Practical Insights

Posted: February 16, 2016 / Categories Client Q & A, Trusts and Estates

Client Q&A: I was written out of my grandmother's will. What can I do?

I was written out of my grandmother's will. She would never have done that – the will must be a fraud! What can I do?

By Bradley J. Nash

A Guide to Contesting a Will

The death of a loved one is an emotionally-charged time in any family. Unfortunately, all too often disputes arise over what will happen to a deceased relative's money, property and other assets. New York (like all states) has a set of default rules – set forth in the intestacy statute – governing how an estate is to be divided among the surviving relatives. However, prior to death, an individual can execute a will establishing an estate plan that deviates from those default rules – favoring some relatives over others, or perhaps leaving some or all family members out altogether, and leaving the assets to a friend or a charity.

In general, the law respects the choices that are reflected in a will, even if they may seem unwise or unfair. However, in a limited set of circumstances, it may be possible to challenge a will and have it declared invalid by the Surrogate’s Court, the specialized court in New York that handles estate matters (often called a "Probate Court" in other states).

Standing to Contest a Will

As an initial matter, a person seeking to challenge a will in court must establish "standing" to do so by showing that he is adversely affected by the will. Typically, this is accomplished either by showing that there is an earlier will under which the objecting party would have received a larger sum, or that he would receive more under the intestacy statute than he does under the will.

Grounds for Contesting a Will

Once standing to object is established, the person objecting to the will must establish a basis for the court to invalidate the will. The three most common grounds are:
(1) The will was not properly executed;
(2) The deceased lacked the legal capacity to execute a valid will; or
(3) The deceased was subject to improper pressure or fraud, such that the will does not reflect his or her true intentions.

Due Execution

To create an enforceable will, certain legal formalities must be observed. For example, the will must be in writing; it must be signed by the person creating the will; and the signing must be witnessed by two neutral witnesses who do not stand to receive anything under the will. The Surrogate’s Court can invalidate a will on the ground that these formalities were not properly performed. The proponent of the will has the burden of establishing "due execution" (i.e., that the formalities were met). However, when a will is drafted by an attorney who supervises its execution, the courts apply a presumption of due execution, and the burden shifts to the objecting party to establish a defect. This can be difficult to do, especially if a long time has passed since the will's execution.

Another possibility is that the entire will (or a portion of it) is a forgery. This can also be difficult to establish and may require handwriting analysis or other expert testimony.

Testamentary Capacity

To create a valid will, a person must be of sound mind – i.e., must have what the law calls "testamentary capacity." Generally, this means that the person:
(1) understands that he is creating a will;
(2) appreciates the nature and extent of his property; and
(3) knows who his relatives are.

A person objecting to a will may try to show a lack of testamentary capacity through evidence that the deceased was suffering from a mental illness or dementia at the time the will was executed. The standard for testamentary capacity, however, is not high. Typically, evidence that a person showed general signs of dementia, for example, is not sufficient to establish a lack of capacity to execute a will. Rather, there must be a showing that at the specific time the will was executed the person did not demonstrate an understanding of the three factors listed above. Such a particularized showing is often hard to make.

Undue Influence/Fraud

A will can also be invalidated if it is the product of undue influence or fraud. Wills are sometimes executed by vulnerable people – the elderly or sick – who may be subject to manipulation. Undue influence is typically established by showing that a person in a position of control over the deceased (for example, a caregiver or someone managing his financial affairs) abused his authority to pressure the deceased to execute or make changes to the will. This could take the form of a subtle manipulation or outright duress (i.e., a threat to withdraw care or send the person to a nursing home). There is also the possibility of fraud – i.e., false statements that induce someone to execute a new will or modify and existing will. Undue influence and fraud are also difficult to show, since the critical witness (the deceased) is by definition unavailable. Physical evidence (such as a video or recorded phone conversation) is rare. Often undue influence is established by circumstantial evidence – i.e., that a person had the opportunity, motive and means to exert influence over the person executing the will.


Challenging a will in court is a difficult process given the legal hurdles and the emotional and financial stakes for the parties involved. We have experience helping clients navigate the process. If you have questions about contesting a will, we would be happy to advise you.