Articles Posted in Contested Estates

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The New York Probate Lawyer Blog has talked about the need for individuals to engage in proper estate planning. Planning documents include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. Persons who only have modest estates still should implement papers so that their intended beneficiaries do not face the uncertainties that arise when planning documents are not professionally prepared or are not prepared at all.

It is sometimes astonishing that individuals who have amassed a tremendous amount of wealth during their lifetime by successfully operating a business can be so neglectful when it comes to estate planning.  The result of such inattention often is in the form of a Will Contest. Continue reading →

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The New York Probate process has been the subject of numerous posts in this blog.   A Last Will that is prepared by a person must be admitted to probate or validated by the Surrogate’s Court so that the provisions of the Will become effective. The decedent’s distributes or next of kin must receive notice of the probate proceeding and they have a right to contest the Will.   Usually, the distributees receive a paper called a Citation, which is like a summons, that advises them as to the date when the probate proceeding is to appear on the Court calendar.   At that time, the distributees can file objections to the Will or ask for preliminary discovery that is allowed by Surrogate’s Court Procedure Act (“SCPA”) Section 1404.

There are many specific rules and procedures that apply to the process of contesting a Will. Some of these requirements have been the subject of recent Surrogate’s Court decisions. In Estate of Basil Constant, decided on June 30, 2014, Bronx Surrogate Nelida Malave-Gonzalez reviewed an application to expand what is known as the “3/2” rule.  This rule is contained in section 207.27 of the New York Uniform Rules for Surrogate’s Court and provides that in connection with an examination before trial (i.e. discovery) such examination is limited to a period of time that is three years before the date of the Will and two years thereafter or the decedent’s date of death, whichever is shorter. While the examination period can be extended by Court Order, the Court needs to find special circumstances to expand the time periods.  In Constant the Court did not allow an expansion of the time periods to allow an inquiry about an earlier Will that the decedent allegedly had made.

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The Contest of a Will in New York, as in most other jurisdictions, brings to mind a tense scene inside a courtroom where a trial is ongoing between a decedent’s family and some interloper such as a nursing aide or other non-relative who has forced an old and unknowing decedent to disinherit his family. While many Will contests end in a trial, most such estate litigations are settled or disposed of before a trial in the Surrogate’s Court.

Additionally, a trial is the last of many different types of procedures and proceedings that comprise a case involving a dispute regarding the validity of a Will. The proceedings typically begin with the Probate Proceeding where a Probate Petition is filed with the Surrogate’s Court seeking a Will’s validation. At that point various statutes and rules contained in the New York Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law require that the decedent’s distributees (ie next of kin) be notified and afforded the opportunity to challenge the Will. However, instead of heading right into a trial, the opposing parties typically engage in a pre-trial process. This process often begins with the discovery of information that is allowed by SCPA 1404.

The New York Probate Lawyer Blog has discussed SCPA 1404 in previous posts. Essentially, this statute allows a person who has filed or is just considering filing Objections to a Will, to take the pre-trial testimony of the attesting witnesses to a Will and the person who prepared the Will such as the attorney draftsperson. The nominated executors and the proponents of the Will may also be examined if there is an in terrorem clause. SCPA 1404 also allows the parties to obtain discovery documents that may be relevant to this examination.

One interesting aspect of this discovery process is a rule that is contained in Section 207.27 of the New York Surrogate’s Court Uniform Rules. This section limits the examination to a time period that is three years prior to date of the Will and two years after such date or the date of the death of the decedent, whichever is shorter. The Court can extend these periods of times if it is shown that special circumstances require the extension.

In a recent case decided by Nassau Surrogate Edward McCarty III on June 28, 2013 and reported in the New York Law Journal on August 23, 2013, entitled Will of Janet Soluri, the Court denied a request for documents dated outside of the above 3 year/2 year parameter since special circumstances were not shown to exist.

