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If your parents died with a will, you may think it should be easy to close their estate. However, beneficiaries of a will can contest it and complicate the process. If your sibling is contesting your parents’ will, The Law Office of Andrew M. Lamkin, P.C. is the experienced Long Island estate planning lawyer who can guide you through the probate process. 

When Can You Contest a Will?

The beneficiaries named in the will and those who would inherit the estate if there wasn’t a will have standing to contest it. After your parents die, their will must be filed with the New York Surrogate’s Court to be validated. The beneficiaries are notified when probate starts, and they have an opportunity to file an objection with the court stating the legal reasons, also called grounds, for the court to invalidate the will.

What If a Sibling Will Not Sign the Probate Consent?

The executor of the estate must obtain probate consents from all beneficiaries and file them with the petition for probate to show the beneficiaries agree to the will going through probate. If your sibling refuses to sign the probation consent, the court will send them a citation with a date to appear and provide evidence why the petition for probate shouldn’t be granted. 

What Are Legal Grounds to Contest a Will?

Common grounds that your sibling may cite to contest your parents’ will are: 

  • Lack of capacity—the deceased wasn’t in a proper state of mind due to a mind-altering illness and didn’t know the consequences of the will;
  • Improper execution of the will—the will is missing witnesses, the deceased’s signature, the power of attorney’s information, or other legal requirement;
  • Undue influence—the deceased was pressured, emotionally or physically, to execute the will; and
  • Fraud—the deceased was lied to by a third party and signed the will under false pretenses.

Proving undue influence and fraud may be more challenging because there aren’t usually witnesses in these events. 

What Evidence Is Needed to Contest a Will? 

Your sibling will need to provide different evidence depending on the grounds of their objection. If your sibling listed multiple grounds in their objection, they can use the same evidence for all grounds if it applies. Some common examples of evidence are discussed below. However, it’s best to have an experienced Long Island estate planning lawyer review your specific circumstances to discuss evidence in a case.

Lack of Capacity

Medical records are an effective way to demonstrate the deceased wasn’t aware of their actions when the will was executed due to dementia, a traumatic brain injury, or another medical condition. The deceased’s medical records should cover the time around the will being drafted and signed. A beneficiary may also introduce previous wills by the deceased; sudden and major changes in a deceased’s will may indicate a lack of capacity with other evidence.

Improper Execution

Testimony is often the best evidence to prove the will wasn’t signed per state laws. The witnesses or attorney who oversaw the execution can be called to testify about the day the will was signed; inconsistent statements can prove the legal process wasn’t followed. 

Undue Influence

To prove undue influence, the person challenging the will would need to provide documents that show a third party controlled the process of drafting and signing the will. Anything showing your parent wasn’t the person setting appointments, submitting information, and talking with the attorney may be used to show undue influence. Evidence can also contain the files and attorney notes from the attorney who drafted the will. 


Proving fraud requires the contesting beneficiary to prove the information your parent has while negotiating their will was false, incomplete, or misleading. Evidence may be emails from fraudulent email addresses, falsified documents, or witnesses testifying about other’s fraudulent acts.

Contested Trusts

If your siblings are contesting a trust, all of you must first work with the trustee to try to resolve the conflict. A petition to contest the trust can be filed with the Surrogate’s Court if negotiations with the trustee fail. The legal process to contest a trust is similar to the contested will process. 

Schedule a Consultation Today

The Law Office of Andrew M. Lamkin, P.C., has been representing Long Island clients in trust and estate matters for more than a decade. As an active committee member on the Nassau County and New York state bars, Andrew Lamkin has built up immense knowledge of New York’s estate laws and the probate process. Andrew Lamkin will work diligently to try and prevent delays in probate. Schedule a consultation today.

Author Photo

Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.

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