Judge Contests Father's Will

Under the best of circumstances, the death of a loved one is a difficult thing to experience. When that time also involves probate litigation, it gets harder still. Take, for example, the experience of a judge in New York.

The story started when the judge, who is gay, decided to use a surrogate mother in order to have a child with his longtime partner. After the birth of his son, the judge and his partner got married, because it is legal in New York.

Problems arose when the judge's wealthy father died. In his will, the father had a provision barring the judge's son from receiving his inheritance unless the judge married the surrogate mother.

The judge has challenged the will in probate court. In his petition, the judge makes several arguments. First, the judge's partner should be construed as the boy's "mother" when interpreting the will. In addition, enforcing the clause, which would promote the breakup of an existing family, would violate public policies protecting same-sex couples and their children.

Though many New Yorkers may not approve of the father's will, probate experts note that people have the right to decide who will and who will not receive their property -- even if exclusion was based on factors that most people might find unreasonable. In other words, in most cases, people have the right to dispense with their property as they see fit.

New York residents can learn from the judge's experience. His circumstance shows that while having a will is important, people would be wise to share those wishes with loved ones prior to their passing. This may prevent people from challenging a will. Had the judge's father explained his wishes ahead of time, the judge might not be embroiled in a probate dispute now.

Source: Associated Press, " Gay NYC judge challenges father's will," Tom Hays, Aug. 24, 2012

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