Member of:
Justia Lawyer Rating
American Association for Justice
Union Plus

Surrogate’s Court Procedure Act § 1420: Proceeding for Construction of Will;  Effect of Decree

A last will and testament that is well-drafted by an experienced New York will contest lawyer is a written statement of what the testator wants to happen to his (or her) estate once he passes away. For example, a will can make it clear as to which of the testator’s family and friends are to receive distributions from his estate and which individuals are not. In some instances, however, the written terms of the will may be unclear, leading to disputes during probate as to how it should be interpreted. When there are interested parties who disagree about how to interpret a will, the New York Surrogate’s Court Procedure Act § 1420, Proceeding for construction of will;  effect of decree, allows interested parties to petition the Surrogate’s Court to settle the matter.

Related statutory provisions
  1. Service of process: Surrogate’s Court Procedure Act, § 307
  2. Who may file objections to probate of an alleged will: Surrogate’s Court Procedure Act, § 1410
Proceeding for construction of will;  effect of decree

Under the Surrogate’s Court Procedure Act, the rules related to petitioning the court to determine the validity of a will, for getting clarification on how it should be interpreted, or direction on the effect of any provision in the will are as follows:

  • Petition. The person who wants a determination from the court as to the validity of a will or who to interpret a will must file a petition with the Surrogate’s Court that probated the will. The petition must include specific details including how the petitioner is an interested party, the names and addresses of other interested parties, the part of the will at issue. If the court decides to move forward with a review of the petitioner’s concerns, all interested parties will receive notification.
  • Questions related to an accounting. If the petition is related to the accounting submitted by the executor or administrator and the determination of the validity of a debit or credit in the account requires a determination of the effect, validity, or construction of any part of a will, the petition would be handled as any other request to determine the effect, validity, or construction of a will under section 1420 of the Surrogate’s Court Procedure Act.
  • Timing. The Surrogate’s Court has discretion as to whether to entertain questions related to the construction of the will at the time the will is admitted to probate, or may wait and consider the questions later. The court will not entertain a petition before a will has been probate. In the case of In the Matter of Estate of Martin, 17 A.D.3d 598 (N.Y. App. Div., 2005), the petitioners submitted a will for partial probate of specific terms. The petitioners also requested that the Surrogate’s Court interpret an in terrorem clause in a will. Because the will had not yet been probated, the Surrogate’s Court denied the petitioner’s request to interpret the in terrorem clause. The best course of action to ensure that your petition is not dismissed is to contact an experienced will contest attorney in New York who understands the procedural requirement for filing a petition for construction of a will or for challenging the validity of a will.
  • Effect of decree. A decree by the Surrogate’s Court related to how to interpret a portion of the will is binding on all courts upon all parties, unless the decree is reversed or modified on appeal.
Who has standing

In order for the New York Surrogate’s Court to entertain a petition to challenge the validity of a will or to clarify the effect of terms of a will, the petitioner must have legal standing. As an experienced New York will contest attorney will explain, only those with an interest in the outcome of the proceeding have standing. Typically, that includes beneficiaries named in the will, beneficiaries named in a prior will, and the testator’s legal heirs.

Beneficiaries typically have standing because their rights under a will are usually affected by the outcome of a will challenge, or by the way the court decides to interpret terms of a will. Beneficiaries named in a prior will would have standing in certain proceedings under Surrogate’s Court Procedure Act § 1420. Proceeding for construction of will;  effect of decree. For example, if the petition involves challenging the validity of the will, beneficiaries of a prior will would have standing as they stand to benefit if the challenged will is determined to be invalid. For similar reasons, intestate heirs would also have standing in cases where the petition challenges the validity of the will. If the will is determined to not be valid and there is not other valid will, then the decedent’s property would go to his or her intestate heirs based on the rules of intestate succession.

In the Matter of Bernstein, 40 A.D.3d 1086 (N.Y. App. Div., 2007), decedent Benjamin Benstein left his daughter, petitioner Anita Bernstein, $20,000 in his will. He also left $221,000 to charities. Despite the fact that the will contained an in terrorem clause, Anita unsuccessfully challenged the will. As a result, Anita forfeited her gift under the will. Anita then filed a petition for construction of the residuary clause. The court dismissed her petition, finding that Anita lacked standing to object to terms in the will because by filing a will contest, she forfeited any interest in the estate.

Surrogate’s Court Procedure Act § 1420. Proceeding for construction of will;  effect of decree.
  1. A fiduciary or a person interested in obtaining a determination as to the validity, construction or effect of any provision of a will may present to the court in which the will was probated a petition showing the interest of the petitioner, the names and post-office addresses of the other persons interested, the particular portion of the will concerning which petitioner requests the determination of the court and the necessity for construction.  If the application be entertained process shall issue to all persons interested in the question to be presented to show cause why the determination should not be made.  On the return of process the court shall take such proof and shall make such decree as justice requires.
  2. If in any proceeding for the judicial settlement of an account of a fiduciary any question is presented by any party to the proceeding respecting the propriety of any debit or credit in the account, the determination of which involves the validity, construction or effect of any portion of the will which requires such construction the presentation of the question shall have the same effect as if the petition had expressly requested a construction of the particular portion of the will involved in such determination.
  3. If a party in a proceeding for the probate of a will requests a determination of the validity, construction or effect of any provision contained in the will process shall issue to all persons interested in the determination who have not appeared in the proceeding and notice shall be given in such manner as directed by the court to all those persons who have so appeared therein.  Upon the entry of a decree admitting the will to probate the court may determine the question of construction or in its discretion may admit the will to probate and reserve the question for future consideration and decree.
  4. A decree in any proceeding authorized in this section or a decree settling an account of a fiduciary or a decree on probate which construes or interprets any portion of a will, unless reversed or modified on appeal, shall thereafter be binding and conclusive in all courts upon all parties to the proceeding and upon their successors in interest as to all questions of construction or interpretation of the will therein or thereby determined and of all rights and obligations of the parties involved in the construction, depending thereon, or resulting therefrom.
  5. 5. The provisions of section three hundred fifteen shall apply to a proceeding under this section.
Contact the Law Offices of Stephen Bilkis & Associates

For over two decades the will contest attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have successfully represented clients in matters related to probate and estate administration, including will contests and estate litigation before the New York Surrogate’s Court. If you are an interested party such as an executor, beneficiary, heir, or fiduciary in a matter related to the requirements of New York SPCA section 1420, Proceeding for construction of will;  effect of decree, or any other will, estate, or trust matter, contact one of our attorneys at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Suffolk County, Long Island, Nassau County, Bronx, Brooklyn, Manhattan, Queens, Staten Island, and Westchester County.

Client Reviews
Mr. Bilkis handled both my father and mother's estate issues through very difficult times he was compassionate kind and understanding. In fact the whole firm showed great empathy. Despite the emotional hard time we were having that quickly and efficiently handle all the matters that were necessary to get us the result we desired. Can't recommend them enough. B.B.
From the very first phone call to Stephen Bilkis' office, the staff was extremely polite and helpful in assisting me. Mr. Bilkis was honest and upfront with me from the beginning in what he projected the outcome of my case would be; in the end we got better results than either of us anticipated. He was very genuine and compassionate in understanding my situation and how this legal matter could effect not only myself but my family as well. I highly recommend this law firm and will most definitely continue using them for any future legal needs. Jarrett
Stephen has handled numerous estate matters, criminal matters and family court matters effectively and with a goal-oriented approach. He gets great results and is a results-oriented attorney. Dustin