The discovery process and Court proceedings involved in a Contested Probate matter can be very complex and require the advice of estate attorneys who are familiar with the Surrogate’s Court and Estate Litigation. Examining witnesses to a Will, preparing and filing Will Objections and analyzing the facts and issues in these proceedings in order to protect the rights of disinherited heirs is typically challenging.

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A Last Will in New York must be created in accordance with the New York statutes. The Estates, Powers and Trusts Law (“EPTL”) contains numerous provisions concerning the fundamental aspects of and requirements for a valid Will. For instance, EPTL 3-1.1 states that anyone over 18 years old having sound mind and memory can dispose of their personal and real property by Will. Probably the most important provisions regarding Wills are contained in EPTL 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements”. The New York Probate Lawyer Blog has discussed this section of the law in previous posts. EPTL 3-2.1 states the numerous requirements that a Will must meet in order for it to be valid. Among the stated items is that the Will must be signed at the end by the testator, and that there must be at least two attesting witnesses. While the statute contains many more execution requirements, a signed writing with witnesses is fundamental to the validity of a Will in New York.

Estate litigation in the Surrogate’s Courts often occurs when there is a dispute as to whether a Will was properly executed. One of the grounds upon which to Contest a Will is lack of due execution. For example, someone objecting to a Will may claim that it was signed by a testator but not validly witnessed because the witnesses did not see the testator sign the Will or the testator did not acknowledge his signature to the witness. Sometimes there are questions as to whether the Will is genuine and if the document was actually signed by the testator. As can be imagined, there are a vast majority of Will Contest Litigations concerning the validity of Wills.

New York law tends to be very strict regarding the enforcement of the statutory requirements. In many instances, a prospective beneficiary may be without recourse where a testator prepares a Last Will to be signed or tells a beneficiary that a Will leaves a certain bequest and, as it turns out, the testator never signs a Will containing these provisions. Despite, the testator’s possible intentions, in New York, the failure to comply with statutory rules typically prevents the Probate of the purported or drafted Will. In this regard it is somewhat easy to understand that the strict nature of the law is to present unsigned, unwitnessed or other defective papers from being given validly where the testator is no longer alive to confirm that the defective documents actually express his final intentions.

Notwithstanding the specific requirements of the New York Probate Law, there are recent instances in other jurisdictions where unsigned documents have been admitted to probate and allowed to determine the disposition of a decedent’s estate. In a recent post by Cameron Stuart on April 6, 2013 in, it was reported that Irvin Rockman, a former Melbourne, Australia Lord Mayor, attempted to sign a new Will but could not do so due to the seriousness of his illness. Although he died a few days later, the Australian court upheld the validity of the unsigned final Will finding from the evidence that it expressed Rockman’s intent.

Closer to home, a New Jersey Appellate Court approved the probate of an unsigned copy of a paper intended as a Will. In the Estate of Richard D. Erlich, 427 N.J. Super.64 (2012), the Court essentially determined that the unsigned paper was sufficiently formal and expressed the decedent’s intent and was therefore valid.

Despite these recent examples, the vast majority of Wills admitted to Probate are properly prepared, signed and witnessed. New York Estate Lawyers typically counsel their clients regarding their Estate Plan and supervise the preparation and execution of the client’s Last Will and other estate plan documents such as Living Trusts and Advance Directives. When the time comes to Probate a Will, a professionally prepared, signed and witnessed Will can make the Probate Petition Process and Surrogate’s Court filing more efficient and expeditious and less prone to a contest by unhappy family members.

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New York Estate Planning Lawyers are familiar with the fundamentals that form a good estate plan. Preparing and executing a Last Will and Testament provides a written declaration as to the disposition of a person’s probate estate. A Will can be made up of various provisions some of which can give specific assets or amounts to named beneficiaries while other parts of the Will may contain bequests in percentages for a number of individuals. Additionally, a Last Will might have clauses that create trusts for minors or provide estate tax planning that might result in many dollars of savings.

In addition to a Last Will, other estate planning documents include a Living Will, Health Care Proxy, Power of Attorney and Living Trusts. All of these testamentary and advance directive papers allow a person to carefully plan their estate and future care by implementing a roadmap reflecting their intentions and naming the Executors, Trustees and Agents who will carry out their instructions.

