Nassau County Estate Litigation Lawyer

When a loved one passes away we are sometimes faced with the difficult task of managing the deceased's estate and tending to his or her final wishes. This process occasionally becomes more difficult when disputes arise regarding the management of the estate or the validity of the will. 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 Nassau County Estate Litigation Lawyer who will be able to help you navigate the difficult legal issues involved in an estate dispute.

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  • N.Y. Estate Procedure & Practice Nassau County Estate Litigation Lawyer
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There are many different types of disputes that may arise in connection with the administration of an estate. The will itself may be challenged in a will contest based questions as to whether it was properly executed. In order to effectively execute a will New York requires that specific formalities occur. The will must be signed by the person making the will, known as the testator. The will may also be signed by a person other than the testator at the direction of the testator. Another requirement is that the signing of the will must be witnessed by at least two people. NY EPTL § 3-2.1.

Improper Execution

A will contest can be based on an allegation that the will was not properly executed. Before the court admits a will to probate, it will review the will and the circumstances surrounding its execution to determine that the will is genuine and that it was executed according to New York law. The testator must sign the will at its end. NY EPTL § 3-2.1(a). The testator must sign it in the presence of at least 2 witnesses, or the testator must acknowledge his or her signature to each of the attesting witnesses. In addition, 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 to probate. However, if someone challenges the execution of the will, the court will not admit the will to probate.

In 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 objector to Werner's will also alleged that her signature was a forgery. Proof a signature can be made by handwriting analysis performed by an expert. But the court will look at other evidence as well. In Werner the handwriting analysis determined that the signature was probably not the testator's. However, the handwriting expert's opinion was not as persuasive as the testimony of two attorneys who witnessed signature, since there was no reason for the attorneys to perjure themselves.

Testamentary Capacity and Undue Influence

New York law also requires that the testator at the time of signing the will, must not have suffered from a mental incapacity. Thus, if an interested party feels that the deceased did indeed suffer from a mental incapacity, he or she may challenge the will. Similarly, a will may be challenged if at the signing of the will the testator was under duress.

Undue Influence. Undue influence occurs when the testator has testamentary capacity, but that capacity is subjected to and controlled by another individual who has manipulative, selfish intentions. Typically the person exerting undue influence does so in order to convince the testator to make him or her a beneficiary. Influencing a testator to leave a bequest is not the same as exerting undue influence. For example, if you simply asked to be included in a testator's will and the testator agreed, does not amount to undue influence. Undue influence includes elements of manipulation and force. For example, a friend who keeps away family members 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 a the form of duress could 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 also be a will contest.

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 § 4-1.1.

Testamentary Capacity. One of the requirements for making a legally valid will is that you must have testamentary capacity. This means that you must be at least 18 years old and that 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 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 the natural objects of your bounty, and under how you want to dispose of your property.

Particularly with older people, testamentary capacity is sometimes the basis for challenging a will if the testator suffered from Alzheimer's or some other type of dementia at the time of his or her death. Or in cases where the testator suffered a head injury or a mental disorder such as schizophrenia.

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 have had testamentary capacity. The test is that you had testamentary capacity at the time that the will was executed. It does not matter if you did 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, sound mind and intelligence or education are not synonymous.

Fiduciary 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. Guardians and conservators are also fiduciaries.

Common types of estate litigation that involves 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
  • Elder abuse

Estate disputes sometimes occur between beneficiaries and the executor, trustee or other fiduciaries involved in the management of the estate. 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. There are often disputes where there are spouses and ex-spouses involved, or where there are children born after the will was executed. 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. The staff at Stephen Bilkis and Associates are experienced in estate litigation and have worked extensively in the New York Surrogate's Court. 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.

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