The New York Surrogate’s Court Procedure Act (SCPA) sets forth the mechanisms if an interested party wishes to a contest a Last Will and Testament that is being offered for probate in the Surrogate’s Court. The first order of business would be to secure the services of an experienced estate litigation attorney who can review the merits of your claim that the will should not be admitted to probate. When one says the will is to be “admitted to probate”, what we mean is that the will should be deemed valid and the person nominated in the will as executor be allowed to serve in that capacity.
It must be clear that you have standing to object to the admission of a will to probate. Such standing is limited to individuals who have a financial interest in the decedent’s property and further, that their interest would be adversely affected if the will is admitted to probate.
Once it is determined that standing exists, the typical course of events in Surrogate’s Court is that the “objectant” (objecting party) appear in Court (typically through counsel) on the return date for service of process (citation) wherein the proponent of the Will seeks to have the document admitted to probate and set for decree by the Surrogate. Once an interest party appears to contest probate, the matter is set down for SCPA 1404 examinations. These examinations are essentially depositions conducted by the attorney for the objecting party upon the attesting witnesses to the Will and the attorney-draftsperson the Will (assuming the Will was overseen by an attorney). Once the dates are set for 1404 examination, the attorney for the objecting party usually service discovery demands upon the attorney representing the estate seeking various documents relating to the Will signing, including asset information of the decedent, medical records, and any communication (written, electronic) between the decedent and other interested parties to the proceeding.
After the 1404 examinations are concluded, the objecting party has ten (10) days to file objections with the Court, at which point the estate litigation continues with further court intervention, discovery, and depositions.
The typical bases for objection to the Will are as follows:
1) the decedent/testator lacked testamentary capacity to sign the Will
2) someone exerted undue influence upon the decedent/testator
3) the will was not executed properly in conformance with the formalities set forth by statute in the EPTL.
4) The will was procured by a fraud perpetrated upon the testator/decedent
If you required the services of an experienced estate litigation attorney to contest the admission of a Last Will and Testament, please contact the Law Offices of Michael W. Alpert at (516) 280-7288 or malpert@alpertlegal.com.