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.

Understanding Discovery in Probate Proceedings: Putting the Pieces Together

As explained previously, you need to be familiar with the rules of procedure to successfully play the litigation game in Surrogate’s Court. The rules can be much more complex than those applicable in the Supreme Court.

As a prime example of this, consider the rules governing discovery in Surrogate’s Court. To understand them, you need to first identify the type of proceeding at issue and then determine if the Surrogate’s Court Procedure Act (“SCPA”) contains any specific rules of its own.

SCPA Sections 1404 and 1410, for example, contain specific rules that authorize pre-objection discovery in probate proceedings. They permit parties to depose certain witnesses prior to the filing of objections, generally the attesting witnesses and the drafting attorney. They also permit the party conducting the examination to obtain documents from parties and third parties of all relevant matters which may be the basis of objections to the probate petition. Section 1404 also requires the estate to pay for the cost of these examinations if they occur prior to objections.

If objections are filed, the parties may seek to engage in post-objection discovery under Article 31 of the Civil Practice Law and Rules (“CPLR”), as applicable to probate proceedings by SPCA 102. SCPA 1404, however, limits a parties’ right to re-examine the same witnesses examined during pre-objection discovery.

Parties must also be familiar with Rule 207.27 of the uniform rules for the Surrogate’s Court. This rule is referred to as the so-called “3-2 rule”. Absent special circumstances, the 3-2 rule limits the parties’ rights to obtain discovery in probate proceedings to three years before and two years after the decedent executed the will (or up until the decedent’s death, if sooner).

To make things even more confusing, you will need to review the case law interpreting the 3-2 rule. By its plain language, the rule appears to be limited to only post-objection depositions. Section 1404 also expressly provides the party conducting a pre-objection examination with “all rights granted under [CPLR] article 31 … with respect to document discovery.” Nevertheless, the rule is drafted poorly. Given the confusion, a number of cases have decided to apply this 3-2 rule uniformly to all discovery conducted in probate proceedings, including pre-objection discovery. Parties must therefore familiarize themselves with the case law on this issue and ascertain whether the Surrogate in their case has rendered any prior decisions interpreting the rule. Parties must also review the case law to ascertain whether special circumstances exist to expand the scope of discovery.

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.

Excluding a Parent from Sharing in a Child’s Estate

This issue arises in cases involving minor children as well as adult children. Sadly, prior to September 11, 2001, most cases involved ordinary negligence, medical malpractice and wrongful death circumstances. As a result of the deaths at the World Trade Center, more cases were reported involving the deaths of adult children who died at work. Most cases involve decedent’s who die intestate. However, a recent case deserving some attention is In the Matter of Martirano (2018 NYSJ LEXIS 4306, Sur Ct, Ulster Co, April 12, 2018) which involved the death of an adult child with a will.

The “child” in the case would have been 52 years old at the time of the Court’s decision. The Decedent died quite young, at age 48 and left an estate valued at about $1,000,000. His will was witnessed by the will’s primary beneficiaries. The Court found their bequests to be invalid under EPTL 3-3.2(a)(2). Under EPTL 3-3.2(a)(2), a disposition made in a will is void where the will cannot be proved without the testimony of the witness to whom a beneficial disposition is made.

Since the disposition made in the will was void, the estate passed by intestacy. Where the property of a decedent is not disposed of by a will, the property will be distributed pursuant to EPTL § 4-1.1. Under EPTL § 4-1.1(a)(4), if a decedent is survived by one or both parents, and had no spouse or children, the estate goes to the surviving parents. This set up the scenario that the decedent’s mother, Linda, was his sole distributee and stood to inherit everything.

When he learned of this outcome, the decedent’s older brother, Michael, asserted that their mother abandoned her children and therefore was barred from inheriting due to parental disqualification. His argument was based upon an application of EPTL 4-1.4(a)(1), which imposes an equitable penalty on a parent found to have forsaken his or her parental obligations.

Michael petitioned for declaratory relief. He offered Catholic Welfare Bureau records covering the decedents years in foster care. They stated that the decedent was abandoned by his mother at a bus terminal, that she found it impossible to care for him, and that she was a depressive person who took off with another man during her husband’s imprisonment.

The Court’s decision follows the life of this fractured and tattered family from the 1960s, when a child was born in “disgrace” to Linda at age 15, and she married the child’s father who was in and out of jail. She could not afford rent and they lived on welfare and with friends. When Linda left the children with relatives, they refused to return them to her. She did not go to court or seek the police for their assistance in the return of her children.

Years went by with sporadic telephone contact until the children were found alone in a department store. They were placed in the custody of Catholic Charities at an orphanage and became wards of the court. Linda sought their return and was denied. Ultimately, she cleaned up her act and was given custody of some of the children but not the decedent.

In this case, the Court did not consider all of the very detailed factual information on the motion because the Court found the evidence to be hearsay. Hearsay evidence may be considered in opposition to a motion for summary judgment, but only where it is shown that the defect is curable at trial. As decedent’s brother did not offer any excuse as to why the materials were not in admissible form or how he would produce the materials in admissible form at trial or otherwise offer alternative proof, the evidence was not considered. He was stuck, as he candidly admitted that he had no memory of the events. In the end the only person with personal knowledge was decedent’s mother.

The Court’s 16-page decision is very detailed and very fact specific and despite many facts against her, the Court found that Linda did not abandon her son and she did not fail to support him. The decision is a must read for a practitioner faced with either prosecuting or defending claims of abandonment or failure to support.

Sadly, there are many cases where parents return to their deceased children’s lives in connection with the potential rewards associated with wrongful death actions or lucrative estates. In many cases the parents do not prevail in their efforts to share. Matter of Martirano is different and therefore, instructive. It is also requires consideration in connection with the difficulties of proof in these cases, particularly, adult child cases.

We will have to follow this decision if it makes its way to the appellate division.

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

How the Safe Act Impacts the Transfer of Firearms In an Estate

Inheriting a firearm can be a complicated process. A fiduciary of an estate cannot just give the firearm directly to an heir without the risk for potential criminal liability. Unlike other personal property, passing firearms on to a loved one after the death of the owner has its own unique rules and can be a challenge to the estate’s fiduciary if not specifically addressed during the estate planning stage.

New York’s Secure Ammunition and Firearms Enforcement Act, better known as the SAFE Act, can create the risk of criminal liability for executors and administrators as well as for the estate’s heirs where the parties are unaware of the rules.

Pursuant to the SAFE Act, a fiduciary must lawfully dispose of the firearm within fifteen days after the death of the owner. If the fiduciary is unable to transfer the firearm to the heir within fifteen days, the firearm must be surrendered to a law enforcement agency. The law enforcement agency will hold the firearm until the heir is licensed or otherwise permitted to take possession. However, if the agency does not receive a request to deliver the firearm within one year of the delivery, the firearm will be deemed a nuisance and destroyed (NY Penal Law § 400.05[6]). Fifteen days is a relatively short amount of time in which to make the transfer because a fiduciary cannot lawfully transfer or dispose of a firearm until he has been appointed by the Court.

Before the firearm can be given to the heir, the fiduciary must (1) know that the decedent legally owned the guns; (2) know that the specific beneficiary of the guns may legally own a gun and (3) adhere to proper transfer procedures. The heir receiving the decedent’s firearm must hold a valid New York State gun permit. Illegal possession of a decedent’s registered firearm without following the statutory protocol for estate transfer to an heir is a misdemeanor, specifically, criminal possession of a weapon in the fourth degree (NY Penal Law § 265.01).

In addition to a state firearm permit, a federal background check is required for a firearm to be transferred. But there is an exception to his rule when it comes to transfers between immediate family members such as spouses, domestic partners, children and step-children (General Business Law § 898).

Contributed by Jacque K. Vincent, J.D.

Do I Need to Pay a Bequest if the Beneficiary Owes the Estate Money?

A fiduciary has a legal obligation to make distributions to the beneficiaries of the estate. But what happens when a beneficiary owes the estate money? Does the law permit the fiduciary to offset the bequest with the debt? Or does the fiduciary have to first make a distribution and then sue the same beneficiary to recover the funds to pay the debt?

As a practical matter, one would assume that an offset is permitted. However, at first blush, the EPTL and SCPA do not appear to address the issue. They provide a beneficiary with the right to compel payment. But they do not expressly provide that a fiduciary may assert defenses to payment (see EPTL § 11-1.5; SCPA § 2102 [4] [“A proceeding may be commenced to require a fiduciary … to deliver a specific bequest or property to a person entitled thereto or to pay a legacy…”]). The only defense in the statute appears to be the timing of the payment: under EPTL § 11-1.5(c), a beneficiary generally must wait at least seven months from a fiduciary’s appointment before demanding payment.

The procedural rules of the SCPA and CPLR nevertheless permit a fiduciary to file an answer and assert defenses when the beneficiary commences a proceeding to compel payment. The fiduciary therefore has an opportunity to explain to the court why the legacy a or distributive share should not be paid in whole or in part (see 6 Warren’s Heaton on Surrogate’s Court Practice § 75.03 [LexisNexis 2019]).

In the answer, the fiduciary should therefore explain that the beneficiary owes the debt and assert this as a defense to payment. This is often referred to as the right to equitable retainer and lien (see Matter of Van Nostrand, 177 Misc 1, 7 [Sur Ct, Kings County 1941] [placing equitable lien upon the beneficial interest of a trustee/beneficiary who had embezzled trust property]; Matter of James, 149 Misc 135, 135-138 [Sur Ct, Kings County 1933]).

This defense is well settled under the case law and rests on sound principles of equity (see Matter of Eaton, 282 App Div 32, 34 [3d Dept 1953]). It is based on “a fundamental equitable principle of surrogate law that no beneficiary may claim any distributive rights from an estate until he has satisfied all of his obligations to it” (Matter of Van Nostrand, 177 Misc at 7; Matter of James, 149 Misc at 135-138 [Sur Ct, Kings County 1933]; Matter of Flint, 120 Misc 230, 232 [Sur Ct, Westchester County 1923], affd 206 App Div 778 [2d Dept 1923]; Matter of Foster, 15 Misc 175, 177 [Sur Ct, Orange County 1895] [holding that a debt is considered an asset of the estate in the hands of the legatee and a satisfaction of the legacy to the extent of the debt]).

Can You Admit a Lost or Destroyed Will to Probate?

An estate practitioner may be faced with a situation where the original will of the decedent cannot be found after his or her death. Don’t worry, at least not just yet.  In such a case, SCPA 1407 provides the procedure for admitting a lost or destroyed will to probate. The first hurdle is to establish that the will has not been revoked.  However, this is no easy task.

“If a will, shown once to have existed and to have been in the Decedent’s possession, cannot be found after [his or her] death, the legal presumption is that the [decedent] destroyed the will with the intention of revoking it” (Matter of Demetriou, 48 AD3d 463, 464 [2d Dept 2008]). “The burden of proof is on the will proponent to show, by facts and circumstances, that the testator did not destroy the will with the intent to revoke it; mere speculation or suspicion is insufficient” (Matter of DiSiena, 103 AD3d 1077, 1078 [3d Dept 2013]).

We had the opportunity to litigate this issue at the Appellate Division, Third Department. In the case, the record contained evidence that the decedent had disinherited one of her sons in several wills and a revocable trust, including the most recent will offered for probate. The son had left the family business and created his own competing business. The decedent therefore left her estate (including the family business) to her remaining children who had worked for the family business and contributed to its growth. The decedent also twice fought the disinherited son in court, once to preserve her rights to remove him from her will and another time to prevent him from obtaining an interest in her business.

At the Surrogate’s Court, the disinherited son sought summary judgment dismissing the probate petition. The disinherited son argued that the lost or destroyed will created a presumption of revocation and that the record evidence was insufficient to overcome the presumption.

The Surrogate’s Court ruled in favor of the disinherited son and granted summary judgment dismissing the probate petition. The Surrogate held that the proponents of the will did not overcome the presumption, relying on the strong presumption of revocation.

On appeal, we did not dispute the heavy burden imposed on a proponent of a lost will. Rather, we focused on the record evidence and argued that there was sufficient evidence to create a question of fact on the issue.

