Information Regarding the Right to Object to a Will in New York

After a person dies, there is a need to settle the estate of the decedent.  If the decedent prepared a Last Will and Testament, then the Will needs to be probated.

The New York probate process can be complicated, especially if there is a Will Contest.  One of the most important initial steps in Will probating is determining the identity of the decedent’s next of kin, who are also known as distributees.  Surrogates’ Court Procedure Act (SCPA) section 103(14) defines “Distributee” as “any person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.”  The probate petition must contain information as to the names and addresses of the distributees since they are among the persons entitled to receive notice regarding the commencement of the case.  They also have a right to contest the Will since the distributees receive an intestate share of an estate if there is no Will. Service of process is important because the probate of a Will is not valid against interested persons who were not properly notified about the case.  The New York Probate Lawyer Blog has extensively discussed probate and Will contests in earlier posts.

A person filing a probate petition with the Surrogate’s Court needs to refer to SCPA section 1410 entitled “Who may file objections to probate of an alleged will”. Under this statute, if a person who is interested in an estate would be “adversely affected” if a Will is probated, such person may be entitled to file objections to the Will.  The statute must be examined carefully in each case to ascertain the identity of interested parties.  Estate litigation is complicated.  In addition to distributees, persons who may have received bequests in earlier Wills, but who are now disinherited in a later Will being offered for probate, may be necessary parties who must receive notice (a citation) in the proceeding.

The validity of the interest or standing of a party in a Contested Will case may be a preliminary issue in an estate dispute.  A very interesting Manhattan estate case involving the standing of an Objectant, entitled “Estate of Mengoni”, was decided by Manhattan Surrogate Rita Mella on March 10, 2020.  In Mengoni, an alleged daughter of the decedent filed objections to her father’s Will.  The proponent of the Will filed a motion to dismiss the objections on the ground that the daughter had no standing since she was determined not to be a child of the decedent in a divorce action between the decedent and the daughter’s mother.  The divorce occurred over 30 years prior to the decedent’s death.  If the Objectant was not a distributee of the decedent, she would not have standing to object to the Will.

The facts showed that the daughter was born during the time of the marriage and the decedent was named as her father on her birth certificate.  Although the daughter asserted that these facts created a presumption of legitimacy as to her being a child of the decedent, the Court found that there was clear and convincing evidence to rebut the presumption.  Such evidence included blood tests performed at the time of the divorce and the final divorce agreement, stipulation and Court Judgment all of which set forth that the decedent was not the father of the Objectant.  The Court further found that the daughter failed to set forth any additional substantive basis to support paternity.  It was determined that the theory of equitable estoppel, which may prevent a person from contesting paternity if they had acted contrary to such position, was not applicable given the time span of 30 years and that the decedent never had a continuing parental relationship with the daughter.

As can be seen from Mengoni, Will contests and determination of kinship and standing to file Will objections can be complicated.  The assistance of an experienced estate lawyer can be essential in these cases.  I have represented many individuals in estate, probate and administration matters.  Call Me Now for a free confidential review of your issue in any estate case concerning a Citation or other question.  We provide 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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