and Your Family
New York Estate Litigation Lawyer
Estate litigation is a general term for any type of dispute related to the administration of an estate. While estate litigation often is initiated near the beginning of the probate or administration process, it can occur at any time during the process. Disputes can develop over how the estate is being administered by the executor, whether or not the will is valid, the specifics of the bequests in the will, or claims made by creditors. 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 New York estate litigation lawyer who will be able to help you understand the difficult legal issues involved in an estate dispute, explain your legal options, and work closely with you until the dispute has been resolved.Types of estate litigation
While there is a wide range of reasons that an interested party may initiate litigation during the administration process, estate litigation generally falls into 2 broad categories: will contests and fiduciary litigation.
Will contests. 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, referred to 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 at the testator’s direction. 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.
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. To have testamentary capacity the testator must be at least 18 years old and you must be of "sound mind and memory." NY EPTL § 3-1.1. As a New York estate litigation lawyer will explain, being of sound mind and memory means that the testator has the mental capacity to appreciate what it means to make a will. Generally the test for the mental requirement of testamentary capacity is that at the time the will was executed the testator understands the nature and extent of his (or he)r property, understands who his heirs are, and understands how he wants to dispose of his 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 the memory or mental capacity does not mean that the testator cannot make a will. As long as the testator executed his will during a time of mental clarity, then he had testamentary capacity. It does not matter what the testator’s mental state was at the time of his death or at any other time.
Objectors have even initiated lack of testamentary capacity will contests based on the testator's illiteracy, lack of formal education, and lack of sophistication. However, as a New York estate litigation lawyer will explain, under New York law having a sound mind is not synonymous with being well-educated or being intelligent.
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 physically frail testator has come to depend on a caregiver. Over time the caregiver spends more and more time with the testator. Eventually the caregiver assumes the role of gatekeeper, deciding who can and who cannot have access to the testator. Family members were not allowed access. When the testator died and will was presented to the New York Surrogate’s Court for probate, the testator’s relative were shocked to learn that the testator had executed a new will with a different executor. The will left the bulk of the testator’s substantial estate to the caregiver. Most of the family was completely left out, while in the prior will the testator had been quite generous to several family members. With the help of a skilled estate litigation attorney in New York, the testator’s relative could file a petition with the Surrogate’s Court challenging the validity of the new will.
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.
Regardless of the basis for the will challenged, 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
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, fiduciaries include the executor or the administrator. 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.Standing to initiate litigation
In New York, in order to initiate a will contest, fiduciary litigation, or an other type of estate litigation, the petitioner must have standing. Legal standing means that the petitioner must have an interest in the outcome of the dispute. Typically, those with standing include the executor, administrator, beneficiaries, beneficiaries of a prior will, statutory heirs, and creditors. This group has standing because, depending on the nature of the dispute, their financial position will be impacted by the outcome of the dispute.Contact the Law Offices of Stephen Bilkis & Associates
In addition to will contests and fiduciary disputes, other reasons for estate ligation include creditors claims and disputes among beneficiaries and heirs. 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, if you are an interested party such as a beneficiary, heir, or executor in an estate dispute it is important that you are represented by an attorney with experience. The estate litigation attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have over 20 years of experience representing personal representatives, beneficiaries, and heirs in complex estate litigation. We will help you make the process as painless as possible under the circumstances. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, County, Suffolk County, Queens, Bronx, Brooklyn, Long Island, Staten Island, and Westchester County.