Challenging a will in NYS is not as simple as it seems.  The right to contest a will of a decedent is not an inherent power vested to just anyone. For example, you cannot contest your neighbor’s will simply because you believe his estate should go to his daughter rather than the designated beneficiary in the will – his tea cup Yorkie, who goes by the name of Freddie.  Similarly, you cannot contest a will because you believe you should receive 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 and even so, the contest must not be fabricated out of thin air – the motivation behind the challenge must be legitimate.

Who Are The Interested Parties?

For the purpose of a will contest, an “interested person” includes children, a surviving spouse, heirs, or any other party who has a right or a claim to the property of the estate. Consequently, the persons who are allowed to challenge a will are typically the beneficiaries named in a previous will, the beneficiaries of a later dated will, or the heirs of the decedent that are entitled to a share of the estate based on the laws of the state (intestacy statute). Thus, 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 the deceased dies leaving everything to his daughter, and disinterring his son and elderly mother. Can his mother contest the will? Although the mother is an heir of the decedent, she cannot contest the instrument because in the event that the will contest is successful, the estate is split in equal shares between the son and the daughter – the mother does not get a share. She cannot bring a contest on the son’s behalf, only the son has the right to challenge the will.  On the other hand, if the decedent had no children, the mother would inherit entire estate and thus, has all the right to dispute the last will and testament. 

Who Has Standing To Bring a Will Contest?  

While the probate laws of each state may vary, the law of NYS requires that the challenger have “standing” to bring the action. An individual or entity is considered to have met the standing requirement in two instances: the person is named as a beneficiary in the will or trust instrument or the person has been disinherited in the will and would inherit the whole or a portion of the estate if the will is ruled to be unenforceable by the Surrogate’s Court.  In the previous example, although the son is not mentioned in the will, he gains to inherit half of his father’s estate if the court declares the will invalid. Establishing standing is the first burden the challenger must overcome in order to proceed with the contest.  In most cases standing is not an issue when blood relatives are involved. In sum, the pursuer of a will contest in NY must demonstrate that they are a named party in the previous or the present last will and testament of the deceased or the challenger would be entitled to a share of the estate had the decedent died without a will.

The Inherent Rights of Disinherited Surviving Spouses

A spouse of the deceased that has been disinherited (ie not mentioned in the will) has standing to contest a will unless they have signed a document waiving their right to inherit under the estate. Under the laws of NYS, when an individual dies and leaves a surviving spouse, that spouse is entitled to receive their “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 an example, Joe dies with an estimated net worth of 500k. He leaves a surviving spouse by the name of Angela. In his will, he leaves his entire estate to the Ringling Brothers Circus. Although Angela is not mentioned in his estate planning documents, she can collect approximately 166k from his estate, or bring on a will contest and potentially inherit the entire 500k.  In a similar example, Joe leaves Angela 100k in his will and the rest to the circus. Angela can still pursue a claim for one-third of his estate or initiate a challenge.

The Rights of Beneficiaries to Bring a Challenge

Any person (entity or being) who is named in the will to receive a gift, whether it is money or jewelry, has standing to contest a will. The beneficiary does not have to be a relative of the decedent to pursue a claim. The beneficiaries are those persons and entities who are included in the will to receive a bequest (gift) upon the death of the person drafting the will. For example, I give $1,000,000.00 to my cocker spaniel, Milo. There is no limitation as to whom you can name as the beneficiary; it can be your children, spouse, nephews, grandchildren, caregiver, lawyer, neighbor, friends, charitable organizations such as churches, colleges, animal advocacy groups, and even your beloved pet chimpanzee.

The Right of Heirs to Bring a Challenge

Most wills are challenged by heirs who are not included (omitted) in the will or have been left an insignificant portion in the instrument. The heirs (relatives) of the deceased typically include spouses, children, parents, siblings, grandparents, nephews and nieces. In the event that a person dies without having a will, their estate is distributed pursuant to the intestacy laws of NYS. The intestacy law recognizes only heirs, in a specified order. The standing of an heir to dispute an estate planning document rests on the fact that if the decedent died without a will, that heir would inherit a portion or the entire estate, depending on the circumstances.

“No Contest” Clause

It has become standard practice for estate lawyers to include a “no contest” provision in wills as a condition to a beneficiary receiving their share. The purpose of this clause is to deter challenges and to punish the beneficiary in case he or she brings a frivolous challenge and loses. An individual mentioned in the the will who brings and later loses the challenge, is completely disinherited from receiving anything from the estate. To illustrate a point, consider the following example: Tom’s will leaves his multi-million dollar estate to his girlfriend, Anna and 250k to his son, Jason. Jason has two options; he can take the money left to him under the will or bring a challenge. Being that the instrument includes a “no contest” clause, if Jason pursues the latter option and loses, he receives nothing in the end. However, if Jason is successful and the Court strikes down the will, he inherits his dad’s entire estate, leaving Anna in the dust.