Estate Litigation

When most people think of estate litigation will contests usually come to mind first. This is fair because will contests happen very often. Generally, in New York, there are 4 ways to challenge the validity of a will:

• Undue Influence
• Fraud
• Testamentary Capacity
• Due Execution

Each of these is a separate claim of action depending on your specific case. Did mom have dementia and she had no idea what she was signing? Was the will drafted and witnessed by an attorney? Did a sibling live with mom and feel like he/she was entitled to a majority of the estate and made that a reality? Who witnessed the will? Does the signature match all of mom’s previous signatures? Does one page of the will not really match up with the others? Questions like these usually spark the phone call to me and then I will more fully explore whether we have a valid cause of action with you.

Sometimes these causes of action overlap, sometimes they do not. My best advice when it comes to a potential will contest is to set up a consultation so that we may begin a conversation about the perspective of a successful challenge. In estate litigation, it important to note that success usually comes in the form of takeaway numbers. Sometimes winning may not necessarily be the best financial decision for a potential objectant. I do not say this lightly because there are certainly times when going all the way is the only way to a true resolution. I do my best to keep the whole picture in mind throughout the entire process. It’s my job to keep the client first in mind and balance that with the prospective of winning

Payment is always an issue for any estate litigation case. I usually charge hourly and I do take contingent cases, but this after a careful vetting process. Sometimes it is in the client’s best interest to pay hourly.

Discovery/Turnover proceedings are for the purpose of “effectuating the delivery to the estate of property which is an asset of an estate” (Matter of Cooke, 112 Misc. 2d 167, 170). I know. What does that actually mean?

It means that a fiduciary may bring an action to conduct a legal fishing expedition.  This is a powerful phrase. If it is found that property was misappropriated, then the discovery proceeding is converted into a turnover proceeding where the property is brought back into the estate through more formal discovery and a potential trial.

Cases like these usually arise in situations where you knew Mom had that house, but for some reason the house is now titled in your Aunt’s name. The “house” can be substituted by any:

• personal property
• real property in the State of New York
• business and partnerships
• non-probate assets
• proceeds of property sold or transferred
• personal property removed the state
• real property in another jurisdiction

These cases almost always stem from a client stating that “something just didn’t feel right.” When something doesn’t feel right or something is obviously missing from an estate, a discovery/turnover proceeding may be an excellent option to getting it back.

I work with individuals and businesses alike to enforce claims against estates. New York has specific rules when it comes to making sure a decedent’s debt is paid and I encourage anyone who is in this position to move quickly and make sure these claims are in the proper form. Specifically these rules are governed by SCPA § 1802 and 1803. Generally, the more time that passes, the harder it becomes to get a debt enforced on an estate. New York has a 7 month period where the appointed fiduciary is liable for paying the debts. After 7 months has passed and if the fiduciary has in good faith made distributions to the beneficiaries, the fiduciary is no longer liable. It is not impossible to enforce a valid debt after this time, but it becomes much harder.

Many times, especially in the realm of Administration, contentious relationships occur when there are two or more parties who want to be appointed fiduciary to the estate. A fiduciary may be found ineligible or disqualified under specific reasons specified under statute, unfit for his/her position due to prior mismanagement of property, if he/she has acquired the fiduciary position by a false material fact, dishonesty, irresponsibility, or if they have failed to account.

A fiduciary’s final accounting is supposed to provide beneficiaries a complete overview of all of the fiduciary’s acts. It’s a culmination of all assets the executor or administrator has taken in, the expenses paid, gains and losses on the property, and a list of who was actually given what. It may also list any income or estate tax payments as well as the fiduciary’s commission.

Interested parties in the estate or trust have the right in these circumstances to review this accounting, pose questions, and ultimately file objections to the accounting if necessary. If an accounting has not done, an interested party may also file a petition to compel an accounting in order to bring more of the actual facts to light.

Remember that not every estate may or even should do a formal accounting. Informal accountings using receipt and releases are effective when there is likely not going to be a contest.

• Spousal Right of Election
• Will Construction
• Disqualification of Spouse to Inherit
• Breach of Fiduciary Duty
• Trust Litigation