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New York Will Contests Require Pre-Objection SCPA Witness Testimony

When a Last Will and Testament is filed with the Surrogate’s Court for probate, a number of procedural steps must be followed.  The Will itself is accompanied by a Probate Petition.  The Petition contains essential information regarding the decedent, the date of death, the names of the attesting witnesses, the date of the Will and the estimated value of the probate estate.

Another very important part of the Probate Petition is the listing of names and addresses of all of the individuals and entities that are interested in the estate.  These include the beneficiaries, the named executors and trustees and the decedent’s next of kin (“distributees”).  The distributees are individuals who have a right to object to the Will.  If the Will is found to be invalid, the estate would be distributed to the next of kin according to the laws of intestacy contained in Estates, Powers and Trusts Law section 4-1.1.   The New York Probate Lawyer Blog has provided many articles concerning the probate process and Will Contests.

If a distributee wants to pursue estate litigation and a possible Contested Will proceeding, the procedures contained in Surrogate’s Court Procedure Act (SCPA) section 1404 entitled “Witnesses to be examined; proof required” are followed.

SCPA 1404 allows the distributees to take the oral testimony of the attesting witnesses and the attorney who prepared the decedent’s Last Will.  Additionally, document discovery regarding financial and medical records is permitted.  The live testimony of the attesting witnesses allows both the proponent of the Will and the potential Objectants to examine the events that occurred during the Will preparation and signing ceremony and tests the veracity of the persons being examined at a deposition.  A decision can then be made whether to file Objections to the Will.

In a recent Bronx Estate case entitled Estate of Wood, Bronx Surrogate Nelida Malave-Gonzalez, in a decision dated July 18, 2019, refused to allow the testimony of the attesting witnesses to be taken by written questions.  While the spouse of the decedent claimed that the cost of taking the in-person testimony of the out-of state attesting witnesses would be burdensome, the Court determined that in-person testimony was needed.  Therefore, the Court directed that the testimony be taken by a commission which allowed the in-person testimony to be conducted in the out-of state location.

Probating  a Will in New York and Will Contests can be complicated.  Representation by an experienced Estate Lawyer can be essential.  I have represented clients throughout New York City and surrounding counties in many probate and other estate cases.  Call me for a free review of your trust and estate issue or concern.  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 30 years resolve issues relating to probate and estate settlement throughout New York City including the Bronx, Brooklyn and Manhattan.   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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