Q: I would like to contest a will, is that possible? I was listed in previous wills that were recently changed.

A: A will contest, sometimes known as objections to probate, can be filed in New York State Surrogate’s Court (or in the Probate Courts of other states) by a relative who is receiving less of a share under the will of a person who has died than he or she would have received if the person who died did not have a will. As an example, if a person has no spouse and 3 children (not step-children), each child receives an equal share under the laws of “intestacy “which apply if a person dies without a valid will; but if a person who has died has left no share to one of those three children in his or her will, that child who is left out can file a will contest. A husband or wife who is left out of a will may be able to file a will contest seeking a statutory share as a right of election against the will. And if a person was named as a beneficiary in a previous will, that person may be able to challenge a subsequent will in which they receive less or nothing at all.

The success rate in will contests or challenges in New York is very low, however—just about 1% of all contests filed are successful. Both the courts and public policy lean heavily towards finding wills to be valid. There are three major grounds to object to a will—first, that the person who signed the will did not have sufficient testamentary capacity; this means not enough mental capacity or cognitive ability to sign a will. But, the mental standard to sign a valid will under law is extremely low. The second ground is that the will was not executed properly under the legal requirements for a will signing ceremony. But, if a lawyer prepared the written will as a draftsperson and supervised the will signing ceremony, the courts are extremely reluctant to set the will aside. A third ground to try to invalidate a will is a claim of fraud or undue influence; if such actions overrode the free will and normal intentions of the person who signed the will, it is possible that a court could set the will aside but only if there is extensive proof which is often extremely difficult to establish. In many cases, the court wants precise proof of the exact words or actions that constituted the fraud or undue influence.

The conclusion is inescapable: if you believe that you were deprived of your rightful entitlement to a substantial amount under a will, consult with an estate planning or elder law attorney right away--and that means immediately –to see if a will contest or challenge is possible under the circumstances of your matter. There are time limits to file a will contest and those limits are very short.