A will can be challenged in New York by someone who would inherit if the will were invalid, on grounds such as improper execution, lack of mental capacity, undue influence, fraud, duress, or forgery. These contests are filed in the Surrogate’s Court of the decedent’s county — for Brooklyn estates, the Kings County Surrogate’s Court at 2 Johnson Street. New York also gives challengers a powerful pre-trial tool to examine the will’s witnesses before deciding whether to object.
Who can contest a will: standing (SCPA 1410)
Standing (definition): the legal right to bring a challenge.
Under SCPA 1410, only a person adversely affected by the will’s admission may object — typically a distributee (someone who would inherit under EPTL 4-1.1 intestacy) or a beneficiary of an earlier will who would receive less under the current one. A neighbor, friend, or disinherited non-relative usually has no standing. In Brooklyn’s large families, multiple children with competing interests are a common source of contests.
Grounds for contesting a will
- Improper execution — the will failed EPTL 3-2.1 formalities (signature, two witnesses, publication)
- Lack of testamentary capacity — the testator didn’t understand the nature of the act, their property, or their heirs
- Undue influence — someone overpowered the testator’s free will (common where a caregiver benefits)
- Fraud — the testator was deceived about the document or facts
- Duress — the will was signed under threat
- Forgery — the signature or document is fake
Undue influence claims arise often in Brooklyn estates where an aging brownstone owner depended on one relative or aide who then receives an outsized share.
SCPA 1404 examinations
Before filing formal objections, a potential challenger can conduct SCPA 1404 examinations — depositions of the will’s attesting witnesses (and, within limits, the drafting attorney) and a review of related documents. This lets a Brooklyn family investigate whether grounds exist without yet committing to a contest, which matters because of no-contest clauses (below).
No-contest (in terrorem) clauses (EPTL 3-3.5)
In terrorem clause (definition): a will provision that disinherits any beneficiary who challenges the will.
New York enforces these under EPTL 3-3.5, but with important safe harbors: certain actions don’t trigger forfeiture, including SCPA 1404 examinations of witnesses and the drafting attorney, and a contest brought on behalf of a minor or incompetent. This is why experienced counsel uses 1404 exams to investigate first — you can look before you leap without forfeiting your inheritance.
Kinship and unknown-heir proceedings
Where there’s no will (or unknown heirs), the Kings County court conducts kinship proceedings under provisions like SCPA 2225 to determine who the legal distributees are. Brooklyn’s deeply diverse, immigrant population makes this routine here — estates may require proving relationships with foreign birth, marriage, and death records, sometimes for heirs living abroad. A guardian ad litem may be appointed to protect unknown or minor heirs.
Timing realities
The clock matters. Objections are generally raised during the probate proceeding, after citation and often after SCPA 1404 examinations. Separately, claims like contract-to-make-a-will or constructive-trust theories carry their own statutes of limitation. Once a will is admitted and the time to object passes, undoing probate becomes very difficult — act promptly.
How contested matters proceed in Kings County
A contested Brooklyn estate follows a litigation track: citation, 1404 examinations, formal objections, discovery, possible motions for summary judgment, and — if unresolved — a trial before the Surrogate. Because Kings County is a high-volume court, contested cases can take well over a year. Many settle once 1404 examinations reveal how strong (or weak) the grounds really are.
A Brooklyn example
Two siblings dispute their mother’s will leaving her Flatbush row house entirely to the daughter who lived with and cared for her. The disinherited son uses SCPA 1404 to examine the attesting witnesses and the drafting attorney — protected by the EPTL 3-3.5 safe harbor — and learns the will was properly executed and the mother lucid. Rather than forfeit under the no-contest clause, he declines to file objections. The 1404 stage did its job.
Frequently asked questions
Who can contest a will in Brooklyn? Only someone adversely affected — usually a distributee under EPTL 4-1.1 or a beneficiary of a prior will — has standing under SCPA 1410. People with no inheritance interest generally cannot challenge.
Will I lose my inheritance if I challenge the will? Possibly, if the will has a no-contest clause (EPTL 3-3.5). But New York’s safe harbors let you conduct SCPA 1404 examinations of the witnesses and drafter without triggering forfeiture, so you can investigate before committing.
What is a kinship proceeding in Kings County? When heirs are unknown or relationships must be proven — common in Brooklyn’s immigrant communities — the court holds a kinship proceeding (e.g., under SCPA 2225) to establish who the legal distributees are, often using foreign records.
Discuss a contested Brooklyn estate
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