Articles Posted in Contested Estates

Will contests in New York involve many different considerations. To begin with, there is a complex set of statutes and rules regarding the procedure to be followed in these cases. When a Will is filed with the Court for probate, it is necessary to provide notice to all of the decedent’s next of kin regarding the probate proceeding. The next of kin, known as distributees, have a right to Object to the Will. The notice they receive is called a Citation.

Prior to filing Objections to a Will, the distributees have the right to obtain testimony and documents from the attorney who drafted the Will and the attesting witnesses. These steps are provided for by Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required”. Continue reading

Probating a Will in New York is usually not a contentious process. The original Will is filed with the Court and typically the person named in the Will as the Executor prepares and files a Probate Petition. When a Will is admitted to probate, the Court issues Letters Testamentary to the petitioner. This document provides the executor with the authority to administer the decedent’s estate.

As discussed in prior posts in the New York Probate Lawyer Blog, all of the decedent’s next of kin (“distributees”) must be given notice of the probate proceeding. Each distributee has a right to object to the Will. The procedures involved with Will Objections necessitate that all of the parties engage in a discovery process so that the Court can be presented with facts regarding the validity of the Will.
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In most instances the filing of a Last Will for probate is a straight forward process.  The New York Probate Lawyer Blog has posted many articles regarding the probate of a Will. The typical persons who petition the Court in these proceedings are close relatives such as a spouse or children.  Moreover, it is rather common that the Will beneficiaries are the same close relatives and that all of these individuals receive benefits under the Will provisions.

For example, a familiar scenario is a Last Will in which the decedent leaves his entire estate to his spouse if the spouse is living and if the spouse is not alive, then equally to his children or descendants.  Continue reading

The preparation of a Last Will is an essential part of estate planning. However, once a Will has been finalized and signed it is the final document that exists to reflect a decedent’s intentions regarding the disposition of his estate.

After the testator’s death, the Last Will that was created must be filed with the Surrogate’s Court. Such filing is the start of the Probate Process by which the Will is admitted to probate and its terms are validated. Continue reading

There are many types of proceedings that occur relating to a decedent’s estate. One of the most common matters involves the probate of a Last Will and Testament. New York estate lawyers are familiar with the manner in which a Will is presented to the Surrogate’s Court. In the typical case, the original of the Will is filed with the Court along with a death certificate, a petition and other papers. Having a Will admitted to probate simply means that the Will is validated by the Court and its provisions regarding asset distribution and other directions must be followed. At the time probate occurs the Court appoints an estate fiduciary who is typically the Executor nominated in the Will. The New York Probate Lawyer Blog has posted many articles explaining the probate of an estate.

In some situations the probate process turns into a Will Contest. When the situation concerns a contested Will, the typical occurrence is that one or more of the decedent’s next of kin (“distributees”) disputes the validity of the Will. This dispute can be based upon the grounds of undue influence, lack of testamentary capacity or improper execution of the Will. Continue reading

There are countless articles and advisory papers that have been written in which people are urged to prepare an Estate Plan. The use of advanced planning documents such as a Last Will, Living Will, Power of Attorney, Health Care Proxy and Living Trust allow a person to specify the manner in which assets are to be managed and tranferred and substituted decision making can be established.

As discussed in many posts in the New York Probate Lawyer Blog, where these planning papers do not exist, the disposition of a person’s estate is left up to the inheritance provisions of State law relating to intestacy. Continue reading

The New York Probate Lawyer Blog has talked about the need for individuals to engage in proper estate planning. Planning documents include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. Persons who only have modest estates still should implement papers so that their intended beneficiaries do not face the uncertainties that arise when planning documents are not professionally prepared or are not prepared at all.

It is sometimes astonishing that individuals who have amassed a tremendous amount of wealth during their lifetime by successfully operating a business can be so neglectful when it comes to estate planning.  The result of such inattention often is in the form of a Will Contest. Continue reading

The New York Probate process has been the subject of numerous posts in this blog.   A Last Will that is prepared by a person must be admitted to probate or validated by the Surrogate’s Court so that the provisions of the Will become effective. The decedent’s distributes or next of kin must receive notice of the probate proceeding and they have a right to contest the Will.   Usually, the distributees receive a paper called a Citation, which is like a summons, that advises them as to the date when the probate proceeding is to appear on the Court calendar.   At that time, the distributees can file objections to the Will or ask for preliminary discovery that is allowed by Surrogate’s Court Procedure Act (“SCPA”) Section 1404.

There are many specific rules and procedures that apply to the process of contesting a Will. Some of these requirements have been the subject of recent Surrogate’s Court decisions. In Estate of Basil Constant, decided on June 30, 2014, Bronx Surrogate Nelida Malave-Gonzalez reviewed an application to expand what is known as the “3/2” rule.  This rule is contained in section 207.27 of the New York Uniform Rules for Surrogate’s Court and provides that in connection with an examination before trial (i.e. discovery) such examination is limited to a period of time that is three years before the date of the Will and two years thereafter or the decedent’s date of death, whichever is shorter. While the examination period can be extended by Court Order, the Court needs to find special circumstances to expand the time periods.  In Constant the Court did not allow an expansion of the time periods to allow an inquiry about an earlier Will that the decedent allegedly had made.

