Preserving Assets of an Estate During a Will Contest

If you have reached the point where you have decided to contest a Will, there is often a concern that the assets of the Estate may be depleted by the current beneficiaries under the disputed Will, pending the disposition of the case on its merits. This concern often appears in probate litigation, such as in the case of a beneficiary receiving Estate assets with no imposed restraints by the Court. In that example, the party would be free to convert and dispose of the assets.

As a result, it is common practice for attorneys in probate litigation to seek the imposition of preliminary restraints and/or temporary restraints pending the disposition of a Will Contest.

The imposition of preliminary or temporary restraints is called Injunctive Relief. The purpose of Injunctive Relief in the context of probate litigation is to preserve the assets of the Estate and to maintain status quo, with regard to both tangible and intangible assets, and to prevent the distribution of assets from the Estate, pending the resolution of the matter.

The standard to obtain Injunctive Relief is typically a four-part test. The first prong of the test is to determine whether the party who is seeking the relief would suffer irreparable harm if the restraints are not granted. The second part of the test concerns whether the party who seeks the Injunctive Relief has a reasonable probability of ultimate success on the merits. This means that there must be some demonstration of a valid and reasonable claim asserted by Plaintiff.

The third prong of the test is to determine whether the restraints would cause an undue burden upon the person who would be subject to the restraints. Finally, the last part of the test is to determine whether it is in the public interest to grant the restraints which have been requested. Previously, in reviewing such an application, the Court will place the most weight upon the first two prongs of the test. However, recent decisions by the Appellate Division have rendered the second prong, or the probability of success, less crucial than the other three. As such, courts are now more inclined to preserve the status quo of the Estate pending the disposition of a matter on its merits.

If a party is considering contesting a Will, and there are concerns that the Estate may be converted or wasted while the matter is pending, it is important that Injunctive Relief be sought by their attorney to preserve the Estate until the matter can be fairly decided on its merits. This Relief may protect the party’s interest so that the matter can be fully and fairly decided. Of course, the process is highly technical and any party who wishes to obtain this relief in the context of a Will Contest should seek the guidance and assistance of an experienced attorney.

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