A petition for probate was filed. A contestant came forward in the probate proceeding contesting the due execution of the will and contesting as well the testamentary capacity of the testator. The contestant in his objection made general allegations of fraud and undue influence against the proponent of the will.
The proponent of the will then filed a motion for a bill of particulars. He demands that the party contesting the will be made to state specifically the acts or omissions as well as the time, the date, and the place where the specific acts of fraud and undue influence were perpetrated by him against the testator.
The Court is faced with the question of the extent a proponent may require a will contestant to provide specific and particular details of the fraud and undue influence he claims were committed by the proponent.
The Court is faced with two decided cases by the Supreme Court of New York that have contradictory holdings. A New York Probate Lawyer said in the older case, the Supreme Court of New York ruled that it is necessary to state the specific acts or conduct which constitutes the undue influence as well as the particular false statements, misrepresentations and fraudulent acts which have been practiced to constitute the fraud.
In the more recent case, the Supreme Court of New York has held that the party contesting the will needs only to set forth in general terms the acts, statements and misrepresentations which were allegedly used to commit fraud or undue influence against the testator.
The Court has to reconcile these two seemingly contradictory cases that dictate two different levels of disclosure of facts that constitute fraud and undue influence. The Court has held that the most reasonable holding is that when pleading undue influence and fraud as grounds for objection to the probate of a will, the ultimate facts constituting the fraud and undue influence must be stated and not mere conclusory statements.
Long Island Probate Lawyers said the Court reconciled the two cases by analyzing which of the two cases were consistently upheld in other later decisions of the Supreme Court of New York and the Court came to the conclusion that what is necessary is to state the “basic essential facts.
This means that specific acts or courses of action must be stated; the time and the place where the undue influence took place must be stated; if there is more than one person who practiced undue influence, then their names must all be stated. Brooklyn Probate Lawyers said that all the false statements, suppressions of facts, misrepresentations and other fraudulent acts must be enumerated. The dates, times and places where the fraud was committed have to be stated. If there were acts of physical violence then each and every instance of acts of violence must be stated.
Statements which merely state conclusions are not allowed as these cannot be the basis for findings of fact.
The specific allegations will allow the party against whom the charges of fraud and undue influence were hurled the opportunity to also specifically deny with particularity the instances of fraud and undue influence he allegedly committed.
In this way the issues will be more easily joined and presentation of evidence will be more orderly and logical.
Have you filed a petition for the probate of a will? Was there a party who came over to contest the probate of the will? Were you accused of having committed fraud and undue influence? Stephen Bilkis and Associates can help present not only facts in your favor that show a lack of fraud and undue influence, the legal team from Stephen Bilkis can also argue in your behalf.