In many instances, however, a person’s attempt to plan their estate may be met with contests and controversy. It is not uncommon for a testator to disinherit a close relative such as a child. It was recently reported in on March 25, 2013 by Joann Scheffler that the famous hair stylist, Vidal Sassoon, disinherited one of his sons. While Vidal Sassoon died in Los Angeles, New York allows a person to completely disinherit a child or anyone else except that a surviving spouse has a right under Estates, Powers and Trusts Law Section 5-1.1-A to elect to take a share of a decedent’s estate. Many times when a person who is a distribute (next of kin), such as a child, is disinherited, the result is a contested estate or a Will contest with claims of undue influence or lack of testamentary capacity. A solidly prepared and executed Last Will and estate planning papers are imperative to defeat attacks by disgruntled relatives who expected but did not receive a large inheritance.

The desire to control the disposition of estate or trust assets can sometimes lead to rather extreme actions. A Florida multi-millionaire, John Goodman, recently adopted his 42 year old girlfriend. It appears that Mr. Goodman had been convicted of drunken driving and was facing a prison sentence and civil damages. By adopting his girlfriend it appears that Mr. Goodman would allow her to receive a large share of his trust fund that would have gone to his two other children. In the article by Beth Stebner that appeared in Mail Online on March 28, 2013, it was reported that the children had contested the adoption and that an Appeals Court in Florida voided the adoption as fraudulent and having no purpose.

An even more extreme example of an attempt to control an estate distribution was reported in The Northern Echo on March 27, 2013. It seems that a man who was the sole beneficiary under his parents’ Will sought to accelerate his inheritance by first failing to kill his mother and father in a fake road accident and then succeeding in having them die after he shot them in their home. In New York, a person who murders another to receive an inheritance is not allowed by the Courts to profit from their wrongdoing and they are disqualified from receiving their ill gotten gains.

While the above examples of actions to control an inheritance are not common, the important point is that an individual concerned with ensuring the proper disposition of his estate should obtain advice regarding New York Estate Planning. There is really no substitute for preparing an appropriate Will and other planning papers to minimize the likelihood of contests and controversy over an inheritance.

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Estate litigation in New York can involve many types of issues. One area of dispute often concerns the rights various individuals may have in a decedent’s Estate or Trust. For example, the New York Probate Lawyer Blog has discussed in previous posts issues concerning the determination of a decedent’s next of kin or distributees. Kinship Hearings may be required by a Court to decide these issues which often relate to relatives such as cousins or more distant relatives whose relationship may be difficult to establish.

Persons interested in an estate may sometimes challenge the status of a surviving spouse. Questions may arise as to whether a marriage or divorce occurred, particularly where such proceedings occur in a foreign country and record keeping may be poor and valid proof of marriage and divorce proceedings may be difficult to obtain.

Litigation in estates may also arise where a person is either adopted by a decedent or where the decedent gave a child up for adoption and surrendered his parental rights. New York Estates, Powers and Trusts Law Section 2-1.3(a) provides that adopted children have the same inheritance rights as natural children. The statute, however, allows a person to avoid this result by expressing “a contrary intention”. Thus, a person who prepares a Last Will or Trust can specifically exclude adopted children, or any other child for that matter, since there is no requirement in New York preventing a person from completely disinheriting a child, natural or otherwise.

In a sort of reverse situation where a parent gives up a child for adoption, New York Domestic Relations Law 117(b) provides, generally, that after an adoption is complete the adoptive child loses his rights of inheritance from his birth parents. Thus, except in certain specific instances, the adoptive child no longer will have any statutory inheritance rights with regard to the family of the biological parents. While these rules may appear on their face to be able to be applied without much confusion, the dynamics of family interaction and monetary considerations often create complicated issues for the Surrogate’s Courts to decide.

