Legal Question in Wills and Trusts in New York

Re: Will Contest

I think this or a similar question was answered previously, In any event here is my response. In most states there is a limited time period to contest a Will, usually 120 days after the probate. This time period may be different in NY, but a simple call to the Surrogate's office will get you the exact time period. You should be aware that the standard of competence for making a Will is very small (did the decedent know the object of his/her bounty - the children, and provide for them). This appears to have been met, but the question of including the "x" wife may open the door, unless there is proof of a post-divorce continuing relationship with your mother and the family, or if they had children and this was your mother's way of assuring some money to their children. For example, if your mother did not remember there was a divorce this goes to the issue of her competency. As an aside, the divorce might have included the elimination of the "x" as an estate taker, and the argument could be raised by you that this is a marital issue between your brother and his "x". This follows the line of reasoning that if it was your brother's Will, and he did not change it before he died, the divorce would be used to reform the Will to eliminate the "x" spouse. This might necessitate a review of your brother's divorce, any agreements between himself and his "x" and any language in his divorce decree. If the Will is knocked out, by intestacy his share would be elevated to 1/4, by intestacy, so your shares will not be changed, just his (which goes back to the issue of the effect of the divorce). Allocation of the costs of the contest will depend upon the final decision and if he is successful, his attorney fees are paid out of the estate. If he loses, but has a reasonable claim, the Court could award his attorney fees from the estate (judgment call). Unless the Will directs otherwise, executors are entitled to fees by statute, although they could be waived, if so desired. If the Will is silent on this point, the executors can claim the fees and they are paid out of the estate (reducing what is ultimately received). He must initiate the contest before the time period runs out. There is no fixed time period for an estate administration to be completed and the traditional time period to complete matters depends upon the complexity of the estate, what types of assets are involved and how much time is needed to liquidate or transfer them, and whether any estate/inheritance tax returns are required. On a simple, liquid-asset estate, with no estate taxes involved, it could be completed in a few months, to several years if a complex estate with estate taxes involved. He is entitled to his share of all assets, including the car, so if he raises this issue he could claim his right to 1/8 or 1/4 if his "x" also wants her share.