Did you know that you can file objections to Probate in New York Surrogate’s Court to protest the admission of a Will to Probate?
When a loved one passes away and leaves behind a Last Will and Testament, the Will must typically go through probate in Surrogate’s Court before assets are distributed to beneficiaries. But what happens if someone believes the Will is invalid? In New York, eligible parties can file objections to probate of a Will and ask the Court to set it aside. These proceedings, known as Will contests, are governed by the Surrogate’s Court Procedure Act (SCPA) and can significantly impact the administration of the estate.
We represent clients on both sides of probate disputes—whether you are seeking to challenge a Will or defend its validity in Surrogate’s Court. Below, we explain who can object to probate, the legal grounds for a Will contest, and what to expect from the process—including how to file formal objections after discovery.
Who Can File Objections to Probate of a Will in New York?
Pursuant to SCPA § 1410, only individuals with standing can file objections to probate. Standing means the person has a pecuniary interest—that is, they would receive a greater share of the estate (or receive something at all) if the Will were declared invalid.
Those with standing typically include:
- Distributees (Heirs-at-Law): Individuals entitled to inherit under New York’s intestacy laws (EPTL § 4-1.1), such as a surviving spouse, children, or other relatives. If the Will disinherits or reduces a distributee’s share, they generally have standing to object.
- Beneficiaries of a Prior Will: If a person was named in a prior Will but is omitted or reduced in a later Will, they may also have standing to contest the newer Will.
If you would not inherit under intestacy and are not named in any Will, you likely do not have standing to object. The Surrogate’s Court will dismiss objections filed by those who do not demonstrate a direct financial interest in the estate.
Grounds for Contesting a Will in Surrogate’s Court and Filing Objections to Probate
New York law permits several grounds for objecting to the probate of a Will:
1. Lack of Due Execution
Under EPTL § 3-2.1, a valid Will must be:
- Signed by the testator;
- Witnessed by at least two individuals;
- Signed or acknowledged by the testator in the presence of the witnesses;
- Signed by the witnesses within a reasonable time.
A failure to follow these statutory formalities can invalidate the Will.
2. Lack of Testamentary Capacity
The testator must understand the nature and extent of their assets, the natural objects of their bounty (typically family), and the legal effect of making a Will. If they lacked the mental capacity due to illness, dementia, or cognitive decline, the Will may be invalidated.
3. Undue Influence
If someone used coercion, manipulation, or psychological pressure to override the testator’s free will—often a caregiver, companion, or trusted advisor—the Will may be deemed the product of undue influence and set aside.
4. Fraud or Forgery
A Will may be invalid if it was forged, or if the testator was misled into signing it through fraudulent representations. These claims must be supported by clear and convincing evidence.
The Process of Filing Objections to Probate in New York Surrogate’s Court
The Will contest process begins when the nominated executor files a petition for probate in Surrogate’s Court. The Court then issues a Citation, notifying interested parties of the proceeding.
If you intend to file objections to Probate, you must appear in Court on the Citation’s return date and take appropriate steps to preserve your right to object.
Pre-Objection Discovery: SCPA 1404 Examinations
Before filing formal objections to probate, a party with standing may conduct SCPA § 1404 examinations, which serve as a powerful discovery tool in New York probate proceedings. These examinations allow you to question, under oath:
- The attorney who drafted the Will;
- The attesting witnesses;
- The proponent of the Will, if objections are ultimately filed.
These examinations explore issues such as the circumstances of execution, testamentary capacity, and potential undue influence or fraud. Objectants may also request the decedent’s medical records and other relevant documents.
Critically, if you conduct 1404 examinations before filing objections, the estate bears the cost of legal fees and transcripts. If you file objections first, you lose that cost-shifting protection and must pay these fees yourself.
How to File Formal Objections to Probate After 1404 Examinations
Once SCPA 1404 discovery is complete, and you decide to proceed with a Will contest, the next step is to file formal objections to probate. This is a multi-step process:
1. Prepare Verified Objections
Objections must be in writing and verified, meaning they are sworn under oath. The document should clearly set forth the legal and factual grounds for objecting, such as:
- Failure to comply with EPTL § 3-2.1;
- Lack of testamentary capacity;
- Undue influence or coercion;
- Fraud or forgery.
2. File Objections to Probate with the Court
The verified objections must be filed with the appropriate Surrogate’s Court, where the probate proceeding is venued. The objections are filed under the same file number as the probate petition.
3. Serve the Objections on All Parties
Once filed, you must serve a copy of the verified objections on all parties who have appeared in the probate proceeding, including:
- The nominated executor or proponent of the Will;
- Other distributees or interested parties;
- Counsel for any other objectants.
Service is typically done by mail or electronic filing through the New York State Courts Electronic Filing (NYSCEF) system, where available.
4. Pay the Filing Fee
There is a $75 filing fee payable to the Surrogate’s Court at the time the objections to probate are filed. The fee is required regardless of how many grounds of objection are asserted.
Conclusion
We can assist with filing objections to probate of a Will. We routinely handle cases across New York involving:
- Will contests based on undue influence, fraud, and lack of capacity;
- Defense of valid Wills on behalf of nominated fiduciaries and beneficiaries;
- Disputes involving lifetime transfers, joint accounts, and beneficiary designations;
Complex estates involving multiple Wills, blended families, or cross-border assets.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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