Articles Posted in Will Contests

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.

There are numerous instances where the identity and location of estate assets is a source of New York City Estate litigation in the Surrogate’s Court.   An estate fiduciary such as an Executor has a fiduciary duty to collect and protect estate assets for the benefit of estate beneficiaries.  If the fiduciary fails to carry out his responsibilities he may be found to have breached his fiduciary duty and be personally responsible for the loss to the estate.

When a person dies a search is commenced to collect assets.  The New York Probate Lawyer Blog has discussed this issue in recent and past posts.  The primary source of a remedy to find assets is found in Surrogate’s Court Procedure Act (SCPA) section 2103 which is entitled “Proceeding by fiduciary to discover property withheld or obtain information”.  This statute is very broad in scope and allows an executor or administrator to investigate all circumstances which may lead to the identification and recovery of assets.  While the statute is sometimes seen as allowing what is referred to as a “fishing expedition”, the Surrogate’s Court generally allows a wide opportunity for inquiry.

A recent Brooklyn Estate case entitled Estate of Geraci, decided by Brooklyn Surrogate Margarita Lopez Torres on October 15, 2018, demonstrates the applicability of the statute.  In Geraci, the daughter of a decedent sought authority to investigate actions by her brother whereby real estate that was owned by their mother was deeded to the brother seven months prior to the mother’s death.  This set of facts is very common and involves transfers of assets just before a person dies.  Typically, transfers are made when a decedent is suffering from an illness or disability and it appears that the asset transfer is contrary to the decedent’s dispositions in a Last Will and other expressions of an estate plan.  These cases involve issues of capacity and undue influence.

When planning an estate, a person may consider many different provisions that can be a part of a Last Will.  Of course, many of the Will terms concern the disposition of assets and bequests to various beneficiaries.  A Will may contain a bequest of an amount of money or a devise of a specifically identified parcel of real property.

There are parts of a Will that contain a residuary clause and also the nomination of executors or trustees.  Some provisions also are inserted to create a testamentary trust or provide for the appointment of a guardian for a minor.

New York estate lawyers are also familiar with “No Contest” clauses which are also known as “In Terrorem“ clauses.  These types of clauses are discussed in Estates, Powers and Trusts Law section 3-3.5 which is entitled “Conditions qualifying dispositions; conditions against contest; limitations thereon”.  The effect of this clause is that if a person engages in certain actions like a Will contest, he loses the right to receive any bequest under the Will.

The Probate of a New York Will is the method by which a Will is validated by the Surrogate’s Court.   After a Will is admitted to probate the named Executor is typically granted letters testamentary which authorizes him to handle estate affairs.  This includes the collection of estate assets, the payment of debts and expenses and the distribution of the net estate to the beneficiaries according to the provisions of the Will.

The probate process requires that notice of the proceeding be given to the decedent’s distributees (next of kin).   These individuals have a right to file Objections to the Will.  Notice is typically given by the service of a Citation which is like a Summons.   The Citation sets forth a date for the parties to appear in Court.  The New York Probate Lawyer Blog has published many articles concerning probating a Will.

If any of the distributees want to contest a Will they must file Objections.  Usually, Objections are that the Will is invalid due to improper execution or that the decedent did not have testamentary capacity or that the Will was the product of undue influence.

The execution of a Last Will in New York is controlled by Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”. Estate Lawyers are familiar with statutory requirements that a Will should be in writing and that there needs to be at least two attesting witnesses.

When a Will is offered for probate in the Surrogate’s Court it is necessary to notify the decedent’s distributees (next of kin). These individuals have the right to file Objections to the Will. Typically the distributees receive a Probate Citation which is like a Summons. The Citation provides a Court date on which the person receiving the Citation must appear in the Surrogate’s Court and advise the Court regarding his Objections to the Will. Continue reading

Most people prepare their estate plans and Last Wills and expect that the provisions and directions they set forth can be carried out after death. The rationale for planning an estate is to avoid intestacy which would leave to chance the manner in which an estate is to be distributed. As discussed in many articles in the New York Probate Lawyer Blog, when a person dies without a Will, the New York estate laws provide that the estate is distributed to the decedent’s next of kin. This result may not always reflect a testator’s intent.

When a Will is submitted to the Surrogate’s Court for probate, the estate laws and procedures require that official notice be provided to the decedent’s next of kin. This is because these individuals have a right to contest the Will. If a Will is invalidated, the decedent’s estate is distributed to the next of kin. Continue reading

It is important to know your rights if you are disinherited. New York inheritance laws are rather complex. There are many occasions where a close family member learns that they have not been provided for in a decedent’s Last Will. These situations often result in Estate Litigation in the form of a Will Contest.

A recent case involving the death of French rock star Johnny Hallyday is a typical example of children being left out of a Will. In an article by Henry Samuel in a February 2018 post of The Telegraph, it was reported that Mr. Hallyday left his entire fortune to his fourth wife. Two of his older children were left nothing in a Will which was redone shortly before Mr. Hallyday died. Continue reading

Contesting a Will in New York involves many different issues. The validity of a Will must be challenged on various specific grounds. The New York Probate Lawyer Blog has discussed these grounds in many prior articles.

One of the basic allegations in a Will dispute is that the document was not properly executed. Estates, Power and Trusts Law (EPTL) Section 3-2.1 entitled Execution and attestation of wills; formal requirements, provides the statutory requirements for Will execution. These rules include the need for a written document that is signed by the testator at the end and witnessed by two individuals. Continue reading

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