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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Probating a Lost Will or a Will as an Ancient Document

There are significant benefits to having an attorney prepare your Will.  Some are more evident than others.  In this post, we are going to discuss some less obvious but highly advantageous benefits for an attorney-drafted Last Will and Testament.

What happens if the attorney-draftsman who prepares your Will and supervises the execution ceremony dies before you do and the original Will, still in the custody of the attorney, is then lost?  What happens if, before you die, one of the witnesses to the Will also passes away?  There are a significant number of cases where a decedent signed a Will many years ago and where the original Will remained in the custody of the attorney-draftsman, leaving the decedent with only a conformed copy.  A conformed copy will contain the names and addresses of all signatories, including the testator/testatrix, but it is not signed by either the testator/testatrix or any of the witnesses.  The attorney’s “back” will be affixed to the conformed copy and marked as a conformed copy.

In order to prevent the probate of fraudulent Wills, New York’s SCPA § 1407 establishes what proof is necessary to admit to probate a lost or destroyed Will:

A lost or destroyed will may be admitted to probate only if

     1. It is established that the will has not been revoked, and

     2. Execution of the will is proved in the manner required for the probate of an existing will, and

     3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.”

 

If there is a conformed copy of the original Will found among the decedent’s possessions, then that conformed copy will take the place of one of the credible witnesses.   The remaining credible witness must be able then to testify as to the substance of the original Will in order for the Will to be admitted to probate.   Recalling the substance of the Will meets the publication requirement.   In re Estate of Kleefeld , 55 N.Y.2d 253, 433 N.E.2d 521, 1982 N.Y. LEXIS 3542, 448 N.Y.S.2d 456 (Feb. 25, 1982),  the Court of Appeals reversed the Appellate Division’s ruling to admit the  conformed copy of a Will lost while in the possession of the attorney-draftsman to probate, holding that “each of the witnesses must testify to all the principal parts of the will” (Id., at 258).  Since the remaining witness could not recall the substantive parts of the Will, probate was denied.  The proponent of the Will could not meet its burden on the issue of due execution.

But what happens in the case where the attorney-draftsman has passed away as well as both attesting witnesses? One of the exceptions to the Federal Rules of Evidence against hearsay that applies even when the declarant is not available as a witness is called the “ancient document rule” (Rule 803(16)): “A statement in a document that is at least 20 years old and whose authenticity is established.”   New York State Surrogate’s Courts have a long history of borrowing from the ancient document rule when it comes to probating a an old Will where the witnesses have predeceased the testator.

New York’s SCPA § 1405 (4) states that “If all of the attesting witnesses are dead or incompetent or unable to testify by reason of physical or mental condition or are absent from the state and their testimony has been dispensed with as provided in this section the will may nevertheless be admitted to probate upon proof of the handwriting of the testator and of at least one of the attesting witnesses and such other facts as would be sufficient to prove the will.”

The courts have added three elements necessary to have a Will admitted to probate as an ancient document.  First, the Will must be more than twenty (20) years old.  Second, the Will must have been taken from a natural place of custody (for example, the decedent’s safe deposit box or filing cabinet).  And third, the Will must be of an unsuspicious nature.  Any alterations to the original Will must be fully explained. In In re Estate of Tier (3 Misc.3d 587,772 N.Y.S.2d 500, 2004 N.Y.Misc. Lexis 48 (Feb. 2, 2004), the Surrogate’s Court of New York County admitted an ancient document to probate but without the alterations made to the Will.  The proponent of the Will stood to benefit from the alterations and failed to produce evidence sufficient to show that the alterations preceded the Will execution.  Once the proponent failed to produce the evidence, the burden shifted to the residuary beneficiaries, the ones who stood to lose from the alterations, to show that the alteration preceded the Will execution.  Since the residuary beneficiaries failed to provide such evidence, the Will was admitted to probate in its original form and without the alterations.

However, in the case of a lost Will or a Will propounded as an ancient document, the court must still be satisfied under SCPA § 1408 of “the genuineness of the will and the validity of its execution,” as well as the competence of the testator and the absence of fraud and undue influence.  Thus, whether the Will offered for probate is a conformed copy or an ancient document, it is still open to be examined by any party to the probate proceeding under SCPA § 1404 either before or after the filing of objections.

