{Read in 6 Minutes} As a Trust and Estates attorney, dealing with offering a Will for probate in the Surrogate’s Court is a routine part of my practice. More often than not, these are regular and uncontested proceedings. However, sometimes the deceased’s next-of-kin will object to the Will expressing some concern about its validity.
This sort of counterpoint is known as a Will contest, and the Surrogate Court deals with them all of the time. Typically, this will involve each party stating their position in writing, then exchanging information and taking depositions and, perhaps, even having a trial on the validity of the Will. At the conclusion of the trial, the Court can then admit the Will to probate or decline to do so allowing the deceased’s next-of-kin to inherit based upon their familial relationship.
Very few Will contests go all the way to trial. Why is that? Well, there’s a variety of reasons. First, the vast majority of Will contests are unsuccessful. Statistics show that less than 10% of challenges to the validity of a Will, that go before a jury, will ever result in a verdict declining or denying to probate the Will. However, that estimate may be a little misleading. Why? Because when there is some real merit to the objecting party’s position, the parties will often settle the dispute by making a settlement payment to that objecting party. So, at some level that is called a win for the objecting party, however, not totally, because the Court will often still admit the Will to probate.
A very common way for a Surrogate’s Court presiding over a Will contest to resolve the dispute is by summary judgment. Summary Judgment is a legal term of art, which basically — and as a gross oversimplification — is an application to the Court asking them to dismiss any objections to probating the Will because the objectant does not have any concrete evidence to prove their case. Or to put it in another way, a party objecting to a Will needs to have more than hunches and suspicions about what might have happened. They would need to show that the deceased lacked testamentary capacity or that the deceased did not execute the Will properly (for example, perhaps they did not have the correct number of witnesses, or the Will is a forgery, or some party exerted undue influence on the deceased to make them deviate or to swindle them into leaving their Estate to people that they would otherwise not have been inclined to).
How does the motion for Summary Judgment play out? Well, typically it goes like this:
1. The person asking the Court to probate the Will (usually the nominated Executor) will make a motion before the Court requesting Summary Judgment. This party knows that if the Court grants the motion, that will end the litigation and the Court will probate the Will.
2. The party objecting to the Will will receive notice that this is happening, usually by a Notice of Motion. This creates a deadline by which the opposing party must turn in written opposition and show the Court that if the matter goes to trial, the opposing party has tangible and concrete evidence that shows they at least have a chance of convincing a jury that the Will is invalid. A party receiving notice of a Summary Judgment motion — or a party opposing a Summary Judgment motion — should be very careful to note the deadline in the Notice of Motion by which they must file an opposition.
3. Upon receipt of any opposition, the moving party may file a reply advising the Court why it should still grant the motion in light of the opposing party’s opposition.
4. The court will likely hear oral arguments on the motion for summary judgment. This is the opportunity for both parties to appear at the courthouse (or as we are doing now during COVID times, virtually), and let the judge hear arguments as to why the Court should decide the motion one way or another.
Finally, the Court will decide the motion. Very rarely does the Court decide the motion immediately following the oral arguments. Usually, it issues a written decision sometime after the return date.
Courts can — and do — grant Summary Judgment in probate proceedings often. However, Courts also deny them fairly regularly in cases where the objecting party has substantial proof or evidence, or the party seeking the admission of the Will to probate has some truth problems of their own.
Keep in mind that Summary Judgment is a drastic remedy. It immediately ends the case, and very often, one party is assigned the losing side and walks away with nothing. As mentioned above, settlement is always on the table and it is not uncommon for the parties to the motion to attempt to settle the case after one side moves for Summary Judgment.
If you’re involved in a motion for Summary Judgment, it’s a good time to work with your lawyer (or retain a lawyer) to assist you, evaluate your likelihood of success, and make the decision that makes the most sense for your case.
For more information on this topic, please contact me.