Articles Posted in Will Contests

It is quite common that when a Last Will and Testament is filed with the Surrogate’s Court for probate, various members of a decedent’s family view the Will provisions to be objectionable.  This feeling of rejection may be based upon a perception that a decedent was somehow coerced into signing a Will or did not have the appropriate cognitive ability to understand what he was signing.  Or perhaps, a decedent promised to make a bequest which does not appear in the document.

While these various reactions may have some general validity, the actual and formal process to contest a Will is very complicated and often difficult to traverse.  The New York Probate Lawyer Blog has published numerous articles concerning Contested Wills and Surrogate’s Court litigation.

When considering whether to object to a Will, the potential Objectant must have a right or legal standing to file Objections.  Typically, an Objectant is a distributee or next of kin of a decedent who would receive a greater share of the estate or an intestate share if the Will is determined to be invalid.  Assuming a person has standing, there are many hurdles to successfully invalidate a Will.

It is not uncommon that a person who dies was the subject of an Article 81 Guardianship proceeding prior to death.  The Guardianship statutes are contained in Article 81 of the Mental Hygiene Law.  A Guardian for personal needs and property management will be appointed where a person is determined to be incapacitated.  Incapacity is defined in MHL Section 81.02 and essentially requires that a person is likely to suffer harm because they are unable to provide for their personal or property needs and they cannot “understand and appreciate” their disability (81.02(b)).  It should be recognized that the guardianship provisions rely on an assessment of functionality, or the extent to which a person is able to handle activities of daily living, as opposed to a strict medical or psychological diagnosis.

On its face, it would appear that a determination of incapacity and the appointment of a Guardian would automatically result in a lack of testamentary capacity for such person to execute a Last Will and Testament.  However, such is not the case.  To begin with, MHL 81.29(b) specifically provides that, where a guardian is appointed, it is not conclusive evidence that someone does not have capacity to dispose of an estate by a Last Will.  There are additional considerations as well.

This issue arose in a recent Brooklyn estate case entitled Probate Proceeding, Will of Phylliscita Ismay Samuel, decided by Brooklyn Surrogate Bernard J. Graham on January 11, 2024.  In the Surrogate’s Court case, the Court was asked to grant summary judgment and deny probate to a Will, which was executed following a determination of incapacity and the appointment of a Guardian.  The party moving for summary judgment relied on this determination to seek the summary rejection of the Will.  The Court denied the motion and found that issues of fact existed requiring a trial.  The Court’s ruling included recognition that the determination of capacity in a Guardianship case is different from the testamentary capacity required to execute a Will.  Article 81 is a test of functionality while testamentary capacity involves just understanding a person’s property, the natural objects of one’s bounty and that the person is entering into a Will.

The probate process in New York can appear daunting to persons unfamiliar with the statutes and procedures relating to such matters.  In cases where a person dies and leaves a Last Will and Testament, the Will must be filed with the Surrogate’s Court in order to obtain the Court’s approval that the Will is valid.  Once a Will is admitted to probate, its provisions regarding the disposition of a decedent’s estate control estate settlement.  Where there is no Will, a person is deemed to have died intestate.  Whether an executor or administrator is appointed depends upon the existence of a Will.  The New York Probate Lawyer Blog contains numerous articles concerning estate settlement, Will probate and intestate administration.

As part of the probate proceedings, the petition filed with the Surrogate’s Court must identify all of a decedent’s distributees (next of kin).  These are the individuals who would have a right to receive an intestate share of a decedent’s estate if a Will did not exist.  Distributees must be given notice of the probate case since they have a right to challenge or contest a Will.  A Will Contest can be a very complicated endeavor.  There are various steps which take place which afford a person who wants to contest a Will the opportunity to obtain information regarding the drafting and execution of the Will.  Surrogate’s Court Procedure Act Section 1404 entitled “Witnesses to be examined; proof required” allows distributees to obtain certain discovery information including the deposition testimony of the attorney who drafted a Will and the attesting witnesses who were present at the Will signing.  In addition, various documents concerning a decedent, such as financial records and medical records, can be obtained and reviewed.

