Challenging a Will in New York State or NYC

Challenging a will in New York State or New York City is not a simple task. The right to contest a will is not an inherent power available to just anyone. You cannot contest your neighbor’s will simply because you believe his estate should go to his daughter rather than his teacup Yorkie named Freddie. Similarly, you cannot contest a will because you believe you deserve a bigger share of the estate.

Under New York Surrogate’s Court probate laws, only parties that have an interest in the estate may bring a will contest. Keep in mind your will contest must not be fabricated out of thin air.  Your motivation behind the challenge must be legitimate.

Who are the Interested Parties? 

In a will contest setting, an “interested person” includes children, spouse, heirs, or any other party who has a right or a claim to the property of the estate. The following people are also allowed to challenge a will:

• Beneficiaries named in a previous will
• Beneficiaries of a later dated will
• The heirs of an estate based on the laws of the state (intestacy statute).

A neighbor who is not named as a beneficiary in a prior instrument or a subsequent will, and is not related to the decedent, has no standing to pursue a challenge.

But what if a decedent dies leaving his entire estate to his daughter, and disinherits his son and elderly mother.  Can his mother contest the will? Although the mother is a relative, she is not the next of kin. If the decedent died without a will, or if his will was voided by the Surrogate’s Court in a successful will contest, the estate would be split between the son and the daughter, the mother is not included. The son has the right to challenge the will, but not the mother.  If the decedent was not married and had no children, the mother is the next of kin and can dispute the last will and testament if she is left out.

Rights of a Surviving Spouse

A spouse disinherited in a will has two options.  She can challenge the will or file for her “elective share.” Both options are available only if she never signed a legal agreement waiving her right to the estate.

Under the laws of New York State, a spouse is entitled to an “elective” share whether or not they are mentioned in the will.  The amount of the elective share is fifty thousand dollars or one-third of the net estate, whichever is greater.

To illustrate, Joe dies with a net estate of 500k.  His will leaves his entire estate to the Ringling Brothers Circus, and nothing to his wife Angela. Despite being excluded from Joe’s estate planning documents, Angela can collect her elective share of about $166,000 from his estate, or challenge the will and potentially inherit the entire $500,000. But what if Joe’s will leaves 100k to Angela and the rest to the circus? Angela can still collect her elective share for an additional $66,000 or contest the will.

The Rights of Heirs to Bring a Challenge

Most wills are challenged by heirs who are omitted from the will or have been left less than they expected. Just because you are related to the decedent, it does not automatically qualify you as an heir.  Determining who is an heir can sometimes get very complicated when the family tree is extensive.  The person that is the next of kin and has standing to contest a will, is controlled by statute. The statute is New York EPTL 4.1-1. It dictates the order of priority as follows:

• spouse and children;
• decedent’s parents;
• decedent’s siblings;
• grandparents;
• aunts and uncles;
• first cousins

This is only a brief list to show where the heirship chain starts (spouse) and ends (first cousin). The New York EPTL 4.1-1 statute requires a careful and comprehensive reading. This is because children of a predeceased heir inherit under the law. For example, David had three children – Alex, Madison and Miles. Alex dies survived by one daughter, Dina. When David dies, his next of kin are Madison, Miles and Dina.  Notice that Dina steps into the shoes of her deceased father Alex. Most estates run into problems by failing to include someone similarly situated as Dina as the next of kin.

The Rights of Beneficiaries to Bring a Challenge

A beneficiary named in the will to receive a gift, whether it be real estate, money or other personal property, may have standing to contest a will. Not agreeing with the decedent’s outlined distribution method is not a valid claim.  There is no limitation as to who a testator (person making the will) can name a beneficiary:  it can be children, spouse, nephews, grandchildren, caregiver, lawyer, neighbor, friends, charitable organizations, colleges, animal advocacy groups, and even a beloved pet chimpanzee. The choice is personal and Surrogate’s Court will not go against a decedent’s last wishes.

“No Contest” Clause

When there are concerns of a will contest in the future, a common safeguard used by estate lawyers is to include a “no contest” provision in the will. Will contests are time-consuming and financially draining.  The purpose of this clause is to deter challenges and discipline the beneficiary in case the challenge is frivolous.

If you stand to inherit under the will, bring a contest, and lose in court, you will be disinherited from receiving anything.

To illustrate, Tom’s will leaves his multi-million dollar estate to his girlfriend, Anna and 250k to his son, Jason. Jason can take the money left to him under the will or bring a challenge. Being that the instrument contains a “no contest” clause, if Jason pursues the latter option and loses, he receives nothing from the estate. However, if the Court invalidates the will, Jason inherits his dad’s entire estate, leaving Anna in the dust.

Update as of March 2021: not every disagreement with the will amounts to a “will contest.”  Beneficiaries are afraid of losing their inheritance that they agree to just about anything to not invoke the “no contest” clause.  However, there are several exceptions to the rule that make this clause unenforceable include:

• Forgery
• The challenger is a minor or incompetent
• The submitted will was revoked by a later will

Other exceptions include a proceeding to interpret the will or reconstruct (if the language is ambiguous) and the right to engage in SCPA 1404 discovery examinations. The 1404 examination allowance is HUGE because you have the chance to examine the witnesses to the will. You can also examine the person who prepared the will under oath, to see if it’s worth bringing a challenge. 

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