Consider Hiring Litigation Counsel For Your 1404 exam- Drafting Attorneys

The 1404 exam is often described by legal commentators as a classic fishing expedition. There is no doubt that the law affords a lot of latitude in favor of the examining party to allow a thorough and probing examination of the drafting attorney. A drafting attorney facing such an examination under oath in the courtroom and ordinarily, with the Surrogate Judge presiding should take the examination seriously.

Consider Retaining Counsel

The first consideration should be whether or not to engage estate litigation counsel. Most attorneys who are examined are excellent estate planners, who do wonderful work and see to it that the decedent’s intentions and instructions are carried out by a well drafted instrument. They are often highly skilled and knowledgeable about tax consequences, asset distribution, beneficiary rights and obligations of fiduciaries relating to planning an estate. However, ordinarily they do not possess litigation skills or experience. Many drafting attorneys work hard to ward off and avoid litigation, but in some instances it is simply unavoidable or known to be associated with some persons involved in the estate plan.

Competency Rule

Drafting attorneys caught up in estate litigation must consider Rule 1.1 requiring competency. The rule prohibits a lawyer from handling a matter which he knows he is not competent to handle. Further, the rule requires that lawyer to become associated with a lawyer who is competent to handle the matter. The rules are clear and leave no ambiguity. Estate planning and drafting attorneys are ordinarily highly competent to plan and draft estate instruments but not experienced or familiar with how to litigate the estate.

Format of Testimony

In considering whether to engage litigation counsel, the drafting attorney must immediately consider how to present the testimony and that of the subscribing witnesses in the absence of counsel handling the litigation. For example, while the law in New York allows the drafter to be sworn on the stand and to testify in a narrative fashion, often even experienced counsel will unintentionally miss required elements necessary for proving the will’s validity or the elements required to prove capacity in court.

The delivery of testimony in a narrative format can be effective in a simple case, but where the attorney client relationship was more extensive or multiple documents or wills are involved the narrative approach generally is not effective and can become a messy trap for the unwary.

Often the attorney who tries to do it all simply cannot handle the sheer volume of all the detailed required tasks associated with both testifying as a witness and handling the litigation. For instance, that attorney would be required to examine the subscribing witness, redirect examine that witness, testify in a narrative, be cross examined and then keep straight what points from the cross examination to cover on a redirect narrative. It is very difficult for any attorney to function as both an advocate and a witness in a client’s case.

Controlling Costs

The cost of litigation is an expense of the estate. It is not an expense of the attorney draftsperson. Experienced litigation attorneys will often readily agree to handle the litigation portion of the estate only. This benefits the client greatly. It allows the attorney who drafted the instrument to handle administration of the estate. This can keep costs down for the estate and permit an efficiency in the administration. It is often consistent with the decedent’s intention that his/her attorney handle the decedent’s estate.

Fending off the Attacks

In many cases the hearing and the potential objections can develop into an aggressive attack on the attorney’s written work product, professional skills, knowledge and efforts as a draftsperson responsible for proper execution of the will.

It is difficult for many attorneys to confront these intense challenges and attempt to withstand an attack as both a witness and advocate. In many of those cases the testimony, particularly the cross examination, can become very hostile. Some attorneys visibly react by coming across as a defensive or quarrelsome witness or worse, as an obstructionist hiding facts.

Some attorneys that represent objectants routinely move to disqualify the attorney drafter from the case, by asserting that the advocate witness rule (Rule 3.7) prohibits counsel from handling the testimony while remaining a witness in the case. Defending against a motion of this nature can chill the attorney client relationship between the drafting attorney and the will’s proponent/fiduciary.

An Interview with an Estate Litigation Attorney

Q. What is an Estate Litigation Attorney?

A. An estate litigation attorney handles disputes in court after a person passes away. Those disputes may concern the validity of a will or trust. They may concern allegations of theft from the deceased person or the estate. Or they may involve proceedings to discover information. These are just a few of the many disputes that arise.

Q. What are some of the daily activities of an Estate Litigation Attorney? 

A. This will depend on the type of dispute and the client involved. The daily tasks often involve preparing pleadings, court conferences, conducting depositions, preparing discovery demands and responses, document review, settlement talks, motion practice, hearings, and trials.


Q. In which courts do you normally work?

A. An estate litigation attorney practices in Surrogate’s Court. Each county has its own court. These are often located in a large building or complex with other courts, such as the Supreme Court. The county for any given case will depend on the residence of the deceased person. We spend the most time in Surrogate’s Court in Albany, Saratoga, Rensselaer, and Schenectady.


Q. What can you do for an estate practitioner?

A. Often, the fiduciary of the estate will ask the drafting attorney to perform services for the estate. This may include filing a petition for probate or other administrative matters. When a dispute in the litigation arises, however, the estate should consider using an estate litigation attorney to assist in resolving the dispute. This may be for any number of reasons. The estate practitioner may be a material witness and unable to act as litigation counsel. Or he or she may have a busy practice or may be unfamiliar with litigation. Whatever the reason, we work closely with estate practitioners, handling the litigation matters (discovery, appearances, settlement talks, hearings, etc.), permitting them to focus on the estate administration aspects of the case.


