The Fight of Your Life Before Your Death: The Anatomy of a Pre-Mortem Will Contest
The new wave of elder law litigation begs the question: Are we witnessing the unofficial beginning of ante-mortem will contest in New York? In this article, Laura M. Brancato highlights how post-mortem probate can expose the vulnerability of an estate's resources and discusses whether ante-mortem probate could act as a viable alternative.
September 10, 2023 at 12:00 PM
8 minute read
"[T]here is no form of civil litigation more acrimonious and more conducive to the public display of soiled linen and the uncloseting of family skeletons than is the will contest."
—David F. Cavers, Ante Mortem Probate: An Essay In Preventative Law, 1 U. CHI. L. REV. 440, 441 (1934).
In New York, the traditional mechanism of distributing the property of a deceased client is accomplished through the probate process, which utilizes a last will and testament to govern the distribution of property upon the testator's death. At death, the will is offered to the Surrogate's Court for review and, once the will is validated, the estate is disposed of according to the testator's desires.
This is true, of course, so long as no person objects to the will as offered.
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