and Your Family
New York Evidence of More Than One Will
When someone passes away testate, meaning he (or she) left a will, the executor named in the will must file the will with the New York Surrogate’s Court and petition the court to admit the will to probate. The court will only admit a will to probate that it determines to be valid. Anyone who has an interest in the decedent’s estate will be notified of the filing of the will and has the legal right to object to probating the will if he (or she) feels the will is not valid. There are a number of possible grounds for objecting to probate including evidence of more than one will. If you have concerns about the validity of a will of a loved one that has been submitted to the New York Surrogate’s Court for probate, contact a New York will contest lawyer at the Law Offices of Stephen Bilkis & Associates. With over 2 decades of experience successfully representing clients in complex estate litigation matters before the New York Surrogate’s Court, we can help ensure that your legal rights are protected.Evidence of more than one will
The process for initiating a probate case involves someone filing the decedent’s original will with the Surrogate’s Court. If there is no objection to probate, the Surrogate’s Court judge will allow the will to be admitted to probate and the named executor will be issued letters testamentary that will allow him (or her) to move forward with steps necessary to settle the decedent’s estate and ultimately distribute assets to the decedent’s beneficiaries according to the terms of the will. However, complications sometimes develop such as a will contest. Certainly, evidence of more than one will would cause the Surrogate’s Court to pause and take time to determine which will is valid. The problem may be easy to resolve it is simply a matter of someone submitted a prior will that is no longer valid because the executor decided to execute another will. In the absence of evidence of improprieties, the later dated will would be probated.
However, if two or more wills are produced and it is not immediately clear which is valid because there are arguably signs of fraud or some other type of irregularity with any of the wills, then the Surrogate’s Court may decide to schedule a hearing and review evidence from the proponents of the various wills. This will undoubtedly result in a delay in the probate and a delay in the administration of the estate. Nonetheless, it is critical that the Surrogate’s Court make sure that the proper will is probated.
For example, Henry executed a will in 1990 when he was 27 years old. At the time he was recently married, had one child, and had just started his career as a doctor. He left half of his very modest estate to his wife and half to his child. His brother was the executor. In 2010, at the age of 47, Henry suffered a heart attack. Fortunately, he fully recovered. The heart attacked caused him to think about his mortality, so he decided to create an comprehensive estate plan. He had forgotten about his 1990 will. By this time Henry was a very successful surgeon and had accumulated an estate that was worth several million dollars. He also had 3 more children and several nephews and nieces. In his new will he left his wife half of his estate, left his children generous distributions, but also left his nieces and nephews modest gifts. He named his business partner executor. Sadly, a few years later Henry suffered another heart attack and died. Both his brother and his business partner filed wills with the Surrogate’s Court.
As a New York will contest lawyer attorney will explain, in this case the court will probate the 2010 will. There is no evidence of fraud. Although the wills are different, they are not inconsistent. They simply reflect the different stages of life and career of the testator at the time they were executed.Revoking a will
One way that can help reduce the possibility of a significant delay due to evidence of more than one will is to make sure that when making a new will the prior will is revoked. Under section 3-4.1 of New York Estates, Powers & Trusts Law, there are 4 ways to revoke a will. The testator must do one of the following:
- Execute a revocation document. A revocation document must be properly executed by the testator and must state the intention of the testator to revoke a will.
- Destroy or deface the will. A physical act by the testator that destroys or defaces the original will is an effective way to revoke a will as the result would be that the revoked will will no longer exist or will be mutilated. For example, burning, tearing, cutting, writing over the text, mutilating, or destroying the will, would all be physical acts that would be effective to revoke the will. As long as the testator did the destroying or mutilating or directed another person to do so, there should be no question that the will was revoked. Keep in mind that a will submitted to the Surrogate’s Court for probate must be the original will. However, when taking steps to revoke a will by destroying or defacing, it is a good idea to destroy or deface all copies as well.
- Write a new will. The most recent will that was properly executed by the testator will take precedence over previously executed wills. While writing a new will is an effective way to revoke a prior will, it is not an effective way to avoid the problem of more than one will being submitted for probate.
