Posted On: March 6, 2012 by Stephen Bilkis

Decedents Claim Fraudulent Will Contest

A will was written, signed, attested, to conform to the legal requirements of law on probate. The testator’s intention to give his estate to his heirs was set. The presence of competent witnesses to a Notary Public was noted.

Children of the decedent who acted as respondents moved to force the surviving spouse, the lawyer-drafter of the will and the accountant of the decedent to reproduce the original and/or photocopies of earlier wills. Original photocopies of the letters between decedent and the attorney-drafter and the unrevised photocopies of notes taken by the lawyer during two separate in-private meetings with the decedent was subject of the probate.

A New York Probate Lawyer said th decedent’s children believed that those documents controlled by decedent’s wife were material pieces of proof. Testator’s wife was unwilling to disclose the true and original wills and testament. Children alleged that the agenda of several private meetings held and organized by decedent’s wife, probate lawyers and the accounts have something to do with the fraudulent wills contested in the estate litigation courts. The party attempted to collaborate the outcome of estate proceedings in their favor.

In opposition to decedent’s children motion, decedent’s wife, his lawyer, and accountant alleged that they were unable to find any previous will even after exhaustive search. Decedent’s wife promised respondents that they would provide them a copy if the same will be available in the near future. They assured them of continued careful search.

In responding to the allegation of private meetings to defraud the estate the estate administration courts in bringing in false wills and testaments, decedent’s lawyer-drafter, the surviving wife hereby make a plain and clear statements that those meetings were indeed business meetings of her exclusive properties, as she also hired the services of the drafter for her. There existed lawyer and client relationship with her and the lawyer. It was proper to hold several important meetings to plan the possible valid action they take in case decedent property right was injured. Executors contended that the lawyer who drafted the will represented both decedent and surviving spouse, in connection with their arrangement on estate disposal plan. They proved to have confidential communications concerning plans of disposing the estate of the wife.

The children further alleged that those communications concerning wife’s plan and estate plans and assets were the subjects of revision of documents in question. The contents of those communications concerning wife’s plan and assets were the subject of the edited materials and were therefore, privileged, pursuant to the attorney-client privilege afforded by law, and not to be find out by third parties.

The wife’s party moves for a protective order of the law concerning the alleged privileged redactions.

Although children further argue that the executors’ response to their discovery demands was untimely, service of a notice of motion for a protective order suspends disclosure of the particular matter in dispute.

The time limitations of law did not apply where the material sought were claimed to be privileged or where discovery would be palpably improper.

The documents sought in this matter were alleged to be privileged, and thus children’s reference to law was misplaced and the executor’s motion for a protective order was timely and proper.

In actions involving the probate, validity, or construction of a will, an attorney or his employee were required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but they were not allowed to disclose any communication privileged under which would tend to disregard the memory of the decedent.

Decedent’s children contended in their motion that these documents were not privileged as they contain information pertaining to decedent and his will that the executors were required to disclose. Westchester County Probate Lawyers said that ordinarily if a party objects to a discovery demand, that party was to serve a response which states with reasonable particularly the reasons to each objection. If objection was made to part of an item or category, the part was to be specified.

Here, the executors objected to certain disclosures, by use of redactions, but failed to state the reason for such; providing materials in redacted form with a brief mention that documents attached were redacted does not constitute as a valid reason for an objection.

The executor’s opposition to decedent’s children’ motion was supported by the drafter of the will’s sworn statement, affirming that his correspondences and notes were redacted to preserve the confidential communications between the drafter and decedent’s wife, and between the drafter and decedent wife’s estate plans and assets. Probate lawyer’s affirmation substantiated the existence of facts upon which the motion was based, as it was the drafter’s own writings that was redacted.

When a claim of privileged were presented, it may be advisable to conduct an in camera review of documents claimed privileged. New York City Probate Lawyers said the court may deferred determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it does not affect substantial rights.

Surrogate courts based their judgment on the weight of proof substantiated. As this will be used in determining by the surrogate judge proof and material grounds for belief that the same conveyed reasons set, as in camera review of said materials, in un-redacted from, is necessary.
The law established the requirements for a privileged document log when a party seek to claim an attorney-client privilege. The estate administration courts have recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, to aid the courts in its assessment of a privilege claim and enable it to undertake in care review of documents claimed to be privileged.
Estate litigation courts deferred determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it did not affect substantial rights. They established the requirements for privileged document log when a party seek to claim an attorney-client privilege.

The probate courts have recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, to aid the courts in their assessments of the privileged claim and be able them to undertake in camera review.

The executors failed to provide a privilege log to explain the redaction. Merely responding with boilerplate claims of privilege, without a privilege log as required by law was sufficient as a matter of law. Although estate courts privilege claimed without further explanation by the executors as the redacted material, which may be accomplished through an in camera review of said materials.

Respondents argued that the attorney-client privilege did apply because the correspondence was addressed solely to decedent, regarding his estate plan, and the meetings between decedent and drafter-lawyer to take place in the presence of their parties. The executors alleged that the redaction to each documents were made in order to preserve the confidential communicational between the drafter-lawyer and wife.

Concerning wife’s estate plan and assets, redaction were made on the correspondence and attorney notes. The two-piece of correspondence consisted of letters addressed solely to the decedent and signed by drafter-lawyer. The letters were marked personal/confidential. The first sentence of each letters stated, “the following was a summary of estate plan which had been revised”. The contents of the letters seem to relate directly to decedent’s testamentary plan.
The estate administration courts cannot decipher the unknown, and an in camera review of these letters in un-redacted form was required to determine whether wife’s estate plan and assets were discussed in either letter and if the attorney-client privilege attached.

Decedent’s children argued that the presence of decedent, and nominated trustee, accountant to decedent, waived the attorney-client privilege. The attorney-client privilege attached to confidential communications between an executor and an attorney, to the exclusion of third persons, including beneficiaries of the estate. The presence of a third party during the communication between the attorney and the client indicated that the communication was not confidential. In such a case, the privilege did not attach.

However, when the court deemed the third person to be an agent of the attorney or the client, the communications remain privileged. Here there had been no claim by wife that co-trustee were wife’s agents.

Drafter-lawyer indicated that the decedent and wife were present at the meeting. The executors contended that wife was a client of drafter-lawyer and that any communications made during the probate meetings were confidential in respect to both clients present at the meeting. The attorney-client privilege seek to ensure that one needing legal advice would be able to confide fully and freely in his attorney, secured in the knowledge that his or her confidences will not later be exposed to his or her legal detriment. The attorney-client privileged had been arranged, which bars disclosure of any confidential communications between a client and his/her attorney. Again, an in camera review was necessary to determine whether wife’s estate plan and assets were the subject matter of drafter-lawyer notes.

Because of the determination of whether documents were privileged was fact-specific, an in camera review of such documents have to be undertaken before resolving the issue. The burden of proving that all the requisites of the privilege were present falls on the person asserting the privilege.

The estate administration courts were aware that the attorney client privilege was of the oldest among cannon law evidentiary privileges, fostering the open dialogue between lawyer and client that was deemed essential to effective representations and will remain mindful of this throughout an in camera review.

A final determination on the motion to compel un-redacted copies of particular disclosure was held abeyance pending an in camera review of the documents in un-redacted form. Un-redacted copies of the documents submitted to the court within several days.

Heirs of the decedent in a probate cannot speculate on the true intention of the testator in drafting his wills and testament. Neither can they make additional provisions to the will. Stephen Bilkis and Associates will intellectually fight for you, stay by you and assist to help you get your case done.