Probating a Last Will in New York can be an uncomplicated matter. In many situations the probate proceeding is commenced by a close family member who is named as the Executor in the Will. While there are a number of Court and statutory formalities that must be adhered to, the assistance of an experienced New York City Probate Lawyer can facilitate the process.
I have represented clients for over 30 years in all types of probate proceedings both contested and uncontested. The New York Probate Lawyer Blog provides numerous articles discussing the many issues that can arise regarding Surrogate’s Court procedures.There are instances, however, when the probating of a Will results in estate litigation in the form of a Will Contest. One of the first steps when there is a contested Will issue is for the potential contestant to seek discovery under Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required”. This statute allows certain discovery of information regarding a Will before the actual Objections To Probate are filed with the Court.
This discovery process includes obtaining the pre-trial testimony of the attorney who drafted the Will and the attesting witnesses who signed the Will. One interesting aspect of the SCPA 1404 process is that the potential Objectant who wants to engage in discovery must have standing or an actual interest in the probated Will. In other words, the Objectant needs to be affected adversely by the probate of the Will in order to have a right to object. The individuals who meets this criteria are described in SCPA Section 1410 which is entitled “Who may file objections to probate of an alleged will”.
In the recent case of Will of Alibayof, decided by Manhattan Surrogate Nora Anderson on March 13, 2017, an individual who claimed to be the spouse of the decedent sought to obtain discovery under SCPA 1404. The proponent of the Will sought to prevent the SCPA 1404 examination based upon language in a Separate Agreement in which the surviving spouse waived her right to object to any Will of the decedent. The Court examined the language in the Separation Agreement and found that the agreement did, in fact, result in a forfeiture of the spousal right to contest the decedent’s Will. As a result, the Court disallowed the spouse’s discovery demands.
It is important to recognize from the Alibayof case, that there may be many issues involved with a probate case and a contested Will. Certainly, the interest of a possible contestant can be affected by prior agreements with the decedent such as a Separation Agreement or a Pre-Nuptial Agreement or other types of waivers. It is always a good idea to consult with an Estate Lawyer when disputes arise concerning the validity of a Will or other estate controversy.
Call me now for a free review if you have any questions regarding a trust or estate issue or probate or estate administration concern. These matters can be complex and the assistance of an attorney can be helpful.
An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years including Nassau and Suffolk counties. If you or someone you know is involved with or has questions about a New York estate or beneficiary designation, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.