Will Contest Attorneys
A will contest is a court proceeding that challenges whether a document offered as a person’s will is valid. The challenger argues that the will should not be admitted to probate because the person who signed it lacked capacity, was pressured or deceived, did not sign it properly, or revoked it, or because the document is not genuine. If the challenge succeeds, the estate passes under an earlier will or, if there is none, under the state’s intestacy rules.
Contests arise most often when a will departs from what the family expected: a child is left out, a late-in-life caregiver or companion receives the estate, or a new will signed during a final illness reverses decades of planning. They are brought by people who would inherit if the will fails, and they are defended by the executor named in the will and the beneficiaries who take under it.
Milvidskiy Law Group P.C. represents both sides. We bring contests for disinherited heirs and beneficiaries under earlier wills, and we defend wills for executors and beneficiaries when a challenge is filed. Our attorneys also draft and supervise the signing of wills, which shapes how we evaluate and try these cases.
Key Takeaways:
- A will can be set aside only on recognized legal grounds: lack of testamentary capacity, undue influence, fraud, duress, improper execution, forgery, or revocation. Unfairness alone is not a ground.
- Only a person whose inheritance would be affected by the will can contest it, and the deadlines are short. In some circumstances the window closes within weeks or months after the will is admitted.
- The procedure differs by state. New York contests are litigated in the Surrogate’s Court before the will is admitted; New Jersey contests usually begin after the county Surrogate has admitted the will; Connecticut contests are heard by the Probate Court and appealed to the Superior Court.
Grounds for Contesting a Will
Lack of testamentary capacity
To have testamentary capacity, the person signing a will must understand, at the time of signing, what a will does, what property they own in general terms, and who their family and natural heirs are. The standard is lower than the capacity needed for many other transactions, and a diagnosis of dementia does not by itself defeat a will. What matters is the person’s condition at the moment of signing, which is why medical records, the drafting attorney’s notes, and the witnesses’ observations carry so much weight.
Undue influence
A will procured by undue influence—pressure that overpowered the signer’s free will—is invalid even if the signer had capacity. The evidence is usually circumstantial: a person in a position of trust who was involved in arranging the will, a signer who was isolated or dependent, a result that benefits the influencer at the expense of the natural heirs, and secrecy. Requirements for shifting the burden of proof to the person who benefited vary by state.
Fraud and duress
Fraud is a lie that induced the signer to make the will or a provision in it, such as a false statement that a child had died or had stolen from the parent. Duress is a threat. Both are harder to prove than undue influence because they require evidence of specific statements or threats, but they are separate grounds.
Improper execution
Every state sets formal requirements for signing a will. In New York, New Jersey, and Connecticut the will must be in writing, signed by the person making it, and signed by two witnesses. The details differ: New York requires the signer to declare to the witnesses that the document is a will and requires the witnesses to sign within a thirty-day period; New Jersey lets witnesses sign within a reasonable time and treats an unwitnessed document as a will if the signature and material portions are in the signer’s handwriting; Connecticut requires the witnesses to sign in the signer’s presence. A will signed without the required formalities is not a will, however clear the signer’s intent.
Forgery and revocation
A will that the decedent did not sign, or that the decedent revoked by a later will or by destroying it, cannot be admitted. Revocation questions arise when an original will cannot be found and a copy is offered, or when two wills with different dates surface.
Who Can Contest a Will
Standing belongs to people whose share of the estate would change if the will fails: the heirs who would take under intestacy, and the beneficiaries under an earlier will. A person named as executor in an earlier will, whose only interest is the commissions that role would have paid, generally cannot object on that basis alone. Friends, distant relatives who would inherit nothing under any scenario, and people who simply believe the will is unfair do not have standing.
How the Process Works in Each State
New York
The executor petitions the Surrogate’s Court to admit the will, and the people who would be adversely affected receive a citation. Before deciding whether to object, a person with standing may examine, under oath, the attesting witnesses, the attorney who drafted the will, the proponents, and, where the will contains a no-contest clause, the nominated executors. The estate bears the cost of examining the first two witnesses. That preliminary examination is often decisive: it reveals what the witnesses saw and what the drafting attorney knew about the signer’s condition and the family. Objections are then filed by the return date or shortly after the examinations end, and the matter proceeds as litigation with discovery and, if it is not settled, a trial.
