7 Questions to Ask Yourself to Help You Make the Determination
Should You Contest a Will in New York? If you’re wondering whether you should contest a will in New York, you’re likely dealing with grief, confusion, and family tension—all at the same time. On top of that, New York’s Surrogate’s Court procedures can be intimidating, and the decision to file objections is rarely just “legal.” It’s also financial, emotional, and strategic.
At RK Law, P.C., we regularly represent clients in New York will contests. Below are seven key questions to think through to help you decide whether to challenge a will.
1. Should You Contest a Will in New York? Do You Have Standing—and Are You on Time?
You generally have standing if:
- You are a distributee (a person who would inherit under New York’s intestacy laws if there were no will), and/or
- You are a beneficiary under a prior will who is negatively affected by the new will.
If the Will does not change your rights, or if you would not inherit even if the will were thrown out, you may not have standing.
Timing matters too:
- In a typical probate proceeding, the Surrogate’s Court issues a citation with a return date.
- You must appear and file objections (or seek leave to do so) by the deadlines set by the court or you can lose your right to contest.
- Pre-objection discovery (often under SCPA § 1404) usually occurs before objections are formally filed.
If you’re unsure about your status as a distributee or whether you’ve missed a deadline, that’s a strong signal to speak with a New York trusts and estates litigator immediately.
2. What Are Your Legal Grounds—and Can You Meet the Evidentiary Burden?
Feeling that a will is “unfair” is not, by itself, a legal ground to set it aside.
Common grounds to contest a will in New York include:
- Lack of due execution – The will wasn’t executed with the formalities required by New York law.
- Lack of testamentary capacity – The decedent did not understand the nature of their property, the natural objects of their bounty, or the meaning of the will at the time of signing.
- Undue influence – Someone pressured or manipulated the decedent to such a degree that the will reflects that person’s wishes, not the decedent’s.
- Fraud – The decedent was deceived into signing the will or changing its terms based on false information.
- Duress – The decedent signed the will under threats or coercion.
- Forgery or suspicious circumstances – The signature or document authenticity is in question.
Evidentiary burden:
- You will likely need more than family suspicions or “everyone knows this is wrong.”
- Useful evidence may include: medical records, emails or texts, financial records, drafts of prior estate planning documents, witness testimony, and records from the drafting attorney.
- Under SCPA § 1404, you may be able to depose the attorney-draftsperson and attesting witnesses and obtain the attorney’s file—this often shapes the decision whether to proceed.
Ask yourself: If I had to explain this to a judge tomorrow, what evidence do I actually have—not just what I suspect?
3. Should You Contest a Will in New York? Does the Cost/Benefit Analysis Make Sense?
Will contests can be expensive. Before filing, it’s critical to estimate what you’re fighting for and what it may cost to get there.
Key cost/benefit factors:
- Size of the estate – Is the estate large enough that a potential recovery justifies litigation fees and costs?
- Your potential share – Even if you “win,” what does that mean numerically? Would you receive substantially more, or just a marginal increase?
- Fee structure – Will your attorney work hourly, on a contingency, or a hybrid? How will litigation costs (experts, depositions, subpoenas) be handled?
- Risk of paying others’ fees – In some situations, the court can allocate attorneys’ fees and costs out of the estate or otherwise, affecting what’s left to distribute.
Sometimes, the most honest answer is: “Yes, you might be right on the law, but the numbers don’t justify a full-blown contest.” A candid discussion with counsel about the economics should happen at the very beginning—not after you’ve spent tens of thousands of dollars.
4. How Will This Affect Family Dynamics (and Are You Ready for That)?
A will contest is not a private conversation—it’s a public court proceeding that can deepen old wounds.
Consider:
- Relationships with siblings and other relatives – Are you willing to risk permanent estrangement?
- Long-term consequences – Even after the case ends, family holidays, caretaking responsibilities, and future financial decisions may be affected.
- Power imbalances – If one sibling was the caretaker, executor, or has control over family records, they may have both emotional and practical leverage.
- Your own emotional bandwidth – Litigation can mean being deposed, testifying, and revisiting painful events, sometimes for years.
In some families, litigation is the only way to stop serious abuse, exploitation, or fraud. In others, the damage to relationships significantly outweighs the potential financial recovery. Only you can decide which category you fall into, but you should make that decision with your eyes open.
5. Should You Contest a Will in New York? What Is the Likelihood of Settlement?
Despite how dramatic will contests sound, many New York probate disputes settle before trial.
