A person’s standing to interpose objections to probate is governed by SCPA §1410, which provides that,

 any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof except that one whose only financial interest would be in the commission to which he would have been entitled if his appointed as fiduciary were not revoked by a later instrument shall not be entitled to file objections to the probate of such instrument unless authorized by the court for good cause shown.

The case law has firmly established that the interest that would be adversely affected must be pecuniary in nature (see, e.g., In re Hall, 12 AD3d 511 [2d Dept 2004]). An interest based on sympathy, sentiment, or anything other than the gain or loss of money is insufficient to confer standing.

Recently, the Kings County Surrogate’s Court rejected two different standing arguments in Estate of Saunders, a contested probate proceeding. First, in a January 2017 decision, the Court rejected the petitioner’s argument that sons of the decedent lacked standing to file objections (see Estate of Saunders, NYLJ, Jan. 27, 2017, p.35). Under the will, each of the sons was bequeathed $100, and the residuary was to be divided equally among three charities. Following the decedent’s death, the sons, as “sole heirs of the estate,” transferred all of their purported interest in real property owned by the decedent, which had become part of the residuary estate, to a limited liability company (id.). The petitioner claimed that as a result of that transfer, the respondents had no pecuniary interest in the estate that would be adversely affected by the admission of the will to probate. In opposition, the respondents argued that the cash bequests gave them an additional interest in the estate. They further argued that the estate indeed had cash. The petitioner conceded both of those facts, but asserted that the cash had been depleted through the administration of the estate. The court was not persuaded that the executor’s proper use of the cash assets for administration purposes determined whether the respondents had standing under the statute. It concluded that because the respondents assigned away only their purported interest in the real property, and not their interests as distributees of the decedent, they indeed had standing to interpose objections to probate.

The Surrogate addressed standing again in a later decision, when the LLC moved to intervene and file objections on the grounds that it was a good faith purchaser of the real property, and would be adversely affected by the admission of the will to probate (see Estate of Saunders, NYLJ, Mar. 1, 2017, p.25, col. 6 [Sur Ct, Kings County]). In an unpublished decision and order, the Surrogate found that the LLC lacked standing. Although we don’t know the court’s precise reasoning, its decision is not that surprising, as the LLC was not a beneficiary of the real estate under the will or prior will, and certainly was not a distributee or legatee of the decedent.

Not content to sit on the sidelines and rely on the sons’ objections to preserve its purported interest in the property, the LLC subsequently moved to renew its motion on the grounds that it had commenced a proceeding to quiet title to the property, which the Supreme Court stayed pending the outcome of the contested probate proceeding. According to the LLC, it would have no recourse to protect its interest if it could not intervene. The Surrogate was not persuaded. First, it noted that a motion to renew, pursuant to CPLR §2221(e) must be based on new facts that existed at the time the original motion was made, but were not presented at that time. The LLC’s motion was grounded on the Supreme Court’s stay order which occurred years after the original motion to intervene was made. The Surrogate sua sponte also considered the motion as one for reargument, pursuant to CPLR §2221(d), but again, found that it failed because the LLC did not claim that the Surrogate misapprehended the facts or law, but rather, advanced an entirely new argument, which is not a proper basis for such a motion.

In two recent decisions, Surrogate Lopez Torres of Kings County denied petitions for guardianship under SCPA Article 17-A, demonstrating the strict circumstances under which guardians are appointed under this particular statute.  SCPA §1750-a applies to persons who are intellectually disabled (as that term has generally been substituted for the archaic term “mental retardation” which appears in the statute) and are permanently or indefinitely incapable of managing his or her own affairs.  The statute requires that the condition be certified by a licensed physician and a licensed psychologist (or two licensed physicians, one of whom is familiar with  or has knowledge of the care and treatment of the disabled person); and that the court is satisfied that appointing a guardian is in the best interests of the disabled person.  Unlike under Article 81 of the Mental Hygiene Law, the court has no discretion or authority to limit or tailor the powers of a guardian under Article 17-A.  Thus, in both proceedings, the court was quite cognizant of the fact that an Article 17-A guardianship is the “most restrictive type of guardianship available” in this State because it “completely removes that individual’s legal right to make decisions over her own affairs and vests the guardian ‘virtually complete power over such individual’” (Proceeding for the Appointment of a Guardian for Michelle M., 2016 NY Slip Op 51114(U) at *3 [Sur Ct., Kings County]).  The potential loss of liberty was the court’s primary concern.

