Disinheritance Problem Solved – Part 2

Solution

New York law permits a person making her estate plan to cut a pre probate deal with the person who will be cut out.  More specifically, this includes before the testator’s or parent’s death or lack of capacity.  This means that the person to be cut out can be dealt with directly by the testator or parent during the testator’s or parent’s life and on the testator’s own terms.  There are many benefits to this.  First, the person being cut out is required to deal directly with the testator or parent during the testator’s life – rather than fighting with siblings after the testator has died.  The strategy can reduce family strife after the decedent has died.  The commonly asked “why question” in connection with the testator’s estate plan, is answered during the testator’s life, i.e. by the parent, rather than in the court room in the context of a 1404 hearing.  There is immediacy.  In fact, the person cut out of the estate receives his funds (the carrot absent the string) first and before all those sharing in the estate.  There is certainty.  Attorney’s fees and the substantial costs of litigation are curtailed or eliminated. 

Mrs. Cook and Her Niece

Here is how the rule evolved from the thoughtful estate planning efforts of a widow.  In the early 1920s the Court of Appeals decided In re Cook’s Will 244 NY 63, a case which arose in Washington County.  Mrs. Cook was an elderly widow of wealth and decided to make a will disposing of her property to charities.  Her only heirs and next of kin were a sister, a niece and two nephews.  They all were all adults and not close with her.  In preparing for the disposition of her property, she wrote to her niece as follows:

Dear Katherine:

In making my will, it was my intention to bequeath you something.  After consideration, it

occurred to me that it will give me greater pleasure to give it now, and you to receive it now, and in doing so I am asking you if you would be willing to sign and receipt an agreement, agreeing that in consideration of this gift now, that you agree that you will not at any time contest or join with others in contesting my will.  The same conditions apply to your (2) brothers, who must also sign such an agreement. *** Kindly let me have full names and addresses of your brothers.

Her niece’s reply indicated that she was glad to receive the gift from her Aunt as her brothers and herself were trying to secure a home for their respective families.  Having failed to state, however, anything about contesting the will, another letter followed on February 8, 1924, written by G.E Knowlton, on behalf of Mrs. Cook, where he stated:

Dear Mrs. Russell:

Mrs. Robert H. Cook has handed me your letter of January 21st in which you state that you would appreciate a gift from her, but you do not say that you will refrain from contesting her will.

May I ask you to be good enough to advise Mrs. Cook as to your attitude in this matter.

A few days afterwards her niece replied:

Dear Aunt Julia:

I am sorry that I omitted to state in my letter that I would agree to the agreements mentioned in your letter. I both appreciate and agree to those conditions.

Thereafter, her niece signed and sent to Mrs. Cook the following agreement:

Dated March 5, 1924.

Received from: Francis Julia Cook

….Dollars

As a gift from her and in consideration of this gift, I agree that I will not at any time contest or join with others in contesting her Will.

The court was confronted with the question:  Having received the advances or gifts under the circumstances, can these heirs and next of kin of Mrs. Cook now contest her will? 

Despite these writings they tried to do so. They alleged that Mrs. Cook was incompetent, and that her will was procured by fraud and undue influence.  In upholding the validity of the agreements not to contest Mrs. Cook’s will, the court held that agreements not to contest another’s will are not void as against public policy.  Further, the court stated that agreements made between heirs and next of kin after the death of the decedent have always been found valid when made in good faith.  Agreements made before the death of the testator regarding the future disposition to be made of the estate are akin to those implied in the taking of a legacy bequeathed upon the condition stated in the will that no contest shall be made.

The rule in New York, is that where a distributee in consideration of a gift from the family member (testator/decedent) during her lifetime, has agreed not to challenge the decedent’s will, he shall not file objections.  The central element of the rule is that by contracting with the decedent for the present day benefit, the distributee divests himself of legal standing to challenge the will.

The effective solution is an arrangement structured as a deal or a contract.  The deal is that the distributee receives present day benefit (payment) in exchange for the agreement not to the challenge the parent’s will on death.  The problem person or child is required to contract away, relinquish and waive the right to challenge the decedent’s will.  The approach is well founded in New York law such that it must be considered as an alternative to years of potential litigation between the disinherited distributee and the estate after the testator has died.

There are some important steps to be followed to avoid litigation.  The proper approach is significant because the ultimate arbiter of the validity of the agreement will be the Surrogate Judge after the testator has died and the distributee attempts to get out of the agreement.  It is recommended that experienced and strong lawyers be involved in the process.  To this end, it is important to have the distributee represented by his own lawyers.  He should not be represented by the decedent’s lawyers.  If money is an issue, the gift can include payment of the distributee’s legal fees under certain circumstances.  The process should be considered as one involving the negotiation of a contract or in the planning context, similar to negotiation of a waiver of a spousal right of election.

