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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Estate Law
Satisfied Customers: 110586
Experience:  Experienced in Trust and Succession Law, including Louisiana Laws
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I am an Executor in a New York probate case with Objections

Customer Question

I am an Executor in a New York probate case with Objections filed based on Undue Influence and the Will contains an In Terrorem clause.
There has been a partial settlement after Section 1404 Hearings went no where and the Plaintiff in the case more or less hit the estate with a Strike Suit to bully a favorable Settlement, and he failed miserably. The Demand Deal was to bring Non-Probate Assets back into the probate estate.
I refused Settlement for 3 years and lo and behold - the Plaintiff turned tail and ran when it came time for them to go to Trial and they refused to press on.
They received a partial settlement of remaining estate funds.
There is $19,000 remaining in personal property to be distributed.
The Plaintiff is rattling cages for hurried property distribution.
At the same time, this Plaintiff and another sibling have sued in civil complaint in New York Supreme Court - Special Term for attacking the non-Probate assets.
The In Terrorem clause specifically reads that such a suit is in violation of the terms of the Will and the Beneficiary should be in forfeit of remaining estate distribution.
Should I file a Pro Se Order To Show Cause at Surrogate's Court to demand a Will Construction under SCPA 1420 and seek their removal from further probate distributions as contemplated by the Testator's Intent ?
I am represented by a NY Attorney - but wish to take this step myself at this late date.
I believe the move will cut off potential fiduciary claims as to the personal property so the move for an Order to Show Cause would also be an offensive strike against such a move.
Opinion Please.
I would rather move Pro Se.
Submitted: 5 months ago.
Category: Estate Law
Expert:  Law Educator, Esq. replied 5 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
If you are represented by a local attorney, you cannot file yourself pro se in the case. The pleading would be stricken by the court, since you are represented. Furthermore, when a client starts trying to file pro se pleadings, most attorneys will use that as grounds to file a motion to withdraw and drop the case. Once that happens, finding any new attorney to take the case becomes virtually impossible because most other attorneys will not want to step in.
However, filing the order to show cause/motion to dismiss based on the In Terroram (no contest clause) should be filed to have their challenge dismissed and have them removed from the surrogate process.

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