When a Contentious Probate Litigation Leads to a Disadvantageous Result

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:

  1. Due execution of the Will, including proof of testamentary capacity;
  2. No subsequent revocation of the Will;
  3. 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).

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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When Is the Best Time To Make or Review Your Will?

If you have been asking yourself these questions, the answer is likely “now.”  There are several reasons why you may not want to wait.  The most obvious one is that tomorrow is promised to no one.  The second reason is that it is a good practice to review the terms of your Will on a yearly basis to assess the consequences of changes in family composition, financial updates, and changes in the tax law that may affect your estate.  The third reason is one that is often overlooked, that you may not always have the testamentary capacity to make a Will.   I have covered this topic in a previous post.

Making or changing a Will is a serious endeavor, and it should never be undertaken for negative reasons, such as to spite a relative or friend.  In New York, the making of a subsequent Will executed with all required formalities constitutes a revocation of any previously executed valid Wills and their codicils.  In New York,  a partial revocation by physical act, such as words added to a Will after it has been signed and witnessed, is not recognized and will have no effect on the Will.

A Will can also be revoked if it is destroyed by a physical act.  If the subsequent Will is later destroyed by a physical act, such as cutting it up or burning it or crossing out the testator’s signature, the prior Will that it replaced will not be revived in New York.  The earlier Will is legally invalid, and the decedent will have died intestate.

The case of Mabel Waingrow of Blooming Grove, New York provides a cautionary tale.  The owner of Town & Country Coffee Shop on Route 94, Waingrow died in 2003 at the age of 99 leaving an estate valued at $990,000.  She had outlined her husband, her son, and her siblings.  Her closest relatives were her five great-nieces and -nephews whom she never knew because they lived abroad.  A diligent attorney who prepared Waingrow’s Will in 2000 had discovered the distant relatives.

Waingrow had closed her coffee shop when she had turned 90, and without the constant social interaction she soon became a lonely recluse, beset by thoughts that people were trying to steal from her.  To her rescue came Nick Stagliano, a former criminal investigator for the Orange County District Attorney’s Office who befriended her and took care of her.    According to a story in the local Times Herald-Record, Stagliano was the only one present for her 99th birthday.

In 2001 Waingrow, who had a habit of writing a new Will to benefit whoever was friendliest to her and to spite those who had “unfriended” her, executed a new Will naming Stagliano as the sole beneficiary of her entire estate.  The next day, the Orange County Court named him Waingrow’s legal guardian because she could no longer take care of her affairs.  Her great-nieces and -nephews were not informed of this appointment.

Five years after her death, one of her grand-nieces filed suit contesting the Will claiming undue influence . The case was settled shortly after the trial began.  Waingrow’s five great-nieces and nephews received at least $500,000 of the estate, with the remainder going to Stagliano.  Stagliano also agreed to give up his role as executor of the estate.

In her multiple executions of Wills, Waingrow chanced revoking a valid Will because her failing mental health made her capacity to execute a valid Will questionable.  Had her 2001 Will been declared invalid  at trial due to undue influence, then she would have been deemed to have died intestate.

When a person dies without a Will, New York uses as its default an intestate distribution system called per capita (“each head”) at each generation. In this system, each person is weighed equally. By virtue of their presence on the family tree, no one can be disinherited.

New York also has a “laughing heir” statute (EPTL §4-1.1(6)). A “laughing heir” is someone entitled to inherit by law who is so remotely connected to the deceased that he or she would not feel any sorrow at hearing of the death. To prevent this occurrence, New York cuts off heirs at the grandchildren of the deceased: “For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.” No one more remote, such as a great-grandchild, may inherit. After that, the property of the deceased escheats to the State.

Since Waingrow had no grandchildren, and since her siblings had predeceased her, her surviving grand-nieces and -nephews risked having the entire estate escheat to the State if they pressed having Waingrow’s Will declared invalid because of undue influence on the part of Stagliano.  The prior Will executed in 2000 could not be revived under New York law.   Thus the only way that the grand-nieces and -nephews could be certain to receive any money from the estate was to settle with Stagliano.

The case of  Mabel Waingrow points out once again the necessity of working with an attorney who will  draft your Will and tailor it to your individual needs. Though it may seem contrary to nature, children at times do predecease their parents, as Mabel’s son did, and this reality must somehow be accounted for in your Will.  Your attorney will work through some scenarios with you to make sure that all of your wishes are met and executable. No boilerplate form can do this kind of reasoned and careful drafting befitting your individual needs.  

It is also a good practice to make a yearly appointment with your attorney to review your Will.  Things in your life will surely change from year to year, and it is a good practice to get in the habit of talking through those changes with your attorney. Your attorney will be able to advise you as to any impact on your estate plan.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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What Constitutes a Valid Will in New York? Part 3: The Witnesses

By definition, a witness is one who provides evidence.  In the context of a Will attestation, witnesses are the persons who, by their presence, can provide a first-hand account of what they saw, heard or experienced during the Will execution ceremony.  By signing the document, they affirm that the maker of the Will (testator) has testamentary capacity and that the testator’s signature is authentic.