As was the case for Mrs. Cook, when done correctly a pre mortum and pre probate gift to a problem person or child can be efficacious and highly successful strategy to avoid estate litigation.

Disinheritance Problem- Solved

Intentions to disinherit in connection with the making of wills are not uncommon.  Disinheritance circumstances give rise to acrimony and much litigation.  In many cases, children and family members often find themselves dealing with these circumstances.

Clients planning their estates often are confounded with how to deal with a formed intention to cut someone out of sharing in the estate.  Putting feelings and emotions aside, it is a matter of carrying out the decedent’s intentions, money and fairness. 

Common Ineffective Solution Attempt

In estate cases in New York, many challenged estate plans contain an in terrorem clause with an additional provision stating that the particular person is cut out or left nothing.  It is not uncommon for a will to make specific reference to the fact that the decedent specifically considered and deliberately intended to leave the person out of the plan.  In some instances, no reasons are stated.  In other cases, no mention of the person is made. 

There are other cases where the will expressly states that the person cut out will not benefit from the will and advances the intended double whammy threat that if the person cut out challenges the will, that person is automatically cut out.  The client drawing the will feels satisfied.

This is a failing strategy and plan.  Coupling the in terrorem clause with a provision that the ditributee, problem person or child receives nothing sets up a guaranteed challenge to the will.   The double whammy threat is empty, meaningless and ineffectual.  In fact, in practice the attempted solution often invites litigation and has no estate litigation deterrent effect whatsoever.

Better Solution Attempt

Quite simply and more properly the in terrorem clause should actually be coupled with a sufficient and enticing incentive.  Think of the cart driver dangling the carrot in front of the mule on the stick extended in front of the animal’s mouth.  For illustration, include in the will an in terrorem clause with a specific bequest of say $20,000 for the problem person.  The incentive of a specific bequest in the plan coupled with the potential for enforcement of the in terrorem clause creates significant risk of forfeiture of the bequeathed sum.  The particular sum in each case must be thoughtfully determined, and often it is not or circumstances change.

This solution is entirely acceptable but in the context of litigation, can be a failure. The carrot and stick approach still subjects the plan to risk and chance – up in the air for future lawsuits.  There is a better approach, which will be discussed in the next blog post.

Summary Judgment in a Contested Accounting Proceeding- Part II

As explained in our prior post from May, “Summary Judgment in a Contested Accounting Proceeding – Disposing of Meritless Objections“, the high standard imposed on a fiduciary creates a low burden for a party to contest the fiduciary’s accounting. Thankfully, the fiduciary may move for summary judgment to dismiss objections that ultimately turn out to be meritless.

But what happens when the opposing party questions the reasonableness of a fiduciary’s conduct. Is the appropriate exercise of the fiduciary’s discretionary power always a question of fact necessitating a hearing? The simple answer is no.

The general rule in New York is that a court will not interfere with the exercise of a trustee’s discretion except in limited circumstances (see e.g. Matter of Hilton, 174 App Div 193 [1st Dept 1916]; Matter of Mitchell’s Will, 30 Misc 2d 781 [Sur Ct, Kings County 1961]; Matter of Irrevocable, 2005 NY Misc LEXIS 3899 [Sur Ct, New York County Dec. 14, 2005]). A party therefore may generally not advocate that the court should substitute its judgment for that of the Trustee’s. This is not the appropriate standard (see Matter of Hilton, 174 App Div at 193; Restatement [Third] of Trusts § 50). Rather, the party opposing summary judgment should tender evidence of fraud, bad faith, or an abuse of discretion to justify a hearing (see e.g. Matter of Hilton, 174 App Div 193 [1st Dept 1916]; Matter of Mitchell’s Will, 30 Misc 2d 781 [Sur Ct, Kings County 1961]; Matter of Irrevocable, 2005 NY Misc LEXIS 3899 [Sur Ct, New York County Dec. 14, 2005]).

In Matter of Hilton, 174 App Div 193 (1st Dept 1916), for example, the appellate court reversed an order of the court below for an increase in annual trust payments to the beneficiary, based on the lack of any evidence demonstrating an abuse of discretion (see also Matter of Irrevocable, 2005 NY Misc LEXIS 3899 [Sur Ct, New York County Dec. 14, 2005]; Restatement [Third] of Trusts § 50). Similarly, Matter of Mitchell’s Will, 30 Misc 2d 781 (Sur Ct, Kings County 1961), the court declined to set the matter down for a hearing unless the Objectant submitted proof that “the trustees’ action amounts to an abuse of discretion, bad faith, arbitrary action or fraud.”

In short, there are numerous cases granting summary judgment in favor of the fiduciary in accounting proceedings. This is especially true where the trust agreement provides the Trustee with discretion and there is no evidence of any abuse of that discretion.

Excluding A Parent From Sharing In A Child’s Estate- Back Again!

In our first writing on this subject we committed to following Matter of Martirano, 2019 NY App Div LEXIS 3716 (3d Dept 2019), if it made its way to the Appellate Division. In a nine page Memorandum and Order dated May 9, 2019, the Third Department reversed the Surrogate. (Matter of Martirano, 2019 NY App Div LEXIS 3716 [3d Dept 2019]).

The Appellate Division revisited the Surrogate’s determination which granted the mother’s motion for summary judgment dismissing her son Michael’s petition and his objections to probate of her son Christopher’s will. We will not recite the facts again, except to the extent that the Appellate Division has mentioned more facts than what we learned from the decision below.

The will in question was executed three days before the decedent’s death. He left the bulk of his estate to Nikko Cruz and Dennis Helliwell, his friends and employees of his cleaning business. Unfortunately for them, they also witnessed the will and in a prior determination the Surrogate determined that the dispositions to them were void and that the dispositions were to pass through intestacy.

We also learn from the Appellate Division’s order that decedent’s will named Helliwell as executor; however due to a prior felony conviction, he was disqualified and Cruz was appointed as the named alternate executor. Later the court considered an application by decedent’s brother to revoke preliminary letters granted to Cruz, which, after a hearing, resulted in the court imposing restrictions on Cruz’s authority.

In the instant posture, the Surrogate had pending a motion for summary judgment made by the decedent’s mother seeking to dismiss the probate petition filed by her son Michael, together with a cross motion for summary judgment made by her son Michael on his petition. The determination was that the son failed to meet his burden demonstrating that their mother had abandoned and/or failed to provide for the decedent, and the court granted the mother’s motion dismissing the son’s petition. The son appealed.

Although the Appellate Division found no error with the ruling of the Surrogate’s Court as to the admissibility of the Catholic Charities records, it reversed the Surrogate finding that neither the mother nor the brother met their prima facie burden of establishing, as a matter of law, their entitlement to summary judgment on the issue of whether the mother had voluntarily abandoned decedent or failed to provide for him.

On the ground of alleged abandonment, the court found that although the mother claimed that she never intended to voluntarily abandon decedent, the court found that there is a triable issue of fact as to whether her efforts to maintain a relationship with decedent during his childhood were sufficient to fulfill the natural and legal obligations of training, care and guidance owed by a parent to a child.

On the ground of alleged lack of financial support, the court likewise found a question of fact as to whether the mother had the financial means available to provide for the decedent and failed to do so.

What struck us on reading the determination of the Surrogate below was that the parent had prevailed where many parents in these cases do not. Why did the Appellate Division reverse?

First, on the issue of abandonment, it is not enough for the parent to simply allege an intention never to voluntarily abandon the decedent. The stated intention must be corroborated by competent proof. The parent must set forth her efforts to maintain the relationship with the decedent in detail, with factual specificity, and offer precise dates. Here, the mother’s showing was criticized by the Appellate Division for her inability to aver specific facts. For example, the court found numerous inconsistencies in her deposition and an affidavit as to dates. Further, the court was troubled by her inability to state how many times she had visited the decedent over a period of about 8 years. As well, the court did not favor her inability to provide details as to the extent and quality of her visitations. Additionally, it found contradictions in her averments of visitations that were not corroborated by her son.

We see this as instructional. A parent in this position would be well advised to pursue production of telephone records, bills, credit card statements, travel tickets and perhaps available receipts for expenses. Documentary evidence that demonstrates that an effort, even if modest or small by general standards will help. If the child intermittently resides with the parent, records pertinent to health, school or childcare could be produced. Records from foster care or an agency can help too. Another avenue toward developing this proof would be production of affidavits from other witnesses corroborating interaction between the parent and child. Where the parent has poor or no records, counsel should immediately initiate third party discovery utilizing subpoenas and depositions in order to assemble the required proof either to move or survive a motion for summary judgment.

The court found a question of fact on the issue of financial support as well. The deficiency with her proof on the motion was that she failed to put sufficient evidence into the record with respect to the “status of her finances”. Apparently, she affirmatively demonstrated to the court that she had given birth to four children before the age of 21 and received public assistance for a time. Perhaps she mistakenly concluded that this proof was sufficient and that the court would simply presume her inability if she characterized her position as impoverished. It appears that in her deposition she conceded that while decedent was in foster care for 14 years, she did not provide for him other than with unspecified cash gifts. She also conceded that had she obtained custody of him she would have been able to provide for him because “[they] always made due”. The court seemed troubled more by the fact that she offered no evidence of her employment or ability to work coupled with an admitted lack of public assistance for a period of time where her husband was employed and they adequately provide for their other children and covered other expenses including travel costs to visit family.

Clearly, the Appellate Division rejected the characterization of finances approach here. The decision makes apparent that in order to succeed the parent is well advised to lay out her financial condition as if under a microscope. It is not sufficient to address income or expenses alone. The parent had better offer competent proof demonstrating income, expenses, and assets and address financial opportunities or abilities with detail. Clearly the court is examining the alleged lack of financial means at an overall level as well as in particular with respect to the individual parent’s own personal circumstances.

Summary Judgment in a Contested Accounting Proceeding – Disposing of Meritless Objections.

Courts often use the term “punctilio of honor” to describe the high level of care and attention required of a fiduciary. The fiduciary must always act cautiously and carefully. But even the most careful fiduciary may still encounter an objection to her actions. There may be a disgruntled family member looking to harass the fiduciary or a party looking to squeeze the estate for some extra cash. Whatever the motive behind the objection, the “punctilio of honor” standard creates a low burden for a party to contest the account. Thankfully, the fiduciary may move for summary judgment to dismiss meritless objections in a contested accounting proceeding.

The summary judgment standard is the same as in any other case. The standard is found in CPLR 3212 and outlined in Zuckerman. First, the fiduciary must establish her defense sufficiently to warrant the court as a matter of law to direct judgment in her favor, and she must do so by tendering evidentiary proof in admissible form (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If the fiduciary meets this burden, the burden shifts to the opposing party to show facts sufficient to require a trial of any issue of fact (see CPLR 3212 [b]; see Zuckerman, 49 NY2d at 562).

In terms of practice, the fiduciary satisfies her initial burden by showing that the account is complete and accurate (see Matter of Assimakopoulos, 2017 NY Slip Op 32821[U] [Sur Ct, New York County 2017]). This is often done by submitting the account with an affidavit attesting to its accuracy (id.; see Estate of Curtis, 16 AD3d 725 [3d Dept 2005]). The fiduciary should therefore submit the pleadings, the account, and the affidavit in support of the account. To avoid any doubt, the fiduciary should also submit additional affidavits addressing each specific objection to the account and tender sworn testimony and other exhibits in support of her position. This will provide the fiduciary with the best chance of success on the motion.

If the fiduciary meets her initial burden, the objectant will have to tender admissible evidence to establish that the amounts set forth in the account are inaccurate or incomplete (Estate of Curtis, 16 AD3d at 726; Matter of Assimakopoulos, 2017 NY Slip Op 32821[U] [Sur Ct, New York County 2017]). This procedure smokes out the weak objections from the strong ones and requires the objectant to prove that each objection is strong enough to justify conducting a trial.

As part of the motion strategy, the fiduciary should always serve the motion with enough notice to permit her to demand that answering papers be served at least a week before the return date. This will provide the fiduciary with a chance to review the answering papers and provide a reply. The fiduciary’s reply should highlight the lack of evidentiary support behind the objections and the golden rule set forth in CPLR 3212 and Zuckerman that “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” for an objectant to withstand dismissal (Zuckerman v City of New York, 49 NY 2d at 562).

Goodbye, objections. Goodbye.

How the “Sole Benefit” Rule Frustrates Supplemental Needs Trusts

Floyd Brown was charged with murder in 1993. Found incompetent to stand trial, he was sentenced to a psychiatric institution. In 2007, after fourteen years of confinement, he was exonerated. The appellate judge held that the lone piece of evidence, an elaborate six-page confession, was entirely too sophisticated for Mr. Brown to have dictated. Mr. Brown is intellectually disabled; he has an IQ of less than sixty and the mental capacity of a seven-year old child.  

Following his release, Mr. Brown was awarded approximately nine million dollars for his wrongful confinement. The net settlement was put into a supplemental needs trust (“SNT”), a special kind of trust available for people with disabilities which allows the beneficiary to exclude the trust corpus from asset calculation when applying or recertifying for means-tested government programs. The trust was meant to enhance his quality of life. Yet, with millions of dollars accruing interest, Mr. Brown’s simple request for a bouquet of flowers for his mother’s grave was denied, and he was living below the poverty line. 

Why? Because the flowers and other items Mr. Brown requested were not strictly for his benefit. According to the Social Security Administration’s (“SSA”) interpretation of the statutory language, which established SNTs, the trust must be established for the “sole benefit” of the beneficiary.

Likewise, until very recently, the SSA required that all trust disbursements be made for the “sole benefit” of the beneficiary. On April 30, 2018, the SSA relaxed its interpretation of the “sole benefit” rule in limited circumstances: trust disbursements made to third-parties for certain goods or services may now be for the “primary benefit” of the beneficiary.

However, outside of this limited exception, any other disbursement that violates this stringent rule ensures that the beneficiary will lose eligibility for essential government benefit programs, including Medicaid and Supplemental Security Income (“SSI”).

Although Mr. Brown had millions of dollars, losing eligibility for public benefits meant the trust would likely be expended in a short time to provide medical care and necessities, and to repay state and federal programs for previous expenditures related to his cost of care.

To download the rest of the article, click here.

By: ELIZABETH A. WEIKEL

Ms. Weikel is a JD Candidate at Quinnipiac University School of Law.  She will be an associate here at Tabner, Ryan, & Keniry LLP in the late summer.

