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A New York Will Contest – Some Important Points

Will contests in New York involve many different considerations. To begin with, there is a complex set of statutes and rules regarding the procedure to be followed in these cases. When a Will is filed with the Court for probate, it is necessary to provide notice to all of the decedent’s next of kin regarding the probate proceeding. The next of kin, known as distributees, have a right to Object to the Will. The notice they receive is called a Citation.

Prior to filing Objections to a Will, the distributees have the right to obtain testimony and documents from the attorney who drafted the Will and the attesting witnesses. These steps are provided for by Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required”.A recent case decided by Queens Surrogate Peter Kelly on February 9, 2017 entitled Will of Bellasalmo provides an analysis of many of the other procedural and substantive aspects of a contested Will case. In Bellasalmo, the Court noted that the Objectants were limited as to the period of time for which they could seek documents and information. Section 207.27 of the Uniform Surrogate’s Court Rules limits the scope of discovery to the period of three years prior to the date of the Will and the earlier of 2 years after the date of the Will or the decedent’s death.

The decision in Bellasalmo also discusses the manner by which the Court reviews Objections that assert lack of due execution. The Court noted that where a Will has an attestation clause and is executed under the supervision of an attorney and contains a self-proving affidavit signed by the attesting witnesses, the law provides a presumption that the Will was properly executed as provided for by the Estates, Powers and Trusts Law (EPTL). When this presumption of due execution is found, the Objectants are required to provide evidence to rebut the presumption. The Court dismissed the Objections regarding lack of due execution as well as Objections based upon other grounds.

As can be seen from Bellasalmo, it is important when someone prepares an estate plan and signs a Will, that the assistance of an attorney be obtained.  This is especially true when a testator is aware of a possible challenge to a Will by disgruntled next of kin.  The estate laws provide presumptions of validity when an attorney is involved.  These  presumptions can be invaluable to defeat a challenge to a Will.  The New York Probate Lawyer Blog has had many posts discussing  the need for proper estate planning and Will preparation.

I have represented many clients in probate proceedings and Will Contests throughout New York.   Call me now if you have any questions or issues regarding a decedent’s estate.  I am available to review your issue.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years including Nassau and Suffolk counties. If you or someone you know is involved with or has questions about a New York estate or beneficiary designation, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.

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