New York’s EPTL § 3-2.1 sets out the statutory requirements as to witnesses.   New York requires two attesting witnesses.  There are no statutory requirements regarding the qualifications of witnesses.  At the request of the testator, each witness must sign the Will and thereby affirm that the testator knows that he or she is making a Will, and that the testator has declared the document being signed as the testator’s last Will.  In New York, this is referred to as the publication requirement, and it is part of the Will execution ceremony.

The testator must sign the Will in the presence of the witnesses, but the witnesses need not sign in each others’ presence.  If the testator signs in the presence of only one witness, then the testator must acknowledge his or her signature to the other attesting witness.  In this case, the witnesses must sign within 30 days of each other.  In New York, there is a rebuttable presumption that the Will was signed by each witness within the 30-day window.  The presumption goes to due execution.  It is a rebuttable presumption because it can be challenged in a Wills contest and possibly overcome if proven otherwise.  The 30-day clock starts to run when the first witness signs the Will attesting the testator’s signature.

Each witness is asked to provide a current address, though failure to do so will not render the Will invalid.  The purpose for providing the address is that, should there be a Wills contest, the witness may be asked to provide testimony regarding the facts surrounding the Wills execution ceremony, such as the testamentary capacity of the testator or the authenticity of the testator’s signature.  The witnesses will need to be located in order to make an appearance in Surrogate Court.

Suppose that at the time of the Wills contest, one of the witnesses is dead or legally incompetent to testify.  What result?  In this case, the testimony of the other witness is sufficient.  Now suppose that neither witness is able to testify.  What result?  The Will proponent (the person presenting the Will in a probate proceeding before the Surrogate Court) must provide proof of the testator’s signature and of one witness.

Of course, problems associated with due execution may be overcome with a self-proving affidavit.  Unlike an attestation clause, which only acts to corroborate the witness’s testimony once called to testify or else to prove the witness’s signature, the self-proving affidavit acts as a substitute for the witness’s live testimony.  The affidavit has the same force and function as a deposition or interrogatory:  it is evidence of personal knowledge, and because the witness swears an oath, the affidavit is presumed to be truthful.   The affidavit will be notarized by a Notary Public (in many cases, the attorney overseeing the Wills execution ceremony is a notary public).  A self-proving affidavit should be prepared by an attorney in order to make sure that it conforms with the State statute.

In a self-proving affidavit, each witness swears an oath and signs an affidavit that recites all of the statements that they would make in court were they called to testify.  These statements refer to the testamentary capacity of the testator, and the signature requirements.  As a result, the affidavit is usually signed at the time of the execution of the Will.

What happens if one of the witnesses is also a beneficiary under the Will?  This is known as an interested witness.  New York’s interested witness statute is EPTL § 3-3.2 (a).  The signature of an interested witness does not make the Will invalid.  But it does make the bequest to the interested witness void.  This can have dramatic and unintended consequences.

Consider the case of the Matter of the Estate of Cynthia R. Wu (877 N.Y.S. 2d 886).  A provision of Wu’s Will provided for the following:  “All estate and inheritance taxes payable by reason of my death, in respect of all items included in the computation of such taxes, whether passing under this Will or otherwise, shall be paid by my Personal Representative or Trustee as of [sic] such taxes were my debts, without recovery if [sic] any part of such tax payments from anyone who receives any item included in such computation” (emphasis added).  Wu’s brother, Harry Wu, was the beneficiary of two life insurance policies totaling $3,314,215.   The problem was that Harry was also one of Cynthia Wu’s attesting witnesses at her Will execution ceremony, and therefore an interested witness. 

At issue was whether Harry Wu would be absolved from paying his ratable share of the estate taxes as provided for under the terms of the Will, or whether the fact that he was an interested witness made the provision in the Will void, making him subject to paying his share of the estate taxes.  Calling the rule about an interested witness “absolute,” the Surrogate Court, relying on a clear legislative intent to prevent fraud or undue influence, found against Harry Wu.  He was required to pay his ratable share of estate taxes from the proceeds of the life insurance policies.

Harry Wu’s bequest could have been saved by the supernumerary rule, that there were three witnesses and two were disinterested.  Wu attempted to claim this rule in his defense by claiming that the notary was the third witness.  And even though the notary knew that this was Cynthia Wu’s Will, she had not asked the notary to be a witness, a requirement under the statute.

Harry Wu’s bequest could have also been saved by an exception in the law.   Where the interested witness (in this case Harry) would have been a distributee had Cynthia died without a will (intestate), then the law allows the interested witness to take the bequest to the extent of the interested witness’s intestate share in the estate .  However, Cynthia was survived by her husband and two children, so Harry did not qualify as an intestate distributee (see my prior posting on the difference between an heir and a beneficiary).

The Wu case is a cautionary tale as to why you should have an attorney draft your Will instead of relying on boilerplate forms that are not tailored to your unique situation.  After all, no person’s estate and family situation is like any other, and your uniqueness should be reflected in the way that your Will is prepared:  a Will that is specifically drafted for you.  Your Will is, after all, one of the most important documents of your life and you should have the benefit of expert legal assistance in drafting it. 

