• Overview of estate litigation in New York
  • The probate process in New York
• Engaging a New York Estate Litigation Lawyer
  • How to choose a New York estate litigation lawyer
• Contesting a New York Will
  • Legal standing in a New York will contest
  • Possible reasons for contesting a will in New York
  • Common types of evidence in a will contest
  • How to initiate a will contest in New York
  • Deadlines for initiating a will contest in New York
  • Validity and effect of “No contest” clauses in New York
• Disputes Involving the Personal Representative of a New York Estate
  • Possible grounds for the removal of a personal representative
  • How to petition for the removal of a personal representative
  • Effects of removing a personal representative
  • Suing a personal representative for breach of fiduciary duty
• Other Types of Estate-Related Disputes in New York
  • Financial power of attorney abuse
  • Trustee misconduct and other trust-related disputes
  • Challenging pre-death gifts and beneficiary designations
  • Promised inheritances or contracts to make a will
  • Co-fiduciary conflicts
• FAQs About Estate Litigation in New York

Overview of estate litigation in New York

“Estate litigation” generally refers to the legal process of settling disputes relating to the money, property, and other assets left behind by a person who has died (called the “decedent”). For example, estate litigation may involve disputes over the validity or interpretation of all or part of:

• The last will and testament (also simply called the “will”)
• Trusts
• Financial powers of attorney

Disputes may also arise relating to the appointment or conduct of a fiduciary. A “fiduciary” is an individual or professional entity in a legal position of trust and responsibility with respect to someone else. Examples of fiduciaries include the executor or administrator of an estate, the agent under a financial power of attorney, or a trustee overseeing the management of a trust.

If a beneficiary or another person with an interest in the estate believes that a fiduciary was improperly appointed or that they are engaging in misconduct, they may seek to remove the fiduciary. They may also sue the fiduciary personally in a breach of fiduciary duty lawsuit.

Proper estate planning, including having a will, can help reduce the chances of estate litigation. However, there’s no way to eliminate the risk completely. Even with a will, the chances of a dispute tends to increase if the estate is complicated or if there are blended families or difficult family dynamics at play.

Estate litigation matters are often complex and can significantly prolong the settlement of an estate. If you’re involved in a dispute, getting the help of an estate litigation lawyer early on can help protect your rights and resolve the matter as quickly as possible.

For more information about challenging a will, see Chapter 3: Contesting a New York Will.

For more information about disputes involving the executor or administrator of an estate, see Chapter 4: Disputes Involving the Personal Representative of a New York Estate.

For more information about other types of estate litigation, see Chapter 5: Other Types of Estate-Related Disputes in New York.

The probate process in New York

Many disputes over estates arise during the probate process. “Probate” refers to the legal process of confirming a will is valid and settling a decedent’s estate based on the terms of the will. The Surrogate’s Court in the county in which the decedent resided oversees this process.

The executor named in the will generally starts the process by submitting the original will for probate. The court then reviews the evidence and determines if the will is valid. Certain parties should get notice that the will has been submitted for probate. These parties include:

• Beneficiaries named in the will
• Heirs under New York’s intestacy laws (usually the surviving spouse and children)
• Any other interested parties

Any parties who wish to object to the will’s validity will have a chance to do so, as described in Chapter 3: Contesting a New York Will — How to initiate a will contest in New York.

If the court ultimately accepts the will as valid, it will generally formally appoint the executor named in the will. The executor can then proceed with settling the estate. This includes, among other things:

• Collecting and inventorying assets
• Paying taxes and debts
• Distributing assets to the beneficiaries of the will

As a fiduciary, the executor has a legal obligation to act in the best interests of the estate and the beneficiaries at all times. This includes keeping detailed records of all assets coming in and all assets going out of the estate. Before the probate process can formally end, the executor must also provide a formal accounting of the estate.

Note that if there’s no will, the estate will generally appoint an “administrator” and the estate will go through administration proceedings. The administrator has the same rights and responsibilities as an executor. Often, the court will appoint the surviving spouse or the closest surviving family member who’s able to serve in this role.

Winding up larger estates typically takes more time, and there are more opportunities for conflicts among interested parties. Still, issues can arise even for relatively modest estates. Regardless of the estate size, whenever there’s a dispute, it’s important to consult a New York estate litigation lawyer. A lawyer can guide you through any disputes and improve your chances of securing a favorable outcome.

Engaging a New York Estate Litigation Lawyer

Any type of lawsuit can be stressful, time-consuming, and confusing to navigate. However, estate litigation is often further complicated by feelings of grief, anger, and betrayal. These strong emotions can make an already difficult situation even more so.

Having an experienced estate litigation attorney handle the matter on your behalf can help reduce stress and resolve the matter more efficiently. Specifically, an estate litigation lawyer can help:

• explain your rights and options
• serve as a “buffer” between you and other parties
• formulate tailored legal strategies and arguments
• gather evidence to support your case
• advocate for your best interests in negotiations and in court
• comply with legal deadlines, procedures, and other requirements

If you find yourself in an estate-related dispute, it’s best to consult a lawyer as soon as possible. Estate litigation matters are often time sensitive, and attempting to resolve it on your own can result in mistakes that harm your chances of prevailing.

