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Will, Trust, and Estate Litigation

Cullen and Dykman was already over fifty years old when Teddy Roosevelt stated that his goal as President was to “speak softly, but carry a big stick.” In a sense this is a paradigm with respect to the goal of avoiding litigation with regard to wills and trusts. We embrace sophisticated defensive planning techniques to avoid litigation for our clients. But we also represent clients who have standing to object to the wills of others or who have been damaged by the administration of trusts and estates in which they are interested.

We have represented clients in will contests, sometimes in support of a propounded will and on other occasions to object to a will. We have also participated in proceedings to construe and reform wills, in contested accounting proceedings and in tax proceedings. Our estate litigation team has substantial experience in all the Surrogate’s Courts in New York State, where the firm enjoys a reputation for sound advice, efficiency, and practicality. Our first and foremost goal will always be achieving the best possible result for our clients. Quite frequently, we are able to settle such proceedings without trials after taking into account the merits of the positions advanced by respective parties and the tax rules applicable.

Estate litigation can take many forms. Some of the kinds of matters the firm has handled include:

• Probate litigation to dispute the validity of wills on the basis of incapacity of the testator, undue influence over the testator, defective execution of the will, forgery, etc.
• Trust litigation to challenge or defend the construction of a trust or the actions of a trustee.
• Will construction proceedings on behalf of fiduciaries or beneficiaries to clarify ambiguity in a will.
• Fiduciary litigation to challenge the actions of an executor or trustee in managing the financial affairs of the estate or trust.
• Accounting proceedings to challenge or defend the management of an estate or trust.
• Fiduciary removal proceedings to remove a trustee, executor, or guardian because of misconduct or incompetence.
• Spousal rights proceedings to question or establish the rights of a spouse to inherit, and to analyze the validity of prenuptial and antenuptial agreements.
• Kinship proceedings to question or establish the inheritance rights of more distant relatives.
• Claims proceedings to establish who has a claim on assets of an estate (such as business partners or creditors).

Questions you should be asking:

• Will my estate be challenged in court and what can I do now to prevent that from happening?
• How long should probate of a will take?
• How can I be sure my partner will fulfill his obligations under the succession planning we have in place?
• How long should the administration of an estate take?
• What happens if a person mentioned in the will dies before the testator?
• My father divorced his first wife, but did not get a chance to change the will. Will she inherit?
• If a relative is hiding a will, is there anything that can be done?
• Is estate litigation expensive and how can I minimize the expense?
• I feel like I've been cheated out of my inheritance. Can I challenge the will? 

A case in point

Estate litigation is among the nastiest of all types of litigation because of the volatile mixture of family and wealth. Cases take on an almost Shakespearean aspect as the factions feud. With that in mind, consider the following scenario:

Father is dead, and that is the only thing that Regan, Cordelia, and Goneril could agree upon. Although siblings, Regan, Cordelia, and Goneril never had an amicable relationship. Their disputes over the years usually pitted Regan and Goneril against Cordelia. In a misguided attempt to be fair to them all, Father divided his estate evenly among the three of them and named them all co-executors. The estate was a large one, consisting of a mansion, large parcels of real property, and cash. Father's will was admitted to probate and letters testamentary were issued to the three sisters. Regan and Goneril hired an attorney to help them to administer the estate. Cordelia did not agree with this selection and hired her own attorney. The attorneys immediately suggested that an arrangement should be agreed upon whereby they would not duplicate their efforts. The sisters reached no such arrangement. Cordelia objected when Regan and Goneril decided to sell the family mansion to pay federal estate taxes. Cordelia refused to participate in the transaction and Regan and Goneril proceeded without her, executing the deed without her signature. Their attorney, also a licensed real estate broker, agreed to broker the sale and agreed to take a reduced commission for the effort. When he produced a buyer willing to pay the fair market value for the property, Cordelia demanded to buy it for a sum in excess of the mansion's value. Regan and Goneril refused Cordelia's offer and said to her that she would never live in Father's house. In revenge, Cordelia proceeded to sell the antiques that filled the mansion against the wishes of her sisters. Litigation ensued and the court was required to decide the following issues:

1. Can Regan and Goneril sell the mansion without Cordelia's signature on the deed?
2. Can Regan and Goneril ask the Surrogate to compel Cordelia's cooperation on the sale of the real property?
3. Can two attorneys represent three co-executors during the administration of the estate?
4. Are the fees of both counsel reasonable administration expenses payable from estate funds?
5. Can Cordelia sell the antiques without the consent of her co-fiduciaries?
6. Is the broker-attorney entitled to a commission for selling the mansion?

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