New York Will Contests – The Basic Contentions


It is quite common that when a Last Will and Testament is filed with the Surrogate’s Court for probate, various members of a decedent’s family view the Will provisions to be objectionable.  This feeling of rejection may be based upon a perception that a decedent was somehow coerced into signing a Will or did not have the appropriate cognitive ability to understand what he was signing.  Or perhaps, a decedent promised to make a bequest which does not appear in the document.

While these various reactions may have some general validity, the actual and formal process to contest a Will is very complicated and often difficult to traverse.  The New York Probate Lawyer Blog has published numerous articles concerning Contested Wills and Surrogate’s Court litigation.

When considering whether to object to a Will, the potential Objectant must have a right or legal standing to file Objections.  Typically, an Objectant is a distributee or next of kin of a decedent who would receive a greater share of the estate or an intestate share if the Will is determined to be invalid.  Assuming a person has standing, there are many hurdles to successfully invalidate a Will.

To begin with, the basic Objections to a Will are that the document was not duly executed, was the product of undue influence, or fraud or that the decedent did not have testamentary capacity.  In a situation where a Will is prepared by an attorney and an attorney supervises the execution of a Will, there are certain legal presumptions which favor a finding of proper execution.  Also, various aspects of the Will such as the inclusion of an attestation clause also provide a legal basis for a finding of validity.  The attesting witnesses’ affidavits also give support to a testator’s testamentary capacity.

While various other factors regarding a decedent’s physical or mental condition may impact a determination for probate, overcoming presumptions which favor due execution and capacity present an uphill battle.

With regard to other grounds for Objections, undue influence is commonly a fertile ground for dispute.  A claim of improper influence must be proved by an Objectant.  The difficulty with this issue is that the testator is deceased and it is difficult to show that he was somehow improperly persuaded to execute a Will which contained provisions which an Objectant is opposing.  A recent Brooklyn estate case entitled Will of Sylvia Bierfuss Frankel, decided by Brooklyn Surrogate Bernard J. Graham on May 7, 2024, demonstrates the difficulty in prevailing in a Will Contest case.  In Frankel, the Objectants asserted that a Will was the subject of undue influence and fraud.  In its decision, the Court began by finding that the Will, which had attesting witnesses and an attestation clause, was duly executed and that the decedent had testamentary capacity.

The primary claim of Objectants was that undue influence was exerted because a beneficiary asked the decedent to include a provision in the document which gave the beneficiary a life estate in the decedent’s real property.  The Court determined that no undue influence occurred since there was an equally possible explanation that the decedent considered the beneficiary’s request and decided to include the provision in the Will.  Additionally, the Court noted that personal or family matters between parties are not necessarily improper.  As a result, the Will was admitted to probate.

As can be seen from Frankel, Will contests in probate cases can be complex.  I have represented clients in these cases.  The assistance of an experienced probate and trust and estate lawyer can be essential.  Do you have questions about probate or an estate?  Call Me Now for a free confidential review of your issue.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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