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Articles Posted in Contested Estates

In order for a Last Will and Testament to be valid, it must be admitted to probate.  Probating a Will in New York requires following all the procedures in the Surrogate’s Court.  Many times a person who is disinherited or does not receive what he expects in the Will provisions feels that the Will must be invalid.  The conclusion reached is that the document must have been procured through fraud, undue influence or other wrongdoing.

The reality of these cases is that most Wills that are prepared by an attorney and executed under an attorney’s supervision are found to be valid.  When the statutory formalities provided by Estates, Powers and Trusts law section 3-2.1 entitled “Execution and attestation of wills; formal requirements” are followed, a contest of a Will is usually dismissed.  While undue influence and other grounds may result in a denial of probate, such an outcome is difficult to achieve.  The Courts typically prefer to see that a testator’s intentions are carried out through the terms of a Will rather than left to the uncertainly of intestate distribution.  The New York Probate Lawyer Blog has posted many articles regarding probate.

A Manhattan estate case entitled Estate of Menchini demonstrates that the Courts tend to favor admitting a Will to probate.  Menchini was decided on March 18, 2019 by Manhattan Surrogate Rita Mella.  The decedent had left most of his estate to a friend who was also named as an alternate executor.  The decedent’s brother challenged the Will based upon lack of due execution and fraud.  It appears that the Will was not prepared by an attorney, nor did an attorney supervise the execution ceremony.  The Will was signed in the office of a Reverend of a local church.  There were two witnesses, although one witness predeceased the decedent and was not available to testify.  Also, a notary was present to notarize the witness affidavits.

Probate-300x201A person may prepare and execute a number of Last Wills during the course of a lifetime.  It is not unusual to find that a testator signed a new Will only a few years after having created the earlier document.

In these situations, the provisions in the Wills may be drastically different which may lead to questions regarding the validity of the later document.  The New York Probate Lawyer Blog has recently published articles concerning Will contests and the standing or right of an individual to file objections to a Will.  In essence, a person must have a pecuniary or financial interest in defeating the Will being offered for probate in order to object to its validity.  The statute that provides the rule in this regard is Surrogate’s Court Procedure Act Section 1410 entitled “Who may file objections to probate of an alleged will.”

One common situation is that the individual nominated as executor in a later Will is different from the person named in an earlier Will.  As a result, the earlier named executor may feel that he would want to object to the later Will, which deprived him of his potential executorship.  Executors like all fiduciaries are entitled to receive statutory commissions which may be tens of thousands of dollars in larger estates.

Probate-300x201The Probate Process in New York involves various statutes and Court rules. A Last Will and Testament is not valid until it is admitted to probate by the Surrogate’s Court. When a petition is filed with the Court for probate, the document contains the names of the decedent’s distributees (next of kin). These individuals have the right to contest the Will. The New York Probate Lawyer Blog has discussed Contested Will proceedings on many occasions.

The contest process usually begins with reference to Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required.” Pursuant to this statute the potential Objectants have the right to take the deposition of the attesting witnesses to the Will and the attorney who drafted the Will. SCPA 1404 also allows discovery of documents such as the estate planning file of the attorney draftsperson, papers showing the decedent’s assets and medical and hospital records of the decedent. Once the SCPA 1404 discovery is completed, the distributees can file their Objections to the Will. These Objections are typically based upon alleged lack of due execution of the Will, lack of testamentary capacity and undue influence.

After the filing of Will Contest Objections, both the petitioner and Objectants can engage in discovery. Thus, the petitioner at this stage can take the deposition of the Objectants and obtain documents. This allows the petitioner to determine the evidence that may support the Objections. There are additional statutes in the Civil Practice Law and Rules and the Uniform Court Rules that control the discovery process. The discovery process can take many months and can be complicated. Information from third parties such as doctors, medical care-takers, financial consultants and friends and acquaintances of the decedent can be obtained.

When a person dies and leaves a Last Will and Testament, it is necessary to commence a Probate Proceeding to validate the Will. Once the proceeding is complete, the Court admits the document to probate and letters testamentary are issued to the petitioner. The person who files the petition with the Court for probate is typically the individual nominated in the Will.

Probating a Will requires the submission of numerous documents and information including the names of all of the decedent’s distributees (next of kin) and an estimated value of the probate estate. Estate lawyers in New York are familiar with the Surrogate’s Court rules and requirements regarding probate.

Sometimes the full probate can be delayed due to various issues. If an interested person is seeking to Contest the Will then the final determination regarding the validity of the Will may take months or years. The New York Probate Lawyer Blog has published many articles regarding Probate and Will Contests.

When a Last Will and Testament is filed with the Surrogate’s Court for probate, a number of procedural steps must be followed.  The Will itself is accompanied by a Probate Petition.  The Petition contains essential information regarding the decedent, the date of death, the names of the attesting witnesses, the date of the Will and the estimated value of the probate estate.

Another very important part of the Probate Petition is the listing of names and addresses of all of the individuals and entities that are interested in the estate.  These include the beneficiaries, the named executors and trustees and the decedent’s next of kin (“distributees”).  The distributees are individuals who have a right to object to the Will.  If the Will is found to be invalid, the estate would be distributed to the next of kin according to the laws of intestacy contained in Estates, Powers and Trusts Law section 4-1.1.   The New York Probate Lawyer Blog has provided many articles concerning the probate process and Will Contests.

If a distributee wants to pursue estate litigation and a possible Contested Will proceeding, the procedures contained in Surrogate’s Court Procedure Act (SCPA) section 1404 entitled “Witnesses to be examined; proof required” are followed.

