Legal Question in Wills and Trusts in New York

Re: fair will

Q. Can she fight to take any ownership of the cottage just because she doesn't like what my father wanted?

A. If the cottage was gifted (or deeded) to you while your father was alive, then the property passes outside the will. If the cottage is specifically deeded to you in the will, she will most likely lose if she contests the gift.

Q. also I and my wife have been his major care taker for 2 years since my mother passed. We have maintained his rentals, his home and the cottage. Is any of this situation taken into account on a 50/50 basis.

A. No. However, the daughter may use your "influence" over the father to argue that the father did not have the donative intent to make the gift, and therefore, the gift should be revoked.

Q. She refuses to use my father's lawyer to settle the estate. should we each have our own lawyer?

A. The will probably sets forth an executor. If you are the executor, you may use any lawyer you wish to settle the estate. However, if the will is being contested you may want to use an independent lawyer since the lawyer that drafted the will may be called as a witness during the probate hearing.

Mike.

Re: fair will

I totally agree with Mike, adding that a specific bequest (such as a separate provision giving you the cottage) takes precedence over a general bequest, such as remainder to be split 50/50. Not having seen the Will, I cannot be sure how it was written and if the language creates the specific bequest preference. Anyone can contest a Will and proving "undue influence" may be difficult, but is not automatic. As the primary caretaker, the burden of proof of disproving undue influence will probably fall on you, if the issue is raised. Baring a finding of undue influence or some other situation, like incapacity, a parent making a Will can allocate assets among children any way he/she wishes, and no law requires this to be equal among the siblings. Thus, while a claim may be made it is not automatically honored, and baring a finding of legitimacy, the Will provisions should stand as written.