Can a Felon Serve As A Fiduciary?

SCPA § 707 sets forth a list of ineligibles – those persons automatically disqualified from serving as a fiduciary in Surrogate’s Court. The statute is clear: felons cannot serve. It does not matter when the felony occurred, the age of the offender at the time, or the type of crime committed. All felons have been branded as unsuitable to manage the affairs of others in Surrogate’s Court.

Notwithstanding the prohibition, felons have argued that exceptions exist and that a certificate of relief from disabilities renders them eligible. This is based on language in the Correction Law providing that a certificate may relieve a felon from “any forfeiture or disability … automatically imposed by law by reason of [the] conviction” (Correction Law § 701 [1]). This statute generally trumps “any other provision of law” to prevent the “automatic forfeiture of any license…, permit, employment, or franchise, including the right to register for or vote at an election, or automatic forfeiture of any other right or privilege” (Correction Law § 701 [1]).

Despite this language, the Surrogate in Matter of McNair was not convinced. There, the court concluded that a certificate does not alter the mandate of SCPA 707. According to the court, the Correction Law “merely affords [a felon] the privilege of obtaining gainful employment” and that a felon “remains ineligible to hold public office, a position for which society’s trust is rightfully expected” (Matter of McNair, 16 Misc 3d 1102[A], 2007 NY Slip Op 51223[U] [Sur Ct, Dutchess County 2007]).

The conclusion reached in the McNair case appears to be a minority view. In Matter of Pullman, for example, the Second Department held that the certificate indeed removes the automatic disqualification (89 AD2d 608 [1982]; Matter of Bashwinger, 92 Misc 2d 716 [Sur Ct, Albany County 1978]; see also Matter of Smith, 14 Misc 3d 1232[A] [Sur Ct, Bronx County 2007]).

Even these cases, however, recognize that a court may still deny the appointment of a felon in its discretion, and that a certificate does not preclude the court from denying the appointment under SCPA 707 (1) (e), which renders persons ineligible for other reasons, including dishonesty (see Matter of Pullman, 89 AD2d at 608; see also Correction Law § 701 [3] [permitting any judicial authority from relying upon the conviction as the basis for the exercise of its discretionary power to suspend, revoke, refuse to issue or refuse to renew any license, permit or other authority or privilege]).

The Surrogate in the McNair case, for example, relied on SCPA 707 (1) (e) as an alternative basis for its decision. There, the felon was a former attorney who had been convicted of grand larceny in the third degree and disbarred. The court found persuasive that at least two prior estates had allegedly suffered financial losses as a result of the felon’s dishonesty.
Similarly, in the Pullman case, the court concluded that the felon was ineligible as a “dishonest” person despite the certificate. He was indebted to the estate, had exercised undue influence over the decedent and commingled trust funds in another case, and had no less than 13 unsatisfied judgments against him.

So, to answer the question posed above – yes, convicted felons may serve as fiduciaries, but only the honest ones.