New Jersey
Most wills are admitted by the county Surrogate without a hearing shortly after death. A person who expects to contest can file a caveat with the Surrogate before the will is admitted, which stops that informal probate and moves the matter to the Superior Court. If the will has already been admitted, the challenger files a complaint in the Superior Court asking that the probate be set aside. Under the court rules, that complaint must be filed within four months after probate, or six months if the challenger lived outside New Jersey at the time. Missing that window generally ends the challenge.
Connecticut
The Probate Court must hold a hearing before admitting or rejecting a will, with notice to everyone known to have an interest in the estate. A person who objects raises the objection at that hearing, and the court decides whether the will is valid. Either side may appeal the Probate Court’s decree to the Superior Court, where the case is heard again; the appeal generally must be filed within thirty days after the court sent the decree. Connecticut law also directs the Probate Court to allow the executor reasonable expenses for defending the will, whether or not it is admitted.
Evidence in a Will Contest
- Medical records from the months around the signing: diagnoses, medications, hospitalizations, and cognitive assessments.
- The drafting attorney’s file: who made the appointment, who attended, what the signer said about the family and the reasons for the plan, and how capacity was assessed.
- The witnesses’ accounts of the signing ceremony and the signer’s condition that day.
- Financial records showing transfers, new joint accounts, or changed beneficiary designations in the same period, which often accompany undue influence.
- Earlier wills and the pattern of the signer’s planning over time.
- Expert testimony from a physician or neuropsychologist on capacity, and, for forgery claims, a handwriting examiner.
We assemble this record early, before positions harden, because it determines whether a contest should be filed at all and how a filed contest should be valued for settlement.
No-Contest Clauses
Many wills provide that a beneficiary who contests the will forfeits what the will gives them. Whether that clause is enforceable depends on the state. New York enforces these clauses, but the law lists conduct that does not trigger forfeiture, including the preliminary examination of witnesses described above, a contest claiming forgery or revocation brought with probable cause, and an objection raised on behalf of a minor or incapacitated person. New Jersey makes the clause unenforceable whenever the challenger had probable cause to bring the contest. Connecticut’s statutes do not address these clauses, and their effect depends on the wording and the circumstances. A beneficiary who receives something under the will and is considering a contest must weigh the clause before filing, and we analyze it at the first meeting.
Defending a Will
An executor has a duty to offer the will for probate and, in most circumstances, to defend it. The defense begins with the execution: a properly supervised signing with an attorney’s file, a self-proving affidavit, and disinterested witnesses answers most improper-execution claims. It continues with the record of the signer’s condition and reasons, which is why we recommend that clients who change their plans in a way the family may question document the reasons at the time. Executors and beneficiaries we represent receive an early assessment of the challenge’s strength, the cost of defending it, and whether a negotiated resolution serves the estate better than a trial.
Settlement and Mediation
Most will contests end in a settlement. The people on both sides are usually relatives, the estate pays for the litigation, and the outcome at trial is uncertain for everyone. Courts in our states encourage mediation of estate disputes, and a settlement can be structured to address the tax, Medicaid, and family consequences that a court judgment would ignore. Our alternative dispute resolution services include preparing for and conducting those negotiations.
What Our Will Contest Service Includes
- An initial assessment of standing, grounds, deadlines, and the effect of any no-contest clause, with a recommendation on whether to proceed.
- Preliminary examinations, caveats, objections, and complaints filed in the correct court and on time.
- Gathering and analyzing the medical, financial, and drafting records, and retaining the right expert witnesses.
- Discovery, motion practice, and trial in the Surrogate’s Court, the Superior Court, or the Probate Court.
- Defense of wills for executors and beneficiaries, including recovery of defense expenses from the estate where the law allows.
- Negotiation and mediation of settlements, and drafting settlement agreements that hold up after the case ends.
- Related claims that often accompany a contest: recovery of assets transferred before death, challenges to beneficiary designations and deeds, and claims of financial exploitation.
When a Contest Is Not the Right Path
A belief that a will is unfair does not, by itself, support a contest. A person with capacity who was not pressured may leave property to anyone, including a caregiver, a charity, or one child to the exclusion of the others. A contest may also be unavailable or impractical when the challenger has no standing, the deadline has passed, or litigation would cost more than the share at stake. And a beneficiary who receives a meaningful gift under a will with an enforceable no-contest clause may have more to lose than to gain. In those situations we advise against a contest and, where the real problem lies elsewhere, direct the client to the right proceeding, such as an accounting, a fiduciary claim, or an action to recover assets taken during life.