An interesting example of the interaction of the New York adoptive rights statutes was recently presented in the Estate of John Svenningsen, which was decided by the New York Appellate Division, Second Department on February 6, 2013. and reported in the New York Law Journal on February 8, 2013. In Svenningsen, the decedent (“John”) and his wife “Christine” adopted a child from China about one year before John died. The couple then commenced proceedings to formalize the adoption in Family Court, Westchester County and these proceedings were finalized after John died. John and Christine had other natural children. The documents that were involved in the Court dispute concerned various Trusts and John’s Last Will. The Will was probated after John died and the adopted daughter (“Emily”) was identified in the Probate Petition by Christine as one of John’s children.

More than 7 years after the adoption and six years after the Will was admitted to probate, Christine surrendered her parental rights to Emily who was then adopted by another couple. When Emily’s new parents discovered by searching court records that John’s estate was valued at more than $250 million dollars, they sought an accounting from John’s estate Executors and Trustees. The fiduciaries, however, refused to provide an accounting and claimed that Emily had lost her rights to inherit under John’s Trusts and Estate pursuant to DRL 117 due to her adoption out of John’s family. Both the Surrogate and the Appellate Court found though that Emily’s right to benefit from John’s Estate and Trusts were not lost by her adoption and that the fiduciaries were required to provide her with an accounting of her share of the Estate and Trust funds.

One interesting aspect of this case is that Emily’s new adoptive parents were able to discover the large amount of funds available in John’s estate by researching the Court records. There are many cases in the Surrogate’s Court concerning Probate, Administration and Accounting proceedings where I have located valuable information to benefit a client by searching the Court records.

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The New York Probate Lawyer Blog has posted many items concerning Estate Litigation. Litigation in New York Estates in common in the context of a Will Contest where a distributee (next of kin) such as a child is either completely excluded from the Will or left a bequest that is less than expected. Other typical situations are where a Will disposes of an estate to unrelated third parties such as a caretaker or friend. Allegations concerning undue influence, lack of testamentary capacity or duress usually result from such occurrences. Where a Will is contested, the focus is not only on the decedent but also on the witnesses to the Will and the attorney draftsperson who can testify and shed light on the circumstances surrounding the creation of the estate plan and the Will execution process.

However, not all estate disputes concern bequests that emanate from a Will after death. Many times controversy surrounds inter vivos or lifetime gifts that are made by a decedent. Such gifts can be subject to attack based upon similar grounds of lack of capacity. Often, the lifetime gifts appear inconsistent with, and actually can destroy, an estate plan that the decedent set forth in a Last Will or Living Trust document.

Gift litigation can take place in different forms. Sometimes, prior to a person’s death, an Article 81 Guardianship proceeding may be commenced due to a person’s incapacity. Section 81.29 of the New York Mental Hygiene Law gives the Court the power to revoke transfers that were made by an incapacitated person. In situations that come to light after a decedent’s death, an estate fiduciary, such as Executor or Administrator, can seek to recover assets for the estate where the life-time transfer appears to be improper. Proceedings for the turn-over of assets are provided in New York Surrogate’s Court Procedure Act Section 2103.

An estate fiduciary has the responsibility to attempt to marshal and collect all of the assets that rightfully belong to the decedent. Demonstrating that a person lacked the capacity to make a certain lifetime gift is not easy. An example of the difficulty in prevailing with such a claim is shown in the recent case of Estate of Magda Cordell McHale, decided by Surrogate Barbara Howe of Erie County on September 28, 2012 and reported in the New York Law Journal on October 9, 2012.

In McHale, a beneficiary under the decedent’s Last Will objected to the fiduciary accounting due to the failure to include certain charitable gifts the decedent made shortly before her death. After a hearing the Court concluded that the decedent had both the “intent” and “capacity” to make the pre-death gift.

Cases such as McHale present many difficult issues involving estate settlement and fiduciary responsibility. I have represented individual family members who have felt that such pre-death gifts were the result of undue influence. I have similarly defended individuals who have received pre-death gifts where assertions have been made that such gifts were the result of undue influence. In all cases, it is important to review the history of the decedent, the expressions of intent that may have been made and the relationships been the various parties in order to have a full and clear picture about the proprietary of the disputed transfer.

