Objecting to a Will
Surrogate’s Court Procedure Act (“SCPA”) section 1410 states that “[a]ny person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof ….” [emphasis added]. The question then becomes – what kind of interest must the person objecting have? Answer: to be an “interested” person who can contest a will, there must be a pecuniary loss.
EXAMPLE: Sean a lifelong resident of Smithtown, NY died on August 1, 2015 survived by her five children: A, B, C, D, and E. Sean’s last will and testament left her personal property and residuary estate as follows: A would get 60% of her estate and B, C, D, and E would each get 10%.
Can E object to the probate of Sean’s will? Answer: Yes. E as well as B, C, and D can object to the probate of the will because if there was no will and Sean passed intestate, each child would be entitled to 20% each as their respective intestate shares.
EXAMPLE 2: Stuart, lived and worked in Smithtown, he died on September 22, 2015 survived by his four children: W, X, Y, and Z. Stuart’s last will and testament names W as his executor and leaves his property as follows: 1/3 each to W, X and Y. Z is to receive nothing as he was given a home by Stuart by lifetime gift pursuant to a deed executed at the same time as Stuart executed his last will and testament. At the Suffolk County Surrogate’s Court, X and Y object to Stuart’s last will because they claim that if the will is admitted to probate they will be prejudiced in a separate lawsuit pending in Supreme Court to set aside the deed made by Stuart, giving the home to their sibling Z, on the same day as the will.
Will the Surrogate permit X and Y to object to the probate of Stuart’s last will? Answer: No. The intestate share of each of the objecting parties is 1/4 of the estate, while under the provisions of the will each receives 1/3 of the estate; no harm would result to them by the admission of the will to probate.
To be continued ….
Aaron E. Futterman, CPA, Esq. is a partner in the law firm of with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.