Probate Litigation

The Stark & Stark Probate Litigation practice provides counsel to parties who seek to contest the validity of a last will and testament due to undue influence, unequal shares in the decedent’s estate, lack of capacity, or exclusion from an estate. We also proffer defenses on behalf of executors who are forced to defend a will that is being contested. Further, we both prosecute and defend actions where it is alleged that an executor breached his fiduciary duty to the estate.

Practice Services

When a party has an issue with a will that has been offered for probate, a will contest may ensue. While contesting a will can be particularly difficult for all parties involved due to the emotional involvement, as well as the complex nature of the litigation, the Stark & Stark Probate Litigation attorneys balance compassion with an aggressive litigation approach.

When contesting a will, or defending a contested will, time is of the essence. Typically, there is only a four (4) month time period (in-state) and a six (6) month time period (out-of-state) to file a claim to challenge a Will after it has been presented to the surrogate’s office. Some common reasons a will is contested include:

• Undue Influence – The most common cause of action asserted in will contests is defined as when a person in power psychologically manipulates and persuades the testator to sign a will, usurping the free will and judgment of the testator for their own.
• Unequal Shares – A common issue for family members is when they have been left unequal shares of an estate. It is not uncommon for the testator to not provide an explanation as to why the estate has been divided unequally. This often forms the impetus for Will contests.
• Lack of Capacity – When a party feels that the testator lacked the mental capacity to fully understand and agree to the contents of their Last Will and Testament, that party may contest the will. Medical evidence tends to be very important in these types of contests as to the competency of the decedent.
• Exclusion/Cut out of Will – When a party is omitted from, or “cut out” of a will, they may file a claim challenging the validity of the will based upon undue influence or lack of capacity arguments.
• Power of Attorney Abuse – A power of attorney provides a secondary party the ability to make major decisions on behalf of the “principal”. When this party makes imprudent or inappropriate decisions and abuses the power given to them, parties may seek to hold this person liable for a breach of that duty of care.
• Conflict of Interest – Will contests due to perceived conflicts of interest can occur when the attorney documenting the testator’s estate is faced with dueling loyalty to clients. Usually this involves loyalty to the testator as well as a named beneficiary.
• Non–compliant Executor – These matters involved among situations where the executor has either failed to administer or is improperly administering the estate.

Probate Litigation Attorneys

The Stark & Stark Probate Litigation group works closely with outside experts to review medical and accounting records, which allows us to obtain and accurately confirm information about the testator and the estate. Our attorneys represent anyone whose interests under a will or trust are in dispute, or anyone who is concerned about the way in which a vulnerable or incompetent relative’s estate is being managed. We litigate business and partnership issues that need to be resolved in probate court, as well as familial disputes with respect to a testator’s will and handle estates of all sizes, from less than $200,000 to tens of millions of dollars.