No "Wiggle Room" In After-Born Statute
In Matter of Gilmore, 1/19/2010 NYLJ 21 (col 1), Nassau County Surrogate John B. Riordan declined to expand the reach of EPTL 5-3.2 (the so-called “after-born statute”) to non-marital children known to, or acknowledged by, the decedent after execution of his will.
In Gilmore, a probate proceeding, two non-marital children sought to have their status as beneficiaries determined as a preliminary matter. The parties consented to have the Court assume the truth of the claimants’ allegations for a determination of whether as a matter of law those allegations stated a cause of action entitling the claimants to after-born status.
The decedent died in January, 2007, survived by eleven children, including three from a first marriage, four from a second marriage, and four alleged non-marital children. The propounded will, however, benefited only one child from the first marriage. That child, also the petitioner and named executor, was to inherit the several-million-dollar estate. The claimants were two non-marital children born prior to the decedent’s execution of the will, but allegedly became known to and were acknowledged by the decedent only subsequent to the will’s execution.
The court explained that EPTL 5-3.2 creates a rule of presumed intent for a testator who may have inadvertently omitted as a beneficiary a child born after he executed his will -- “If he gave something to existing children and the after-born is neither provided for nor mentioned in the will and unprovided for by some settlement, the after-born shares in the gift to existing children.” Pursuant to an amendment to the statute (which merely codified existing case law), non-marital after-born children who can duly establish their inheritance rights are entitled to the same benefits under the statute as marital children.
The claimants in Gilmore alleged -- and it was accepted as true for purposes of the motion -- that nearly a decade after the decedent executed his will he underwent DNA tests which revealed to him for the first time that he was their biological father. Although the claimants were born long before the execution of decedent’s will, they claimed that as they were only known or acknowledged by their father after execution of his will, they should be accorded the same presumption of inadvertent disinheritance as after-born children.
The Court rejected the claimants’ argument, however, noting that pursuant to the clear and unambiguous language of the statute, a child is entitled to after-born rights only if born after execution of the will. The only reported exception to this rule -- for a child adopted after the execution of a will, even though born previously -- had no application to the case at bar.
Because the language of the statute was clear, speaking only of a “child born after the execution of a last will” (EPTL 5-3.2 [a]), the Court refused to extend the scope of the statute to a non-marital child who is known or acknowledged by a decedent only after execution of his will. “To engraft exceptions where none exist,” according to the Court, “are trespasses by a court upon the legislative domain”
Summary Judgment Granted, Dismissing Objections and Admitting Will to Probate
In recent years, Surrogate’s Courts have become increasingly inclined to grant motions for summary judgment in contested probate proceedings when warranted. A decision issued last week in Monroe County is yet another example of this trend. While the evidence presented by the objectants in this particular case appears to be exceptionally weak, the following analysis provides a cohesive illustration of the considerations and standards that Surrogates routinely utilize in analyzing typical objections.
In Matter of Feller, 2010 NY Slip Op 50001(U), eight of the decedent’s eleven known distributees filed objections to probate, alleging the customary lack of due execution, lack of testamentary capacity and undue influence. The decedent executed a last will and testament nine months prior to her death, leaving her estate to ten charities and four individuals in equal shares, and naming the attorney-draftsman as executor. The New York State Attorney General’s Office filed a motion for summary judgment, seeking to dismiss the objections.
Due Execution
The objectants contended that the will was not duly executed within the requirements of EPTL 3-2.1 because the attorney-draftsman/proponent, not the testator, requested that that the witnesses act. But the testimony of the attorney-draftsman demonstrated that the testatrix responded in the affirmative when questioned as to whether she wanted those present to witness the execution of the instrument. The Court opined that this conduct coupled with the circumstances surrounding the execution ceremony satisfied the due execution requirements of EPTL 3-2.1. Indeed, “[a]ttorneys routinely lead their clients through the will execution formalities in order to ensure that the requirements of EPTL 3-2.1 are satisfied . . . and . . . publication and instruction . . . is not required to be in any ‘ironclad ceremonial or ritualistic language’” (Matter of Feller, supra, citing In re Douglas’ Will 193 Misc 623, 631-632 [Sur Ct, Broome County 1948]).