The appellate court agreed with us and reversed the summary dismissal of the case (Matter of DiSiena, 103 AD3d 1077 [3d Dept 2013]). It determined that the record evidence amounted to more than mere speculation or suspicion about the decedent’s lack of intent to revoke her will. The record, for example, contained evidence of the prior lawsuits and the several wills of the decedent disinheriting her son. Evidence also existed that the decedent had her estate attorney store her codicil for her until her death. The decedent also met with her estate attorney in her hospital room shortly before her death to discuss further estate planning. At that time, she instructed her estate attorney to create an irrevocable trust gifting her remaining interest in the family business to the identical beneficiaries named in her prior wills and revocable trust. The decedent also signed a power of attorney appointing her three children other than respondent as her agents. An unsigned copy of the irrevocable trust documents, which expressly state that respondent is not a beneficiary, was included in the record, and the estate attorney indicated that decedent died before he was able to meet with her to sign the trust documents.

While the case turned out successfully for our clients, we would not have been able to win the appeal without a sufficient record. A practitioner should be familiar with the numerous relevant factors considered by the courts on this issue and develop the record in case to avoid summary dismissal of the probate petition.

To learn more about relevant factors and case law, feel free to contact the experienced trust and estate planning attorneys at TRK Law.

The Possible Grounds to Object: Capacity

Another major objection concerns the decedent’s testamentary capacity. A person is presumed to have sufficient mental capacity to make a will. In addition, an attesting affidavit and the supervision by an attorney also create a presumption of testamentary capacity.

The level of capacity required is a mere simple understanding of the disposition. Specifically the decedent must (1) generally understood the nature and consequences of executing a will, (2) generally know the nature and extent of the property that he or she is disposing of, and (3) generally know the natural objects of his or her bounty, and his or her relations with them.

Given this standard, you should focus on ascertaining the extent of the decedent’s communications, his appearance, demeanor, and responsiveness at and around the time of the will execution. You should examine the complexity of the will, how it was communicated to the decedent, and the level of sophistication of the decedent. You should also inquire about the interactions between the decedent and others present, whether the decedent’s family was discussed at any time, including the day of the will ceremony, and whether the attorney prepared a family tree or took notes about the decedent’s relations with others. Attorney billing records and the decedent’s phone records and emails may also reflect the level of contact the attorney had with the decedent.

An advocate of the will’s admission to probate will attempt to argue that the decedent was lucid and rational at the time the will was made, and that the decedent communicated effectively, knew who he or she was talking to and responded appropriately. You should be prepared to challenge the generalized conclusions often asserted by the witnesses about the decedent’s appearance and capacity. You should also review the decedent’s medical records (request authorizations from the estate to obtain them) to determine if the decedent suffered from any cognitive diseases such as dementia and what kinds of medications the decedent may have been taking.

Be careful not to rely too heavily upon on a person’s old age or general diagnosis. Mere proof that the decedent suffered from old age, physical infirmity and chronic, progressive senile dementia when the will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was made.

In addition to learning about the decedent’s age and diagnosis, you should inquire about the decedent with neighbors, relatives, and hospital staff to find out whether they observed the decedent at or around the time of the will’s execution and whether they have any stories to share regarding the decedent’s mental status.

The Possible Grounds to Object: Undue Execution

The first possible ground to object is undue execution. This objection focuses on the will’s technical non-compliance with the formalities set forth in EPTL § 3-2.1.

For example, the statute requires the decedent to sign the will at the end, declare to each of the attesting witnesses that the instrument is his will, and use at least two attesting witnesses. In reviewing the will and cross examining the attorney and witnesses, you should pay attention to the location of the decedent’s signature on the will, as well as any communications between the decedent and others present. Check to see if the decedent declared the document to be his or her last will and, if so, how. Check to see if the decedent signed the will in the witnesses’ presence or otherwise published his signature to the witnesses. Make sure the witnesses also signed the will and the dates of the signatures.

You should also review an administrative check list and other practice guides on estate administration. This will help you outline the various issues involved and help provide you with grounds to challenge the will, even if technically compliant with the statute.

These check lists and practice guides, for example, recommend that the client initial each page. They also caution practitioners against removing staples to make photocopies. Among other things, these circumstances may create doubt as to the will’s validity. One may conclude that the will does not contain the same pages as those executed by the decedent or that the decedent did not read its contents. These circumstances may obtain even greater weight as the case develops, especially depending on the specific cast of characters involved, such as the character of the beneficiaries, the drafting attorney and the witnesses.