COVID-19 UPDATE: Firm Operations Continue Uninterrupted - Learn More About How We Are Helping Our Clients

Articles Posted in Will Contests

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.

Probating a Will in New York requires strict adherence to statutory and procedural rules.  The primary source of authority is the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act.

When a person dies and leaves a Last Will, there are many instances when family members or friends may feel that the provisions in the document do not reflect the decedent’s true desires or intentions.   The immediate reaction is to speculate that the Will is the subject of some impropriety.

However, New York estate lawyers who are involved in estate litigation in the Surrogate’s Court know that contesting a Will requires an analysis of various factors and elements.  The New York Probate Lawyer Blog contains many articles concerning probate law.

Probating a Will in New can often be an uncomplicated process.  While there are many aspects to a probate case, in most instances the surviving family is cooperative and there is no controversy among the parties involved.

However, New York Estate Lawyers are familiar with situations where there are disputes that lead to estate litigation in the form of Will Contests.  Of course, it is important that when a person creates an estate plan that they take the time and effort to insure that the Will is prepared and executed according to the statutes and procedures.  The primary source of guidance is Estates, Powers and Trusts Law (EPTL) section 3-2.1 which is entitled “Execution and attestation of wills; formal requirements”.

The New York Probate Lawyer Blog has published many articles concerning Will contests and Surrogate’s Court procedures.  The basic grounds for contesting a Will and filing Objections involve improper execution, lack of testamentary capacity and undue influence.  Also, fraud is sometimes alleged and the authenticity or forgery of the document can be asserted.

Contact Information