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The fundamental goal of an Executor or Guardian administering the estate of a decedent or Guardianship funds is to collect and protect assets and distribute them on behalf of the appropriate beneficiary. The determination of the identity and value of assets is often very complicated. To begin with, assets may be unknown to the Executor, Administrator or Guardian and they must search through financial records such as tax returns and bank statements to discover necessary information. It is not usual for a fiduciary to discover an asset by finding a bank or brokerage statement that is delivered in the mail.

Not only is discovering assets a challenge during estate settlement, the ownership of the asset may be in dispute. For example, a decedent or an incapacitated person may be the owner of a small business with business partners. If the business records were not properly maintained a dispute may arise as to the percentage or share of the business that was owned by the decedent or incapacitated person. Disputes concerning the ownership of assets can have significant ramifications. First and foremost such ownership will directly affect the amounts that can be distributed to the beneficiary of the estate or Guardianship.

Also, whether an estate has a certain value will impact upon whether estate tax returns must be filed and the amount of estate taxes that must be paid. At present, a New York Estate Tax Return must filed if the value of an estate exceeds $1,000,000. The Federal Estate Tax filing requirement is $5,000,000. Additional estate tax issues such as a marital deduction may be impacted by the nature and extent of assets.

Queens Estate Lawyers, as well as estate lawyers throughout New York, work closely with their clients who are fiduciaries to ascertain and collect assets of an estate. The same holds true for New York Guardianship lawyers.

Estate litigation that generally occurs in the Surrogate’s Court may involve many issues regarding property and assets. A recent post in the New York Probate Lawyer Blog on August 24, 2012 discussed a case where the Last Will of Adam Yauch, a founding member of the Beastie Boys, faced probate and interpretation issues due to a handwritten addition to the Will.

Another recent case involving estate assets involves a dispute regarding rights claimed by heirs of one of the co-creators of the Superman character. As reported by Ted Johnson in on August 14, 2012, “Ruling Near in Superman Rights Battle”, the dispute between a nephew of the co-creator, who is also the estate executor and Warner Bros. is to be decided by a U.S. District Court Judge. While the controversy concerns the interpretation of a prior settlement agreement and copyright law, the outcome will have a tremendous impact due to the apparent value of the Superman promotional rights.

The best course is for individuals to ascertain all of the assets that may be part of their estate and to clarify and resolve all issues regarding ownership rights as part of their Estate Planning. As can be seen from the recent situations discussed above, this is not always accomplished so as to avoid estate contests and controversy.

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Clients sometimes consult a New York estate planning lawyer in order to investigate the possibility of “writing someone out” of a Will. In the eyes of the law, this process is called ‘disinheriting’ the person. Disinheriting essentially removes any rights or entitlements that a person may expect to receive upon the death of the testator. It is a right possessed exclusively by the testator and one that ordinarily may not be challenged. Sometimes challenges do occur in the form of a Will Contest or Contested Will where a distributee (i.e., next of kin) or other interested party may contend that the Will is invalid. As previously discussed in the New York Probate Lawyer Blog a Will may be contested on various grounds such as Undue Influence, Lack of Testamentary Capacity or Improper Execution.

The person drafting a Will may arrive at the decision to disinherit a relative or other interested person for any number of reasons. Some of the most common reasons to disinherit a person are: (1) the testator no longer maintains a relationship with the person; (2) the testator does not condone the life choices the person has made or is making; (3) the testator feels that the person has sufficient financial resources such that a testamentary gift would be inappropriate; or (4) the testator would rather bequeath the assets to another person to whom they had a closer relationship, or from whom the testator had received the bulk of his or her end-of-life care.

Whatever the reason, the decision to write someone out of a Will should not come lightly. Disinheriting a person often causes tremendous emotional and financial consequences, and can even make the possibility of a Will Contest more likely. After all, if someone’s assets are left, for example, to all of the surviving children except one, the excluded child is almost definitely going to feel hurt, saddened, and/or angry. The excluded child may claim that the others unduly influenced the parent to keep him or her out, which may lead to years of bitter disputes and expensive Estate Litigation.

