In Brooklyn, a will can be contested only by someone with standing — typically a distributee who would inherit more if the will were rejected — and only on specific legal grounds such as improper execution, lack of capacity, undue influence, fraud, duress, or forgery. Contests are heard in the Kings County Surrogate’s Court and usually begin with SCPA 1404 examinations of the witnesses before any formal objection is filed. Given Brooklyn’s appreciated homes and far-flung families, contests here often center on a single high-value brownstone.
Who can contest a will? (standing)
Only a person adversely affected by the will may object, under SCPA 1410. In practice this means a distributee — someone who would inherit under intestacy (EPTL 4-1.1) — who receives less under the will than they would without it. A disinherited child of a Flatbush homeowner has standing; a neighbor or a friend who was simply left out does not.
Grounds to contest a will
- Improper execution — the will did not meet EPTL 3-2.1 (not signed at the end, missing the required two witnesses, or defective formalities).
- Lack of testamentary capacity — the testator did not understand the nature of the act, their property, or their natural heirs.
- Undue influence — someone overpowered the testator’s free will, a frequent claim where one child or a late-arriving caregiver receives the family home.
- Fraud — the testator was deceived about what they were signing.
- Duress — the will was signed under threat.
- Forgery — the signature or document is fake.
SCPA 1404 examinations
Before filing formal objections, a potential contestant may conduct SCPA 1404 examinations — depositions of the attesting witnesses, and often the attorney who drafted the will, to probe execution and capacity. New York gives objectants a “free look”: the will proponent generally pays for these examinations, and a contestant can walk away afterward without filing objections if nothing supports a challenge. This is the pivotal early stage of most Brooklyn will contests.
No-contest clauses (in terrorem)
In terrorem clause: a will provision that disinherits any beneficiary who challenges the will. New York enforces these under EPTL 3-3.5, but with important exceptions — a beneficiary can still take SCPA 1404 examinations, allege forgery or that the will was revoked, or contest on behalf of an infant, all without triggering forfeiture. So a no-contest clause discourages challenges but does not fully block them.
Kinship proceedings and unknown heirs
Brooklyn’s diversity makes kinship proceedings under SCPA 2225 unusually common. When a person dies without a will and the heirs are unknown, distant, or living abroad, the court must determine who the lawful distributees are before anyone inherits. This can require genealogical proof, foreign records, and a Public Administrator stepping in. Kinship disputes — for example, claimants in another country asserting they are first cousins of a Bensonhurst decedent — are litigated in front of the Kings County Surrogate.
Timing realities
Will contests must be raised during the probate proceeding, after citation is served and before the will is admitted — there is no separate later lawsuit to undo probate once it is final. Acting promptly when you receive a citation is essential; ignoring it forfeits the chance to object.
How contests proceed in Kings County
In the high-volume Kings County court, contested matters move onto a litigation track with examinations, document discovery, and often settlement conferences. A genuine dispute over an appreciated Park Slope or Brooklyn Heights brownstone can take a year or more to resolve. Many contests settle once the SCPA 1404 examinations reveal the strength — or weakness — of each side’s position.
Frequently asked questions
How do I contest a will in Brooklyn? If you are a distributee who would inherit more without the will, respond to the citation, request SCPA 1404 examinations of the witnesses, and, if warranted, file formal objections in the Kings County Surrogate’s Court before the will is admitted.
Can I challenge a will if I was just left out? Only if you would have inherited under intestacy (EPTL 4-1.1). Being omitted alone does not create standing.
Will challenging a will cost me my inheritance? It can, if the will has an in terrorem clause (EPTL 3-3.5) — but examinations and certain challenges are protected exceptions. Get advice before acting.
What if the heirs are unknown? The court holds a kinship proceeding under SCPA 2225 to identify lawful distributees before distribution.
To assess a potential contest or defend a will, book a consultation with Russel Morgan. See also executor duties and the Brooklyn estate guide.