results-oriented attorney. Dustin