Articles Posted in Will Contests

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.

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