The Surrogate Court in Wu was forceful in this regard:  “Any forfeiture resulting from unwitting use of a nontestamentary beneficiary as an attesting witness will most likely arise, as here, in the context of a tax nonapportionment clause covering assets passing outside of the will. It behooves any drafter using such clause to be fully informed of the testator’s nonprobate assets to avoid unintended consequences, some of which may have even greater potential for frustrating the testator’s intent.”

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

In the next blog post, I will examine what constitutes undue influence with respect to a Will in New York.   I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.

What Constitutes a Valid Will in New York? Part 1: Who Can Make a Will?

Some people may be under the impression that, by writing their final wishes on paper, they have created a valid Will.  And while that may be true in part, the writing of a valid Will is an issue of public concern because the State has an interest in making sure that property is passed on to subsequent generation in an orderly manner.  In New York, the validity of a Will is governed by statute, in this case EPTL § 3-2.1.  In the first part of this series, we are going to consider the issue of testamentary capacity, or who can make a Will in New York.

To create a valid Will, a person must be 18 years of age and be of sound mind, what is called testamentary capacity.  The standard for testamentary capacity, or soundness of mind,  is lower than for the capacity to contract.  Note that this important because in the event that a person is creating a Will and a prenuptial agreement (a contract) at the same time, then the standard for soundness of mind is not the same for each document.  The documents should be drafted with these different standards in mind to withstand any future challenges.

There are four ways to prove that the individual creating the will (testator) had testamentary capacity.  First, the person must understand what he or she is doing, that the person is signing a Will.  This goes to intent, that it is the testator’s intention to create a Will.  In addition, the person must understand that a Will transfers property at the time of death and not while the person is still alive.  Finally, the person must understand that making a Will is a solemn legal act that will be executed with statutory Wills formalities.

Secondly, the testator must know the nature and extent of his or her property.  If a testator stipulates in a Will the donation of property that the person has never owned or does not currently own, this may later be used as an indication that the person did not have testamentary capacity at the time of making the Will.  A person of sound mind is presumed to know the extent of what he or she owns.

Thirdly, the testator is expected to know “the natural object of his bounty,” meaning the people in the testator’s life to whom the property will be transferred.  For example, leaving property to fictional characters or notable persons who have already passed away may be an indication of a lack of testamentary capacity.

Of special note here are pets.  Though the owner may consider a pet to be a “best friend” and may grant to the pet some human qualities, the law considers a pet to be property.  Therefore, it is better to find and appoint a caregiver for your pet in your Will, and to create a trust to take care of the pet’s expenses, such as veterinary care, pet insurance, grooming, food, and equipment.  You can stipulate in the trust document how you wish your pet to be cared for.  The trustee can then make sure that your caregiver abides by your instructions.  If not, then a new caregiver can be appointed.

Finally, the testator must have a plan to distribute the property to actual persons.  Here, the plan must be coherent.  It does not matter if the plan is eccentric so long as it is logical and consistent.  The test for rationality is that the plan holds together logically.

What about the mental state of the testator?  Suppose the person cannot take care of his or her own affairs and cannot legally make a contract.  Let’s even assume that the person has a court-appointed guardian to manage his or her property. Can that person still make a Will?

The answer is yes.  The legal definition of “sound mind” with regard to making a Will has nothing to do with intelligence.  So long as the five-factor test above has been met, then the test for soundness of mind has been met.  Even if a person has been adjudicated to lack mental capacity, such as a mental illness, a jury could still find that the person drafted the Will during a lucid interval.  The issue of a lucid interval is a question of fact for a jury to decide in the event of a Wills contest.

Courts have upheld Wills drafted by persons who abused drugs and alcohol, suffered from old age or illness, or were under a physician’s care.  Even a person who suffers from an insane delusion, such as a belief that he or she is the ruler of Atlantis, may make a Will.  The parts of the Will affected by the delusion will be invalidated.  So the gift of the palace in Atlantis will be invalid, but other gifts may survive.  Because psychiatrists are often called to provide expert testimony in such Wills contest cases, the profession has developed a set of guidelines and protocols to assess testamentary capacity.

Attorneys may choose to videotape the Will execution formalities, during which time they will ask the testator about the disposition of property in the document, and ask that the testator affirm that he or she understands that they are signing a Will.  Such precautions may be necessary in anticipation of a Wills contest.  If your attorney wishes to take these precautions, he or she is acting in your best interest so that your property is distributed according to your wishes.

In the next installment of this series, we will look at the issue of the testator’s signature.  As we look at these discreet point, my goal is to provide you with a complete understanding of what it takes to create a valid Will.  This information, in conjunction with the prior information found on past posts, should assist you as you prepare for your conference with your attorney.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

For a downloadable mp3 version of this blog post, please visit my website at http://sites.google.com/site/richardsesq/.  Under Resources, you will find the link to download this episode to your iPod or mp3 player.

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