Of all the estate matters I have handled, the most memorable is the 12 years I spent litigating one case in Surrogate’s Court in Brooklyn, New York. A brother and sister engaged in a nasty lawsuit over two buildings with a combined value of approximately $8 million. Their hatred for each other was legendary and no amount of persuasion could convince them to stop the battle. They were unconcerned about legal fess and the tearing apart of their family. Solomon-like, in the end, each got one building.

Many attorneys are unfamiliar with estate problems and not equipped to give sound advise to their clients or prepare wills which minimize the chances of a court challenge. Incredibly, some are even unfamiliar with the legal requirements of making a valid will but they still do it. Because wills can be challenged on several grounds (e.g. lack of a person’ capacity to make a will, improper execution, undue influence and fraud), the object is to prepare a will which avoids these challenges. This would also include addressing potential landmines – such as purposely not providing for a spouse or child and leaving an estate to non-family members. In most instances, properly prepared wills can be admitted to probate (I.e. declared valid) and there will be no estate litigation.

  1. General Procedures

After a person dies, a petition (along with the original will and a death certificate) is filed in the proper country to probate the will. Interested parties are notified and if there are no objections, the will is admitted and can proceed to decree. But a person intending to object can either file an immediate written objection (called a “responsive pleading” ) or delay that and seek “discovery” through written demands for information and documents and the conducting of oral examinations before deciding whether to file a responsive pleading. But the objections must be filed within 10 days after the conclusion of examinations.

If the objections are filed, then even more discovery can be obtained pursuant to Article 31 of the Civil practice Law & Rules in New York .

  • The Trial

There are uniform rules within the Surrogate’s Courts which govern all of the procedures leading to a trial of the issues. It is typical for attorneys to argue over these procedures and rights so Court conferences are frequently scheduled. The judge use these conference to also encourage settlement and conferences are good way to keep in touch with the parties and/or their lawyers.

If a trial is required, a party is going to win or lose. Having “any” lawyer represent you during the pre-trial phase or at trial is foolish. Your best chance of winning is to have a trial attorney experienced in complex trial issues such as the “Dead Man’s Statue”, expert witness testimony, getting documents, and testimony admitted into evidence, and understanding complex and nuanced doctrines such as hearsay.

The Writer

Paul Siegert has been an attorney in good standing for 46 years, have taught continuing legal education courses to other attorneys on how to lawsuits in New York, and have graduated from the Riverdale Country Day School, Wesleyan University, and the New York University School of Law.