How to choose a New York estate litigation lawyer

Having quality legal counsel on your side can significantly increase your likelihood of winning your case. To ensure you choose the right lawyer, you should not take your decision lightly.

First, you should engage a lawyer with experience in New York estate litigation. Estate litigation presents specific challenges, and an attorney who has handled such cases is more likely to recognize and understand such issues. They will also be more likely to be current on relevant developments in the law. In short, a lawyer who specializes in estate litigation will be better able to build the strongest case possible.

Second, it’s worth choosing a lawyer who you’re comfortable with on a personal level. Estate-related disputes often involve personal matters, and you’ll likely need to share private information with your attorney. This process will be a lot less daunting if you feel like your lawyer is attentive and compassionate.

Once you’re ready to talk to a lawyer, the first step is getting a consultation. Many estate litigation attorneys provide free initial consultations. The goal of this brief meeting is for the lawyer to learn more about your circumstances so they can determine whether they can help you. It’s also a chance for you to ask questions to see if the lawyer is the right fit for you.

Before hiring an attorney, you should also understand their fee structure. Some estate litigation lawyers take certain cases on a contingency fee basis. In a contingency arrangement, the client doesn’t pay any legal fees at the start of the case. Instead, the attorney will only get fees from a verdict or settlement. In other words, if they don’t win any money for you, they won’t get paid.

However, different lawyers have different fee arrangements, so it’s a good idea to ask about the fee structure during your initial consultation as well. Once you’re ready to formally engage a lawyer, they should also provide their legal fee and expense information in writing.

Discuss your case with New York estate litigation attorney today

At Rosenblum Law, our estate litigation team has experience with many types of estate-related disputes. We understand that these types of cases are often emotionally charged and difficult for all parties, and we’re committing to handling your case with sensitivity and care.

If you’re involved in an estate-related dispute, such as those relating to a will, trust, or power of attorney, our estate litigation lawyers can evaluate your case and determine possible next steps. If we can take on your matter, we’ll also guide you through the entire process and serve as your dedicated advocate as we work towards a favorable result.

For a free case consultation, call us today at 888-235-9021 or click here to send us a message.

Contesting a New York Will

Under New York law, all mentally competent adults are generally allowed to make a will and leave their assets to whomever they choose. While family or friends may disagree with those choices, New York courts will go to great lengths to respect the wishes of a decedent.

Unfortunately, some people take advantage of others who are vulnerable. Unscrupulous friends, family, or caretakers sometimes prey on people who are mentally or physically impaired. If someone has been manipulated into making a will or there are otherwise reasons to believe the will isn’t valid, a court may entertain challenges to the will.

When someone challenges a will, it’s called a “will contest.” Will contests are started in the Surrogate’s Court overseeing the probate of the will. The challenger must file an objection to the will. They must also present strong evidence of their claims, as the court will only overturn a will under very specific circumstances.

Below is general information about who has the right to challenge a will in New York, possible reasons to contest a will, and the will contest process. If someone successfully contests a will, the court may invalidate all or part of it the will. If the will is completely invalidated, an earlier valid will may take its place. If there’s no other valid will, the estate will generally be distributed according to New York’s intestacy laws.

Legal standing in a New York will contest

Not just anyone can initiate a will contest in New York. Under New York’s Surrogate’s Court Procedure Act (“SCPA”) § 1410, a challenger must have an interest in the estate that would be negatively affected by admitting the will to probate. This is called having “legal standing.”

Typically, those with legal standing in a will contest include:

• Beneficiaries named in the current will who believe they should have received more
• Beneficiaries named in a previous will who receive less or nothing at all under the current will
• Heirs who would have inherited more under New York’s intestacy laws if there were no will

New York’s intestacy laws are set forth in New York’s Estates, Powers & Trusts Law (“EPTL”) § 4-1.1. Generally, spouses and children have first priority, which means they likely have legal standing to challenge a will. Depending on the circumstances, other family members or heirs may have legal standing as well.

Possible reasons for contesting a will in New York

Sometimes, family members are surprised and unhappy about how an estate is distributed under the provisions of a will. This can lead to suspicions that the will is somehow invalid. However, simply being dissatisfied with the decisions of the person who made the will (called the “testator”) is not a sufficient reason to contest the will.

Rather, there are limited reasons someone may challenge a will in New York. Possible reasons for starting a New York will contest include:

• Undue influence, duress, or coercion
• Lack of testamentary capacity
• Fraud
• Forgery
• Improper execution
• Revocation

Note that in New York, a surviving spouse also generally has the right to receive at least one-third of their deceased spouse’s estate. If a testator leaves less than this amount to their surviving spouse or disinherits them completely, the spouse can exercise their right to receive this amount.

Below is a summary of each of these grounds for challenging a will in New York. Often, a challenger will cite more than one of these grounds when contesting a will.

