The New York Probate process has been the subject of numerous posts in this blog. A Last Will that is prepared by a person must be admitted to probate or validated by the Surrogate’s Court so that the provisions of the Will become effective. The decedent’s distributes or next of kin must receive notice of the probate proceeding and they have a right to contest the Will. Usually, the distributees receive a paper called a Citation, which is like a summons, that advises them as to the date when the probate proceeding is to appear on the Court calendar. At that time, the distributees can file objections to the Will or ask for preliminary discovery that is allowed by Surrogate’s Court Procedure Act (“SCPA”) Section 1404.
There are many specific rules and procedures that apply to the process of contesting a Will. Some of these requirements have been the subject of recent Surrogate’s Court decisions. In Estate of Basil Constant, decided on June 30, 2014, Bronx Surrogate Nelida Malave-Gonzalez reviewed an application to expand what is known as the “3/2” rule. This rule is contained in section 207.27 of the New York Uniform Rules for Surrogate’s Court and provides that in connection with an examination before trial (i.e. discovery) such examination is limited to a period of time that is three years before the date of the Will and two years thereafter or the decedent’s date of death, whichever is shorter. While the examination period can be extended by Court Order, the Court needs to find special circumstances to expand the time periods. In Constant the Court did not allow an expansion of the time periods to allow an inquiry about an earlier Will that the decedent allegedly had made.
In another recent case entitled Will of Sanger, decided on June 30, 2014, Nassau County Surrogate Edward McCarty III was presented with a motion for summary judgment seeking to dismiss objections that were filed asserting that a Will was improperly executed, that the decedent lacked testamentary capacity and that it was the subject of undue influence. Among the rules involved in Will contests is that where the execution of the document is supervised by an attorney, the law presumes that it is properly executed. In Sanger, the Court found such presumption prevailed even though the supervising attorney was not admitted to the New York Bar when the Will was signed. The Court also found that the objectants’ additional assertions of lack of testamentary capacity, fraud and undue influence had no merit.
I have represented many clients in Probate Proceedings and Will contests. These proceedings can be quite complex and the assistance of legal counsel can provide a means to resolving the various issues arising in these cases. Please contact me to discuss 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, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.
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