First and foremost, a Will is a document which disposes of assets which are held by a person in his own name. It may contain bequests of specific amounts of funds or may provide for dispositions in shares or percentages. The New York Probate Lawyer Blog has published many articles concerning the creation of Wills and also the probate process.
When a Will is filed with the Surrogate’s Court for probate, there is a requirement that all of a decedent’s next of kin be notified. This is due to the fact that next of kin or distributees have a right to contest a Will. Will Contests are not uncommon. Family members who are either disinherited or did not receive what they believe to be an appropriate share of an estate often seek to invalidate a propounded Will.
There are various grounds upon which Objections to a Will may be based. These include lack of due execution, lack of testamentary capacity, and undue influence. Where a Will is prepared by an attorney and an attorney supervises the execution of a Will, there are certain presumptions which help to validate the document. Nevertheless, the New York statutes and procedures provide for a potential Objectant to investigate the bona fides of a Will. In particular, Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled” Witnesses to be examined; proof required” allows parties to obtain discovery of information before formal Objections are to be filed. This discovery information includes obtaining copies of a decedent’s medical and financial records. It also includes taking the deposition testimony of the attorney who drafted and supervised the execution of a Will, as well as the attesting witnesses. Typically, the period for discovery covers three (3) years prior to the date of the Will and the shorter of two (2) years after the Will date, or the decedent’s date of death.
The intention of this pre-objection discovery is to allow an assessment and judgment as to whether formal Objections are to be filed and an actual Will Contest is to be commenced.
Although SCPA 1404 discovery is extensive, there are limitations. In a recent Manhattan estate case, some discovery was not allowed. In Probate Proceeding, Will of Nicholas Zoullas, Manhattan Surrogate Rita Mella, in a decision dated November 15, 2024, refused to allow SCPA 1404 discovery concerning documents related to litigation the decedent had been involved with and the sale of a jointly-held cooperative apartment. The Court reviewed these papers and determined they were irrelevant to the issues in the probate case or were protected by the attorney-client privilege or work product rules.
Probate proceedings and Will Contests can be complicated and the assistance of an experienced Estate Lawyer can be essential. I have been representing clients in these matters for over forty (40) years. Do you have an issue regarding an estate? Call Me Now for a free confidential review of your estate matter. 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 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.