Undue influence, duress, or coercion

In some cases, a testator may be the subject of undue influence. “Undue influence” is when someone in a position of trust manipulates the testator into making or changing a will in a way that’s favorable to the manipulator. Such manipulation is a violation of the testator’s free will.

Simple influence, such as being affectionate towards a testator or even asking for an inheritance, would generally not qualify as undue influence. A testator is generally free to distribute assets as they see fit, including leaving assets to someone as a gesture of gratitude for acts of kindness or service.

Proving undue influence requires additional evidence that someone manipulated the testator into making or changing their will in a way that they otherwise would not have. Whether there was undue influence is highly fact-dependent and requires a close examination of the circumstances. A court will generally consider factors such as:

• The relationship between the testator and the individual accused of exercising undue influence, and whether such relationship made the testator vulnerable to manipulation \
• Whether there was opportunity for manipulation, such as if the individual spent a lot of time alone with the testator or isolated them
• The testator’s ability to resist undue influence, such as if they somehow relied on the accused manipulator physically, or mentally, or both
• Suspicious will provisions, such as an unusually large distribution of assets to the accused manipulator compared to what was left to the testator’s natural next of kin

If the challenger can prove the existence of a confidential relationship, it will be easier to show that the manipulator was in a position to inappropriately influence the testator.

A “confidential relationship” is a relationship based on dependency and trust, such as the relationship between a caretaker and an elderly person or a lawyer and their client. In these relationships, the other party has power in the relationship, and the testator is therefore vulnerable to their manipulation.

However, a confidential relationship alone doesn’t necessarily mean there was undue influence. For example, in the case In the Matter of the Estate of Ruth Zirinsky, the decedent’s son Robert received a larger part of the family’s business in an updated will. Robert was also appointed as executor. A previous will had treated all the siblings equally.

Upon the decedent’s death, Robert’s siblings sought to invalid the new will based on undue influence. They provided evidence that Robert was an attorney and co-trustee with the decedent for trusts established for the decedent’s benefit. He also helped choose the attorney who drafted the new will, and he participated in the first meeting regarding the new will.

However, the Surrogate Court dismissed these objections, which was affirmed on appeal by the Appellate Division of the Supreme Court. In affirming the lower court’s decision, the appellate court acknowledged that there was a confidential relationship. However, it also noted that evidence of undue influence must be “substantial.”

Here, there was evidence that the decedent was alert and financially, mentally, and emotionally independent at the time she changed her will. The confidential relationship was also counterbalanced by the closeness of Robert as a family member. Therefore, the circumstances didn’t give rise to any inferences of undue influence.

Note that “coercion” or “duress” are often mentioned alongside undue influence. Like undue influence, coercion and duress violate the testator’s free will. However, the circumstances are slightly different.

Undue influence is generally when a relationship of trust is exploited to the manipulator’s advantage. Coercion or duress is when someone puts the testator under extreme pressure to make or change their will in a way that’s favorable to that coercer. This pressure may be in the form of threats or abuse, both physical and verbal.

Undue influence, coercion, and duress are all difficult claims to prove, especially because there are rarely any witnesses. However, if a challenger can provide enough evidence of undue influence, coercion, or duress, a will may be invalidated. For the best chances of success, challengers should get the help of experienced legal counsel.

Lack of testamentary capacity

Under EPTL § 3-1.1, in New York anyone 18 or over who is of sound mind and memory can create a will. Having the mental capacity to make a will is called having “testamentary capacity.” To have testamentary capacity in New York, the testator must generally understand:

• The nature and consequences of executing a will
• The nature and extent of the property they are disposing of
• The “natural objects of his or her bounty” (that is, the people closest to them that they would normally leave their assets to, which may be, but aren’t always, their heirs under New York’s intestacy laws)

Testamentary capacity is measured at the time a testator signs their will. If a testator didn’t understand one or more of the above factors at the time of making their will, it may indicate a lack of testamentary capacity, and the will could be invalidated.

Like other claims, proving lack of testamentary capacity is difficult. A challenger will need to provide a great deal of evidence to support their claim. A challenger has a higher chance of success if they can prove the decedent suffered from:

• Dementia disorders such as Alzheimer’s, especially those in the later stages
• Traumatic brain injuries
• Mental illness
• The effects of mind-altering medications, such as sedatives or antipsychotics
• Other conditions affecting the decedent’s memory, behavior, and/or cognitive abilities

However, evidence of these conditions don’t always mean that a testator lacked testamentary capacity. A challenger must prove that any such condition actually affected the testator’s capacity at the time of signing the will.

For example, in the case In the Matter of the Estate of Odell Williams, the decedent had a will that left $100 to each of his 10 children and the rest of his estate to his wife. The children challenged the will, claiming that the decedent lacked testamentary capacity. To support their claims, the children provided evidence that the decedent was previously in a nursing home, suffered from memory issues, and had a dementia diagnosis.

A jury found in favor of the children, but on appeal, the Appellate Division of the Supreme Court reversed. In reaching its decision, the appellate court noted that there was no evidence that the decedent suffered from dementia at the time the will was made. The court also noted that proof of old age, physical infirmity, or dementia alone does necessarily mean a lack of capacity.