Think about:
- Is there a reasonable middle ground?
- For example, modest adjustments to the distribution, a buy-out of an heir’s interest in a property, or a restructuring of how assets are divided.
- For example, modest adjustments to the distribution, a buy-out of an heir’s interest in a property, or a restructuring of how assets are divided.
- Are there assets everyone agrees on?
- Sometimes certain bequests (like sentimental items) can be resolved quickly, reducing friction over the rest.
- Sometimes certain bequests (like sentimental items) can be resolved quickly, reducing friction over the rest.
- Is mediation a good option?
- Surrogate’s Courts often encourage settlement discussions, and mediation can be more confidential, flexible, and less adversarial than motion practice.
- Surrogate’s Courts often encourage settlement discussions, and mediation can be more confidential, flexible, and less adversarial than motion practice.
A realistic settlement assessment should be part of your strategy from day one, not an afterthought when the case has already become toxic and expensive.
6. Should You Contest a Will in New York? What Is the Time Horizon—and Can You Live With It?
New York will contests are marathons, not sprints.
Typical phases include:
- Probate petition and citation – The will is offered for probate; interested parties are notified.
- SCPA § 1404 discovery (in many cases) – Examinations of the drafting attorney and witnesses, and production of the attorney’s file.
- Filing of objections – Formal written objections outlining your grounds.
- Motions and further discovery – Document exchange, depositions, and potential motions to dismiss, for summary judgment, or to limit issues.
- Settlement discussions or mediation – Often occur throughout the process.
- Trial – If the case doesn’t settle, the court conducts a trial to determine whether the will is valid.
This process can take years, especially in congested New York counties.
Ask yourself:
- Am I prepared for a multi-year process where there may be long periods of waiting followed by intense deadlines?
- How will this affect my work, finances, and mental health?
- Can I tolerate the uncertainty while the estate remains partially or wholly undistributed?
7. Should You Contest a Will in New York? Are There Better or Parallel Options to a Will Contest?
Contesting the will is not the only path, and sometimes it’s not the best one.
Depending on the facts, you may also consider:
- Accounting proceedings – Challenging how an executor or administrator has managed the estate, even if the will itself stands.
- Turnover or discovery proceedings – Seeking the return of assets you believe were wrongfully removed from the estate or from joint accounts/beneficiary designations.
- Elective share (for surviving spouses) – In some cases, a spouse may be better served by exercising an elective share rather than contesting the will itself.
- Negotiated agreements – Private family settlements that adjust distributions without a full contest.
- Doing nothing – Sometimes, after reviewing your standing, the evidence, and the economics, the most rational choice is to accept the will—even if it feels unfair.
A good New York trusts and estates litigator should walk you through all your options, not just the most aggressive one.
Should You Contest a Will in New York? When to Talk to a New York Will Contest Attorney
You should consider consulting an attorney experienced in Surrogate’s Court litigation if:
- You’ve received a citation to a New York probate proceeding and are unsure what to do.
- You suspect undue influence, lack of capacity, or fraud in connection with a recent will.
- You were cut out of a will or your share was drastically reduced compared to prior estate plans.
- Family members are pressuring you to “just sign” waivers without explanation.
An early consultation can preserve your rights, clarify your options, and help you avoid irreversible mistakes.
How RK Law, P.C. Can Help
Should You Contest a Will in New York? RK Law, P.C. represents beneficiaries, distributees, executors, and fiduciaries in New York Surrogate’s Court in matters involving:
- Will contests and objections to probate
- SCPA § 1404 examinations and motion practice
- Turnover and discovery proceedings involving joint accounts and transfers
- Contested accountings and fiduciary removal
- Negotiation and settlement of complex family disputes
We focus on balancing legal strength, cost/benefit, and family dynamics so you can make decisions that are strategic—not just reactive.
FAQ Section – Should You Contest a Will in New York
A: Deadlines are tied to the probate proceeding and citation date. In many cases, you must appear and assert your rights before the will is admitted to probate. Because timing can be complex, you should speak to a New York Surrogate’s Court attorney as soon as you receive any court papers.
A: It may be possible in limited circumstances, but it is far more difficult. Once a decree admitting the will to probate is entered, your options narrow significantly, so early action is critical.
A: Not necessarily. The court has discretion, and some assets may still be administered while the contest is pending. Your attorney can ask the court for appropriate relief based on the facts of your case.
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
Visit Regina on LinkedIn
Visit Regina on Facebook
This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.