Left Out of a Will in New York? Who Can Contest It, and How the Process Works

By Albert Goodwin, Esq., New York estate litigation attorney. Statutory references are to the New York Estates, Powers and Trusts Law (EPTL), the Surrogate’s Court Procedure Act (SCPA) and the Uniform Rules for Surrogate’s Court (22 NYCRR Part 207).

If you were left out of a will in New York, or received far less than you expected, the short answer is yes, a will can be contested. The longer answer has three conditions. Only certain people may object. Only certain grounds will invalidate a will. And the objection must be filed before the Surrogate’s Court admits the will to probate, with narrow exceptions.

This page is written for the disinherited person. It explains who has standing to object, what your relationship to the decedent entitles you to regardless of what the will says, how a no-contest clause affects your decision, and how a contest moves from citation to SCPA 1404 examinations to objections to trial or settlement. For a detailed treatment of each legal ground, see our page on contesting a will in New York. For disputes that arise after probate, between beneficiaries and executors, see inheritance disputes in New York City.

Three questions to answer before anything else

1. Do you have standing? You must be a person whose share of the estate would be larger if this will were denied probate.
2. Is there a legal ground? Being treated unfairly is not a ground. Lack of capacity, undue influence, fraud, duress, forgery, improper execution and revocation are.
3. Has the will already been admitted? If the Surrogate has signed a probate decree, your options narrow sharply.

Who has standing to contest a will in New York

SCPA 1410 allows objections by “any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate.” In practice, two groups qualify.

• Distributees who would take more without the will. A distributee is a person who would inherit under New York’s intestacy statute, EPTL 4-1.1, if there were no valid will. If the will gives you less than your intestate share, or nothing, you are adversely affected.
• Beneficiaries under an earlier will or codicil. If the decedent signed a prior will that gave you more than the will now offered for probate, you have standing even if you are not a blood relative. The earlier will must be produced and offered as an alternative.

SCPA 1410 carves out one exception. A person whose only financial interest is the commissions he or she would have earned as executor under a prior will cannot object without leave of court for good cause shown.

Who is a distributee under EPTL 4-1.1

New York ranks heirs in this order. A closer class cuts off the classes below it.

1. A surviving spouse and children (or the descendants of deceased children). The spouse takes the first $50,000 plus one-half; the children share the rest. If there are no children, the spouse takes everything. If there is no spouse, the children take everything.
2. Parents, if there is no spouse or descendant.
3. Siblings and the descendants of deceased siblings.
4. Grandparents, then aunts, uncles and first cousins.
5. First cousins once removed, in limited circumstances.

Adopted children are distributees of their adoptive parents under Domestic Relations Law 117. Nonmarital children inherit from their father if paternity is established under EPTL 4-1.2. A grandchild whose parent is still alive is not a distributee and generally has no standing unless named in a prior will.

Who generally lacks standing

• A friend, partner or caretaker who was never named in any will.
• A relative who receives the same or more under the contested will than under intestacy or any prior will.
• A nephew or niece whose parent (the decedent’s sibling) is alive, when the decedent left a spouse, children or parents.
• A beneficiary of a trust, joint account or life insurance policy complaining only about those assets. Those pass outside the will and are challenged in a separate proceeding, not a will contest.

What being left out means, depending on who you are

New York law treats a disinherited spouse very differently from a disinherited child, and both differently from a disinherited friend. Your category determines what you can claim without ever proving the will invalid.

Spouses: the elective share

A surviving spouse cannot be fully disinherited in New York. Under EPTL 5-1.1-A, the spouse may elect to take the greater of $50,000 or one-third of the net estate. The net estate for this purpose includes “testamentary substitutes,” such as joint accounts, Totten trust accounts, revocable trusts, certain retirement accounts and gifts made within one year of death. The right of election does not require any finding of incapacity or undue influence; it exists regardless of what the will says.

Key points for a spouse:

• Deadline: the election must be filed within six months after letters are issued to the executor or administrator, and in no event later than two years after death. The court may extend the six-month period for reasonable cause.
• Waiver: a prenuptial or postnuptial agreement can waive the elective share if it is in writing and acknowledged in the manner required for a deed (EPTL 5-1.1-A(e)).
• Disqualification: under EPTL 5-1.2, a spouse who was divorced, whose marriage was annulled, or who abandoned or failed to support the decedent may be disqualified from the elective share and from intestate inheritance.
• Exempt property: separately, EPTL 5-3.1 sets aside certain household items, one vehicle and cash for the spouse (or minor children), up to statutory limits that total $92,500, before creditors and before the will operates.