In fact, the decedent’s wife submitted evidence that the decedent did have sufficient capacity at the time of making the will. Such evidence included testimony from the decedent’s attorney, the minister who officiated the marriage, and other long-term acquaintances. All the witnesses described the decedent as being of sound mind at the time of executing the will.

Fraud

If a will is created as the result of fraud, it means that someone made false statements to the testator or otherwise misled them. As a result, the testator made or changed their will in a way that benefited the person making such misrepresentations.

Fraud can take different forms. In some cases, someone may mislead the testator about what they’re signing. They may say that the document is a different document or lie about the contents of the will.

In other cases, someone may lie to the decedent about other relevant circumstances. For example, they may lie about friends and relatives, such as whether someone has passed away, in order to gain a larger inheritance.

Will contests alleging fraud often involve other grounds, such as undue influence and lack of testamentary capacity. However, this isn’t always the case. Either way, like other grounds for contesting a will, fraud is difficult to prove. An estate litigation lawyer can help identify and collect the necessary evidence.

Forgery

Forgery is a form of fraud. If someone is alleging forgery, they’re claiming that the testator did not actually sign the will. Forgery can happen in many ways, such as:

• Someone other than the testator signing the will
• Someone importing the will signature from another document
• Someone manipulating the will by changing text or replacing pages

In New York, under EPTL § 3-2.1, a valid will must be witnessed by two individuals. This is meant to safeguard against forgeries and other issues, but there may still be circumstances that suggest forgery.

In will contests involving claims of forgery, both sides may have to engage handwriting experts. These experts will compare the will signature to other handwriting samples from the testator, such as checks, contracts, or other documents. They may also be able to determine if the writing on the will belongs to someone else, such as a beneficiary of the will.

Improper execution

Under EPTL § 3-2.1, a New York will is generally only valid if it’s:

• in writing
• signed by the testator (or someone in the presence and at the direction of the testator)
• signed by two witnesses within one 30-day period

A will is presumed validly executed is it’s “self-proving.” Under SCPA § 1406, a will is “self-proving” if it has a notarized self-proving affidavit attached. During the probate process, the court won’t need to call on witnesses to attest to the validity of a self-proving will.

Wills that don’t meet the above execution requirements can be invalidated by a court. This can include “nuncupative wills” or “holographic wills.”

A “nuncupative will” is a verbal will with provisions that can be clearly established by at least two witnesses. A “holographic will” is a will that is handwritten by the testator and does not meet the above formal requirements. These types of wills are only valid in very limited circumstances in New York and are more vulnerable to will contests compared to formal wills.

Revocation

Under EPTL § 3-4.1, in New York a testator can revoke a will by burning, tearing, cutting, canceling, obliterating, or otherwise mutilating or destroying it. A testator can also direct someone else to destroy it in their presence, which must be attested to by at least two other witnesses.

In addition, a testator can revoke or change all or part of a will by:

• creating a new will, or
• writing a clear intention to revoke or change the will, executed with the same formalities required for a will.

If a will is revoked, it will no longer be valid. If a subsequent will is found that the court finds is valid, it would replace the previous will, which would be considered revoked.

In the context of will contests, this means it’s possible for someone to challenge a will because it has been revoked. Codicils may also come into play. A “codicil” is a supplement to a will that changes parts of a will but doesn’t completely revoke it. If a valid codicil is found, its provisions will supersede any previous conflicting provisions.

Surviving Spouse’s Right of Election

In New York, you generally have the right to decide who will receive your property upon your death. This includes disinheriting any children. However, it’s generally not possible to disinherit a surviving spouse completely.

Under New York law, a surviving spouse can elect to either receive what was left to them under the will (if anything) or exercise their “right of election” under EPTL § 5-1.1-A. When a surviving spouse exercises their right of election, they’re generally entitled to receive the greater of:

• $50,000, or
• one-third of the net estate (before taxes, but after debts and other expenses have been paid).

Note that a right of election can be waived in a prenuptial or postnuptial agreement. Under EPTL § 5-1.2, a surviving spouse also loses the right of election in certain circumstances, such as if:

• A final decree of divorce or separation was entered
• The marriage was void as an incestuous, bigamous, or prohibited remarriage
• The surviving spouse got a divorce from the decedent that wasn’t recognized in New York
• The surviving spouse abandoned or failed to support the decedent up until the decedent’s death

If none of these exceptions apply, and a testator doesn’t leave their surviving spouse at least the statutory amount, the spouse may exercise their right of election. However, they must do so within six months of the issuance of the letters authorizing the executor to administer the estate. They also may not make the election more than two years after the decedent’s death.

Common types of evidence in a will contest

New York courts are reluctant to overturn wills. To win a will contest, the challenger must conduct thorough investigations and gather strong evidence that the will is somehow invalid. The types of evidence will vary depending on the circumstances, but common examples include:

Testimony from witnesses to the will, including those signing as witnesses, the drafter, and other individuals present

• Testimony from other witnesses who were familiar with the testator’s mental state and intentions around the time of making the will, such as doctors, family, friends, caretakers, and neighbors
• Medical records, which may include diagnoses, doctors’ notes, test results, prescriptions, and other medical documents indicating diminished capacity
• Written communications, such as letters, emails, and text messages
• Testimony from experts such as handwriting experts or medical experts
• Other documents/evidence providing information about the circumstances surrounding the will or the testator’s mental state, such as their diary or bank statements

Note that when engaging any experts, It’s important to get the help of someone who is experienced and has the right credentials. The more impressive their background, the more likely that the court will accept their opinion.

A New York estate litigation attorney can help determine the evidence needed to support your case. They can also help gather such evidence and engage the right experts.

How to initiate a will contest in New York

As soon as you become involved in a dispute, you should start gathering and preserving evidence. Your next step should be to consult a New York estate litigation attorney. An attorney will be able to evaluate your case, explain your options, and manage the legal process for you.

Will contests are generally heard in the Surrogate’s Court overseeing the probate process. Once the executor or other proponent submits the will for probate, all interested parties should get notice of probate.

As part of providing notice, the executor will typically ask the interested parties to sign a waiver and consent. If a party signs the waiver and consent, it means they agree the will is valid, the executor should be formally appointed, and the will should be admitted to probate.

In most cases, interested parties will sign the waiver and consent if they feel their inheritance under the will is acceptable. However, if an interested party wishes to contest the will, they should refuse to sign the waiver and consent.

If a waiver and consent is not signed, the executor will go to the Surrogate’s Court and get a “probate citation.” This citation is an official court document that states where and when a hearing will take place for the executor to present the will for probate. This date of this hearing is called the “return date.” The executor will send the citation to the interested parties.

Interested parties who wish to contest the will can then appear at the hearing to object. If they don’t appear, they generally waive the right to contest the validity of the will. If no one objects to the will, the court will admit the will to probate.

Deadlines for initiating a will contest in New York

As noted above, under SCPA § 1410, interested parties generally have until the return date to object to the validity of a will. However, if they request examination pursuant to SCPA § 1404, they can object within 10 days after such examinations are complete or by another date set by the court.

Under SCPA § 1404, an interested party can examine the will witnesses, the will drafter, executors, and others the court decides may have important information regarding the validity of the will.

Note that the above deadlines don’t apply to other types of claims relating to an estate’s administration. For example:

• Under EPTL § 5-1.1-A(d), a surviving spouse can generally exercise their right of election up to six months from the issuance of letters authorizing the executor to act.
• Under SCPA § 1802, creditors can generally present claims against the estate up to seven months from the issuance of letters authorizing the executor to act.
• For breach of fiduciary duty claims, the deadline depends on the nature of relief sought, but generally ranges from three to six years under New York’s Civil Practice Law and Rules §§ 213-214.

In all cases, if you suspect an issue with the validity of a will or an estate’s administration, you should consult a New York estate litigation lawyer as soon as possible. If you miss a deadline, you may not be able to pursue otherwise valid claims.

Validity and effect of “No contest” clauses in New York

“No contest” clauses are also known as “in terrorem” clauses. A no contest clause in a will is designed to disinherit a beneficiary if the beneficiary contests the will. In other words, if a beneficiary launches a will contest, the no contest clause is triggered, and the beneficiary loses their right to any bequests under the will.

Some people include no contest clauses in their will to discourage beneficiaries from initiating will contests. The idea is that a beneficiary will decide not to challenge a will if it means they risk losing their inheritance completely.

For example, if a decedent’s will allots 80% of his estate to his girlfriend and 20% to his child, a no contest clause could dissuade the child from challenging the will. This may be true even if the child has reason to believe there are valid grounds for invalidating the will, such as undue influence. This is because if the child loses the contest, they would lose their 20% inheritance.

However, an interested party who was left out of the will completely would not be affected by a no contest clause. In the example above, if the girlfriend received 100% of the estate, the child would have nothing to lose by contesting the will.

Under EPTL § 3-3.5, in New York no contest clauses are generally valid, regardless of whether there is probable cause for a will contest. “Probable cause” generally refers to there being reasonable grounds to believe the will is invalid. However, a no contest clause is not considered violated if:

• The contest is to establish that the will was forged or was revoked by a later will, provided there is probable cause
• The beneficiary contesting the will is a minor or incompetent person
• The beneficiary merely objects to the jurisdiction of the court overseeing the probate process
• The beneficiary discloses information relevant to the will or the probate process
• The beneficiary refuses or fails to join a petition for the probate of a will or to sign a waiver and consent for the probate process
• The beneficiary starts preliminary examinations under SCPA § 1404 to uncover information relevant to the decision to formally contest a will
• The beneficiary initiates proceedings to interpret a will’s provisions

Note that there may be other exceptions that go beyond the literal text of EPTL § 3-3.5. For example, in the case In the Matter of the Estate of Joseph Singer, the testator created a will that left his estate to his daughter, son, and his son’s sons. The will included two no contest clauses.

The first no contest clause applied to all beneficiaries, stating that any attempts to contest the will would result in the challenger forfeiting any rights under the will. The second no contest clause applied only to the son, stating that if he contested the will, neither he nor his children would receive an inheritance under the will.

Following the testator’s death, the son commenced discovery and deposed the testator’s former attorney. The former attorney was not a party specified under SCPA § 1404, so the daughter sought to enforce the no contest clause against the son.

However, ultimately the New York Court of Appeals found that the son’s actions were permitted in accordance with the SCPA § 1404 exception. In other words, the son’s actions wouldn’t trigger the no contest clauses.

In reaching its decision, the court found that although the son’s actions weren’t specifically allowed under the statute, permitting such discovery satisfied both the purpose of the no contest clause and public policy.

Given the potential serious consequences of a no contest clause, it’s important to get the help of a lawyer before contesting a will. A New York estate litigation attorney can review the circumstances of your case and determine the effect, if any, of a no contest clause.

Disputes Involving the Personal Representative of a New York Estate

The “executor” is the person or entity named in a will to handle the administration of the estate. The executor usually submits the will for probate, and if it’s accepted as valid, the Surrogate Court will formally appoint the executor. The executor will then be responsible for matters such as:

• Collecting and inventorying assets
• Paying debts and taxes
• Distributing net assets to the beneficiaries

If there’s no will or the executor named in the will is unable or unwilling to serve, the court will appoint an “administrator.” The administrator serves the same function as the executor and has the same rights and obligations. The executor or administrator of an estate is generally referred to as the “personal representative.”

In most cases, the court gives a great deal of weight to the decedent’s choice of executor. It also generally won’t interfere with how the personal representative handles the estate. Still, if a personal representative fails to fulfill their duties or otherwise engages in misconduct, it may be possible to petition for the removal of the personal representative.

As described in the following sections, anyone seeking removal must provide clear and convincing evidence that the personal representative is a danger to the estate or otherwise not acting in the best interests of the beneficiaries.

Possible grounds for the removal of a personal representative

There are many reasons why a beneficiary may want to remove a personal representative. For example, they may not trust the personal representative or agree with the personal representative’s decisions. They also simply may not like or get along with the personal representative.

However, a testator can generally appoint any adult they trust as executor, so long as the executor:

• is a U.S. citizen or legal resident living in New York,
• is of sound mind, and
• has never been convicted of a felony.

Once an executor or administrator is appointed, courts are reluctant to remove them unless there’s a compelling reason to do so. Under SCPA § 711 and SCPA § 719, a personal representative may be removed if, among other reasons, they:

• Are convicted of a felony or otherwise become ineligible to act as a fiduciary
• Waste assets of the estate, make investments unauthorized by law, or engage in other misconduct or mismanagement of the estate
• Are unfit to serve as personal representative due to dishonesty, substance abuse, carelessness, or lack of understanding
• Refuse or neglect to follow court orders, including failing to file an accounting of the estate as directed by the court
• Refuse or fail to fulfill other legal duties, such as failing to pay creditors, communicate with beneficiaries, or follow the will’s provisions
• Commingle assets
• Gained appointment as personal representative by fraud
• Moved the estate’s property out of the state without prior court approval

If there’s enough evidence of one of these grounds, a beneficiary may be able to proceed with a petition to remove the representative as described in the section below.

Whether you wish to remove a personal representative or you’re a fiduciary facing allegations of misconduct, it’s important to promptly consult a New York estate litigation attorney. An attorney can help assess whether there are valid grounds for removal and guide you through the process. If you wish to remove an executor or administrator, it’s especially important to act quickly, as this can minimize the harm to the estate.

How to petition for the removal of a personal representative

To petition for the removal of an executor, the petitioner must have legal standing. That is, they must have a sufficient interest in the estate. This generally includes beneficiaries, creditors, co-executors, and other interested parties.

Typically, the first step towards removal is requesting an accounting of the estate under SCPA § 2206. This accounting should include information regarding estate assets, investments, taxes, bank accounts, and accounting procedures. Having this information can help pinpoint any wrongdoing of the personal representative.

Under SCPA § 712, to formally initiate the removal of a personal representative, the interested party must then file a petition showing that one of the grounds under SCPA § 711 exists for removal. The personal representative must receive formal notice of the petition as well. While the proceeding is pending, the court may suspend some or all of the personal representative’s powers.

At the initial court date regarding the petition, any interested parties can appear and state their support or objections to the removal. The parties will then typically have a chance to settle the matter directly and exchange evidence. If the matter isn’t resolved, there will be a removal hearing.

At the removal hearing, the challenger must present clear and convincing evidence of the executor’s wrongdoing. The court will then consider all of the evidence. If they find that the claims are true, the court may remove the personal representative.

Successfully removing a personal representative isn’t easy. Challengers will need to thoroughly investigate and submit a great deal of solid evidence. A New York estate litigation attorney is essential for all parties in such a dispute.

Effects of removing a personal representative

Once a personal representative is removed or their resignation is accepted, they will no longer have the rights or obligations associated with the role. A new executor or administrator will also be appointed to wind up the estate. This may be a “backup” executor named in the will, another heir, or New York’s public administrator.

However, the personal representative who has been removed will still have to account for the money and property they received while serving. They will also have to hand over all assets in their possession to the court or the successor personal representative. \

Depending on the circumstances, the personal representative may still be paid commission for the time they served. However, the petition for removal can request the reduction or elimination of commission. The court will then determine if this request is fair.

The court may also order restitution or the payment of other costs incurred in the removal process. In some cases, the personal representative may be subject to other legal proceedings as well, including breach of fiduciary lawsuits or criminal charges.

Suing a personal representative for breach of fiduciary duty

Personal representatives are considered “fiduciaries.” This means they owe certain duties to the beneficiaries of the estate, including the duty to always act reasonably, in good faith, and in the best interests of the beneficiaries. A personal representative owes these duties to all beneficiaries equally, regardless of the amount of their bequests.

If a personal representative breaches their duties, they may be held personally responsible for any losses. In other words, if a beneficiary suffers losses due to the misconduct of an executor or administrator, they may be able to sue the personal representative directly for monetary damages.

Some breaches of fiduciary duty are obvious. Others require closely examining financial accounts and other records, especially where complex business or financial matters are involved. You may even need to engage the help of expert accountants, appraisers, or other specialists. Examples of breaches of fiduciary of duty include:

• Embezzlement
• Using the estate for personal financial gain
• Mismanaging estate assets
• Acting unfairly, such as favoring one beneficiary over another
• Otherwise acting irresponsibly, unreasonably, or illegally

If you believe a personal representative has breached their fiduciary duties, you should contact a New York estate litigation lawyer. An attorney can help you gather the right evidence so that you can petition to remove the personal representative as soon as possible and/or initiate a breach of fiduciary lawsuit.

In New York, the amount of time you have to file a breach of fiduciary lawsuit depends on the nature of the relief you’re seeking, but generally ranges from three to six years. It’s often difficult to identify the right deadlines, so it’s important to promptly consult a lawyer. Your lawyer will be able to confirm all deadlines that apply to your case.

Other Types of Estate-Related Disputes in New York

Will contests and personal representative disputes are common types of estate litigation. However, there are many other types of conflicts that can arise around estates, including disputes regarding:

• Abuse by an agent under a financial power of attorney
• Trustee misconduct and trust administration
• The validity of pre-death gifts and beneficiary designations
• Unfulfilled promised inheritances
• The actions of co-fiduciaries

The sections below include an overview of each of these types of disputes. If you’re involved in estate litigation of any kind, your first step should be to consult an experienced New York estate litigation attorney. An attorney can help assess the strength of your case, gather the right kind of evidence, and effectively navigate complex legal proceedings.

Financial power of attorney abuse

A power of attorney is a legal document that grants someone (called the “agent” or “attorney-in-fact”) certain powers to act on another’s behalf (called the “principal”). As a fiduciary, the agent is required to act in the best interests of the principal.

A financial power of attorney is a type of power of attorney that grants an agent the power to handle certain financial and business matters. A financial power of attorney is often created as part of an estate plan, as it allows the agent to act on the principal’s behalf in the case of the principal’s incapacitation.

While a financial power of attorney can be narrow in scope, often it grants broad powers. It’s difficult to predict all the types of business and financial issues that may arise after a principal is incapacitated, so granting broader powers allows the agent to fulfill their duties effectively and efficiently.

Powers that may be granted under a financial power of attorney include, among others, the authorization to handle:

• Banking, investment, and other financial transactions
• Government benefits
• Tax matters
• Business matters
• Real estate transactions

A financial power of attorney usually has immediate effect, unless it’s a “springing” power of attorney. Springing powers of attorney only become effective once certain conditions are satisfied (such as the principal’s incapacitation). However, springing powers of attorney typically aren’t recommended as part of an estate plan. Verifying that the necessary conditions have been satisfied can cause delays and prevent the agent from fulfilling their intended duties.

A financial power of attorney also typically remains in effect until the principal’s death, unless the principal revokes it earlier. In New York, a valid power of attorney is automatically “durable,” unless the document specifically states otherwise. A “durable” power of attorney will remain effective even if the principal becomes incapacitated.

The broad powers granted under a financial power of attorney and the fact that it usually takes immediate effect means that it’s especially important for a principal to choose an agent who they trust completely. An unscrupulous agent may take advantage of the powers for personal gain or otherwise fail to fulfill their duties as a fiduciary.

If an agent fails to act in a principal’s best interests, the power of attorney can be canceled at any time by the principal. However, sometimes financial agent abuse occurs after the principal is incapacitated. In this case, an interested party may request a court to remove the agent.

If a court finds that an agent acted improperly, it can order the financial agent to return any misappropriated assets back to the estate. The agent can also be personally liable for losses resulting from their misconduct, and criminal acts such as embezzlement, larceny, or fraud may result in criminal charges.

Note that sometimes, a financial power of attorney is improperly obtained in the first place, such as through undue influence or fraud. It may also not meet the legal requirements for validity set forth under New York’s General Obligations Law § 5-1501B. In these cases, it may be possible to invalidate the financial power of attorney as well.

Challenges involving a financial power of attorney can occur before or after the principal’s death. Either way, successfully challenging a power of attorney is not easy. As with wills, courts are reluctant to invalidate a power of attorney or remove an agent. An estate litigation attorney can help evaluate your claims and gather the right evidence to support your case.

Trustee misconduct and other trust-related disputes

Many estate plans include one or more trusts. A “trust” is a legal arrangement in which someone (called the “trustor”) transfers assets to a fiduciary (called the “trustee”) to hold and manage on behalf of the trustor and/or one or more third parties (called “beneficiaries”). A trust can be created while the trustor is still living by executing a trust document or trust agreement (called a “living trust” or “inter vivos trust”), or upon the trustor’s death through their will (called a “testamentary trust”).

There are many types of disputes that can arise when it comes to trusts. For example, trust provisions may be vague, resulting in lawsuits to interpret them. A trustee may also breach their fiduciary duties, such as by mismanaging funds, self-dealing, or failing to follow the trust provisions. This misconduct can result in the trustee’s removal, civil lawsuits, or even criminal charges.

As with other fiduciaries, courts will not take the removal of a trustee lightly. The person seeking removal must follow strict procedures and gather substantial evidence. An attorney can help you evaluate the strength of your case, navigate the process, and avoid mistakes along the way. If a trustee is removed, the back-up trustee named in the trust document or another court appointee may take its place.

Challenging pre-death gifts and beneficiary designations

People often want to gift assets to loved ones during their lifetime for a variety of reasons. For example, they may believe the gift would be of greater help now than later, or they may wish to see the gift put to use. It’s also common to name certain beneficiaries on “non-probate” assets.

“Non-probate assets” are those assets that are not passed on through a decedent’s will or according to New York’s intestacy laws. This means these assets don’t have to go through the probate process or administration proceedings. Rather, they pass directly to the designated beneficiary upon the death of the owner. Common non-probate assets include:

• Certain financial and retirement accounts
• Proceeds from life insurance policies
• Jointly held real property

As with most estate decisions, courts are generally reluctant to interfere with a person’s gifts or beneficiary designations. Any challenger will need solid evidence to support any claims that such gifts or designations were improperly obtained or otherwise invalid. Often, this means proving that there were one or more of the grounds for challenging a will, such as undue influence, lack of capacity, or fraud.

Note that sometimes, an interested party may also claim that pre-death gifts were meant to be an “advance” on the giftee’s inheritance. However, in New York, pre-death gifts aren’t considered an advance inheritance unless the decedent executed the proper documents evidencing this intent.

For example, a parent with two children may gift one child $50,000 but not their other child, then create a will that divides their estate equally among their children. If the remaining estate upon the parent’s death was $100,000, each child would get $50,000. This is true even though one already got $50,000. The child who didn’t receive a pre-death gift could not claim the gift was an “advance” inheritance unless the parent executed a document stating that this was their intent.

Promised inheritances or contracts to make a will

It’s not uncommon for people to make promises about the property or assets they’ll leave to loved ones when they die. In blended families, sometimes one spouse may also leave everything to the surviving spouse, trusting that they will then leave equal shares to all of their biological children.

Unfortunately, such promises are often broken, and there’s usually no recourse for the promisee. The exception is if the decedent and the promisee entered a valid binding contract “to make a testamentary provision.”

In this type of contract, a person agrees to leave property to another person or entity in their will. Any such contract must be in writing and signed by the person leaving the property. Oral or unsigned agreements are not enforceable.

If the testator fails to carry out the agreement, the person who was promised the assets can take the estate to court after the testator’s death. This can be expensive and time-consuming to resolve. In these cases, the guidance of an experienced New York estate attorney is imperative.

Co-fiduciary conflicts

Having more than one fiduciary (such as co-executors or co-trustees) increases the likelihood of disagreements, and, in turn, litigation. As a result, it’s generally not recommended to appoint co-executors or co-trustees.

If there are multiple fiduciaries, under EPTL § 10-10.7, the co-fiduciaries must act together. If there are more than two fiduciaries, decisions are made by the majority.

If one co-fiduciary acts alone, without getting the approval of the others, it would be considered a breach of fiduciary duty. This can result in their removal or a civil lawsuit. In some cases, it may also be possible to reverse their invalid decisions.

Otherwise, fiduciaries are generally liable for acts of each other. One major exception is if a co-fiduciary promptly expresses dissent in writing to their co-fiduciaries. If you need help navigating co-fiduciary duties or a co-fiduciary dispute, it’s critical to consult an estate litigation attorney right away.

FAQs About Estate Litigation in New York

Below are common questions and answers about estate litigation in New York. However, every case is unique. If you have questions about your specific circumstances, you should consult an experienced New York estate litigation attorney.