If you are at the point that 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. This concern is often present in probate litigation, as if a beneficiary were to receive Estate assets without Court imposed restraints this party would be free to convert and dispose of same. As such, it is common practice for attorneys in probate litigation to seek the imposition of preliminary restraints and/or temporary restraints pending the resolution 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 furthermore, to prevent the distribution of assets from the Estate pending the resolution of the matter.

The standard for obtaining 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 next 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 next prong of the test would be to determine whether the restraints would cause an undue burden upon the person who would be subject to the restraints. The final part of the test is to determine whether it is in the public interest to grant the restraints which have been requested. Typically, in reviewing such an application the Court will place the most weight upon the first two prongs of the test. Recent decisions by the Appellate Division, however, have rendered the probability of success prong less crucial in determining whether injunctive relief should be issued. As a result, the Courts are now more inclined to preserve the status quo of the Estate pending the disposition of a matter on its merits.

As discussed above, it is important that 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, 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. Obviously, the process is 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.