A man executed a will in October 28, 1970. In this will, ninety per cent of his estate is left to charities and the remaining ten per cent is left to his sister. In this will also a bank and trust company was named as executor of the will.
After the testator died, the sister filed the petition for probate of the October 28, 1970 will. But the sister also produced a purported codicil executed by the testator dated November 20, 1970. In this codicil, the testator allegedly revoked the nomination of the bank and trust company as executor and instead nominated his sister as executrix.
Two charitable organizations who were distributees of the decedent in the October 28, 1970 will filed objections to the probate of the will and the codicil. The charitable organizations also filed a motion for leave of court to examine the witnesses of both the will and the codicil, the sister, the bank and trust company and the attorney who drafted the will and the codicil.
A New York Probate Lawyer said the bank and trust company also asked for leave to intervene in the proceedings and also to be given leave to examine the witnesses to determine whether it will file objections to the probate of the codicil. Later, it asked leave to also file objections to the probate of the codicil.
The Surrogate’s Court denied the motion of the bank and trust company. The denial is on the basis of the law that prohibits a bank from objecting to the probate of a will. The sister of the testator asserted that the bank’s only interest in the estate of the testator that would be adversely affected by the probate of the will is its financial interest in the commissions it would earn if the codicil appointing another executor is admitted to probate.
Suffolk County Probate Lawyers said the question before the Supreme Court is whether or not a bank which was named and executor in a will can file an objection in the probate proceedings of a codicil that removed his nomination as executor and nominated another.
The Supreme Court held that while it is true that the law prohibits a bank from objecting to the probate of the will, this case has peculiar circumstances that allow the court to make an exception.
It will be noted that the only persons who may file an objection to the probate of a will is a person who has an interest that will be adversely affected by the probate of a will. A bank’s only interest is the commission he will earn as the executor of a will. Generally, a bank is not allowed to object.
Here however, good cause was shown to allow the bank not only to examine the attesting witnesses, the sister of the decedent, and the lawyer who drafted the codicil and the will. The good cause is the allegation of fraud, undue influence, lack of testamentary capacity which may be unearthed as facts during the examination of the witnesses.
And only after those witnesses have been examined will there be a basis to see if indeed, as suspected and alleged, there was fraud, undue influence or lack of testamentary capacity.
The bank as the named executor in the will has the duty to protect the will which nominated him as executor. He has the duty to see to it that no fraudulent codicil is admitted to probate because this will frustrate the intentions of the deceased testator. Bronx Probate Lawyers said the bank’s motion for leave to examine the attesting witnesses, the sister of the deceased testator and the lawyer who drafted the codicil is granted. And, if so warranted by the facts discovered (if there is any testimonial proof of fraud, undue influence or lack of testamentary capacity) after the examination of the witnesses, the bank is also given leave to file an objection to the probate of the codicil.
An executor not only has the obligation to inventory all the properties of the estate and to render an account of the estate; in some instances, an executor also has the duty to objects to what could be a fraudulent codicil. An Estate Litigation Attorney can best help any executor who is called upon to protect a will against any taint of fraud. An Estate Litigation Lawyer can examine witnesses to discover facts that prove fraud or undue influence. At Stephen Bilkis and Associates, Estate Litigation lawyers are ready to assist in the examination of witnesses. Estate litigation attorneys from Stephen Bilkis and Associates are available for consultation at any of their offices in the New York area.