Testamentary Capacity
With respect to testamentary capacity, the Court noted the presumption in favor of capacity when a will is drafted by, and the execution supervised by, an attorney. In this case, the Court held that the proponent established a prima facie case of the requisite capacity based upon the following facts:
· The decedent herself sought the services of the attorney-draftsman;
· The decedent personally met with the attorney-draftsman and brought detailed notes as to her desired estate plan;
· The decedent told the attorney-draftsman about her familial situation;
· The witnesses were aware of the decedent’s involvement in her estate planning, and testified that she appeared to have no visual, auditory or cognitive difficulties; and
· The decedent made specific and accurate changes to the draft of the will.
In fact, the only basis for the allegation of lack of capacity was one of the objectant’s observations that the decedent had appeared preoccupied, reserved and distracted during a visit that occurred around the time that the will had been executed. Citing holdings of the Appellate Division that evidence of sadness or confusion alone is insufficient to prove lack of capacity, the Court rejected this contention. The Court further explained that a diagnosis of dementia, Alzheimer’s, or simply old age, without more, would also be insufficient to override a prima facie showing of capacity (id., citing Matter of Nofal, 35 AD3d 1132 [3d Dept 2006]; Matter of Castiglione, 40 AD3d 1227 [3d Dept 2007]; Matter of Minasian, 149 AD2d 511 [2d Dept 1989]; Matter of Hedges, 100 AD2d 586 [2d Dept 1984]).
Undue Influence
Addressing the claims of undue influence, the court reiterated that it is an objectant’s burden to demonstrate by a preponderance of the evidence, (1) motive, (2) opportunity, and (3) actual undue influence. Undue influence must amount to “a moral coercion, which restrained independent action and destroyed free agency or which . . . constrained the testator to do that which was against his free will and desire . . .” (id.,quoting Children’s Aid Society of NY v Loveridge, 70 NY 387, 394 [1877])., The Court further noted that undue influence may proved by circumstantial evidence, “but the circumstances must lead to it not only by a fair inference but as a necessary conclusion” (id., quoting In re Will of Henderson, 253 AD 140 [4th Dept 1937]).
The objectants’ claim of undue influence alleged that the proponent persuaded the testator to change her funeral home of choice to one that was a client of the proponent. However, the proponent testified that he made no recommendations regarding the decedent’s testamentary plan, but tried to persuade her to choose another executor. In addition, the record demonstrated that every time the decedent met with the proponent regarding her estate plan, she was not accompanied by anyone. In view of these facts, the Court held that the Objectants failed to meet their burden in connection with their allegations of undue influence (see Matter of Feller, supra).
Interestingly enough, there was no discussion of a confidential relationship between the decedent and proponent in this case, and thus, the burden of proof did not shift. After all, an attorney-client relationship often gives rise to a confidential relationship, and a consequential presumption of undue influence (see e.g., Weber v Burman, 22 Misc 3d 1104[A] [Sup Ct, Nassau County 2008]; Estate of Olson, 5/16/2006 NYLJ 33 [col 4] [Sur Ct, Richmond County]). Perhaps this was not considered because the attorney-draftsman was not a beneficiary, but I would submit that such a relationship is arguably relevant here, in light of the allegations.
Court of Appeals: Extra Deposition Did Not Violate In Terrorem Clause
In a rare venture into the world of trusts and estates and its most significant recent ruling regarding in terrorem clauses, the Court of Appeals in Matter of Singer, 2009 NY Slip Op 09265, reversed both the Surrogate’s Court and the Appellate Division, holding that a beneficiary’s conduct in deposing the testator’s former attorney regarding drafts of prior wills did not violate the in terrorem clauses in the propounded will. Specifically, the Court held that the safe harbor provisions of SCPA 1404 and EPTL 3-3.5 are not exclusive, and must be applied on a case-by-case basis. The decision has essentially set forth a two-prong analysis to determine whether a beneficiary’s conduct triggers an in terrorem clause, consisting of the following inquiries: (1) whether the conduct falls within the statutory safe harbor provisions, and if not (2) whether it violated the testator’s intent.
In Singer, the decedent had executed a last will and testament approximately one year prior to his death, in which he appointed his daughter, Vivien, as executor. He also created a corresponding revocable trust through which he bequeathed to Vivien his home, most of his tangible personal property, and the sum of $200,000. In the trust instrument, the decedent stated that Vivien’s inheritance was in recognition and gratitude for her extreme dedication and constant care. The decedent’s son, Alexander, received one-half of the remainder of the estate, to be split with Vivien, and each of Alexander’s sons was given a $15,000 bequest.
The will contained a typical, broad in terrorem clause, which stated, “if any beneficiary, shall, in any manner, directly or indirectly, contest, object to or oppose, or attempt to contest, object to or oppose the probate or validity of [the] will or revocable trust created by [the decedent], or any part of [his] estate plan, or any gifts made by [him], . . .” that beneficiary’s share of the estate would be forfeited (id. at *2). The decedent also included a second in terrorem clause that was explicitly directed at Alexander. That clause directed that Alexander “not take [decedent’s] daughter . . . to a . . . (religious court) or to any other court for any reason whatsoever . . . ,” and stated that if he did, the result would be the forfeiture of his and his sons’ inheritance (id.).
Continue Reading...Probate of a Lost Will
Every effort should be made to preserve an original will, assuming it is expected that the will may be offered for probate. If an original will is lost, however, the testator’s plan will not necessarily be frustrated.
Pursuant to SCPA 1407, a lost will may be admitted to probate when three conditions are met: “(1) it is established that the will has not been revoked, (2) execution of the will is proved in the manner required for the probate of an existing will, and (3) all 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.” The third requirement is often met by the production of a photocopy of the original will (see Estate of Tendler, 4/9/2009 NYLJ 42 [col 5] [Sur Ct, New York County]; Estate of Koontz, 4/8/2009 NYLJ 35 [col 5] [Sur Ct, New York County])
A will that is “shown to have existed” and was in the testator’s possession at the time of his or her death is presumed destroyed and thus revoked (see In re Evans, 264 AD2d 482 [2d Dept 1999]). This presumption is rebuttable, however, by satisfaction of the aforementioned statutory requirements (In re Demetriou, 48 AD3d 463 [2d Dept 2008]). In the event that the will were not in the testator’s possession at the time of his or her death, no presumption of revocation exists. Thus, if the attorney-draftsman retains the original will and it is ultimately lost or destroyed, the proponent may more easily prove that there was no revocation.
Consider the facts in Estate of Raymond, 3/25/2009 NYLJ 35 (col 3) (Sur Ct, Bronx County). There, the decedent’s original will had been maintained in the office of the attorney-draftsman. The attorney’s office was damaged following the July 2007 Manhattan steam pipe explosion, and the City of New York Department of Health ordered the destruction of all documents that had been stored there. The testator never executed another will, and upon his death, a conformed copy of the destroyed will was offered for probate. Noting that no rebuttable presumption of revocation existed because the original will was not in the testator’s possession, the court was satisfied that all three prongs of SCPA 1407 were met. It was held that the will would be admitted to probate.
Similar circumstances were presented in Estate of Castiglione, 40 AD3d 1227 (3d Dept 2007). The attorney-draftsman submitted an affidavit in support of probating a photocopy of the will, stating that the original had been kept with him, but that it had been lost when his office relocated. The attorney-draftsman of the decedent’s codicil corroborated this evidence, and further confirmed that the decedent had believed his will was still in existence upon executing his codicil. The Appellate Division was satisfied that the evidence presented satisfied SCPA 1407, and dismissed allegations that the will was invalid due to lack of testamentary capacity and undue influence. The Surrogate’s Order directing the probate of the will was therefore affirmed.
For a more in depth discussion of probating lost wills, see Necessary Requirements to Successfully Probate a Lost Will, Nassau Lawyer, November 1, 2008.
