If a person is believed to be withholding a will from probate, there is a remedy under New York law to compel that person to file the will with the Court.
What If Someone Refuses to Probate a Will?
There is a section of the Surrogate's Court Procedure Act that allows a person interested in the estate to take steps to compel a person who is in possession of the will to produce it to the Court.
How Does This Work?
A person interested in the estate can petition for an Order requiring someone who may have the will to be examined before a court stenographer about his or her knowledge of the whereabouts of a will. There will then be a transcript of the examination, and the transcript can be used in further court proceedings.
What If It is Believed That the Will Was Destroyed?
The examination can focus not just on the whereabouts of the will, but also as to the person's knowledge of the destruction of a will.
Who Pays the Costs of the Proceeding to Compel Production of the Will?
The court is empowered to impose reasonable attorneys fees against the person who has withheld the will, if that person did not have good cause to withhold it. And there are very few good reasons to withhold a will. The court's ability to impose attorneys fees means that it is possible for one to bring a proceeding to compel production of a will without it costing that person a penny.
Can The Court Order Production of a Will Even Without a Petition?
If it appears to the court that a person has knowledge of the whereabouts or destruction of a will, the Court may, even without a petition, order that the person who is believed to have the will, or to have knowledge of its destruction, be examined and/or to promptly file the will with the Court.
Pragmatically, Are Such Examinations Held?
When a person is served with an Order requiring that he or she be examined to ascertain the existence or destruction of a will, that person, if he or she possesses the will, usually immediately produces the will, rather than submit to a court-ordered examination.
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