Brooklyn Estate Litigation Lawyer
Estate litigation is a general term for any type of dispute related to the administration of an estate. Estate litigation typically occurs during the estate administration process. A dispute can be initiated by any interested party including a beneficiary, heir, creditor, or fiduciary. Examples of disputes include a claim that you were not mentally competent when you executed the will, a claim that a caretaker unduly influenced you to make a specific bequest in your will, a claim that the executor mismanaged your estate, or a claim that the terms of the will were unclear. Disagreements among family members regarding an estate can become contentious and emotionally fraught. The best way to understand the complexities involved in managing disputes related to an estate is to contact an experienced Brooklyn Estate Litigation Lawyer who will explain your legal options and who will help your resolve the dispute in the best manner possible given the facts of your case.
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The will itself may be challenged based on questions as to whether it was properly executed. In order to effectively execute a will in New York specific formalities must be followed. The will must be signed at the end by the person making the will, known as the testator. NY EPTL § 3-2.1(a). If the testator is physically unable to sign the will, the law allows another person to help the testator sign the will or sign for the testator. Even though the testator may be physically frail, he or she must be mentally sound when another person aids the testator in signing the will. Another requirement is that the signing of the will must be witnessed by at least two people. NY EPTL § 3-2.1. At some time during the execution ceremony the testator must declare that the document signed is indeed his or her will. NY EPTL § 3-2.1(a). If the court is satisfied that that will is valid, the court will admit it to probate. However, if someone challenges the execution of the will, the court will hold off deciding whether to admit to probate until the dispute has been resolved.
In the case of In the Matter of the Estate of Helen Werner, 960 N.Y.S.2d 53 (2011), the testator's brother objected to the will claiming among other things that it was executed by mistake. To determine whether the testator intended to execute the will, the court reviewed the circumstances surrounding the execution of the will. The judge gave great weight to the testimony of the testator's attorney that the testator intended to execute the will and that it was executed consistent with New York law.
The brother also alleged that the testator's signature was a forgery. A handwriting expert gave an opinion that the signature on the will was probably not the testator's. However, the handwriting expert's opinion was not as persuasive to the judge as the testimony of the two attorneys who witnessed the testator signing the will.
In order to avoid questions as to whether a will was properly executed, the testator should request that the witnesses execute affidavits recounting the circumstances surrounding the signing of the will. Doing so makes the will self-proving. If a will is self-proving a Surrogate's Court judge will not need to interview the witnesses and review other evidence before concluding that the will is valid.Testamentary Capacity and Undue Influence
If a testator did not have testamentary capacity at the time he or she made a will then the will is open to a challenge. Similarly, if the testator was unduly influenced by another person to make the will or make specific bequests in a will, then the will is open to a challenge.
Testamentary Capacity. To have testamentary capacity you must be at least 18 years old and you must be of "sound mind and memory." NY EPTL § 3-1.1. Being of sound mind and memory means that you have the mental capacity to appreciate what it means for you to make a will. Generally the test for the mental requirement of testamentary capacity is that you have to understand the nature and extent of your property, understand who your heirs are, and understand how you want to dispose of your property.
Testamentary capacity is sometimes the basis for challenging a will if the testator suffered from Alzheimer's, schizophrenia, or a head injury. However, having a medical condition that may affect your memory or mental capacity does not mean that you cannot make a will. As long as you executed your will during a time of mental clarity, then you had testamentary capacity. It does not matter what your mental state was at the time of your death or at any other time.
Estate litigation has even been based on a claim of lack of testamentary capacity because of the testator's illiteracy, lack of formal education or lack of sophistication. However, having a sound mind is not synonymous with being well-educated or being intelligent.
Undue Influence. Undue influence occurs when another person selfishly manipulates the testator into executing a will that the testator would not have otherwise executed. Typically the manipulator gradually alienates the testator from certain members of the testator's family and convinces the testator to make a will that is favorable to the manipulator. However, influencing a testator to leave a bequest is not the same as exerting undue influence. For example, if you simply ask to be included in a testator's will and the testator agrees, you did not exert undue influence. Undue influence includes elements of manipulation and force. For example, a friend who keeps family members away from a testator and also convinces that testator to leave him or her the entire estate likely exerted undue influence of over that testator.
Undue influence can even take the form of duress involving physical or mental abuse or threats that compel the testator to execute a will that included terms that the testator may not have otherwise included, or may not have fully understood. The result of someone believing that the testator was under duress or was subjected to undue influence at the time the will was executed could spur estate litigation.
If the court concludes that there were improprieties surrounding the writing or execution of a will, the judge may declare that the will is invalid, or invalidate specific provisions of the will. NY EPTL § 4-1.1Fiduciary Litigation
Estate litigation can arise over a dispute over how fiduciaries have administered the estate. A fiduciary is an individual who has the authority to act in the best interests of another person. In the case of a will or a trust, fiduciaries include the executor or trustee. In addition, professionals hired to help perform services for the estate such as attorneys, accountants, business advisors and bankers are also fiduciaries. Common types of estate litigation that involve fiduciaries include:
- Breach of fiduciary duties
- Accounting irregularities
- Removing a trustee
- Disputes involving how to interpret the language of a will or trust
- Beneficiary disagreements on how assets are distributed
- Contested conservatorships or guardianships
- Creditor claims
Estate disputes involving fiduciaries typically arise when beneficiaries question how estate assets are being managed. For example, beneficiaries of an estate may disagree with how the executor has been spending estate assets.
Another source of disagreement may be over the terms of the will itself. Even though the testator's bequests are clear beneficiaries may still disagree on how the assets of the estate should be distributed, believing that they should receive a particular asset or a greater percentage of the estate. Disputes sometimes involve spouses and ex-spouses or involve children born outside of a marriage. Regardless of the basis for the estate dispute negotiating a resolution is an involved process requiring a review of detailed evidence and applying the appropriate law.
Because of the complexities involved in estate litigation it is important to have an attorney who is experienced representing you. There are several different ways to resolve a dispute involving an estate. The staff at Stephen Bilkis & Associates, PLLC has years of experience with estate litigation and has worked extensively in the New York Surrogate's Court. We will work closely with you to find a resolution to your estate dispute as quickly and effectively as possible. We will help you make the process as painless as possible under the circumstances. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations: