As is often the case, probate litigation can quickly become contentious, especially when competing Wills are offered for probate. Litigation can become costly, and disadvantageous errors in judgment and strategy can result in unintended consequences.
In Re Matter of Harper (2019 N.Y. Misc. LEXIS 1073; 2019 NY Slip Op 50333(U) ; 63 Misc. 3d 1203(A); 2019 WL 1281833), an initial probate proceeding was begun on March 24, 2010, almost 15 months after the death of the testator on December 31, 2008, to probate a Will dated May 27, 1997. In that Will, the decedent, himself an attorney, left his real estate and other tangible property to be divided equally among two nephews, his sister, and his three sons. The residuary estate was left to his wife. Objections to probate were then filed by his wife, his three sons, and his daughter Faith through a guardian ad litem.
However, this probate proceeding was stayed pending the outcome of another probate proceeding, this time for a Will dated September 25, 2007. For over a decade thereafter, the parties engaged in costly litigation over the validity of the 2007 Will. Only a copy of the 2007 Will existed, dated March 6, 2006. Decedent’s wife filed for summary judgment, arguing that the later Will revoked the 1997 Will, though she did not argue for the admission to probate of the 2007 Will. On January 30, 2018, the court denied the wife’s summary judgment motion.
One of the decedent’s sons who would have benefited from the real estate provision in the 1997 Will then brought another summary judgment motion, nearly identical to the wife’s, asking that the court find that the 2006 copy of the Will revoked the 1997 Will. Decedent’s sister and her son, both non-distributees under the 2006 copy, objected to the summary judgment motion on the basis that “that production of the copy of the “unauthenticated” 2006 will is ‘simply a ploy to plunge the Estate into Administrative chaos.’” The court wryly noted: “This last argument is made apparently as a result of amnesia regarding the last ten years of family conflict and litigation.” 2019 N.Y. Misc. LEXIS 1073, at 3; 2019 NY Slip Op 50333(U) at 2.
In order to succeed on a summary judgment motion to revoke a prior Will as a matter of law, the objectant must make a prima facie case that a) the instrument was properly executed; b) the decedent had testamentary capacity at that time; c) the Will presented is a true and complete copy of the original; d) the instrument by its terms revoked the prior Will; and e) that the earlier Will was intentionally revoked by the decedent (see EPTL § 3-4.1).
In support of his summary judgment motion, the son offered the following evidence: 1) a copy of the Will allegedly drafted by the decedent himself who was an attorney; 2) a showing that the Will was executed in the presence of two attesting witnesses; 3) the attestation clause included in the Will; 4) a contemporaneous self-proving affidavit; and 5) deposition transcripts of the two attesting witnesses and the notary to the 2006 Will. One of the attesting witnesses was himself an attorney. Both attesting witnesses testified to the decedent’s testamentary capacity and that the signatures on the copy were indeed genuine.
The court then explicitly noted this: “As probate of the 2006 instrument as a lost will is not being sought.” The question is why not? Did the son not know that he could make the application to the court to probate a lost Will? Why seeks a revocation of a prior Will without first seeking to probate the 2006 copy?
Here is why these questions matter. Ff successful, by using the 2006 copy of the Will as a tool to only revoke the 1997 Will, the outcome would be that the decedent legally died without a Will and that New York’s intestacy statute (EPTL 4-1.1) would then apply to decedent’s estate. Decedent’s wife is entitled to receive the following in intestacy:
1. Cash or cash equivalents, including bank accounts of up to $25,000.
2. One car of up to $25,000 (if the value of the car is greater than $25,000, the spouse has the option of paying the difference to the estate).
3. Household items, including the decedent’s clothes, furniture, appliances, and jewelry up to $20,000.
4. The decedent’s family pictures, books, computers, discs, and software, up to $2,500.
The surviving spouse also receives $50,000 in assets and 1/2 of the remainder of the estate if the decedent left children. If there are surviving children, each child then shares equally in the other ½ remainder of the estate. In this case, only the wife and decedent’s seven children would benefit in intestacy. Decedent’s sister and nephews receive nothing under intestacy.
However, assuming that the 2006 copy recited essentially the same provisions or perhaps even more favorable provisions for the son, then the son could have sought to admit the copy as a lost Will under SCPA 1407. Successful admission of the copy to probate would have meant that the 1997 would have been revoked, which seems to have been the desired outcome, and that the estate would not have gone into intestacy. The requirements for admission of an instrument as a lost Will are the following:
- Due execution of the Will, including proof of testamentary capacity;
- No subsequent revocation of the Will;
- A copy or draft of the Will proved to be true or, if there is no copy or draft of the Will, then all of the provisions of the Will must be clearly and distinctly proved by at least two credible witnesses.
The son’s summary judgment motion contained all of the elements necessary to state a prima facie case for a lost Will. Was it a deliberate choice to not do so, or simply a legal oversight? Since he and the other litigants had already spent time and money arguing for the probate of the September 25, 2007 Will that had been denied probate, did he deem it likely that this would be the result of a lost Will petition? Or did the new depositions make it more likely that a lost Will petition might succeed? Was the point of his summary judgment motion simply to defeat his aunt and cousins even at the expense of receiving less in intestacy than even under the 1997 Will?
We will never know. The court found that the May 27, 1997 Will was revoked by copy the 2006 Will dated March 6, 2006. As a result, the court found that the decedent has died intestate (without a Will).
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