What are the grounds to challenge a will in New York?

New York law limits the grounds on which wills can be successfully challenged. The law is not considered forgiving of attempts at novel theories. Courts are cautious to expand the scope of objections. They want to promote the making of valid wills as well as offer assurances that people’s efforts to plan their estates will be protected by restrictive laws concerning objections.

The law, due to its strictures, does not encourage people to object to wills. Knowing the potential grounds that may meet with success and avoid dismissal is mandatory. Trying to invent a new objection or theory is a pitfall for the unwary that will lead to a sometimes-expensive failed effort.

Often the primary goal of the objectant is to survive a proponent’s application to the court to dismiss the objectant’s grounds to challenge the will. For the objectant, survival can often be difficult or impossible based upon the facts of the particular case. It is with survival in mind that the objections – sometimes called “the four horsemen” are presented here.

Lack of Due Execution

A will signed by a person at home, alone and based upon a google search such as “will form” is likely to be susceptible to this objection.

This objection is based upon the contention that the signing event or ceremony associated with the signing did not meet the very specific requirements prescribed by New York law for the signing of a valid will.

Testamentary Capacity

This objection is founded on the claim that the testator did not know what she was doing at the time that she is alleged to have signed her will.

The initial burden of coming forward with evidence that decedent had capacity to execute the propounded will is on the proponent. The requirements are: that decedent understood the nature and extent of her property and the provisions of the will, and that she was able to identify the natural objects of her bounty.

What is Due Execution?

The initial burden is on the proponent of the will to show that it was duly executed in accordance the New York State statutory requirements (EPTL 3-2.1). The court also has the independent obligation, even when no objection has been filed to determine that the will was duly executed.

In cases where the will’s execution was supervised by an attorney there is a presumption of compliance. Moreover, most wills contain what is called an attestation clause which describes what happened, who was present and what was said in a manner intended to comply with the statute. The inclusion of such a clause constitutes prima facie evidence of due execution. In most cases the attorney involved also prepares an affidavit of subscribing witnesses and it is signed by the two witnesses to the execution of the will often within thirty day of its signing.

In cases where the requirements of the statute have been met the objection ordinarily fails.

Undue Influence

This objection asserts that the will that the testator signed was not the true expression of her intentions, but the product of influence or pressure that subverted her mind to the point that the will that was signed was the product of her inability to resist the influences which caused her to sign it.


The crux of an objection alleging fraud is that the will that came to be signed would not have come about or have been signed absent the fact that a person made a false statement that caused the testator to sign the will.


This objection is not one of the traditional four commonly alleged in New York. The claim is that the signature on the will is not that of the decedent.

A forgery is rarely the case – particularly, where an attorney supervises the signing of the will. However, considering the possibility of a forgery in instances where attorneys are not involved, or unscrupulous individuals are involved, makes sense.

Forgery is very different from a will signed with a mark or an X by the decedent. So too, forgery is not a signature that appears on the will due to some assistance provided by another person where the decedent actually signs it.

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