- Nuncupative and holographic wills. A nuncupative will is an oral estate document and a holographic is a handwritten document that is not witnessed. In New York such wills are only valid when executed under specific circumstances. A will can be revoked or altered by a nuncupative or holographic declaration if done so in a manner required by New York law. If you are wondering whether your nuncupative or holographic estate document is valid, discuss your concerns with a New York will contest lawyer.
It is important to understand that if a will is effectively revoked, all codicils executed to amend that will will also be revoked.Evidence of fraud
Another consideration when multiple wills are produced is whether any of the wills was made under illegal circumstances. It may be a good idea to look closely at a recent will submitted by a beneficiary who stands to receive a distribution that is unusual given the known family relationships. Other factors that might tend to show that some sort of fraud was involved is if the will was created in secret and the proponent of the will had custody of it, if the proponent recommended the attorney who drafted the will, and if the proponent found the witnesses.
For example, when Fran passed away, much to the surprise of her family, she left most of her estate to her caregiver and her caregiver’s sister. Fran was born into a wealth family. At the urging of her parents and with the help of her parents’ attorney, Fran executed her first will when she was 21-years-old and single. When she was 35, after being married for over a decade and having 3 children, she decided it was time to execute a new will. This time she wanted to do things on her own without the help of her parents, so she found a new lawyer who helped her develop a comprehensive plan that included a will and other estate documents. By the time she was 55, Fran had several grandchildren, nieces and nephews. She executed another new will with the same attorney who drafted her 2nd will, leaving generous portions of her estate to her husband, children, grandchildren, nieces, and nephews. By the time she was 75, Fran was a widow. As she lived in a rural area of New York, pretty much all of her family opted to move much closer to New York City. Declining physically and mentally, Fran hired a live-in caregiver. When she was 80, Fran executed a new will with an attorney recommended by her caregiver, leaving 40% of her vast estate to the caregiver, 35% to the caregiver’s sister, and the rest to her 3 children. Fran passed away a few months later.
Two wills were filed with the court: her 3rd will and her 4th will. Her family challenged the 4th. will on the basis that it was invalid due to undue influence. The court found sufficient evidence that the will was fraudulent. Fran was isolated from her family, was in declining health, and was dependent on her caregiver who was in a confidential relationship with Fran. In addition, the attorney who drafted the will was not Fran’s longtime attorney, but an attorney recommended by the beneficiary caregiver, and the terms of the will were vastly different from Fran’s first three wills.
A “surprise” will may be fraudulent, may have been created based on undue influence, may have been executed when the testator was under duress, or may have been executed when the testator was mentally incapacitated. However, just because a testator decided to make a new will, made unexpected provisions in the new will, and did not share his or her attentions with his family is not conclusive evidence of fraud.Valid reasons for having more than one will
Some people purposely have multiple wills. They do so because they own real estate and other property in different states or different countries. Others have two or more wills for tax purposes. Having more than one will for jurisdiction or tax purposes is tricky and the end result may not be what the testator intended. If you are concerned about probate property in different jurisdictions or tax issues, discuss these issues with a skilled will contest attorney in New York who is experienced with handling estate matters for clients with complex assets across multiple jurisdiction who will work with you to develop an estate plan that will effectively transfer your property according to your wishes without creating problems and delays in probate.Contact the Law Offices of Stephen Bilkis & Associates
If more than one person files a will for the same decedent with the New York Surrogate’s Court, the Surrogate’s Court will not admit any of the wills to probate until it determines which will is valid. There are a number of reasons that there may be more than one will. Sorting through the facts will require the expertise of an experienced will contest attorney serving New York. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in complex estate matters related to contested wills and other probate litigation issues. We have the skill, knowledge, and experience before the New York Surrogate’s Court to ensure that your rights are protected in an estate matter involving evidence of more than one will or any other complex estate matter. Contact an attorney in our office at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Staten Island, Westchester County, Brooklyn, Manhattan, Bronx, Long Island, and Suffolk County.