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Costly Omissions in Wills: The Missing Power of Appointment

We are  a “do-it-yourself” society.  If something needs to be done, then we will find a way to do it.  However, there are certain tasks that we should never tackle without expert professional help (in my case, plumbing goes to the top of the list).  Drafting a Will is one of those tasks because ambiguities and omissions in drafting can be very costly to those you leave behind.

Here are a few reasons why.  Each state has laws that govern the language, including terms of art (language with special legal meaning), the proper means of execution, and a set of distribution rules that must be clearly understood and clearly followed.  In addition, there are tax implications with respect to bequests.  These must be carefully analyzed with your attorney so as to minimize the impact on beneficiaries.  The reason that we write a Will in the first place is to protect the people we love.  By having an attorney draft your Will, you also ensure that the people in your life receive the care and financial support that they will need to carry on.  This is especially true for small children, persons with disabilities, persons with special needs, and surviving spouses or domestic partners.  Finally, things change every year in our lives and it is a very good practice to review the contents of your Will on a yearly basis.  You likely won’t change your Will yearly, but you will better understand its meaning with respect to your present circumstances after this review.

Consider the case of Anita Hamilton [In the Matter of the Estate of Hamilton, 190 A.D.2d 927 (1993)].  She married Milton Hamilton in a second marriage.  Milton had two daughters from a prior marriage, Mary H. McLaughlin and Gwendolyn H. Stevens, and Anita had a son by a prior marriage, John H. Ricketson.  

On February 26, 1989  Milton passed away.  Over the years, Milton had drafted several Wills, one in 1966, one in 1975 revoking the 1966 Will, and one in 1982 revoking the 1975 Will. He had drafted his last Will and testament on April 5, 1982 and directing that his residuary estate should be divided into two funds.  Fund A was a marital deduction trust.  Fund B constituted Milton’s bequests to his daughters.  With respect to Fund A, Milton directed that the remaining principal be “paid,  transferred or distributed … in such manner … as [Anita Hamilton] may by her last Will and Testament direct and appoint” (Hamilton, at 928). 

Milton’s Will was very specific concerning this power of appointment.  It was  “exercisable only by specific reference to said power in [Hamilton’s] last Will and Testament”.  Failure to effectively exercise the power of appointment in this specific way meant that the assets remaining in Fund A passed to McLaughlin and Stevens.

Anita Hamilton passed away 15 days after her husband died.  Her last will and testament dated December 22, 1967, fifteen years before her husband had executed his last Will.  In Anita’s Will were the following words:  “By this paragraph of my Last Will and Testament, I do specifically exercise the power of appointment given to me by paragraph “Sixth” of the Last Will and Testament of my husbanddated the 26th day of August, 1966, in favor of my son, JOHN HENRY RICKETSON … or to his issue him surviving, to the extent of seven-eighths (7/8ths) of the fund over which I have the power of appointment, and I give, devise and bequeath to SUE M. RICKETSON, wife of my son, one-eighth (1/8th) of the fund over which I have the power of appointment under the said Last Will and Testament of my husband …  By these provisions, I do specifically exercise the power of appointment given to me by the Will of my said husband” (Id. at 928).  Both Milton’s and Anita’s Wills were admitted to probate. 

The Surrogate Court of Albany County looked at the specific language in Milton’s 1982 Will and decreed that Anita had not made proper reference to that specific power of appointment in her Will.  Instead, she had referenced Milton’s 1966 Will that had been revoked by two subsequent Wills.  Consequently, the court decreed that the principal of Fund A be awarded to Milton’s daughter’s.  Anita’s son John Ricketson appealed.

The Appellate Court, Third Department affirmed the Surrogate Court’s decision.  The Court made explicit reference to the language of EPTL 10-6.1:  “[i]f the donor has expressly directed that no instrument shall be effective to exercise the power unless it contains a specific reference to the power, an instrument not containing such reference does not validly exercise the power.”  Because Anita’s Will referenced a Will that had been revoked, her power of appointment failed.  The result was that her stepdaughters received what she had intended for her son and his family.

A carefully review of Anita’s Will by an attorney may have revealed the omission.  A do-it-yourself Will in such a case would also be grossly ineffective to preserve the bequest.  Moreover, the Hamilton case illustrates the dependencies of one Will document on another Will document.  Every family is different and each person in it represents a unique instance.   A Will drafted by another family member could impact or limit your ability to pass on a bequest to a designated beneficiary.  That is why it is always best to consult and work with an attorney who is versed in these matters.

If you would like to discuss your own personal situation with me, review your current Will, or put together an estate plan that is tailored for your needs, 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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