Bronx Probate Litigation

When you pass away if you leave a last will and testament your estate will go through probate before assets can be distributed to your beneficiaries. Unfortunately, probate is not always a smooth process. When a dispute involving an estate cannot be resolved the New York Surrogate's Court may become involved resulting in probate litigation. Probate litigation may be initiated by any interested party such as a creditor, a beneficiary, or an heir. Probate litigation may be rooted in a dispute that someone had with you that remained unresolved before you passed away. Sometimes a beneficiary may be unhappy with what he or she received compared what other relatives received, or a disinherited heir may be upset that a non-relative received a valuable gift. If someone believes that the executor is in some way mismanaging the estate's assets, probate litigation is likely. Regardless of the reason for probation litigation such a dispute will inevitably delay the distribution of assets and will cost the estate money. Whether you are a beneficiary, an heir, an executor, a creditor, or some other interested party, the best way to understand the complexities involved in resolving disputes that arise during probate and administration is to contact an experienced Bronx probate litigation lawyer who will be able to help you navigate the difficult legal issues involved in an estate dispute.

Probate litigation may result from a beneficiary or an heir questioning whether or not the will is truly a reflection of the testator’s wishes. Doubts can arise if the will includes usually or surprising bequests. For example, a will that leaves a substantial sum to a non-family member that no one in the family has ever heard of would raise questions that could lead to a will contest. A will contest may be initiated simply because one beneficiary feel the will is unfair. That person’s logic might be that the will must be fraudulent, otherwise the testator would have left more balanced bequests. However, a feeling of unfairness or surprise alone will not support a challenge to a will. There must be a legal basis for the will contest supported by evidence.

Improper execution. A will contest can be based on an allegation that the will was not properly executed. Before a will can be admitted to probate the Surrogate's Court judge will review it to determine if it was executed according to New York law. If an interested party objects to the will based on improper execution, or if there appears to be irregularities, then the judge will not admit the will to probate. Instead, a will contest will proceed, requiring the judge to hear testimony from the witnesses and to review of other evidence. Strong evidence that a will was executed properly and is valid is testimony from a member of the bar who was present at the will's execution.

For example, in the case of In the Matter of Herman, 289 A.D.2d 239 (2001), there was an allegation that Edwin Herman signature was forged. The Surrogate's Court just was not convinced by the allegation largely due to the fact that the lawyer who drafted the will was present at its execution and testified to that. In a similar dispute there was evidence from a handwriting expert that a will's signature was not that of the testator. The judge found that the will was valid as he gave greater weight to the testimony of 2 members of the bar who witnessed the signature. In the Matter of the Estate of Helen Werner, 960 N.Y.S.2d 53 (2011)

Undue Influence. A testator would be subject to undue influence if someone with a motive and opportunity acted in a way that resulted in the testator being constrained against his or her own free will and desire. It is not enough for someone to have the motive and the opportunity exert undue influence. The person must have actually exerted the undue influence.

A finding of undue influence can mean that a particular bequest to the person who exerted the undue influence would be voided, or it could mean that the entire will is invalidated. If the will is found to be invalid then the decedent's estate will pass to the decedent's heirs based on the laws of intestate succession.

Testamentary capacity. One of the requirements for making a legally valid will is that the testator must have testamentary capacity. This means that people who are at least 18 years old can make wills. In addition, the testator must be of "sound mind and memory." NY EPTL § 3-1.1. Being of sound mind and memory means that the testator cannot have a mental incapacity at the time he or she made the will. Generally the test for the mental requirement of testamentary capacity is whether the testator understand the extent and value of his or her property, whether the testator understands who the people are who are his or her natural beneficiaries, and whether the testator understands the property dispositions he is making in the will.

Particularly with older people testamentary capacity is a common basis for challenging a will. Conditions that may cause an interested party to question if the testator had testamentary capacity include Alzheimer's Disease or some other type of dementia, schizophrenia, or a traumatic brain injury. However, as an experienced Bronx probate litigation lawyer will explain, merely having a medical condition that may affect your memory or mental capacity does not necessarily mean that you cannot make a will. In some cases those who suffer from such illnesses or injuries have extended periods of clarity. If the will was made during one of these periods then the testator had the necessary testamentary capacity. Evidence of testamentary capacity can be gleaned from the testator's medical records, testimony from the testator's physician, testimony from the witnesses to the execution of the will, and testimony of those who were frequently around the testator. Testamentary capacity is not related to a testator's education, intelligence or level of sophistication.