Q. What can you do for someone who disagrees with the estate?

A. Yes, we also serve many persons who want to challenge the estate or defend against litigation brought by the estate against them. We can file objections or an answer on your behalf. We can obtain discovery and depose witnesses to ascertain facts. We can cross-examine witnesses and represent your interests during the hearing or trial. We can also defend you in litigation commenced by the estate against you to recover funds or other property. These are just some of the many ways we can assist you.


Q. How much does it cost?

A. The cost of each case varies depending on the nature of the litigation, the amount involved, and the anticipated time necessary to perform the services. We work with clients and can provide cost estimates and a breakdown of the anticipated services.

Why a Trust and Estate Litigation Lawyer is a Critical Part of Your Team.

1. You have a lawyer for your personal matters and perhaps for your business. Many people have strong relationships with excellent lawyers that they trust. Trusted advisors should be relied on to work with subspecialists in order to make certain that your rights are protected. In some instances, people may attack the fiduciary and his conduct. They claim that their inheritance was defeated due to a fiduciary breach of duty or mismanagement, and they may seek to deny the fiduciary earned commissions. Estate litigation attorneys will protect your rights, whether you are looking to defend or, alternatively, challenge the actions of the estate attorney and others involved in the decedent’s estate planning.
2. You want answers and perhaps not a fight. The law clearly allows for this approach and if you are not careful your efforts will be perceived incorrectly or as a fight. Beneficiaries and distributes have an absolute right to ask: Why? With the proper guidance answers can be obtained without a full-blown fight.
3. The decedent told you or the estate attorney that there would be problems. Problems often originate from individuals likely to complain, estranged relatives, family or friends, caregivers and sometimes even charities.
4. Your instinct that something is off or simply not right is often correct. Many clients cannot state with exact certainty what is wrong, but they know something is not right. For example, many clients are appointed as the Executor only to find that they are faced with attacks on the estate, hostile creditor claims or worse yet, a sibling who claims that the deceased parent deeded the family house in its entirety to that sibling before death.
5. You acted as the decedent’s power of attorney during her life. Now, on her death all of your hard work and faithful service is being unfairly scrutinized and criticized by people who were nowhere to be found during all of the times of decedent’s need.
6. The decedent’s power of attorney abused the power of attorney powers. Sadly, this unlawful misconduct is common and often gets past the survivors. In many cases the power of attorney is used to make gifts to oneself, family or others. In other cases, the power of attorney is used to take money out of decedent’s bank accounts in manners that abuse the trusting relationship. In some instances, the power of attorney is used to retitle assets from the name of the decedent into the power of attorney’s name alone.
7. The estate attorney is called upon to testify. The law in New York allows persons who may object to a will to require the attorney draftsperson and the subscribing witnesses, as well as the nominated executor to testify under oath in the courtroom with the Surrogate Judge present as to how the will came about and the circumstances of the signing. Another instance where this arises is where the estate seems to be far along and wrapping up and a financial accounting of the affairs of the estate is being scrutinized. While the first witness in court is often the fiduciary, the lawyer handling the estate may be examined as a witness with respect to her actions and her fees. An estate litigation attorney can help prepare the estate attorney and other witnesses to testify and present a strong case.
8. There was a divorce. Your parents divorced many years ago and that matter has long since been closed. The decedent, your father or mother, remarried a person with another family, i.e., often their children. On your father’s death, his surviving spouse asserts that there is nothing in the estate for you. In fact, you are provided with a copy of his will and it states that everything passes to her – his loving surviving spouse. On its face the answer sounds plausible, however, the trap for the unwary is failing to ask what your father’s separation agreement or divorce decree may say with respect to how he may have provided for you on his death in connection with his divorce from your mother.
9. The gross estate simply seems too small. You may be the fiduciary tasked with handling the estate and you sense that assets may be missing or undisclosed. It seems that bank statements may be missing or that there are actually items of property that you believed the decedent to own that are in the possession of others. A legal action or lawsuit can be commenced to recover that property or to discover the true facts as to the missing assets.
10. Life and insurance and other assets with designated beneficiaries. A very common approach to planning the modern estate is to utilize life insurance and designate beneficiaries for it as well as for 401k and other retirement assets and accounts. The beneficiary designation transactions generally require a higher degree of capacity on the part of the decedent. The standards are not simply those that relate to wills, but rather are what are commonly referred to as the contract standard, rather than testamentary standard. Sometimes this legal standard makes it more difficult to defend the validity of the transactions. Sometimes signatures are unwitnessed and forged. In those cases, the beneficiary designations are highly susceptible to challenge and more difficult to defend.