New York Real Estate Lawyers Blog

Inquiries are often made of our firm as to whether a claim can be made which may dispute the terms of another person’s Will and the proper time and legal mechanism for doing so. This post will address the issues that arise in a Will contest. As our readers may know , when a person dies with a Will, the proposed Executor must submit the original Will and other required documents to the Surrogate’s Court in the County in which the deceased resided and request that Letters Testamentary be issued appointing the person as Executor. This process is called probate.

In the probate proceeding, the Surrogate’s Court will require a signed Waiver and Consent from all distributees (those who would inherit if there was no Will) or proof of service of a Citation should these parties be unwilling to sign the Waiver and Consent. The time between the service of the Citation on an objectant and the return date of the Citation (the date scheduled by the Court to hear objections to the admission of the Will to probate or else the proposed Executor will be appointed) is the appropriate time to submit objections to the Will.

New York statute grants broad authority to file objections to the probate of a Will. Essentially, any person who would be adversely affected if the subject Will is admitted to probate may file objections. One exception to this broad rule is that good cause must be shown if the basis of the objectant’s claim is the disqualification from receiving commissions as a fiduciary.

For various reasons, not everyone dies has a Will that disposes of their property and identifies the person authorized to manage such distribution. In such a case, the surviving heirs should engage the services of an attorney to submit a Petition to the Surrogate’s Court in the County in which the deceased resided for Letters of Administration. Once duly appointed by the Court, the Administrator has similar powers to an executor for an estate. The Administrator locates, collects and distributes assets and settles claims and liabilities against the estate.

When a person dies without a Will (legally known as “intestate”), their assets will be distributed to particular classes of relatives, in the order prescribed by Estates Powers and Trusts Law Section 4-1.1 . For instance, if a person left no surviving spouse, children, or parents, his assets would be inherited by his sister. The common perception that the assets of a person dying without a Will “go to the state” is a myth when a relative in the proper class has survived the deceased. In an administration proceeding, the person who will inherit the assets is the proper person to act as petitioner and commence the proceeding. Survivors who have superior or equal rights to be appointed Administrator (such as siblings of the proposed Administrator) are to submit a Waiver, Renunciation and Consent to the appointment of the Administrator along with the Petition.

The petitioner is required to confirm that she conducted a diligent search in the deceased’s personal papers and safe deposit box, but did not find a Will. Such a diligent search should also include the Surrogate’s Court record retention files, in the event that the deceased filed her Will with the Court.

A recent article in the New York Times addresses the interesting question of whether a testator (a person who has made a will) can “attach strings” to a bequest (a gift by will of personal property). Wealthy philanthropists have left collections of artwork to museums and have specified conditions on the bequest, such as all works of art need to be displayed together or never sold. When a donor leaves such property in a will and the intent of the bequest is no longer being met, the museum or other institution to which the donation was made cannot request that the donor change the conditions or request a clarification of the donor’s intent, because the donor is deceased. In some cases, institutions have sought Court intervention to address donor intent and request a change in conditions so that donor’s intent is achieved.

The most well-known case in recent years involves the Barnes Foundation. Dr. Albert Barnes possessed a comprehensive collection of post-impressionist and early modern artwork. He specified the specific manner in which the artwork was to be displayed and that it was to be displayed together in a building owned by the foundation in suburban Philadelphia. The foundation was to conduct educational programs and never move from its location. Over time, the foundation experienced financial problems that jeopardized its very survival. In order to maintain the institution at all, the Attorney General and Governor brought suit to request an order permitting the foundation to move from suburban Merion to downtown Philadelphia. The Court agreed that relocating the foundation was necessary to preserve the foundation.

There are many situations where an arts institution has requested the Court’s intervention in revising the terms of a bequest in a will or a gift in a charitable trust. The Attorney General, as the supervisor of charitable organizations, may also participate or lead such lawsuits. The reasons behind requests to reform the conditions of a bequest could be based on financial considerations. Perhaps the institution needs to sell the artwork to raise funds in order to avert bankruptcy, or the artwork is later deemed not to be attributed to the artist as assumed by the donor.

Prevailing law in New York State favors the making of a Last Will and Testament. The person making the Will (called the testator) may leave his property to any person that he chooses. However, those who would inherit if the testator did not make a Will, known as intestacy, have the right to legal notice when the Will is eventually offered for probate. New York notice requirements allow the persons who would be notified (called distributees) the opportunity to contest the Will being offered for probate if they choose. If their contest is successful, the distributees may have the Will overturned, resulting in intestacy, as if there were no Will, or negotiate a settlement from the Estate in order to pragmatically dispose of the contest. This process is easy to imagine if the person offering the Will for probate knows who to contact in order to deliver the legal notice that the Will is being offered for probate. This post will discuss how “ghosts” are treated under New York law.

A ghost is a term describing a person who we think could or has existed, but we do not know their name or whereabouts. Examples of ghosts are as follows. The testator had a brother with whom she became estranged. As a result, no one knows if the brother is alive or where he may live. While no one may expect the testator to leave her estate to her long lost brother, instead of to her best friend, the Court will still require efforts to locate the brother before admitting the Will to probate. Another common example is when an elderly testator (who was an only child) never married and left no children or grandchildren. This testator’s distributees could be first cousins or first cousins once removed. The Court will require efforts to locate these persons.

The ghost, having an interest in the proceeding, has the right to appear in Court on the return date of the Citation on which it is named. Since the ghost may not actually exist or may be unable to be found, the Court will appoint an independent attorney, known as a Guardian ad Litem, to represent the interest of the ghost. The Citation must be advertised in a newspaper as identified by the Court. Sometimes the Court selects a newspaper that offers the most competitive rates for the Estate, while in other cases the Court may select a newspaper of ethnic interest if the ghost may be of a specific ethnicity. After the Court appearance marking the return date of the Citation, the Guardian ad Litem will issue a written report as to whether admitting the Will to probate is recommended.