In Proceeding for the Appointment of a Guardian for Michelle M., decided on July 22, 2016, the parents of a 34 year-old diagnosed with Down’s Syndrome petitioned to become their daughter’s guardian, claiming that she was unable to make medical and other decisions regarding her welfare.  The petition contained the requisite certifications, which opined, according to the court, in conclusory fashion, that Michelle was not capable of managing herself or appreciating the nature and consequences of health care decisions.  However, the record revealed that Michelle led an independent life and made her own decisions.  She lived with roommates in an apartment, shopped for and cooked her own food, held a part-time job for six years, managed her own finances, traveled independently, and made and kept her own doctors’ appointments on a regular basis.  In the face of this evidence, the court was particularly concerned with whether appointing a guardian based on the medical certifications “without careful and meaningful inquiry into the individual’s functional capacity, relies on the incorrect assumption that the mere status of intellectual disability provides sufficient basis to wholly remove an individual’s legal right to make decisions for himself” (id. at *4).  The court had no doubt that the petitioners loved and wanted to protect their daughter, but noted that the standard for appointing a guardian was not whether they could make better decisions for Michelle, but rather, whether Michelle had the capacity to make decisions for herself, which was not disputed.

In Estate of Antonio C., NYLJ, July 26, 2016, p. 25, col. 4 (Sur Ct, Kings County), also decided on July 22, 2016, the court’s decision to deny the petition for guardianship over the 66 year-old was seemingly easier.  First, the statutory requirements were not met, as there was no evidence that the respondent’s purported disability was present before he was 22 years old.  Additionally, it appeared to the court that the petitioner had a personal motive for seeking guardianship.  The petitioner was a former boyfriend of the respondent’s sister, and had lived with the respondent for nine months in a New York City Housing Authority apartment.  According to the petitioner, he could not be added to the respondent’s lease unless he became his legal guardian.  Moreover, the evidence adduced at the hearing showed that the respondent could manage his own affairs and possessed essential living skills; he had lived on his own for a period of time before the petitioner moved into his apartment.  Given these factors, the court concluded that a tailored guardianship was more appropriate than the global guardianship under Article 17-A.

In a March 6, 2015 decision in Levien v Johnson, NYLJ 1202721296511, at *1 (Sur Ct, New York County), the New York County Surrogate’s Court enjoined the trustees of a testamentary trust from proceeding in Texas to challenge the adoptions of two adults, Parvin Johnson, Jr. and Kenneth Ives, by the grandsons of the Decedent, Arnold Levien. As the great-grandsons of the Decedent, Messrs. Johnson and Ives would be members of the class of remainder beneficiaries of the trust entitled to distributions. If this story sounds familiar, it should. This blog’s May 2014 post discussed the Court’s April 4, 2014 decision which dismissed the trustees’ argument that the court should disregard the “unique and unforeseeable” adoptions because they were contrary to the Decedent’s intent and were fraudulently kept secret from the trustees during settlement negotiations that occurred just months before.

In that April 2014 decision, the Court recognized the Texas adoptions, but explicitly stated that it could not opine on their validity, as that was an issue for the Texas Court.  So, following that decision, and despite the dismissal of their claim that the grandsons fraudulently failed to disclose the adoptions, the trustees commenced an action in Texas to void the adoptions of Messrs. Johnson and Ives. However, in their Texas petition, the trustees alleged that the grandsons “committed fraud by failing to disclose their intentions to adopt two adults, Ives and Johnson, while litigating and negotiating the terms of the July 20, 2012 Stipulation of Settlement,” and asked the Texas Court to void the adoptions based on that alleged fraud (id. at *3).  The Surrogate found that that was the very same claim that the trustees had previously made before it, and which was dismissed on the merits in the Court’s April 4, 2014 decision.  Indeed, while the validity of the adoptions was an issue for the Texas Court, the issue of who benefits from the trust, the Surrogate found, was appropriately determined by the Surrogate’s Court, which continued to have jurisdiction.  The Court then determined that because the Texas Court could issue a decision regarding the alleged fraud that conflicts with its April 2014 decision, an injunction was warranted. The Court thus enjoined the trustees from seeking any relief in Texas concerning the July 2012 Stipulation of Settlement with the grandsons, or who benefits under the trust.  Interestingly, the Court “continue[d] to defer to the Texas court on the question of whether the Texas orders of adoption at issue can be vacated or voided based on any theory pled, cognizable, and proved in Texas” (id. at *5).  The Court appears to have left open the possibility that the trustees could challenge the adoptions based on theories not previously advanced in the Surrogate’s Court involving Texas adoption law.