How To Prepare For a 1404- Subscribing Witnesses

The order of the witnesses’ testimony is ordinarily not known prior to the hearing. Thus, the subscribing witness is well advised to prepare for his testimony in advance of the hearing. When the hearing is scheduled, the witness should be provided with a copy of the self-proving affidavit and a copy of the will. The witness should review them in advance. In many cases subscribing witnesses are called upon to testify first. Often this is based upon the expectation that the testimony will be brief in contrast with that of the supervising attorney. In any event, the witness should be told that he will not be permitted to remain in the courtroom and listen to other witnesses testify, as the court will likely exclude the subsequent witnesses from the courtroom.
Most witnesses participate willingly as volunteers, knowing it is part of the lawyer’s duty to the decedent. Most do not retain counsel, nor do they require counsel in the ordinary case. A noncooperative witness is subject to subpoena.
A meeting should be scheduled for the witness with counsel for the proponent who will conduct the examination in court. The witness should be told of the significance of the examination and the formality of the matter before the court. The witness should be prepared to review any interactions with the decedent prior to the will execution. Attention should be directed to whether the decedent’s condition changed over time. All interactions with the decedent leading up to the will signing should be reviewed. Equally, if the witness continued to have contact with the decedent after the signing that should be explored as well. The witness should be asked if he maintained any notes independent of the law firm files. Further, the witness should be asked at the outset if there are documents that would refresh his recollection. In most cases it makes sense to provide them to the witness as they are ordinarily in the law firm’s file, possession or control.
It is not uncommon for the meeting with the witness to start with the witness professing to have no recollection of the signing. While that can be problematic in some cases, often use of the law firm diary or calendar together with time and billing entries can successfully rehabilitate a lagging memory. The file can be reviewed to refresh a recollection.
The statutory elements of due execution of the will should be considered and reviewed in detail with the witness. Special attention should be afforded to what the witness may have observed relative to the supervising attorney’s custom and practice in will executions. Many lawyers utilize a checklist and often state the identical words at every will signing that they supervise. The witness’ recollection of this can be powerful in defeating a potential objection alleging lack of due execution. It is critical that the witness be prepared to cover the exact elements required by the statute in order to prove due execution.
After covering due execution of the will, the witness’ attention should be directed to the subject matter of other potential objections in the case. Capacity of the decedent must be covered in all cases, even if in a cursory manner. The witness should be asked to describe the decedent’s condition at the time of the signing. The witness should become prepared to answer in his own words why the decedent was of sound mind and memory at the time that the will was signed. That testimony can often be the crux of defeating an objection alleging lack of capacity.
Rather than allowing the witness to opt out with a series of answers professing not to know or remember, the witness should be directed to state what he observed – both with his eyes and his ears. Often the most probative facts establishing capacity seemingly are the most innocuous and inconsequential at the time (e.g. where the decedent planned to go next after the signing or where she had been, who accompanied her to the meeting, sports, politics, heath, or the weather to name a few). It can be very helpful to have the witness relate a conversation that he had with the witness at the time of the signing.
The most important aspect of the examination is that part pertaining to what happened and what was said at the time that the will was signed. In order to ward off potential objections that testimony ideally should be strong and fact specific. The witness must be asked questions to eliminate all doubts. The witness should be asked to describe why (the reasons) he concluded that the decedent was free from undue influence at the time of the signing. This can be done by addressing who was present and what was said. Where a relative, friend or other person not associated with the law firm is present, the witness must take care to state the facts on which he relied in concluding that the decedent was free of undue influence.
The potential objection based upon fraud is difficult to prove. In any event the witness should be prepared to testify that no person made any false statements on which it appeared the decedent relied causing him to sign the will.
It is advisable to prepare the witness for the cross examination by allaying concerns. For example, the witness should be told that many cross examiners inquire about the decedent’s clothing, attire, personal appearance, hygiene and similar subjects. The witness should be directed to do his best to patiently and truthfully answer all the questions. The witness should be directed to be polite and professional with the cross-examining attorney no matter how disrespectful or silly the questions may seem.
The witness should also be reminded that the cross examiner may seek to exploit divergence in recollections and testimony. Thus, while that effort may be unnerving for the witness, he should do his best based upon his recollection and the documents.
It is not uncommon for the cross examiner to try to cast doubt. The witness should be prepared for this approach and in the appropriate instance rebut the effort with facts.

Excluding a Parent From Sharing in a Child’s Estate Part 3- Abandonment

Is it fair for a parent to take an intestate share of a deceased child’s estate when that parent abandoned the child? The New York legislature says no. Pursuant to EPTL 4-1.4(a)(1), a parent is disqualified from taking an intestate share of a child’s estate on the ground of abandonment or nonsupport.

Originally, EPTL 4-1.4(a) provided that a parent who failed to provide for or abandoned the child while the child was under twenty-one years old, should be disqualified from receiving his/her distributive share in the deceased child’s estate unless the parental relationship and duties were resumed and continued until the death of the child. However, the statute has changed over the past twenty-five years.

The evolution of EPTL 4-1.4(a)(1) began when the statute was amended in 1993 to allow a biological parent to share in the estate where the parent could show that the parent had placed the child up for adoption, but that the adoption failed due to a fraud or deceit.

The provision was based on the infamous circumstances surrounding the case of Michele Launders, who hired attorney Joel Steinberg to arrange for the adoption of her unborn child, later named Lisa. Instead of arranging for a legal adoption, Steinberg kept the child for himself and his live-in companion, Hedda Nussbaum. Lisa suffered horrendous abuse and died as a result. After her death, her biological mother, Michele, attempted to pursue a wrongful death claim. But because Michele had abandoned Lisa, and Lisa had never been legal adopted by anyone else, there was no one with standing to bring the wrongful death suit. The 1993 amendment was intended to correct a perceived legislative injustice where the failure to support arose due to the act or omission of a third party, rather than the parent. After the amendment was adopted, Michele was permitted to proceed with the wrongful death suit.

In 2006, the statue was repealed and reenacted in an amended form. Additional grounds for disqualification were added. In instances where by an order a parent’s parental rights were terminated or suspended, the parent will be disqualified. The parent will also be disqualified if, in such a termination proceeding, (i) the Family Court suspended his or her parental rights pursuant to a suspended judgment; and (ii) the Surrogate’s Court subsequently finds, by a preponderance of the evidence, that the parent failed to comply with the Family Court order during the suspension period. The provision is intended to prevent an abusive parent from sharing in the intestate share of a child.

Although the legislature has not defined “abandonment” in the statute, courts apply common-law principles in determining what constitutes abandonment in cases involving EPTL. Courts have consistently held that abandonment includes the “voluntary failure of duty to care for and train a child and a failure to supervise and guide the child’s growth and development” (Matter of Wigfall, 20 Misc 3d 648 [2008]).

