Contesting A Will in NY

Executor Removed

In a case before Surrogate John Czygier, Jr. who sits in Suffolk County a proceeding was brought by the brother of the named fiduciary in an estate. The decedent’s brother was the executor on the estate. The petition sought to remove the brother and to have him appointed as the successor executor to his brother.

The allegations were his brother failed to fulfill his duties as executor. The petition claimed the brother failed to leave the decedent’s residence. The decedent’s residence was the only asset of significance in the estate. The brother also did not engage in any action to sell the decedent’s residence. In addition, the brother lived in the house without making any contribution either personal or from estate assets towards paying the estate taxes.

Damaging the Estate

The named executor did not take action to make distributions of estate assets. The petition claimed as a result these inactions there was significant harm done to the estate. This harm had an adverse effect on the assets beneficiaries anticipated receiving.

The Judge’s Decision

Surrogate Czygier in his decision stated a fiduciary can be removed without a hearing where the conduct of said fiduciary is established by undisputed facts. He went on to state a petition was deemed “due proof of the facts stated” unless an answer, objection or other proof or documentation was submitted. In this case he found the fiduciary did not oppose the relief. The fiduciary also failed to appear on the scheduled court date for the proceeding. Justice Czygier in his decision wrote that due to the absence of opposition the brother who was named as the alternate executor in the decedent’s will was entitled to successor letters testamentary naming him has the new executor. Previous letters testamentary given to the original executor were therefore revoked.

Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm has more than 35 years of experience dealing with all types of issues involving wills, trusts and estate matters. They can be reached for a free consultation either 516-561-6645, 631-319-8262 or 718-350-2801.

Estate Litigation In New York

The purpose of estate planning is to develop a plan that minimizes or avoids estate litigation. However, if you are an heir, a creditor, a family member, a child, or a spouse of someone who died and you feel that you have been treated unfairly and/or there has been undue influence fraud or duress, a will proceeding, administration proceeding or trusts proceeding may be necessary to protect your rights and interests.

Contesting the Will in New York

The most common estate proceedings are a will contests. There are a variety of grounds that can be used to challenge the validity of the will, children who have been left out of the will, family members who promises were made to and or individuals who were disinherited from the will who believe that the will should not be accepted by the court as a valid document can retain legal counsel to litigate the validity of the will. The following are issues that can be brought up to the Surrogate’s Court in New York regarding the challenging of the validity of the will.

The decedent has been the subject of fraud or duress with regard to the preparation of this will.
Was the will properly prepared and properly executed?
Has the will been amended, modified or changed?
Is there a subsequent will or prior will?
Is the will clear as to the beneficiary scheme?
Did the decedent, on the day he or she executed the will, have competent mental capacity?

For more than 35 years, Elliot S. Schlissel and his associates have been representing clients with regard to the preparation of wills and litigating wills and litigating all types of issues concerning wills, trusts and estates. The office can be contacted at either 516-561-6645 or 718-350-2802 for a free consultation regarding all types of estate issues.