On October 28, 2014, the Court of Appeals rendered its long awaited decision in In re Lawrence, 2014 NY Slip Op 07291, reversing the decision by the Appellate Division in which it was held that (1) a revised retainer agreement, under which the law firm received 40% of the net recovery (i.e. $44 million) was procedurally and substantively unconscionable and that fees should be determined under the original retainer; and (2) the claim to recover gifts made by the client to her attorneys was timely.

In upholding the revised retainer agreement, the Court stated that the most important factor in determining whether it was procedurally unconscionable was whether the client was fully informed upon entering into the agreement, in that the client had “full knowledge of all of the material circumstances known to the attorney” (Slip Op. at 18).  The hearing evidence demonstrated that Mrs. Lawrence, who was involved in every detail of the case, fully understood the revised retainer agreement, and that layperson could comprehend the mathematical calculations used to arrive at the 40% contingency fee. Refusing to engage in a “hindsight analysis” of the revised retainer agreement, the Court concluded that the revised retainer agreement was not substantively unconscionable in light of the risks taken by the attorneys, and the value of their services over two decades of contentious litigation during which there was a lengthy trial and several appeals.

Regarding the gifts, the Court found that the claim was time-barred, and that the statute of limitations was not tolled by the continuous treatment doctrine, which, the Court reiterated, applies only where there is a claim for professional misconduct, and the professional’s ongoing representation directly relates to the specific transaction giving rise to the malpractice claim.  The Court specifically distinguished between a dispute concerning an attorney’s malpractice in rendering services and a dispute over a client’s payment of a bill or making of a gift; a critical distinction for purposes of the policy underlying the continuous representation rule.  The rule exists because “the client should not be burdened with the obligation to identify the professional’s errors in the midst of the representation as the client is hardly in a position to know the intricacies of the practice or whether the necessary steps in the action have been taken” and thus, “cannot be expected to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person” (Slip Op. at 27).   With respect to a gift or fee dispute, however, the Court held that the giving of a gift is “not the subject of any prior or ongoing representation,” and therefore, disputing it would not “force a lay person to undertake actions that he is ill-equipped to carry out” or place the client at risk for interrupting corrective efforts.

Applying those principles to the facts before it, the Court found that the client’s voluntary gifts were unrelated to the lawyers’ provision of any legal services. Importantly, there was no underlying claim of malpractice against the attorneys who received the gifts. Thus, the seminal requirement to apply the continuous representation rule was missing.  The Court further determined that there was no need for the lawyers to have any future representation vis-à-vis the gifts or to take any “corrective action.” It then concluded, “the purpose underlying the continuous representation rule would not be served by its application” (Slip Op. at 29).

Two recent decisions from the New York County Surrogate’s Court attempt to answer this question.  In Estate of Weisberg, decided on April 8, 2014, the court addressed the issue of marriage. Faced with competing petitions for letters of administration, the court was asked to find as a matter of law, that the cross-petitioner was the decedent’s wife and sole distributee of the decedent’s estate.  In Levien v Johnson, 2014 NY Slip Op 30995(U), decided on April 14, 2014, the court considered whether two adults adopted by the decedent’s grandchildren constituted “great-grandchildren” under the decedent’s will.  In both cases, the court was asked to find that these familial relationships existed as a matter of law. However, as these cases demonstrate, that is not always the case.

In Estate of Weisberg, the cross-petitioner moved for summary judgment for a determination that she was the decedent’s surviving spouse, and thus entitled to letters of administration. The movant made the following two arguments: (1) the court was bound by a judicial finding in Family Court that she and the decedent were married; and (2) she and the decedent were married in an Islamic ceremony which created a legal marriage under New York law.  The court was not persuaded by either position.

First, it declined to apply the doctrines of res judicata or collateral estoppel to the Family Court determination because that finding was not on the merits. Rather, it was an administrative action made solely for the purpose of assigning the matter to a referee. Indeed, because the parties reconciled, the Family Court never rendered any finding, either on the merits or as necessary to the relief sought, that the parties were married. Without that determination, the court was not bound by the Family Court’s determination, and it refused to consider it.

Regarding the validity of the Islamic ceremony, the court found that there was no material issue of fact that the petitioner and decedent participated in an Islamic marriage ceremony. The court noted, however, that it could not, as a matter of constitutional law, decide that the ceremony constituted a valid religious marriage ceremony. On the other hand, the court could consider whether that religious ceremony constituted a valid marriage under New York law.  However, it found that the movant’s proof in that regard was deficient because there was no evidence that the requirements for a valid marriage under the Domestic Relations Law were complied with; to wit, that the petitioner and decedent solemnly declared that they take each other as husband and wife, or that the Imam who performed the ceremony had the religious authority to do so. Thus, the court could not rule as a matter of law that the cross-petitioner was the decedent’s spouse.  