The Due Execution of Wills
The due execution of a will requires that the elements of EPTL 3-2.1 be complied with before the instrument is admitted to probate. However, only substantial compliance with the provisions of the statute need be shown in order for due execution to be found. The meaning and scope of this provision has been the subject of judicial decision in recent years as evidenced by the following opinions:
Signature at the End of the Document
The provisions of EPTL 3-2.1 require that the decedent sign a will at “the end” thereof. The meaning of this provision was discussed by the court in In re Mobley, N.Y.L.J. Mar. 20, 2009, at 35 (Sur. Ct. New York County), in which the court was presented with the issue of whether the propounded instrument should be denied probate due to the irregular order of the signatures of the testatrix and witnesses.
Specifically, after the dispositive provisions of the Will, and the appointment of the executrix, there appeared preprinted two lines intended for the date and the signature of the testatrix. Those lines, however, were blank. Below these two lines was a pre-printed attestation clause, to which the date and signature of attesting witnesses was appended. Following the attestation clause there appeared a preprinted affidavit of attesting witnesses containing the names, but not the signatures of the attesting witnesses. Rather, on one of the lines for a witness, there appeared the signature of the testatrix.
In finding that the Will had been duly executed, the court opined that a testamentary instrument can be admitted to probate even if the procedure for execution and attestation do not take place in the precise order established by statute. In this regard, the fact that the signatures of the witnesses appear before the testatrix’s signature does not invalidate a will. Further, the court held that although the testatrix did not affix her signature immediately after the dispositive provisions of the instrument, but instead after the attestation clause and the preprinted affidavit of attesting witnesses, the signature of the testatrix nevertheless appeared “at the end” of the instrument as required by the provisions of EPTL 3-2.1. Indeed, the court noted that all dispositive provisions appeared before the testatrix’s signature.
Accordingly, probate of the instrument was granted.
Post-Death Signature of Witnesses Invalidates Will
In re Estate of Lederman, N.Y.L.J., May 22, 2002, p. 19, col. 5 (Sur. Ct., New York County), two of the residuary beneficiaries moved for summary judgment denying probate to a codicil that contained a substantial pre-residuary bequest. A Will and four codicils of the decedent were offered for probate. Under the Will and three of the codicils, the decedent made some minor pre-residuary bequests and bequeathed 90% of her residuary estate to her niece and nephew, and a charitable institution. These instruments were prepared by an attorney who supervised their execution.
The contested codicil was executed approximately 10 weeks before the decedent died, and was a one -page typewritten instrument, labeled “Codicil.” Pursuant to its terms, the sum of $300,000 was left to the decedent’s caretaker. Although the decedent signed the instrument, it was witnessed by only one person, who was designated as the executrix under a provision of the penultimate codicil. The witness stated that she prepared the codicil pursuant to the decedent’s instructions, and that the decedent had informed her that the bequest was to be a bonus to her caretaker.
The individual residuary beneficiaries moved for summary judgment on the ground that the codicil had not been properly executed in accordance with the provisions of EPTL 3-2.1, since only one witness had signed the instrument. The proponent acknowledged the deficiency in the instrument, but nevertheless maintained that it could be cured by her husband, who was present in the room at the time the codicil was executed. The proponent requested that her husband sign the instrument as a witness, albeit after the decedent’s death.
The court denied the application, and granted summary judgment in the movants’ favor, finding that a witness cannot effectively subscribe a Will after the testator has died. This principle is designed to prevent fraud. Furthermore, the court found that the second attestation proposed would be unavailing since it would not occur within the thirty day period prescribed by statute.
Witness/Beneficiaries
The due execution of a Will requires that the testator affix his name or acknowledge his signature to at least two attesting witnesses. The provisions of SCPA 1404 require that at least two of the attesting witnesses to the Will be produced before the court and examined before a Will is admitted to probate. When an attesting witness is also a beneficiary under a propounded Will the question arises as to whether the Will can nevertheless be admitted to probate, given the financial interest of the beneficiary in the instrument. Under such circumstances, the law provides that a Will may be admitted to probate, but the disposition to the witness/beneficiary shall be void, if the witness’ testimony is necessary to admit the Will to probate.