An important aspect of filing objections to a Will is that an objectant must have standing to do so.  Not everyone can file objections.  Surrogate’s Court Procedure Act 1410 entitled “Who may file objections to probate of an alleged will” requires that a person must have a financial interest which would be adversely affected by the Will in order to object.  This is a significant requirement.  A recent Suffolk County estate case decided by Suffolk County Surrogate Vincent J. Messina, Jr. on August 8, 2023 concerning the Estate of May Kelman a/k/a May R. Kelman, Deceased, reviewed this issue.

Contesting a Will in New York involves many different rules of law and procedures.  The Estates Powers and Trusts Law (EPTL) and the Surrogates Court Procedure Act (SCPA) provide various guides.  At its essence, the validity of a decedent’s Will must comply with EPTL Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”    According to the requirements of the statute, a Will needs to be written, signed at the end by a testator, and there must be at least two attesting witnesses.  If the rules regarding the execution are not complied with, then objections to a Will based upon lack of due execution may be successful.  In such a case, a Will is not admitted to probate.

Other grounds for Will contests include lack of testamentary capacity and undue influence.  Proving the existence of these circumstances is often difficult.  The New York Probate Lawyer Blog has published many articles discussing Will contests and Surrogate’s Court matters.

One of the questions which arises in connection with probate and Will contests is payment of the costs associated with the proceedings.  Putting aside legal fees, there are a few items which should be of interest.  Contested probates typically begin with discovery of information under SCPA Section 1404 entitled “Witnesses to be examined; proof required.”  This statute allows for obtaining documents and deposition testimony from the attorney who drafted the Will and the attesting witnesses.  Payment for a Court reporter to transcribe deposition testimony can be costly.  If a person wants to obtain this testimony, he may need to incur substantial expenses.  However, according to SCPA 1404(5), the testator’s estate is responsible to pay for the examination of the first two attesting witnesses.

Contesting a Last Will in New York is a complex and difficult endeavor.  The problem initially encountered, of course, is that the decedent is not available to explain exactly what occurred in connection with the preparation and execution of a Will.  As a result, the facts and evidence need to be obtained and gleaned from outside sources such as witnesses and various documents and records.  In most cases, the process is cumbersome and very time consuming.  New York estate lawyers assist clients with the relevant Surrogate’s Court procedures and statutes contained in the Estates, Powers and Trusts Law.  The New York Probate Lawyer Blog contains many articles about Will contests.

When a Will is drafted by an attorney and an attorney supervises the signing ceremony, there are certain presumptions of due execution which greatly advance the probate of the document.  A recent decision by Ulster County Surrogate Sara McGinty on January 6, 2021, in a case entitled Estate of Linich, shows that a contestant has a heavy burden to invalidate a Will.

In Linich, the decedent changed his Will to benefit his business agent and friend.  A prior Will had benefited the decedent’s niece who filed objections to the probate of the later Will.  The typical objections to probate are lack of due execution, lack of testamentary capacity and undue influence.  Fraud, duress and forgery sometimes are also asserted.

After the death of a decedent, a proceeding may be commenced to probate a Last Will and Testament.  Probate proceedings are filed in Surrogate’s Court in the county where the decedent resided.

Various individuals may want to contest the Will.  Most commonly, objectants are the decedent’s distributees or next of kin who feel that the Will is invalid for one reason or another.  Surrogate’s Court Procedure Act (SCPA) Section 1410 entitled “Who may file objections to probate of an alleged will” delineates the persons who have such rights.  Clearly, an heir at law may engage in a contest since they most likely would be adversely affected by a Will which may diminish or eliminate their intestate share.

