Did You Know that Will Proponents and Contestants Pay for Costs to Contest a New York Will?

shutterstock_635914376-300x144Contesting a Will in New York involves many different rules of law and procedures.  The Estates Powers and Trusts Law (EPTL) and the Surrogates Court Procedure Act (SCPA) provide various guides.  At its essence, the validity of a decedent’s Will must comply with EPTL Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”    According to the requirements of the statute, a Will needs to be written, signed at the end by a testator, and there must be at least two attesting witnesses.  If the rules regarding the execution are not complied with, then objections to a Will based upon lack of due execution may be successful.  In such a case, a Will is not admitted to probate.

Other grounds for Will contests include lack of testamentary capacity and undue influence.  Proving the existence of these circumstances is often difficult.  The New York Probate Lawyer Blog has published many articles discussing Will contests and Surrogate’s Court matters.

One of the questions which arises in connection with probate and Will contests is payment of the costs associated with the proceedings.  Putting aside legal fees, there are a few items which should be of interest.  Contested probates typically begin with discovery of information under SCPA Section 1404 entitled “Witnesses to be examined; proof required.”  This statute allows for obtaining documents and deposition testimony from the attorney who drafted the Will and the attesting witnesses.  Payment for a Court reporter to transcribe deposition testimony can be costly.  If a person wants to obtain this testimony, he may need to incur substantial expenses.  However, according to SCPA 1404(5), the testator’s estate is responsible to pay for the examination of the first two attesting witnesses.

Another interesting aspect of discovery which is applicable in estate litigation relates to obtaining electronically stored information or ESI.  This data is stored electronically such as in emails or computer files.  If an objectant or other litigant wants to obtain ESI, then the cost of utilizing a computer expert to extract this data from a computer is typically the responsibility of the party seeking to obtain the information.  I was recently involved in a Will contest case where prospective objectants sought under SCPA 1404 to obtain ESI from my client’s computer.  I was representing the attorney who drafted the decedent’s Will and who supervised the Will execution.  The Surrogate determined that prospective objectants were responsible to pay for the computer expert that my client utilized to obtain the requested discovery.

Will contests, like all estate litigation in the Surrogate’s Court, can be complicated and involve many areas of procedure and rules.  Estate settlement may be delayed for a long time.  Utilizing the assistance of an experienced estate lawyer can be essential for a successful outcome.  Call Me Now for a free confidential review of your estate or guardianship issue.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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