Probate in New York is the process by which a Last Will and Testament is validated by the Surrogate’s Court.  When a Will is admitted to probate the provisions of the document are given full force and effect.  The Court then issues Letters Testamentary to the appointed Executor.

The probate process can be rather complex.  One of the most important aspects is providing notice of the proceeding to the decedent’s distributees (next of kin).  This is required because these individuals have a right to Object to the Will.  If Objections are filed there is a Will Contest in which the validity of the Will must be determined.  If the Will is found not to be valid, a decedent usually is then deemed to die intestate (without a Will) and his estate would pass to his distributees.  The New York Probate Lawyer Blog has published many articles regarding the Will Contest process.

There are occasions when a person creates a new Will which changes the beneficiaries from a prior Will.  In these cases persons whose interests may be adversely affected by the later Will also have a right to Object to the admission to probate of the new Will.  Surrogate’s Court Procedure Act §1410 entitled “Who may file Objections to probate of an alleged Will” allows for Objections to be filed by person’s whose interests are adversely affected by the probate of a Will.

The preparation and execution of a Last Will and Testament is always an important part of estate planning.  A Will allows a testator to specifically provide for the disposition of assets to the individuals he wants to benefit.  A testator’s intentions can be clearly set forth.   The New York Probate Lawyer Blog has discussed the benefits and specifics regarding planning an estate in many prior posts.

It is particularly essential to create a Will when a decedent is survived by a non-marital child or children.  When a person dies intestate or without a Will his estate is inherited by his distributees (next of kin).  In a situation when there are children born outside of the marriage, the issue of kinship can get complicated.  Estates, Powers and Trusts Law section 4-1.2 entitled “Inheritance by non-marital children”, sets forth the rules to be followed in these cases.  The statute provides that a child born out of wedlock is the mother’s legitimate child, so that he and his offspring can inherit from her.

However, with regard to non-martial children of a father, such children can only inherit if they prove their kinship in a number of alternative ways.   One way is if there has been a determination of paternity.  Another possible form of proof is by a blood genetic marker test.  Also, paternity may be shown by clear and convincing evidence that the father openly and notoriously acknowledged that the child was his.

Contesting a Will in New York is a complicated matter.  There are a number of Statutory and Court prescribed rules that control these proceedings.  The New York Probate Lawyer Blog has published numerous articles concerning Will Contests.

When someone is challenging the validity of a Will, essentially they are asserting that a basic requirement of an enforceable Will is lacking.  Many references have been provided in this Blog to Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, which sets forth the requirements for executing a Will.  This statute mandates that there be at least two (2) attesting witnesses and that the Will be signed at the end of the document.  One of the main Will Objections that is typically interposed is that the document was not properly executed.  Cases abound where there are issues created when the paper is not signed by the testator in the presence of a witness or the witnesses do not recall whether the testator identified the paper as a Will.

Additional grounds for Objections to a Will include undue influence, fraud, lack of testamentary capacity and coercion.  Sometimes forgery is alleged.  Whatever the reasons are for claiming the Will is invalid, it is important to recognize that most Will Contest cases are determined based upon the information obtained during the document and deposition discovery phase of the case.  During discovery the attesting witnesses and the attorney who drafted the Will and supervised its execution are required to give pre-trial testimony and turn over relevant documents.

There are many different types of provisions that can be written in a Last Will and Testament.  The most common terms include bequests to named beneficiaries and other clauses that provide for the disposition of assets.  Also, the Will should name Executors and Trustees as well as proposed Guardians if minors are possible beneficiaries in an estate plan.

One of the more common provisions that is found in a Will is known as a “No-Contest” clause.  This language is also referred to as an “In Terrorem” clause.  The Estates, Powers and Trusts law provides the rules concerning this type of language in section 3-3.5 entitled “Conditions qualifying dispositions; conditions against contest;  limitations thereon”.  Essentially, this direction in a Will sets forth that any beneficiary who may contest the Will is to lose all rights to receive any benefits provided in the Will.  Thus, if a person were to receive a $1,000.00 bequest in the Will but unsuccessfully challenges the validity of the document, he would forefeit his right to receive the $1,000.00.   No-Contest clauses can be the source of estate litigation in the Surrogate’s Court.

The statute allows some exceptions which include discovery under Surrogate’s Court Procedure Act section 1404.  Additionally, the prohibition does not apply to an infant or incompetent.

The filing of a Will Contest with the Surrogate’s Court brings to mind melodramatic stories of family intrigue and deception that are played out in movies, novels and other media outlets.  In reality, Contests regarding a Will in New York are rather common occurrences that are subject to strict statutory and procedural guidelines.

When a person dies and leaves a Will, the document must be offered for probate.  This means that the validity of the Will is not achieved until the Surrogate admits the Will to probate.  A probate proceeding involves the notification of the decedent’s next of kin and other interested parties who are the ones who have the right to challenge a Will.  The New York Probate Lawyer Blog has published numerous articles about Wills and probate.  The basic grounds upon which a Will is challenged are lack of due execution, lack of testamentary capacity, undue influence and fraud.  Sometimes an allegation may be made that a Will has a forged signature.

The Objectants to a Will, as well as the proponents, engage in a lengthy period of discovery that is meant to allow the parties to ferret out facts to support their positions.  This discovery process includes deposition testimony of various witnesses including the attesting witnesses to the Will and the attorney who drafted the Will.  Also, various documents can be obtained and reviewed including the decedent’s medical and financial records.

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