Winning a Contested Probate Proceeding

By: Gary E. Bashian, Esq.

When one thinks of Surrogate’s Court litigation,contested probate proceedings immediately come to
mind. While each of the objections to probate present unique challenges for any advocate, an objection based on a decedent’s lack of testamentary capacity can be particularly difficult.

However, it should come as no surprise that medical records are often the evidentiary key to establishing

Advertisement

A Recent Primer on Undue Influence: Estate of Julia Elizabeth Taschereau

By: Gary E. Bashian, Esq.*

 

On October 29, 2010 Surrogate Webber, of the N.Y. County Surrogate’s Court, rendered a decision regarding the Will of Julia Elizabeth Taschereau (NYLJ 1202474902148 at *1) which offers a detailed illustration of how to meet the evidentiary burden of proving Undue Influence in a Will contest.

Objecting to a Will on the grounds of Undue Influence presents evidentiary challenges. The close relationships that often surround an allegation of Undue Influence make it difficult to prove by direct evidence. The burden is on the Objectant to prove motive, opportunity, and the actual exercise of Undue Influence.

Summary Judgement Motion in a Will Contest: An Updated Proponent’s Perspective

By: Gary E. Bashian, Esq.

A motion for summary judgment, pursuant to CPLR § 3212 or § 3211, is a powerful procedural tool that can end litigation immediately.

Summary judgment can deliver a swift and decisive victory on the outcome of a matter. It can limit the issues, or award the broadest types of relief by ending all claims. When granted, it can avoid years of potential litigation and expense.

But for all of its versatility, drafting a motion for summary judgment can be a daunting and complex undertaking. The facts (hopefully none in question), and the applicable law in every matter can make it difficult to identify issues with no triable issue of fact. Communicating them clearly to the Court so as to show that summary judgment should be granted is the challenge.

Estate Litigation Tidbits Fall/Winter 2014

Surrogate’s Summary Judgment Roundup – Very Interesting!

A Series of Recent Decisions from Surrogate’s Throughout Metropolitan New York, Further Highlight the Increased Use of Summary Judgment in the Courts.

1. Matter of Lubin, 30 Misc. 3d 1234A [Bronx County Surrogate’s 2011], is instructive as it again reminds practitioners of the burdens assigned to Objectants and Proponents in a Will contest proceeding.