Posted On: February 5, 2012 by Stephen Bilkis

Court Rules on a Will Contest Matter

Bessie Schlanger filed an appeal with the Surrogate Court to require payment of a legacy. Ms. Schlanger was to receive 4% of the remaining estate after taxes and fees of Sarah Pasternack. She claims that if the part, which is $10,000, is not paid to her account most likely she will not be able to enjoy any of it. She is saying she is old and needs the legacy. A New York Probate Lawyer mentioned that Ms. Schlanger said the other beneficiaries have received their legacies.

The answer given by the executor of Ms. Pasternack’s estate is that Ms. Schlanger in not entitled to be paid because she violated the terrorem clause of the last will and testament. It stated in the sixth paragraph of the will that if any of the beneficiaries or people mentioned in her will contests or does an act to contest the will, they will forfeit their right the bequest. It further states that if they testify against the probate of the will, then they will lose their right to the legacy. Their part will be, in effect, put back to the remaining interest and shared by the other recipients.

In the response, it is alleged that Ms. Schlanger violated in two ways. She tried to have Ms. Pasternack declared incompetent when she was still alive. This was the first instance. The second instance is in the probate proceedings, where even if she did not appear to contest herself, she conspired with another to have the will disallowed. This, a Nassau County Probate Lawyer maintains, can be considered as a violation to the terrorem clause.

In the conclusion of the competency hearing of Ms. Pasternack, the Court of Appeals dismissed the case. The claim was that the competency hearing was to discredit any will that will be executed by Ms. Pasternack during her lifetime. The court’s ruling on this was it is not in violation of the ‘no contest’ clause. It is because it was done while the testatrix was still alive, and the provisions of the will regarding the contest only applies once the will is already presented in probate.

As for the second reason wherein she is charged of being in cohorts with another person to have the will disallowed. Suffolk County Probate Lawyers found out that son of Ms. Schlanger, Michael Schlanger, filed an objection to the will as a beneficiary of an earlier will. The executor said there should be a hearing that will allow them to present proof of conspiracy between Ms. Schlanger and her son in contesting the probate of the case.

In a letter submitted by Ms. Schlanger, she says that she said that she did not violate the terrorem clause of the will. She said she did not file objections, did not actively prosecute a contest and did not testify as a witness. For this case though, the court says that they will consider her as have acted in concert and conspiracy with her son. While the son was the main party, the court considered her as the real challenger of the will. In Page on Wills, the rule states that 'A beneficiary who procures and obtains another heir to institute proceedings to contest a will, forfeits his interest under such a condition.' The court is not assuming that Ms. Schlanger really did the said act as it can only be determined by a hearing. The court is following the rule that they must consider the facts of the allegation as being done even if it is improbable. These allegations are deemed true. They set a hearing for the issues raised, and the petition for payment was denied.

A scrupulous legal counsel would plan all actions by a beneficiary who would want to get what should be for them. They would know from the start what actions they would take and what consequences may arise if it is done. They would have prepared for such consequences or avoided them.

For sounds legal guidance, speak to Stephen Bilkis and Associates. Our lawyers ensure that before they make a step with you regarding your concerns they have already checked on everything. You can get a free consultation for any case in New York or Long Island by calling 1-800 NY - NY- LAW.