The New York Probate Lawyer Blog contains many posts about Will contests and Surrogate’s Court litigation.  These types of cases are usually very difficult because the Surrogate’s Courts tend to prefer that a decedent’s wishes as expressed in a written Will be given effect.  Also, a document that is prepared and signed under attorney supervision is given certain presumptions of legitimacy.  A recent Manhattan estate case decided by Manhattan Surrogate Nora Anderson on October 30, 2020 provides a simple example of such a situation.  In Estate of Memeh, the Court dismissed objections to the probate of the Will.  The various points made by the Court included the following:

In order for a Last Will and Testament to be valid, it must be admitted to probate.  Probating a Will in New York requires following all the procedures in the Surrogate’s Court.  Many times a person who is disinherited or does not receive what he expects in the Will provisions feels that the Will must be invalid.  The conclusion reached is that the document must have been procured through fraud, undue influence or other wrongdoing.

The reality of these cases is that most Wills that are prepared by an attorney and executed under an attorney’s supervision are found to be valid.  When the statutory formalities provided by Estates, Powers and Trusts law section 3-2.1 entitled “Execution and attestation of wills; formal requirements” are followed, a contest of a Will is usually dismissed.  While undue influence and other grounds may result in a denial of probate, such an outcome is difficult to achieve.  The Courts typically prefer to see that a testator’s intentions are carried out through the terms of a Will rather than left to the uncertainly of intestate distribution.  The New York Probate Lawyer Blog has posted many articles regarding probate.

A Manhattan estate case entitled Estate of Menchini demonstrates that the Courts tend to favor admitting a Will to probate.  Menchini was decided on March 18, 2019 by Manhattan Surrogate Rita Mella.  The decedent had left most of his estate to a friend who was also named as an alternate executor.  The decedent’s brother challenged the Will based upon lack of due execution and fraud.  It appears that the Will was not prepared by an attorney, nor did an attorney supervise the execution ceremony.  The Will was signed in the office of a Reverend of a local church.  There were two witnesses, although one witness predeceased the decedent and was not available to testify.  Also, a notary was present to notarize the witness affidavits.

A person may prepare and execute a number of Last Wills during the course of a lifetime.  It is not unusual to find that a testator signed a new Will only a few years after having created the earlier document.

In these situations, the provisions in the Wills may be drastically different which may lead to questions regarding the validity of the later document.  The New York Probate Lawyer Blog has recently published articles concerning Will contests and the standing or right of an individual to file objections to a Will.  In essence, a person must have a pecuniary or financial interest in defeating the Will being offered for probate in order to object to its validity.  The statute that provides the rule in this regard is Surrogate’s Court Procedure Act Section 1410 entitled “Who may file objections to probate of an alleged will.”

One common situation is that the individual nominated as executor in a later Will is different from the person named in an earlier Will.  As a result, the earlier named executor may feel that he would want to object to the later Will, which deprived him of his potential executorship.  Executors like all fiduciaries are entitled to receive statutory commissions which may be tens of thousands of dollars in larger estates.

The Probate Process in New York involves various statutes and Court rules. A Last Will and Testament is not valid until it is admitted to probate by the Surrogate’s Court. When a petition is filed with the Court for probate, the document contains the names of the decedent’s distributees (next of kin). These individuals have the right to contest the Will. The New York Probate Lawyer Blog has discussed Contested Will proceedings on many occasions.

The contest process usually begins with reference to Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required.” Pursuant to this statute the potential Objectants have the right to take the deposition of the attesting witnesses to the Will and the attorney who drafted the Will. SCPA 1404 also allows discovery of documents such as the estate planning file of the attorney draftsperson, papers showing the decedent’s assets and medical and hospital records of the decedent. Once the SCPA 1404 discovery is completed, the distributees can file their Objections to the Will. These Objections are typically based upon alleged lack of due execution of the Will, lack of testamentary capacity and undue influence.

After the filing of Will Contest Objections, both the petitioner and Objectants can engage in discovery. Thus, the petitioner at this stage can take the deposition of the Objectants and obtain documents. This allows the petitioner to determine the evidence that may support the Objections. There are additional statutes in the Civil Practice Law and Rules and the Uniform Court Rules that control the discovery process. The discovery process can take many months and can be complicated. Information from third parties such as doctors, medical care-takers, financial consultants and friends and acquaintances of the decedent can be obtained.