A spouse can file the right of election and object to probate at the same time. Often the election alone resolves the problem without a contest.

Children: no forced share in New York

New York does not protect adult or minor children from disinheritance. A competent adult may leave a child nothing, and a will that says “I make no provision for my son” is enforceable. A disinherited child who was alive when the will was signed has only one path: proving that the will is invalid on one of the recognized grounds. Our page on contesting a parent’s will in New York City addresses the family dynamics that come with those cases.

After-born children: EPTL 5-3.2

The one statutory protection for children covers those born or adopted after the will was signed and neither mentioned in it nor provided for by a lifetime settlement. Under EPTL 5-3.2:

• If the testator had no children when the will was executed, the after-born child takes the share he or she would have received in intestacy.
• If the testator had other children at the time and the will provided for them, the after-born child shares in those gifts as if the children had been named as a class.
• If the testator had other children at the time and left them nothing, the after-born child also takes nothing.

A child born before the will and simply omitted gets no protection under this section.

Siblings, parents, nieces and nephews

These relatives have standing only if they are distributees under EPTL 4-1.1 or beneficiaries under a prior will. A sibling of a decedent who left no spouse, children or parents is a distributee and may object. A sibling of a decedent who left a child is not.

Partners, friends and caretakers

An unmarried partner has no intestate rights in New York and no elective share. Standing exists only if a prior will named the partner. The reverse situation, where a caretaker or new acquaintance displaced the family, is discussed on our page about an aunt who left her inheritance to a caretaker.

The grounds for contest in New York, briefly

A will is presumed valid once the proponent shows due execution and capacity. The objectant then needs evidence on one or more of the following grounds. The full discussion, with strategy and evidence, is on our will contest page; this is the summary a disinherited person needs to decide whether a contest is worth pursuing.

• Lack of testamentary capacity. In Matter of Kumstar, 66 N.Y.2d 691 (1985), the Court of Appeals restated the test: the testator must have understood the nature and consequences of making a will, the nature and extent of his or her property, and the natural objects of his or her bounty and the testator’s relations with them. The standard is measured at the moment of signing. In Kumstar the court set aside a jury verdict against the will because evidence of confusion on other days did not overcome the attesting witnesses’ testimony about the day of execution. A dementia diagnosis alone does not establish incapacity; medical records, medication lists and the witnesses’ accounts of the signing matter more than the label.
• Undue influence. The objectant must show influence amounting to moral coercion that restrained independent action and destroyed free agency (Matter of Walther, 6 N.Y.2d 49 (1959)). Motive and opportunity are not enough; actual exercise of influence must be shown, usually by circumstantial evidence (Matter of Anna, 248 N.Y. 421 (1928)). Where a beneficiary in a confidential relationship, such as a drafting attorney or a caretaker, was involved in preparing the will, courts require an explanation of the bequest (Matter of Putnam, 257 N.Y. 140 (1931)). That inference does not ordinarily arise between close family members. See proving undue influence.
• Fraud. The objectant must prove, by clear and convincing evidence, that someone knowingly made a false statement that caused the testator to dispose of property differently than he or she otherwise would have.
• Duress. Threats or force used to compel the will. See duress in a will contest.
• Forgery. A forged signature or substituted pages. These cases turn on a questioned-document examiner. See proving forgery of a will.
• Lack of due execution. EPTL 3-2.1 requires that the testator sign at the end of the will; sign in the presence of each attesting witness or acknowledge the signature to each; declare the document to be his or her will; and have at least two attesting witnesses who sign within thirty days of each other and add their addresses. When an attorney supervised the signing, New York applies a presumption of regularity (Matter of Collins, 60 N.Y.2d 466 (1983)), and a self-proving affidavit under SCPA 1406 strengthens the proponent’s case. Wills signed without a lawyer present are far more exposed on this ground.
• Revocation. Under EPTL 3-4.1 a will is revoked by a later will or writing executed with the same formalities, or by burning, tearing, cancelling or destroying it with intent to revoke. A will last known to be in the testator’s possession that cannot be found after death is presumed revoked. A lost will can still be offered under SCPA 1407 if the proponent meets that section’s requirements.