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The Contest of a Will in New York, as in most other jurisdictions, brings to mind a tense scene inside a courtroom where a trial is ongoing between a decedent’s family and some interloper such as a nursing aide or other non-relative who has forced an old and unknowing decedent to disinherit his family. While many Will contests end in a trial, most such estate litigations are settled or disposed of before a trial in the Surrogate’s Court.

Additionally, a trial is the last of many different types of procedures and proceedings that comprise a case involving a dispute regarding the validity of a Will. The proceedings typically begin with the Probate Proceeding where a Probate Petition is filed with the Surrogate’s Court seeking a Will’s validation. At that point various statutes and rules contained in the New York Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law require that the decedent’s distributees (ie next of kin) be notified and afforded the opportunity to challenge the Will. However, instead of heading right into a trial, the opposing parties typically engage in a pre-trial process. This process often begins with the discovery of information that is allowed by SCPA 1404.

The New York Probate Lawyer Blog has discussed SCPA 1404 in previous posts. Essentially, this statute allows a person who has filed or is just considering filing Objections to a Will, to take the pre-trial testimony of the attesting witnesses to a Will and the person who prepared the Will such as the attorney draftsperson. The nominated executors and the proponents of the Will may also be examined if there is an in terrorem clause. SCPA 1404 also allows the parties to obtain discovery documents that may be relevant to this examination.

One interesting aspect of this discovery process is a rule that is contained in Section 207.27 of the New York Surrogate’s Court Uniform Rules. This section limits the examination to a time period that is three years prior to date of the Will and two years after such date or the date of the death of the decedent, whichever is shorter. The Court can extend these periods of times if it is shown that special circumstances require the extension.

In a recent case decided by Nassau Surrogate Edward McCarty III on June 28, 2013 and reported in the New York Law Journal on August 23, 2013, entitled Will of Janet Soluri, the Court denied a request for documents dated outside of the above 3 year/2 year parameter since special circumstances were not shown to exist.

The discovery process and Court proceedings involved in a Contested Probate matter can be very complex and require the advice of estate attorneys who are familiar with the Surrogate’s Court and Estate Litigation. Examining witnesses to a Will, preparing and filing Will Objections and analyzing the facts and issues in these proceedings in order to protect the rights of disinherited heirs is typically challenging.

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A Last Will in New York must be created in accordance with the New York statutes. The Estates, Powers and Trusts Law (“EPTL”) contains numerous provisions concerning the fundamental aspects of and requirements for a valid Will. For instance, EPTL 3-1.1 states that anyone over 18 years old having sound mind and memory can dispose of their personal and real property by Will. Probably the most important provisions regarding Wills are contained in EPTL 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements”. The New York Probate Lawyer Blog has discussed this section of the law in previous posts. EPTL 3-2.1 states the numerous requirements that a Will must meet in order for it to be valid. Among the stated items is that the Will must be signed at the end by the testator, and that there must be at least two attesting witnesses. While the statute contains many more execution requirements, a signed writing with witnesses is fundamental to the validity of a Will in New York.

Estate litigation in the Surrogate’s Courts often occurs when there is a dispute as to whether a Will was properly executed. One of the grounds upon which to Contest a Will is lack of due execution. For example, someone objecting to a Will may claim that it was signed by a testator but not validly witnessed because the witnesses did not see the testator sign the Will or the testator did not acknowledge his signature to the witness. Sometimes there are questions as to whether the Will is genuine and if the document was actually signed by the testator. As can be imagined, there are a vast majority of Will Contest Litigations concerning the validity of Wills.

New York law tends to be very strict regarding the enforcement of the statutory requirements. In many instances, a prospective beneficiary may be without recourse where a testator prepares a Last Will to be signed or tells a beneficiary that a Will leaves a certain bequest and, as it turns out, the testator never signs a Will containing these provisions. Despite, the testator’s possible intentions, in New York, the failure to comply with statutory rules typically prevents the Probate of the purported or drafted Will. In this regard it is somewhat easy to understand that the strict nature of the law is to present unsigned, unwitnessed or other defective papers from being given validly where the testator is no longer alive to confirm that the defective documents actually express his final intentions.

Notwithstanding the specific requirements of the New York Probate Law, there are recent instances in other jurisdictions where unsigned documents have been admitted to probate and allowed to determine the disposition of a decedent’s estate. In a recent post by Cameron Stuart on April 6, 2013 in News.com, it was reported that Irvin Rockman, a former Melbourne, Australia Lord Mayor, attempted to sign a new Will but could not do so due to the seriousness of his illness. Although he died a few days later, the Australian court upheld the validity of the unsigned final Will finding from the evidence that it expressed Rockman’s intent.

Closer to home, a New Jersey Appellate Court approved the probate of an unsigned copy of a paper intended as a Will. In the Estate of Richard D. Erlich, 427 N.J. Super.64 (2012), the Court essentially determined that the unsigned paper was sufficiently formal and expressed the decedent’s intent and was therefore valid.

Despite these recent examples, the vast majority of Wills admitted to Probate are properly prepared, signed and witnessed. New York Estate Lawyers typically counsel their clients regarding their Estate Plan and supervise the preparation and execution of the client’s Last Will and other estate plan documents such as Living Trusts and Advance Directives. When the time comes to Probate a Will, a professionally prepared, signed and witnessed Will can make the Probate Petition Process and Surrogate’s Court filing more efficient and expeditious and less prone to a contest by unhappy family members.

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