Will Contests


A will contest is an action challenging the validity of the will.   In a probate proceeding, the will is presented to the Court to be “proved” – that is, proven it is valid.  An opportunity must be provided to allow others to object to the will.  A challenge may be brought by anyone who has an interest in the estate that would be jeopardized by the will.  These types of cases are difficult and emotionally-charged, so it is important to find an attorney with whom you feel comfortable.

Grounds for contesting a will include:

  • The Existence of a Later Will – If there is a validly executed will made after the one offered for probate, the later will would replace the earlier will.
  • Coercion and Undue Influence – If the decedent was influenced through coercion, duress or fraud to place the wishes of another, rather than his or her own, into the will, the will may be found invalid.
  • Fraud – If it can be shown that a false statement was made to the deceased convincing the deceased to dispose of his or her property differently than he or she would have otherwise, the will may be found invalid.
  • Incapacity – The law requires that the decedent was of “sound mind” at the time the will was made.  The “sound mind” requirement typically requires that he or she understand in a general way (1) what he or she owns, (2) who his or her family is and (3) what his or her will provides.   The state of mind at the time of making and signing of the will is the mental state considered.  If the testator (the one making the will) is usually of unsound mind, but has occasional moments of clarity, and the will was executed during one of those moments of clarity, then it would be valid.  Proving that the decedent was mentally ill or under the influence of alcohol or drugs at the time the will was made are also ways to establish incapacity.
  • Improper Execution – A will must be properly executed in order to be valid. This requires that the making and the execution of the will conform to the state’s requirements.  In New York, a testator must be 18 years of age or over, and of sound mind and memory. The will must be witnessed by at least two persons who will not benefit under the will. A will must be executed in strict compliance with the law or it will not be valid. Homemade wills are extremely dangerous and are frequently the subject of lawsuits.
  • Forgery – A will can be found invalid if any portion of the will, including any terms of the will or the signature of the testator or the witnesses, is determined to be forged.

If a will contest occurs, a trial of the will contest must be held before the will can be probated.  If the validity of a will is successfully contested, the court may:

  • Disallow the entire will or only a portion of the will;
  • Admit an earlier will in its place; or
  • Disallow all wills and distribute the assets according to the state’s intestate succession laws, which are the legal defaults for estates without a will.


    Next >> Immediate Concerns