Burden of proof matters to a disinherited person. The proponent bears the burden on due execution and capacity. The objectant bears the burden on undue influence, fraud and duress. Objectants commonly plead every supportable ground, as explained in our post on the grounds for contesting a will in New York.

No-contest clauses: EPTL 3-3.5

If the will leaves you something, even a small amount, check for an in terrorem clause. This is a provision stating that a beneficiary who contests the will forfeits his or her gift. New York enforces these clauses under EPTL 3-3.5(b), and unlike many states it enforces them even if the objectant had probable cause to contest.

The statute lists conduct that does not trigger forfeiture. You may do all of the following and keep your bequest:

• Object to the court’s jurisdiction.
• Disclose information to the parties or the court about the will or the probate proceeding.
• Refuse to join the probate petition or to sign a waiver and consent.
• Conduct SCPA 1404 examinations of the attesting witnesses, the person who prepared the will, and, when the will contains an in terrorem clause, the nominated executors and the proponents. With leave of court for special circumstances, other witnesses may be examined as well.
• Bring or join a proceeding to construe the will.
• Contest the will on the ground that it is a forgery or was revoked by a later will, provided the contest is based on probable cause.

An infant or incompetent person may object to probate without forfeiting anything. A beneficiary who receives nothing under the will has nothing to forfeit, so the clause does not restrain a fully disinherited person.

The practical consequence: a beneficiary facing a no-contest clause can use the SCPA 1404 examinations to learn how strong the case is before deciding whether to risk the bequest by filing objections.

How a will contest proceeds in New York Surrogate’s Court

The timeline below is specific to a contested probate. For an uncontested estate, see a sample New York City probate timeline.

1. Probate petition. The nominated executor files the will and a petition under SCPA 1402 in the Surrogate’s Court of the county where the decedent lived.
2. Citation. Under SCPA 1403, the petitioner must serve a citation on every distributee who has not signed a waiver, on beneficiaries and executors named in any prior will on file with the court, and on anyone adversely affected by a codicil. The citation lists a return date. If you were not cited and did not waive, a decree does not bind you.
3. Return date and appearance. You or your attorney appear on the return date and request SCPA 1404 examinations. Do not let the return date pass without appearing or obtaining an adjournment.
4. SCPA 1404 examinations. Before filing objections, you may depose the attesting witnesses and the attorney who drafted the will, and in some cases the proponent and nominated executors. Under 22 NYCRR 207.27 the examination covers the period from three years before the will was signed to two years after, or the date of death, whichever is shorter. You may also demand the drafting attorney’s file and the decedent’s medical records through subpoena.
5. Objections. Under 22 NYCRR 207.26, objections are generally due within ten days after the SCPA 1404 examinations are completed, or by the return date if no examinations were requested, unless the court sets a different schedule. Objections are verified pleadings that state the grounds.
6. Preliminary letters. While the contest is pending, the court may issue preliminary letters testamentary under SCPA 1412 so that someone can collect assets and pay bills. The preliminary executor generally cannot distribute the estate.
7. Discovery. Depositions of the parties and other witnesses, document exchange, medical and financial subpoenas, and expert reports on handwriting or capacity.
8. Settlement or trial. Most contests settle. If not, the matter is tried before the Surrogate or, on demand under SCPA 502, before a jury. The court then signs a decree admitting the will, admitting part of it, or denying probate.

Contested probates in the New York City counties and on Long Island commonly take a year or more from the return date to a decree, and longer if the matter goes to trial. Court calendars vary by county.

If the will has already been admitted to probate

Once the Surrogate signs a decree admitting the will, the time to file objections has passed. Two avenues remain. First, if you were a necessary party and were not properly cited, the decree is not binding on you and the proceeding can be reopened as to your interest. Second, a party who was cited may move to vacate the decree under CPLR 5015, but the Court of Appeals requires a showing of both a reasonable excuse for the default and a substantial basis for the contest with a reasonable probability of success (Matter of American Committee for Weizmann Institute of Science v. Dunn, 10 N.Y.3d 82 (2008)). Courts grant these motions sparingly. A party who litigated and lost may appeal the decree to the Appellate Division; see appealing a Surrogate’s Court judgment.

