How Significant is the Initial Hearing of a Contested Will?

Probate can be a lengthy process if the heirs or beneficiaries of a decedent’s testamentary document disagree about the distribution of property and assets. An Order to Show Cause prepared by the Plaintiff’s attorney constitutes verified complaint, and is the initial hearing procedure of a contested will. Plaintiff testimony concerning the disputed will document is required to be granted a court ordered preliminary injunction. An injunction prevents distribution of the Estate assets while probate due process is undertaken.


Injunction of a Contested Will Matter

Estate laws in the U.S. provide injunctive relief is necessary if a court determines that irreparable harm to the plaintiff of a verified complaint may occur. The court also reviews evidence of any reasonable probability of a greater hardship to the Plaintiff in the interim if an injunction is granted. Finally, “public interest” is considered in the granting of a preliminary injunction, to determine if denial of restraints will have impact beyond the scope of the Plaintiff’s complaint.


Example of the judicial reasoning in New York courts in the granting of injunctive relief during a contested will matter is cited in the Surrogate’s Court, Kings County, New York ruling IN RE: Anna COHEN, Deceased, Decided: October 26, 2004. Filed by Ms. Cohen’s estate administer on behalf of its heirs, the complaint alleges a restatement of the decedent’s named asset distribution was sought by one of the daughter’s in an Israeli court. Finding the proceeding to be fraudulent, the New York court considered “the use of the injunctive power to prohibit a person from resorting to a foreign court” to be a substantial fraud (Arpels v. Arpels, 8 N.Y.2d 339, 341, 207 N.Y.S.2d 663, 170 N.E.2d 670 [1960]; Indosuez Int’l Finance B.V. v. National Reserve Bank, 263 A.D.2d 384, 693 N.Y.S.2d 33 [1st Dept. 1999]; Matter of Bauman, 140 Misc.2d 412, 530 N.Y.S.2d 765 [N.Y. Sur. Ct. 1988]).


Injunctive Relief Standards

The court’s determination that restraint of a foreign proceeding was necessary to protect the interest of the other heirs of Ms. Cohen’s trust, then,  was considered sufficient “exceptional circumstance” for granting the injunction (Arpels v. Arpels, 8 N.Y.2d 339, 207 N.Y.S.2d 663, 170 N.E.2d 670, supra: Sarepa, S.A. v. Pepsico, Inc., 225 A.D.2d 604, 639 N.Y.S.2d 128, supra; Roman v. Sunshine Ranchettes, Inc., 98 A.D.2d 744, 469 N.Y.S.2d 449 [2d Dept. 1983]; Hudson Teachers Assoc. v. Helsby, 39 A.D.2d 1012, 333 N.Y.S.2d 577 [3d Dept. 1972]). The case reflects injunctive relief standards in similar New York court decisions, leaning toward the granting of injunctive relief in the interest of preserving the status quo during contested will matters. Denial of an injunction, it is widely thought in judicial opinion, would unnecessarily extend resolution of probate.  


Ask a licensed estate law and probate litigation attorney about filing an Order to Show Cause for preliminary injunction of a Will.  

New York Estate Law Firm

Ettinger Law Firm is a licensed New York attorney practice specializing in estate planning and probate litigation. Contact Ettinger Law Firm to schedule a consultation about a contested will or other estate law matter.  

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