In a case where an adult daughter died tragically on September 11, 2011 in the World Trade Center attacks, the decedent’s siblings petitioned the court to disqualify their father from taking a distributive share in her estate on the grounds that their father had abandoned her (In re Estate of Gonzalez, 196 Misc 2d 984 [Sur Ct, Bronx County August 26, 2003]).

The decedent’s parents were never married and were unable to maintain a home for their three children. As a consequence, the two daughters were cared for by their maternal grandmother and great grandmother, and the son was taken in to foster care. The decedent’s mother pre-deceased her and the father relocated from New York to Florida when the decedent was seven years old.

The father provided no support for the children. He testified that he visited with the decedent occasionally when he visited New York or when she visited Florida, but he was unable to remember how many times they visited. He also testified that he had phone conversations with the decedent twice each year, yet she was the one who made the calls to him. The father was not even aware that the decedent worked in the World Trade Center until after her death.

In this case, the court framed the question of abandonment as whether the “father evinced an intent to forego his parental rights as manifested by his failure to visit with the decedent or to communicate with her when she was a child, although clearly able to do so.” The court held that insubstantial, infrequent visits or communications by the father with the child would not preclude a finding of abandonment, and that the father’s alleged long-distance love did not constitute the “natural and legal obligations of training, care and guidance owed by a parent to a child.” As a result, the court ruled that the father was not entitled to a distributive share of the decedent’s estate or to share in any wrongful death recovery on the grounds that he abandoned her.

However, in another case involving the World Trade Center attacks, a father was entitled to receive Workers’ Compensation death benefits even though, under EPTL 4-1.4, he had been disqualified as a distributee of the decedent’s estate based on abandonment (Crisman v Marsh & McLennan Cos., 6 AD 3d 899 [3d Dept 2004]).

Under Workers’ Compensation Law §16(4-b), surviving parents are entitled to a $50,000 death benefit. The administrator of the decedent’s estate successfully moved in Surrogate’s Court to disqualify the father as a distribute of decedent’s estate pursuant to EPTL 4-1.4 on the grounds of abandonment. Armed with a favorable decision from Surrogate’s Court, the decedent’s mother sought a review by the Workers’ Compensation Board to disqualify the decedent’s father from receiving half of the Workers’ Compensation death benefit based upon his abandonment of the decedent when the decedent was an infant. Nevertheless, the Board denied the mother’s request and directed $25,000 in death benefits to be paid to each parent.

Upon appeal to the Appellate Division, the Court held that the Workers’ Compensation statute provides that where an employee is not survived by a spouse, child or certain other disabled or dependent individuals, the employee’s death benefit shall be paid to the deceased’s surviving parents. The Court held that absent any qualifying or limiting language, the Workers’ Compensation Board did not have authority to carve out an exception and exclude a parent who abandons his child. The plain terms of the Workers’ Compensation Law unequivocally provide for payment of a death benefit to the decedent’s surviving parents.

Similarly, a father who abandoned his son was also entitled to life insurance proceeds (Estate of Benjamin Joseph Bortzfield, 2006 NY Misc LEXIS 9769 [Sur Ct, Suffolk County January 5, 2006]). In this case, the decedent died intestate and was survived by his parents. The decedent’s life was insured through his employer, but he failed to designate a beneficiary for the policy. The policy provided that where no beneficiary is designated, the benefits would be paid in equal shares to the surviving (1) spouse; (2) children; (3) parents; or (4) brothers and sisters. The decedent was unmarried and had no children, therefore his parents were the beneficiaries of the policy.

The insurance company commenced an action in the United States District Court for the Eastern District of New York to resolve the conflicting claims by the parents. The parties entered into a settlement agreement which provided that the mother would receive one-half of the policy amount and the other half would be held in a separate account until the Surrogate’s Court action concluded.

The decedent’s mother sought to have the father disqualified under EPTL 4-1.4 on the grounds that the father had abandoned their son. The policy did not define or qualify the term “parents,” so the Surrogate’s Court construed the term using its “usual and commonly understood meaning.” As such, the Court held that even a father who abandoned his child was still a parent. The Court ruled in favor of the father and awarded him his share in the life insurance proceeds.

The bottom line here is that, although a parent can be disqualified from inheriting a deceased child’s estate on the grounds of abandonment, he/she may still inherit Workers’ Compensation death benefits and life insurance proceeds. These decisions turn on highly fact specific analysis and often detailed factual evidence submitted by both sides. Because of this, practitioners and parties are well advised to prepare for an adversarial evidentiary hearing at the outset.

Contributed by Jacque K. Vincent

Excluding a Parent From Sharing in a Child’s Estate Part 2- Failure to Support

Under EPTL 4-1.4(a)(1), a parent is disqualified from inheriting from a child who the parent either abandoned or failed to support during the child’s lifetime.

