People (usually those who have been disinherited) often wonder if they have any rights to contest a last will and testament of a loved one which they believe to be an invalid will. There may be many reasons why they believe the will to be a sham; a forgery, duress, lack of mental capacity, undue influence, lack of proper execution, among others. This article will provide a basic overview of the process of contesting a will, while future ones will go into detail on the elements of specific challenges.
Who Can Contest a Will?
It would be quite awkward if any Joe off the street could contest a stranger’s will. Therefore, the law generally, with some exceptions, only allows the following categories of people to contest a will:
- Someone who would have inherited more if there had been no will (also known as a distributee, i.e. a disinherited child, spouse, or sibling) and
- Someone who would have inherited more under a prior will.
How Does an Interested Party Contest a Will?
A will contest is started when the contesting party files objections to probate in the Surrogate’s Court. This needs to be done on or before the return date of the citation the court issues, or as the court otherwise directs.
Preliminary “1404 Examinations”
Before formally filing objections, it is common for the objectant to exercise his rights under SCPA 1404 and examine the attesting witnesses to the will as well as the drafting attorney. In addition, an objectant can request medical records and relevant financial records for 3 years prior and 2 years after the date on which the will was drafted, or up to the decedent’s death, whichever is shorter. 1404 Examinations, as they are known, are a great way to get preliminary information to help the objectant make a determination whether a will contest is warranted and under what theory (i.e. undue influence, fraud, etc.). It can also help the objectant hone in on the focal points in the subsequent discovery once objections are filed.
There is also practical reason to request 1404 Examinations before filing objections since the proponent of the will has to pay for the expenses of producing the witnesses as well as of the transcripts and medical/financial records. This shifts the cost of producing documents and initial witnesses on to the estate and saves the objectant money. In addition, the examinations help eliminate costly litigation by helping both sides reach a settlement quicker and cheaper than a full blown discovery proceeding.
Another crucial benefit of conducting 1404 exams is that, by statute, they generally do not trigger an in terrorem clause in the will. An in terrorem clause states that if a beneficiary in a will contests the will and loses, he forfeits all of his share under the will. Conducing 1404 exams allows room to probe the validity of the will without losing your existing bequests if you decide not to contest.
Once the examinations of the witnesses have been completed, the objectant has 10 days to file objections, unless otherwise allowed by the court. The objections must state the theory or theories under which the objectant is contesting the will and should, almost always, include a demand for a jury trial. Once objections are filed, a notice of objections is served on all interested parties and discovery proceeds, although it is not uncommon for the court to schedule a preliminary conference to discuss the outstanding issues and possibly aid in a negotiated settlement. Once discovery has been completed, and the matter is ready for trial, a note of issue generally must filed, placing the matter on the court’s calendar for trial.
Will contests are very fact specific and even tiny nuances can have consequential effects. This article is a simplified generalization of will contests. It is crucial to remember that this information is general in nature and specific rules vary court by court and case by case, and that a competent will contest attorney should be consulted before taking any action, as even small mistakes can carry devastating and irreversible consequences. In future articles we will discuss the various theories under which a will can be contested.
Roman Aminov, Esq. is a NYC based estate and probate lawyer. Call 347-766-2685 for a free phone consultation.
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