The issue in Levien was different, but raised an interesting question about familial relations in the estate context. The proceeding centered around a trust created under the decedent’s will which provided that upon the termination of the trust, distribution of the remainder would go to the decedent’s great-grandchildren per capita. Approximately  2½ years before the trust terminated by its terms, two of the decedent’s grandchildren (Stephen and Harlan) brought a proceeding to compel the trustees to invade the trust and make distributions to them from the trust principal to pay for ongoing medical expenses (they both suffered from muscular dystrophy).  That proceeding was resolved by a stipulation of settlement in July 2012, in which Stephen and Harlan agreed to relinquish all rights as beneficiaries of income and/or principal of the trust.  Three months later they each adopted an adult in Texas. They notified the trustees of the adoptions and sought to have those adopted adults declared the decedent’s great-grandchildren who were entitled to share in the remainder of the trust. It should come as no surprise that the trustees refused to recognize the adoptions, and they commenced a proceeding seeking a decree that the adopted children were not entitled to share in the trust. Interestingly, the trustees did not challenge the validity of the adoptions in the Surrogate’s Court proceeding.  They argued instead, among other grounds, that recognizing the adopted children as the decedent’s great-grandchildren would violate the terms of the decedent’s will and the decedent’s intent; that the adoptions were “unique and unforeseeable” which should have been disclosed during the settlement negotiations; and Stephen and Harlan were using the adoptions as a means to circumvent the settlement agreement.

In the end, the court rejected all of the trustees’ arguments.  On the issue of the decedent’s intent, the court stated that EPTL § 2-1.3(a) makes clear that the term “children” includes adopted children, unless the decedent “expresses a contrary intention.” The court then determined that there was nothing in the will indicating that the decedent intended for his great-grandchildren to be only those who were blood relations.  The court found that the will’s silence on the issue of adoption did not create an ambiguity. The court similarly rejected the trustees’ “unforeseeability” argument, given New York’s long-standing recognition of adoption as a means to create a parent-child relationship as a matter of law, and here, that the adoptions did not affect the rights of the remainder beneficiaries, but merely added to the class thereof.  Even if Stephen and Harlan had a duty to disclose the adoptions during the settlement negotiations, the court found that their failure to do so was not a basis for the court’s determination as to the status of the adopted children as remainder beneficiaries under the trust.

Rejecting the “sham adoption” argument, the court found that to the extent the trustees were claiming that the adoptions resulted from fraud, they needed to address that in the Texas courts. Unless and until that issue is determined in Texas, the court would give full faith and credit to the Texas adoptions. Furthermore, it found that the only way in which the adoptions would circumvent the settlement agreement, thereby paving the way for Stephen and Harlan to share in the assets of the decedent’s estate, is if their adopted children voluntarily share those assets with them, which the court was powerless to prevent.

 

In probate proceedings involving the issue of testamentary capacity, parties frequently present testimony at trial from an expert psychiatrist.  It is often the case that that psychiatrist never saw or treated the testator, and develops his or her expert opinion solely by reviewing various documents, including the testator’s medical records.  

This expert psychiatric testimony is admissible, but courts have routinely and consistently held that it is afforded very little weight, if any, and is unreliable.  This appears to be an “equal-opportunity” standard. In other words, this type of testimony is given little weight regardless of which party relies on it. For example, in Matter of Swain, 125 AD2d 574 (2d Dept 1986), the objectant’s expert psychiatrist testified that based solely on an examination of the medical records, which notably did not include the month when the will was executed, the testator was so impaired by a stroke that she could not have known the nature and extent of her assets or the natural objects of her bounty. The jury returned a verdict denying the will to probate on the grounds, inter alia, that the testator lacked testamentary capacity. The Second Department reversed, finding that the psychiatrist’s testimony was purely speculative, contradicted by the testimony of the testator’s treating physician, and was entitled to no weight. Thus, it concluded that the objectant failed to rebut evidence that the testator possessed testamentary capacity.

 

In Matter of Slade, 106 AD2d 914 (4th Dept 1984), however, the proponent of the will relied on a psychiatrist’s testimony that the testator possessed testamentary capacity.   That witness had never examined the testator, nor discussed her condition with any treating physicians. He simply reviewed her medical records. At the close of the proponent’s case, the objectant’s moved for a directed verdict pursuant to CPLR § 4404, which the court granted on the issue of lack of testamentary capacity, because the proponent failed to meet his burden. Affirming that decision, the Fourth Department stated that “such testimony is the weakest and most unreliable kind of evidence,” and noted that it contradicted the facts—which must prevail.