The foregoing principles were recently applied in a case of apparent first impression decided by the Surrogate’s Court, New York County, in In re Estate of Wu, NYLJ, April 27, 2009, p.19. Before the court was an application by the executor of the decedent’s estate for an order directing the decedent’s brother to pay his proportionate share of estate taxes. The brother opposed the application arguing that the tax apportionment clause in the Will exonerated him from liability.
The decedent’s brother was the beneficiary of two life insurance policies on the decedent’s life, but also was one of the two attesting witnesses to the instrument. Under the circumstances, the court found that his testimony was necessary to the probate of the Will, and pursuant to the provisions of EPTL 3-3.2, declared the tax exoneration clause of the Will ineffective as to him. Specifically, the court reasoned that the provision, to the extent that it discharged an obligation of the decedent’s brother, was tantamount to a beneficial disposition to him, within the scope of the statutory dictates pertaining to witness/beneficiaries.
The court opined that while the result of its opinion was ostensibly harsh, it was not so harsh as to deprive the decedent’s brother of his inheritance, i.e. the insurance proceeds, albeit net of estate taxes. Indeed, the court noted that in most instances in which the statute is applied, the witness/beneficiary under the propounded Will is denied his entire bequest. Nevertheless, the court cautioned attorney-draftspersons utilizing a tax exoneration clause to be fully informed of the recipients of the testator’s non-probate assets in order to avoid unintended consequences.
Discovery in Probate Contests
Discovery in a contested probate proceeding is generally governed by what Surrogate’s Court practitioners call the “three/two” rule (22 NYCRR 207.27). This rule limits discovery to the “three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of the decedent’s death, whichever is the shorter period” (id.). It is a “pragmatic rule" intended to prevent the abuses associated with a “runaway inquisition” or “wild goose chase” (Estate of Das, NYLJ, 5/1/2009, at 31 [Sur Ct Nassau County]).
Notwithstanding that general rule, however, the time period for discovery may be extended by the Surrogate’s Court when “special circumstances” exist, such as when “a scheme of fraud or a continuing course of conduct of undue influence” is alleged (id.). For example, in Matter of Kaufman, the objectants sought discovery with respect to the entire period of cohabitation between the proponent of the decedent’s will and the decedent, which lasted from September 1948 until the decedent’s death in April 1959 (11 AD2d 759, 759-60 [1st Dept 1960]). The objectants argued that the departure from the three/two rule was warranted because the proponent’s long relationship with the decedent gave rise to testamentary capacity and undue influence concerns (id.). Although the Surrogate’s Court denied the objectants’ motion, the Appellate Division reversed, reasoning that a full examination of the decedent’s relationship with the proponent was warranted (id.).
Is Justice Delayed Justice Denied?
Recent developments in the Martin Tankleff murder case have captivated court observers in New York and attracted the attention of national news media outlets. For the most part, the observers have focused their attention on issues of criminal law, like newly-discovered evidence and the reliability of allegedly false confessions. Yet, the case also has potential trusts and estates-related consequences.
This much we know: Mr. Tankleff’s parents were killed on September 7, 1988 (see People v Tankleff, 49 A.D.3d 160, 162-64 [2d Dep’t 2007]). After an investigation, the police arrested Mr. Tankleff for murdering his parents, prosecutors tried him for the murders, and a Suffolk County jury convicted him of the offenses (id.). In the days, months, and years that followed, Mr. Tankleff and his legal team launched an exhaustive campaign to overturn his convictions on the basis of newly-discovered evidence, which Mr. Tankleff asserted established his innocence (id.). The Appellate Division, Second Department, issued an Order vacating Mr. Tankleff’s judgments of conviction in December 2007, id. at 183, and prosecutors elected against retrying Mr. Tankleff in June 2008 (see Luis Perez, “AG won’t retry Tankleff – or any other suspects,” Newsday, June 30, 2008).
