By Jason Stern
As NYC estate lawyers we are constantly in Surrogate’s courts throughout the State of NY dealing with this recurring NYC estate issue. Some of the most emotionally charged NYC estate cases involve the question of disinheritance. While nobody wants to admit they may have done something to warrant their disinheritance sometimes that is in fact the case. Other times our NYC will contest lawyers go to court and find out that the will was actually the product of undue influence and that the disinheritance was invalid. Ultimately it is up to the Surrogate’s Courts within the State of NY and the experienced NYC estate lawyers who litigate these complex cases to get to the bottom of these difficult issues.
Strictly speaking while you cannot completely disinherit a spouse under the NY estate law you can completely, and people do, disinherit your children. Pursuant to the NY estate law, a spouse is entitled to the spousal right of election which is 1/3 of all estate assets, including both testamentary assets and testamentary substitutes.
On the other hand, under the NY estate laws, children are afforded no such protection. While parents are free to disinherit their offspring it is not always advisable or warranted. Pursuant to SCPA 1404 children have standing to contest a NY attorney drafted will thus demanding examinations of both attorney draftsperson and attesting witnesses. Any experienced NYC estate lawyer can tell you that lining up such witnesses can often be both problematic and time consuming. In my opinion as a NYC will contest lawyer it is almost always preferable to include children in the instrument for a nominal amount opposed to disinheritance. In this case you can include a no contest clause within the will, completely disinheriting the child should they interrupt the probate process in any manner.
However, as one of only a handful of NYC estate lawyers to successfully challenge attorney drafted instruments, I will tell you that if there was no basis for the disinheritance, a no-contest clause within the will alone would not prevent us from advancing with the underlying will contest. The purpose of the will contest proceeding is to investigate the facts and circumstances that lead to the document’s execution in order to ascertain its validity. And in so doing, on occasion, our NYC estate lawyers come to learn that the will’s execution was not in fact the product of the decedent’s wishes but someone else’s. Under such circumstances the will should not then be admitted to probate.
Estate of Sir Elton John’s mother Sheila Farebrother
As a NYC estate lawyer I can tell you one of the most important issues the Surrogate’s Courts of the State of NY will key in on in a NYC will contest is family dynamics. Who was the decedent close to in the years preceding its execution? Recently, legendary rock star Sir Elton John’s 92-year-old mother, Sheila Farebrother passed away. In her will, Sheila completely disinherited her son, Sir Elton John from her nearly $1,000,000.00 estate. Instead, Ms. Farebrother left her estate equally to her other child Frederick and friend Bob Hailey. Bob Hailey was at one time Sir Elton John’s assistant. At which time, to the dismay of Sir Elton John, Bob became good friends with Sheila Farebrother, almost like a son often looking in on her when Elton was not available. In fact, the two had become so close, it sparked a feud between Sir Elton John and his mother causing the two to have little or no contact in the decade leading up to her death. While Sir Elton John is worth hundreds of millions of dollars, wills are usually contested on emotional grounds as opposed to practical ones. The realization of a child’s disinheritance is upsetting even when the monetary amount involved is not a meaningful gesture, while the significance of the meaning behind the act is.
However sad and unfortunate it may be this is clearly a case that warrants the disinheritance of a child. Unless the will was revoked at some later point after its execution it would be nearly impossible to deny probate to this instrument as the product of undue influence. While the two had reconciled just prior to her death, the will itself should nevertheless withstand judicial scrutiny.
If you think a family member may have been taken advantage of by an opportunistic relative or friend it never hurts to ask the opinion of an experienced NY will contest lawyer to see if it amounts to undue influence or fraud. Feel free to call the NYC will contest lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NYC estate lawyers have more than 50 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.