The probate of Wills in New York can be very complicated. The Estates, Powers and Trusts Law (“EPTL”) Section 3-2.1 entitled “Execution and attestation of Wills; formal requirements” provides the basic requirements for the proper execution of a Will. The New York Probate Lawyer Blog contains many articles discussing the basic Will execution requirements which include items such that a Will generally must be in writing, signed by the testator at the end and there needs to be at least two attesting witnesses.
Estate Lawyers in New York City sometimes prepare Wills that contain provisions known as “No Contest” clauses or “In Terrorem” clauses. Essentially, these provisions that can appear in a Last Will or a Living Trust provide that a beneficiary will forfeit his bequest or interest in the event he unsuccessfully challenges the validity of the document. EPTL Section 3-3.5 entitled “Conditions qualifying disposition; conditions against contest; limitations thereon” sets forth the statutory provisions regarding these types of clauses.Although the No Contest clause may deter a beneficiary from contesting a Will due to concern that if unsuccessful his bequests may be lost, the statute makes an exception for preliminary discovery pursuant to Surrogate’s Court Procedure Act (SCPA) Section 1404. In a potential Contested Will case, SCPA 1404 provides a valuable avenue to learn whether a Will may be subject to a successful opposition. This statute allows interested parties to obtain certain document discovery and to obtain the pre-trial testimony of the attorney who drafted the Will and the attesting witnesses. Also, when there is a No Contest clause, the testimony of the named executors and the proponents of the Will can also be obtained.
In addition, SCPA 1404 allows an interested party, with Court approval, to obtain information from other persons when there is a No Contest clause provided the Court is satisfied that the information would have substantial relevance or importance regarding the Will’s validity.
I have been involved in many estate litigation matters where the use of the SCPA 1404 provisions are involved. The discovery of information regarding the finances and medical history of the decedent as well as the occurrences surrounding the drafting and signing of the Will are essential to determine the existence of a basis to challenge a Will’s validity.
Recently Manhattan Surrogate Nora Anderson decided a case on February 16, 2016 entitled Matter of Liebowitz in which the Will contained a No Contest clause. In Liebowitz, Surrogate Anderson found that there were special circumstances to allow discovery from the decedent’s business manager regarding matters that would reflect upon the validity of the Will.
If you have any questions or issues regarding a Probate case or Will litigation, please call me now for a free discussion of your matter. 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. 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: firstname.lastname@example.org, for an initial consultation.
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