Unfortunately, there are occasions when a fiduciary to an estate does fails to properly fulfill his or her duties and as a result damages the estate or enriches him or herself. A fiduciary is a person who has the authority and the obligation to act for another person under circumstances that require total trust, good faith, and honesty. With respect to an estate a fiduciary could be the executor, estate administrator, trustee, attorney, accountant, or guardian. If a beneficiary or other interested party feels that a fiduciary has in some way breached his or her fiduciary duty, he has the right to petition the court to remove the fiduciary. Common probate litigation issues that involve fiduciaries include:

• Mismanagement of estate funds
• Accounting irregularities
• Disqualification of a fiduciary
• Contested guardianships
• Creditor claims

If a fiduciary is found to have breached his (or her) fiduciary duty the Surrogate's Court is likely to hold that fiduciary personally liable and require him to make the estate whole for any losses suffered or compensate the estate for any gain that the liable fiduciary received.

Removing an administrator. An option for addressing problems with an executor or estate administrator is to seek to have him removed. Oftentimes an interested party and the executor simply do not see eye to eye. There are specific reasons listed in the Surrogate's Court Procedure that an estate administrator may be removed:

• Ineligible. In order to serve as an executor or administrator, the petitioner must be qualified. This means that he (or she) must be at least 18, most not be a convicted felon, must not suffer from a mental capacity, and must meet the residency requirements. If the executor was not qualified or circumstances changed so that he (or she) is no longer qualified, then the Surrogate’s Court can remove him. Similarly, if the executor received his appointment by being deceitful, this letters can be revoked.
• Wasted assets. One of the duties of an executor is to safeguard and preserve estate assets. He must handle estate asset with the utmost care. If the executor’s actions cause the estate’s assets to diminish, and actions are not prudent, the court can remove the executor.
• Unfit to serve. An executor must be fit for the job. If there is evidence that he is dishonest, uses alcohol excessively, is responsible, or displays a tendency toward making careless the decisions, the Surrogate’s Court can remove him.
• Failure to follow court order. An executor is supervised by the Surrogate’s Court. He must do as the court orders. If the executor fails to follow an order of the court, the court can revoke his letters and remove him.
• Change of address. An executor may lose his job if he fails to notify the Surrogate’s Court of a change of address within 30 days of such change.
• Removal of property. As an experienced probate litigation attorney in the Bronx will explain, there are certain activities that an executor or administrator cannot do without first getting the permission of the Surrogate’s Court. Removing estate property from the State of New York is one of those activities.
• Failure to account. The executor is required to file an accounting with the Surrogate’s Court when the court orders him to do so. An accounting is a report regarding all of the assets that left the estate and came into the estate. It is a record of all of the activities related to the administration of the estate. Failure to provide an accounting when ordered is grounds for revocation of letters.

In order for a court to take the extreme step of removing an executor the allegation of a breach of fiduciary duty must be more than mere supposition. If you have concerns over the manner in which an executor or estate administrator is doing his job, seek the advice of an experienced Bronx probate litigation lawyer.

Probate litigation can have a significant impact on the decedent’s estate, regardless of the type of litigation and who prevails.

Delay. Litigation during the administration process will almost always cause a delay in the process. If the dispute occurs during the probate phase when the will is filed with the court, the court will delay admitting the will to probate and issuing letters until the dispute has been resolved. If the litigation is another type that occurs during administration, the court may allow some administration activities to continue, but there is likely to be some delay.

Expenses. The executor is obligated to defend the estate against claims. Fees related to defending the estate are expenses that are paid from estate assets. Depending on the complexity of the litigation and the time it takes to resolve, the fee could be significant. As a result, the total value of the estate will diminish.

Invalid will. If the litigation is a will contest and the contest is successful, the court will not admit the will to probate. As a result, either a prior valid will will be probated or the estate will be settled as an intestate estate.

Because of the complexities involved in winding up an estate, including resolving probate litigation it is important for an executor, beneficiary or any interested party to be represented by someone with experience. The experienced probate litigation attorneys serving the Bronx at the Law Offices of Stephen Bilkis & Associates have extensive experience representing clients in complex probate and estate litigation matters before the New York Surrogate's Court, including will contests and disputes involving fiduciaries. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Queens, Suffolk County, Nassau County, Long Island, Bronx, Staten Island, Brooklyn, Manhattan, and Westchester County.