Failure to support and abandonment are separate and distinct grounds. Proof of either will cause the parent to be disqualified under EPTL § 4-1.4(a)(1) unless the parent-child relationship is resumed before the death of the child. The party seeking disqualification must prove that the failure to support the child or abandonment was a voluntary or deliberate act. The burden of proof is on the party asserting disqualification. Neither “failure to support” nor “abandonment” is defined in the EPTL.

The duty to support is founded on the obligation in accord with Family Court Act §413, where the inquiry by the court is whether a respondent had sufficient means or the ability to earn such means to support the child and failed to do so in contrast with a mere unwillingness to perform the parental obligation. The general criteria applied in these cases is: (1) the duty to support, (2) the ability to provide the support, (3) grounds, if any, for relief from the duty.

Failure to pay child support can preclude assertion of the right to a distributive share of a deceased child. In re the Estate of Baecher, 198 AD 2d 221 (2d Dept 1993), a child’s mother asserted that the child’s father should not share in the deceased child’s estate due to the father’s alleged failure to pay child support. The parents were divorced at the time that the child was age 10, and the decree required the father to pay child support. The father urged the Surrogate to find that he had supported his child and that he paid support. The Surrogate rejected his claim after a trial where the decedent’s brother and mother testified as well as the decedent’s father. The father acknowledged that he did not make all support payments and contended that this was so because of a lack of income due to unemployment which caused him to stop payments. He claimed that he paid for substantial dental expenses, made undocumented payments, and that a court appointed referee that sold the marital home made payments on his behalf. The Surrogate found that he failed to provide support for his child. On appeal the Second Department agreed, finding that the father’s testimony that he made undocumented payments was not credible.

The rule is the same in the Third Department. In re the Estate of Brennan, 169 AD 2d 1000 (3d Dept 1991), arose from a determination of the Greene County Surrogate who determined that the deceased child’s father was not entitled to share in any proceeds from a wrongful death action involving the decedent. In that case the decedent’s father was successful in convincing the court that he did not abandon his child, however, on appeal the court affirmed that part of the underlying decision which found that the father had failed to provide for his child.

In his losing bid to share in his child’s estate the proof offered was that the father made about $350 in child support payments over ten years, despite an order requiring him to pay $25 a week. He urged that he had given his son presents, but they only amounted to three or four over that period. The father argued he was unable to support his son, but the proof was that he either was employed or received unemployment benefits when his efforts to support his child were meager at best. Finally, he argued that he had no obligation to support his son because his former spouse had remarried, and the new husband voluntarily assumed the support of the child.

Finding that to be meritless, the court held that the statute denies inheritance rights to a parent who has reneged on the parental obligation to support his child, and that disability cannot be cured by the fortuitous fact that another person supported the child while under no obligation to do so.

The rule is not insurmountable. In Matter of Ball, 24 AD 3d 1062 (3d Dept 2005), Lukas Ball died while in daycare. Both of his parents made application to the Surrogate for limited letters of administration to commence a wrongful death case.

His mother sought to disqualify the father from any taking under the intestate share arising from a wrongful death action on the grounds that the father abandoned and failed to support Lukas during his lifetime. Both made applications for summary judgment and ultimately, an evidentiary hearing was held.

Lukas was conceived after a four-month casual relationship and the mother and father had never married. His mother notified his father of her pregnancy at the end of their four-month relationship. Doubting that Lukas was his child, due to his inability to conceive a child with his ex-wife and his prior exposure to radiation, he had an angry conversation with the child’s mother and ceased contact at her request. When Lukas was born, his mother listed no one on the birth certificate or Medicaid application. Six months after birth the father was notified of the birth by the mother’s attorney.

The father immediately contacted the mother, set up a visit and saw the decedent in a matter of days. At the visit he gave her money. Thereafter, he contacted the county DSS in order for the decedent to receive benefits due to the father’s status. He admitted paternity in connection with the applications. In connection with a support case brought by the mother, he voluntarily gave a blood sample, and an Order confirming paternity was issued. He saw the child a second time and attempted visits but was denied access.

Unfortunately, the father’s efforts failed, and the Surrogate found that the father’s failure to disclose a Workers’ Compensation settlement award was sufficient evidence on which to find that he had failed to adequately support his son.

On appeal, the Surrogate’s decision was reversed. Critically, the Appellate Division reviewed the record in its entirety and found that the father could not have contacted his son prior to knowing that he was born, and further, that all of the father’s claims concerning the denial of access to his son were the same as those contained in his petition for custody in family court. The decision of the Surrogate was reversed as to the father’s disqualification to receive an intestate share of his son’s estate.

Read Part 3: Excluding a Parent From Sharing in a Child’s Estate Part 3- Abandonment.

Contributed by Jacque K. Vincent, J.D.