Have you ever wondered why written will contests in New York involve many different considerations? Well, just like any contest in a law court, each case has a complex set of statutes and rules regarding the procedure to follow. Whenever someone files a Will with the Court for probate, it is essential to provide notice to all of the decedent’s next of kin regarding the probate proceeding. The next of kin, also known as distributees, have a right under the law to Object to the Will. The notice they receive is called a Citation.
Before filing Objections to a Will, the distributees have the right to obtain testimony and necessary documents from the solicitor who drafted the Will and the attesting witnesses. These procedures are provided for by Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required.” As a practical example, a recent case entitled Will of Bellasalmo decided by Queens Surrogate Peter Kelly on February 9, 2017, provides an in-depth analysis of many of the other procedural and substantive aspects of a contested Will case.
In Bellasalmo, the Court noted that the Objectants has a limitation as to the period for which they could obtain documents and information. The section 207.27 of the Uniform Surrogate’s Court Rules limit the scope of discovery to the period of 3-years before the date of the Will and the earlier of 2 years after the time or date of the Will or the death of the decedent.
The court’s decision in Bellasalmo also explains the manner by which the Court reviews Objections that assert lack of due execution. The Court noted that in a case where a Will has an attestation clause and is executed under the supervision of a competent lawyer and includes a self-proving testimony signed by the attesting witnesses, the law provides an assumption that the Will was appropriately executed as provided for by the Estates, Powers and Trusts Law (EPTL). When there is notice of presumption of due execution, the Objectants are required to provide evidence to rebut the presumption. The Court, however, threw away the Objections regarding lack of due execution as well as Objections based upon other grounds.
Just like what happened in the case of Bellasalmo, it is essential to obtain the assistance of an attorney when someone prepares an estate plan and signs a Will. Morgan Legal Group PC can provide such excellent services. Protection by an Attorney is especially true when a testator is aware of a possible challenge to a Will by disgruntled next of kin or family members. The estate laws provide presumptions of validity when an attorney is involved. These presumptions can become very invaluable to defeat a challenge to a Will.
The case of Bellasalmo presents an excellent discussion of many of the claims that can be asserted in a Will Contest plus the evidentiary proof needed to predominate on such assertions to invalidate a Will. Estate litigation can be very complicated.
A review and consultation with a Morgan Legal Group PC Lawyer regarding Surrogate’s Court cases and contested Wills can be helpful. The Morgan Legal Group PC has experience in managing these kinds of conflicts or issues, and they help with proper estate planning and Will preparation. You can directly contact them to have your issues resolved.