Contests are also easier to prevent than to win. Wills signed under attorney supervision, with a documented capacity assessment and a record of the reasons for the plan, are far harder to challenge. These safeguards are particularly relevant when planning during cognitive decline.
Schedule a Consultation About a Will Contest
If you have been left out of a will you believe is invalid, or you are an executor facing a challenge, have the probate deadlines reviewed promptly so you understand the time available to act. Bring the will, any earlier wills, and what you know about the signer’s health and circumstances. Our attorneys practice in New York, New Jersey, and Connecticut and handle contests in each state’s courts. Contact Milvidskiy Law Group P.C. to schedule a consultation.
This page is provided for general informational purposes only and does not constitute legal advice. Laws differ by state and change over time. For advice about your situation, consult a qualified attorney.
Frequently Asked Questions
What is a will contest?
A will contest is a court proceeding that challenges whether a document offered as a person’s will is valid. The challenger must prove a recognized ground, such as lack of capacity, undue influence, fraud, improper execution, forgery, or revocation. If the will is set aside, the estate passes under an earlier will or under the state’s intestacy rules.
On what grounds can a will be contested?
Lack of testamentary capacity at the time of signing, undue influence, fraud, duress, failure to follow the state’s signing formalities, forgery, and revocation by a later will or by destruction. Believing the will is unfair is not a ground. A person with capacity who was not pressured may leave property to anyone.
Who has the right to contest a will?
A person whose share of the estate would change if the will fails: the heirs who would inherit under intestacy and the beneficiaries under an earlier will. Someone whose only interest is that an earlier will named them executor generally cannot object on that basis alone. Friends and relatives who would take nothing under any version do not have standing.
How long do I have to contest a will?
The deadlines are short and differ by state. In New York, objections are due by the return date of the probate citation or shortly after preliminary examinations end. In New Jersey, a complaint to set aside a will the Surrogate has admitted must generally be filed within four months after probate, or six months for a challenger living out of state. In Connecticut, an appeal from the Probate Court’s decree generally must be filed within thirty days after the court sent it. Once these windows close, the challenge is usually lost.
What is a caveat?
In New Jersey, a caveat is a document filed with the county Surrogate before a will is admitted that stops the Surrogate from admitting it without a court proceeding. It moves the dispute to the Superior Court, where the will’s validity is decided. New York and Connecticut use different procedures: a New York challenger files objections in the Surrogate’s Court, and a Connecticut challenger objects at the Probate Court hearing.
What is the SCPA 1404 examination in New York?
Before filing objections, a person with standing in a New York probate proceeding may question, under oath, the witnesses to the will, the attorney who drafted it, the proponents, and, where the will has a no-contest clause, the nominated executors. The estate pays for the examination of the first two witnesses. The examination lets a potential challenger learn what the witnesses saw before deciding whether to object, and it does not trigger a no-contest clause.
How do you prove lack of testamentary capacity?
Through medical records from the period around the signing, the drafting attorney’s file and testimony, the witnesses’ observations, and often a physician or neuropsychologist who reviews the records. The question is the signer’s understanding at the moment of signing, not a diagnosis in general. Capacity to make a will is a lower standard than capacity for many other decisions, so a diagnosis of dementia does not by itself defeat a will.
What is a no-contest clause and will it apply to me?
It is a provision that takes away a beneficiary’s gift if the beneficiary contests the will. New York enforces these clauses but exempts certain conduct, including the preliminary examination of witnesses and a forgery or revocation contest brought with probable cause. New Jersey makes the clause unenforceable whenever the challenger had probable cause. Connecticut’s statutes do not address these clauses. Whether a clause affects you depends on the state, the wording, and the strength of your grounds, and we analyze it before anything is filed.
Can an executor use estate funds to defend a will?
Generally, yes. An executor has a duty to offer the will for probate and, in most circumstances, to defend it, and reasonable expenses of doing so are usually charged to the estate. Connecticut’s statute expressly directs the Probate Court to allow the executor’s reasonable expenses of defending the will, whether or not it is admitted. The rules on fees and expenses vary by state and by the outcome.
Do most will contests go to trial?
No. Most settle, often after the preliminary examinations or early discovery show both sides the strength of the evidence. Courts encourage mediation of estate disputes, and a settlement can address tax, Medicaid, and family issues that a judgment would not. A contest that cannot be settled is tried before the Surrogate’s Court, the Superior Court, or the Probate Court, depending on the state.
