Estate litigation in New York otherwise called probate litigation is a sad aspect of civil law. On the one hand it has to do with death. On the other hand it has to do with conflict among those close to the departed. In many cases one family member is protesting a will because he or she feels that other family members have committed unsavory acts of dishonesty. The courts are asked to make decisions that may forever divide families.
The requirement for validity of the will include the following.
- The testator must clearly identify him or herself as the maker of the will.
- The testator must testify that he or she is capable of disposing of his or her property and that the will is published as free act.
- The testator also states that the will currently published supersedes any previous wills.
- In most cases, to be legal, the will must be signed in the presence of at least two independent witnesses who are not beneficiaries. New York does not require wills to be notarized.
- Most wills include the appointment of an administrator who can take the responsibility for carrying out the wishes of the deceased.
Disputes may arise regarding any of these conditions, if members of the family or interested parties feel a condition of the will has not been faithfully carried out. If there is no will, estate litigation may take the form of determining who has a legal claim to the estate, even determining who should be legally considered family. Sometimes when the testator was recently married or entered a committed relationship, disputes arise about the legitimacy of the recent spouse’s claim.
Many cases of estate litigation arise because a party to the will claims that it was written under undue influence favoring one of the parties. Such undue influence can occur any time pressure is put on the testator beyond simply asking for inclusion. Disputes also arise when the administrator somehow fails in his or her duty to act fairly on behalf of the deceased, or when someone with power of attorney mistakenly believes he or she has more power than they do.
As with other issues of legal dispute, many cases of estate litigation are settled without court intervention by negotiation. Some law firms enlist the help of negotiators or psychologists specializing in dispute settlement.
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