New York Estate Lawyers are aware that all Wills, Trusts and Advance Directives must be explicit as to the terms and beneficiaries. These emotional and legal considerations are, in fact, so persuasive that when the beneficiaries of a Will do not include the testator’s spouse and/or children, New York courts sometimes find that the testator meant to have included the missing relative. This means that any document that excludes a close relative from the estate should contain clear, unambiguous language that cannot be interpreted any way other than to express the testator’s desire to have that person excluded. such language can facilitate the Probate and Estate Settlement process.

Moreover, local laws still allow certain relatives to collect a portion of the estate assets even if this language is present. For example, in New York, a surviving spouse is entitled to collect either one-third of the estate or $50,000.00, whichever is greater. This occurs even if the spouse is written out of the Will, so that the surviving spouse does not experience a significant financial burden on top of the loss of their loved one. Estates, Powers and Trusts Law (EPTL) section 5-1.1A provides extensive rules that allow a surviving spouse to take a share of a decedent’s estate (the “elective share”) even if he or she is otherwise disinherited.

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New York Estate Administration Attorneys are often confronted with questions as to whether a decedent was married at the time of death. The issue of marital status is important since a surviving spouse is a distributee (next of kin) under New York Estate Laws and is afforded certain rights in a decedent’s estate. These rights have been discussed in previous posts in the New York Probate Lawyer Blog including a spousal right of election (Estates, Powers and Trusts Law [EPTL] Section 5-1.1 A) and a spousal right to an intestate share of the estate (EPTL Section 4-1.1).

The determination as to a person being married at the time of death involves investigation as to whether there was a valid marriage and, if so, was the marriage terminated by a valid divorce.

New York Estate Litigation may be necessary to provide an answer to these inquiries. As a New York Trust and Estate Lawyer, I often need to investigate such issues by obtaining and examining relevant documents such as marriage certificates and divorce settlements and divorce decrees to advise clients as to the decedent’s marital status so that proper estate settlement can occur.

A recent case in the Richmond County Surrogate’s Court provides an example of the complicated facts that can be involved in determining marital status. In Estate of Daniel Kelly, decided by Surrogate Robert Gigante on June 18, 2012 and reported in the New York Law Journal on June 29, 2012, the decedent and his spouse entered into a divorce Separation and Settlement Agreement on October 16, 2008. On that same date they appeared in Court and the divorce judge granted the divorce. However, the decedent died on January 7, 2009 and the actual divorce judgment was not signed until March 25, 2009 relating back to the October 16, 2008 Court divorce decision. Based upon the above events, the Surrogate in Kelly found that the decedent was divorced at the time of his death.

As is common in many divorce situations, divorcing parties provide in their settlement or separation Agreements that each waives or relinquishes rights in the others’ assets and property including insurance policies and retirement benefits. Problems arise where, despite the waiver of rights, the name of the divorced spouse is not changed or deleted as a beneficiary on the insurance policy or retirement account. Surrogate’s Court litigation then becomes necessary to determine the rightful payee of the decedent’s benefits.

In Kelly, the decedent’s former spouse remained named as a beneficiary of his federal retirement benefits. However, the parties’ Separation and Settlement Agreement specifically provided that the divorced spouse waived all rights to these benefits. The Court, after reviewing the parties’ divorce agreement and their apparent intentions, determined that the surviving divorced spouse waived all interest in these benefits and that the retirement funds should be paid to the decedent’s estate.

Estate Administration can be very complex and involve the review and analysis of many types of papers concerning the decedent’s affairs such as deeds, business agreements and divorce papers. All of these documents can impact estate settlement, estate taxes and distribution of assets to estate beneficiaries. I have assisted executors and administrators for over 30 years with all aspects of estate administration and the review of various documents required for successful and efficient estate processing.

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