Weinstein & Randisi
Toll free:800-768-1780

Resize the Content Text

Can I contest my deceased relative’s New York will?

Sometimes when a person dies, the relatives of the deceased may not agree with the terms or conditions that have been set forth by the decedent's last will and testament. Perhaps the first step in determining whether a will can be contested is to first understand the purpose of a will.

In New York, our Surrogate's Courts are the government agencies that are tasked with probating wills. New York surrogate courts currently recognizes a will as a written declaration regarding the manner in which a living person of sound mental capacity would like his or her property distributed upon his or her death. Generally, wills can transfer interests in personal property such as bank accounts, clothing or jewelry and they can also transfer real estate interests.

Under New York laws, there is a rebuttable presumption as to the validity of a properly formed will. In other words, a party that wants to contest a will has the burden of proving to the Surrogate's Court that the will is somehow invalid.

One strategy of contesting a will is to challenge the mental capacity of the person who created the will at the time that the will was formed. That person is otherwise known as the testator. New York case law says that the testator of a will must understand the nature and consequences of executing the will. That person must have also understood the nature and the extent of the property they were intending to transfer. There is also a requirement that the testator have understood who or what was going to be the object of his or her transfer of property.

In a nutshell, the Surrogate's Court may determine that a will is unenforceable if the person forming the will was suffering from some form of mental incapacity at the time. Alzheimer's disease, dementia or traumatic brain injuries are all examples of conditions that might affect the testator's intent at the time that the will was formed.

Your New York estate planning attorney can help you evaluate the circumstances of your particular case and determine whether your case has merit. It is important to know that mental incapacity is only one of several grounds on which the validity of a will can be contested.

Source: New York State Unified Courts System, "New York City Surrogate's Court- Frequently asked questions" accessed Jan. 12, 2015

No Comments

Leave a comment
Comment Information
  • I wanted to write to say how pleased my wife and I were at your professional handling of our estate planning and preparation of new wills. We were put at ease by your visit to our home for an interview and were pleased that you listened to us and captured the things that we felt were important.

    --Robert and Christine Simonson, Fairport
  • In order to finalize the documents we came to your office and were greeted in a very professional manner and we could not have asked for finer service. We left with copies of everything we needed and feel very confident our needs have been met. Thanks again. We will surely recommend you should the opportunity arise.

    — Christine and Robert Simonson, Fairport
  • I have been working with Weinstein & Randisi for about two years now. Elizabeth Randisi, through a very thorough process, has helped my wife and me determine what is really important in our lives. Thus, we were able to draft a living will that reflected our most important values regarding our estate.

    --David and Ajia Cherry, Fairport
  • I would like to give a testimony for Elizabeth Randisi, an estate attorney with Weinstein & Randisi. Her knowledge of wills and estate planning was clearly demonstrated in her presentation to us. Realizing our need for a will, my husband and I went to see Elizabeth.

    --Kathy and Gary Gray, Webster
  • Filing for Medicaid is never an easy or fun process. However, working with the Weinstein & Randisi firm made the process simple and streamlined. We were able to obtain all files and records regarding Medicaid enrollment within a few days using specially prepared checklists and verbiage recommended by our assigned paralegal.

    --Ajia and David Cherry, Fairport
Awarded Top 50 Estate Planning Blog
Email Us For a Response

How Can We Help You?

Bold labels are required.

Contact Information

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.


Privacy Policy

Blog Feed


  • March 21, 2019

    Single New Yorkers need a well-crafted estate plan too

    For single residents of New York, drafting estate planning documents might not be high on their list of priorities. While they might feel justified in avoiding the subject of the inevitability of the end of life and what will...

    View Post
  • March 15, 2019

    Changes in life require changes to an estate plan

    New York residents who believe they have fulfilled the need to have an estate plan and simply leave the document as is without changing it are often making a mistake. With the inevitable changes in life, there are times...

    View Post
  • March 13, 2019

    Estate planning steps parents should consider after divorce

    There are several estate planning changes you should consider after divorce whether you are a parent or not. These considerations can include updating your health care proxy, financial power of attorney, will, trust and beneficiary designations. The people you select...

    View Post
Weinstein & Randisi - estate planning

290 Linden Oaks, Ste. 200
Rochester, NY 14625

Toll Free: 800-768-1780
Phone: 585-310-1578
Rochester Law Office Map


Call us now for a free, 100% confidential consultation: