How Is A Will Contested In New York?

A will contest means that someone is contesting and or objecting to the validity of the proposed will. If an individual has a will that was drafted and the proposed executor is offering it up for probate, meaning that they hired an attorney and the proposed executor is petitioning the court. The named executor under the will is asking that the will be probated, which means that they are asking the surrogate court to approve the validity of the will and allows it to go through the process and be granted a court order called letters testamentary, appointing them executor of the estate, naming them the person to be in charge of handling the affairs of the estate, of marshaling the assets of the estate and then passing them along and then concluding the estate.

In a will contest when a will is offered up for probate before the court, blood relatives are required to be put on notice of the probate legal proceeding and are entitled to see what the will says and they are entitled to object to the validity of the will. If they object to the will by filing written objections to the will they have started a will contest and litigation, which means that the whole process has now been stalled and the probate process and the conclusion of the estate will take much longer and cost a lot more money to complete.

The probate process is a process that does not happen instantaneously. What happens when a petition is filed and a probate proceeding is started, the will is offered for probate to court and then the requirements under the law are that all of the blood relatives that would stand to inherit under the will have to be notified, so they have to be served with the process, which means they are served either in hand by a process server if they are within the State of New York or if they are outside the State of New York they will be served by a certified mail or if they cannot be located by other means, either by publication in a newspaper or some other form that the court would allow or mandate through a court order so that they receive proper notice.

Once an individual receives notice of the fact that there was a will and that there are assets that are belonging to the estate, that person then has the ability to come into court and object to the will itself, to say, “You know what? I don’t believe this will was properly executed” or, “The decedent, the dead family member didn’t have capacity when they executed the will”. Basically, by filing what is known as objections to the will, the whole process now ceases, it stops, it is in suspended animation, technically until the litigation is resolved.

It is litigation once the objections are served, the objections which are filled is a family member telling the court that they do not want the will to be accepted for probate, then like most other litigation discovery has to take place, which means documents will have to go back and forth between the attorney representing the estate or the proponent of the will and the objections to the will, then depositions and testimony can be had and motion practice can take place and many, many court appearances and then even a trial if the case is not resolved or settled, all of which can take years and can be very expensive.

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