How Estate Litigation Works in Surrogate’s Court – Part I

estate litigation attorneysThe individual who files a lawsuit against an estate must prove to the court they have a sufficient basis for the lawsuit. Oftentimes individuals come into our office who are unhappy with someone’s will. They seek to challenge the will because they were either left out of the will or didn’t receive their fair share. Unfortunately, being unhappy with the terms of a will or not receiving one’s fair share is not considered a legal basis for challenging the will. There are specific grounds for challenging wills such as lack of mental capacity, undue influence, fraud, or duress. These legal theories are generally the basis for challenging a will.

Court Attorneys In Surrogate’s Court

When lawsuits are started in the Surrogate’s Court, the Surrogate’s Court sometimes appoints a court attorney to meet with the litigating parties to see if the matter can be mediated. Litigation is time consuming and expensive. Courts hope to promote settlements of cases to avoid cases going to trial.

If the case does not settle, there is an initial period during the litigation where each party can obtain discovery of information from the other party. Discovery demands can ask questions, ask that medical records and other documents be produced, and can go into the family background of the parties.

After the discovery period of the litigation is finished, the parties may engage in motion practice in Surrogate’s Court. If there is a will, a fiduciary can make a motion for summary judgment claiming the allegations made by the individuals challenging the will are false, without validity and the matter should be decided without the need for a trial.trusts and estates lawyer