What a will contest costs and what you can expect

Objectants usually pay their own legal fees, either hourly against a retainer or, in some cases, under a contingency arrangement. The executor’s fees for defending the will in good faith are commonly paid from the estate, which gives the proponent a structural advantage. Expert witnesses for handwriting or medical capacity add to the cost.

No lawyer can promise an outcome. Factors that bear on strength include whether an attorney supervised the execution, whether there is a self-proving affidavit, how recently and how much the will departed from earlier estate plans, the decedent’s medical records around the date of signing, and the involvement of the principal beneficiary in arranging the will. The SCPA 1404 examinations exist so that you can weigh these factors before committing to objections.

What happens if the contest succeeds

Under SCPA 1410, objections may be directed to the whole will or to any portion of it. Depending on the ruling, the court may:

• deny probate to the entire will;
• admit the will but strike a particular provision, for example a bequest procured by fraud;
• admit an earlier will that was offered as an alternative; or
• find no valid will, in which case the estate passes by intestacy under EPTL 4-1.1 and letters of administration issue under SCPA 1001.

For a disinherited distributee, denial of probate with no earlier will produces the intestate share. For a prior-will beneficiary, the goal is admission of the earlier instrument. For information on administration without a will, see administrator of an estate without a will.

Before you decide: a checklist

• Obtain a copy of the will. Once filed with the court it is a public record, and a cited party is entitled to it. See are beneficiaries entitled to a copy of the will.
• Confirm your status as a distributee or prior-will beneficiary.
• If you are the spouse, calendar the six-month elective share deadline from the date letters issue.
• Check the will for a no-contest clause and the amount you would forfeit.
• Gather what you know about the decedent’s health, living situation and relationship with the main beneficiary during the three years before the will.
• Locate any earlier wills, including copies, and the names of the attorneys who prepared them.
• Appear on the return date or retain counsel to appear for you.

Frequently asked questions

Can a child contest a will if left out in New York?

Yes, if the child is a distributee, which a child of the decedent always is. But New York gives children no forced share, so the child must prove the will invalid on grounds such as incapacity, undue influence or improper execution. The only exception is a child born or adopted after the will was signed, who may take a share under EPTL 5-3.2.

Can a spouse be disinherited in New York?

Not completely. The surviving spouse may elect under EPTL 5-1.1-A to take the greater of $50,000 or one-third of the net estate, including testamentary substitutes, unless the spouse waived that right in a valid agreement or is disqualified under EPTL 5-1.2.

How long after probate can you contest a will in New York?

Objections must be filed before the decree, generally within ten days after SCPA 1404 examinations end or by the return date of the citation. After the decree, a cited party must move to vacate and show a reasonable excuse and a substantial basis for the contest. A party who was never cited is not bound by the decree.

Can a will be contested if it has a no-contest clause?

Yes. The clause only affects beneficiaries who would forfeit a gift. Under EPTL 3-3.5, you may conduct SCPA 1404 examinations, refuse to sign a waiver, seek a construction of the will and contest on forgery or revocation grounds with probable cause, all without forfeiture. A person who receives nothing has nothing to lose.

What does it cost to contest a will in New York?

Costs depend on the number of witnesses, the need for handwriting or medical experts, and whether the case settles after the SCPA 1404 stage or goes to trial. Objectants ordinarily pay their own fees, while the executor’s defense fees are often paid from the estate. Ask about hourly and contingency options at the initial consultation.

Does a dementia diagnosis automatically invalidate a will?

No. Capacity is judged at the moment of signing, and New York courts recognize that a person with a dementia diagnosis may still have the capacity described in Matter of Kumstar. The contemporaneous medical records and the attesting witnesses’ testimony about the signing carry the most weight.

Can I contest a trust or a joint account the same way?

No. A will contest in Surrogate’s Court addresses only the will. Revocable trusts, joint accounts and beneficiary designations are challenged in separate proceedings, often a turnover or discovery proceeding under SCPA 2103 or a plenary action. See discovery and turnover proceedings and trust litigation in New York City.

Talk to a New York will contest attorney

If you were left out of a will and want to know where you stand, we can review the will, confirm your standing, calculate any elective or after-born share, and tell you what the SCPA 1404 examinations are likely to show. Attorney Albert Goodwin has litigated will contests in the New York Surrogate’s Courts for more than a decade. Call (212) 233-1233 or email email@nyestateslawyer.com. Read more about Albert Goodwin.