Law Office of Jason D Jones, P.C.

FAQs - Miscellaneous Proceedings

FAQs - Miscellaneous Proceedings

How does one commence a Miscellaneous Proceeding?

  • One commences a miscellaneous proceeding by filing a Petition or other pleading as such is directed with the Surrogate's Court.

What are some common types of Miscellaneous Proceedings?

  • Common miscellaneous proceedings include will contests, trust litigation, fiduciary litigation, fiduciary removal proceedings, spousal rights proceedings and will construction proceedings. 

Under which grounds may I contest the validity of a Will in New York?

  • One may contest a Will in New York if its maker was not competent when the Will was executed, if the decedent was unduly influenced by someone who would stand to benefit financially from the terms of the contested Will, if the Will was improperly drafted, if the Will was improperly executed, or if the Will is a forgery.  

What is a Will Contest?

  • One must have standing in order to contest the validity of a Will in New York.  Standing turns on having a financial interest.  Therefore, one commences a Will contests because his or her interest would be adversely affected if the Will were to be admitted to probate.  Distributees that receive nothing or less than one's intestate share but not a distributee that will get more under a Will than in intestacy, who may not object to the probate of a Will.  Also, one who is not a distributee may not object unless that person was a beneficiary under an earlier Will and whose bequest is adversely affected by a latter one sent to probate.  Lastly, if the estate is insufficient to satisfy an objectant's legacy then the court will dismiss the objections. 

What can I do if someone refuses to produce a Will to the Surrogate's Court?

  • One can compel the production of a  Will under a specific miscellaneous proceeding but not if a Will has already been submitted to the Surrogate's Court. 

Under which grounds might you seek to remove a trust fiduciary in New York?

  • One might commence a  fiduciary removal proceeding if a trustee is violating a court order, financially mismanaging trust funds, making problematic investment decisions, using the trust for personal profit or is hostile and uncooperative in working with others.  Regardless of the above reasons, the effect must be to obstruct the administration of the trust or of one's estate. 

When is a Will Construction proceeding appropriate? 

  • A Will construction proceeding is appropriate after the Will has been admitted to probate and there is ambiguity in interpreting one or more of its terms.  One example is a request for Surrogate to determine whether a bequest is general or specific because such determination will effect priority under abatement. 

What is an accounting proceeding?

  • In an accounting proceeding, a trustee or executor will be called upon to prove that he or she has properly managed the business of an estate or trust.  A beneficiary may claim that a trust lost money because of bad decisions made by a trustee or executor.  These bad decisions might include bad investment strategies, failure to make payment on claims, or failure to make proper tax elections. 

What can I do if I think that I am getting less than my fair share under a Will?

  • If you have standing to object to the Probate of a Will, them the process is to commence a Will Contest.  One commences a Will Contest by conducting depositions called "1404 Examinations".  During these depositions, the attesting witnesses to the Will and the drafting attorney are examined.  The standard period allowed to request financial records and to review medical records in advance of the "1404 Examinations" is called the "3-2 period".  The 3-2 period is three years prior to the death of the decedent and two years after the date that the Will was drafted, or up to the decedent's death, whichever is shorter.  Based on the 1404 Examinations, an Objectant might file formal Objections.  If Objections succeed, then the entire Will will be denied probate. 

I am unable to track down both of the attesting witness to a Will.  What are my options?

  • The Surrogate's Court may allow the Will proponent to proceed with one of the attesting witnesses if, after reasonable due diligence, one of them is either deceased, absent from the state or found to be incompetent.  If both of the attesting Witnesses are unavailable, then the Court may admit a Will if it receives proof of the Will maker's handwriting and that of one of the attesting Witnesses.

What are some other benefits to conducting 1404 Examinations prior to filing formal Objections?

  • The Will proponent or person who wishes to probate the Will, normally the Executor, must pay for the expenses of producing witnesses and paying for the production of transcripts and medical financial records.  Also,1404 examinations do not trigger the dreaded in terrorem clauses which are routinely placed within Wills to deter persons from contesting it.

What is an in terrorem clause?

  • An in terrorem clause, is a clause that is intentionally placed within a Will to deter beneficiaries from undermining the Will maker's intentions.  An in terrorem clause holds that if a beneficiary to a Will contests it and loses, he or she forefeits all of his or her bequest under the Will.  These clauses are strictly construed by Surrogate's Court.  

What is undue influence?

  • Undue influence is strong moral coercion that completely that destroys the Will maker's inability to act independently.  Commonly, undue influence occurs when the Will maker is beholden to someone like a trusted family member, a clergyman or a home caregiver for his care.  Physical force, flattery, threats, appeals and plays on emotions on the Will maker may all be considered if they result in the overcoming of the Will maker's free will because this is a question of fact rather than one of law.  Certain confidantes will be held to a higher standard if undue influence is found, to rebut the presumption that undue influence has occurred. 

What other factors will the Surrogate consider for a finding of undue influence?

  • Other findings include but are not limited to the relationship between the Will maker and the alleged influencer, the Will provisions, the existence of prior Wills and the whereabouts of the alleged influencer.  

What is a wrongful death proceeding?  How is different from a survival action?

  • A wrongful death proceeding is commenced by a distributee to recoup financial loss resulting from the death of the decedent. It is different from a survival action because the latter action, also called conscious pain and suffering, passes to the decedent's estate.  In practice, however, the fiduciary will combine all issues in one petition.