New York Probate Lawyer Blog
A Will Contest in New York has been the subject of numerous articles in the New York Probate Lawyer Blog. After a petition for the probate of a Will is filed, notice of the petition must be given to the decedent’s distributees. The distributees (next of kin) have a right to object to probate. In the event the Will is ultimately denied probate, the decedent’s estate is distributed according to the laws of intestacy. In such a case a distributee who was disinherited under the Will can receive his intestate share of the decedent’s estate.
When a distributee seeks to challenge a Will he can proceed to obtain information regarding the decedent’s testamentary capacity, the due execution of the Will and whether the Will was the subject of undue influence, fraud or duress. The initial phase of this discovery process is usually performed pursuant to Surrogate’s Court Procedure Act (SCPA) 1404. My blog has discussed this statute on many occasions. Pursuant to the provisions of this statute, the potential Objectants can obtain the deposition testimony of the attesting witnesses and the attorney who drafted the decedent’s Last Will. Also, documents concerning the decedent’s estate plan, finances and health status can be obtained.Following the completion of the SCPA 1404 examinations, formal objections to the Will need to be filed with the Court in order for the official Will Contest to go forward. Once Will Objections are filed, the Objectants can continue with discovery. Such discovery typically includes obtaining documents and testimony from third party witnesses including doctors and other persons who may have information that can reflect upon the validity of the decedent’s Will.
A recent case decided by Queens Surrogate Peter Kelly dated March 27, 2017 entitled Will of Chin reflects some of the discovery issues that can arise with Contested Wills. In Chin the Objectant asked the Court, among other items, to expand the time frame during which Objectant was allowed to obtain discovery. The New York Court rules limit discovery to a period of three years prior to the date of the Will and two years thereafter or to the decedent’s date of death, if earlier. However, if special circumstances are shown, the Court can expend this time period. In Chin, the Court did allow a limited expansion of the time period.
Will Contests and Estate Litigation can be very complex and time consuming. There are many aspects of a Will’s validity that can be examined in these proceedings. These include due execution, testamentary capacity and undue influence. The statutes and case-law in New York have many different requirements regarding these matters.
Call me now if you have a probate or Will Contest issue to discuss. I have represented many individuals in probate and other Surrogate’s Court matters throughout New York.
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.