A New York Probate Lawyer said that in this proceeding, the court is faced with the primary issue of whether or not the respondent may be compelled to produce at her examination before trial petitioner’s own wills and trusts or whether or not the attorney-client privilege or the confidential, ambulatory nature of the will of a living person protects these documents from disclosure.
The court rules that these documents are not protected by the attorney-client privilege. A New York Wills Lawyer said the confidential nature of these documents, however, dictates that disclosure should be compelled only upon a strong showing of necessity. In this case, the court finds that a limited disclosure is appropriate to enable the petitioner to properly prepare for trial.
The petitioner in this case is the decedent’s sister who commenced this proceeding to set aside and declare invalid a lifetime trust created by the decedent and two wills which were executed respectively on the date that the trust was created and the date that the trust was amended. Petitioner moves for the entry of an order directing that the decedent’s other sister, the respondent, to produce her previous and existing wills and/or trusts and any of her wills and/or trusts prepared by Atty. RL or his office. On the other hand, the respondents have cross-moved for a protective order with regard to the requested disclosure and for an order dismissing that branch of the petition seeking to declare the decedent’s wills invalid.
On 12 April 1996, the decedent died. He was survived by his two sisters and one brother as his distributees. A Staten Island Probate Lawyer said the petitioner alleges that, prior to the execution of the instruments in question, the decedent had executed testamentary documents in 1978, which essentially provided that his estate was to be divided equally between his two sisters. On 31 August 1995, the decedent allegedly executed a lifetime trust and a will, both of which provided for the same disposition of his estate upon his death. On 1 December 1995, the decedent executed an amendment to the trust and another will, both of which eliminated a $55,000.00 legacy to the respondent’s son and replaced it with a $60,000.00 legacy to the respondent. The petitioner asserts that, as a result of the changes made in 1995, the two respondents will receive in excess of $2,000,000.00 while the petitioner will receive less than $168,000.00. It is her contention that the 1995 documents are invalid on the grounds that they were executed at a time when the decedent lacked the requisite mental capacity and that they were the product of the respondent’s exercise of undue influence over the decedent.
Nassau County Probate Lawyers said that they support petitioner’s contention that the respondent exerted undue influence upon the decedent, she asserts that the decedent’s relationship with his nephew remained the same between 31 August 1995 and 1 December 1995 and that the only reason that he executed the amended trust and new will on 1 December 1995, deleting him as a beneficiary, was because the respondent was displeased with her son. She argues that, if the respondent made similar changes in either or both her own wills and trusts, this would be further proof that the decedent merely followed the lead of the respondent and was subject to her undue influence. The petitioner further contends that any privilege that might be attached to these documents was waived by the respondent inasmuch as her son testified in a deposition that his mother had told him that she would disinherit him if he did not do what she wanted him to do.
On the other hand, the respondents contend that a protective order should be granted because production of the requested documents will cause unreasonable annoyance, embarrassment and prejudice in that this information is not relevant and is also protected by the attorney/client privilege. They also assert that the branch of the petition seeking a judgment with regard to the validity of the wills must be dismissed because the court’s jurisdiction to determine the validity of a will is limited to proceedings instituted pursuant to Article 14 of the SCPA and, therefore, the court lacks subject matter jurisdiction to declare an instrument invalid where no party has sought to have it admitted to probate.
The petitioner’s request for disclosure is viewed in light of the direction in Allen v. Crowell-Collier Pub. Co to liberally construe the words “material and necessary” in CPLR 3101(a) so that disclosure is required where it can reasonably be concluded that the requested material would be useful in preparing for trial because it might conceivably be used as evidence in chief or rebuttal.
The court notes that this liberal approach to disclosure neither abrogates recognized privileges nor requires the routine production of documents that are ordinarily considered confidential and private in nature. In Matter of Johnson, the court denied a request that a living person deliver a copy of her will to the objectants in a will contest both because its relevance was limited due to the fact that the will of a living person is ambulatory and can be changed at any time prior to death and because the will was subject to the attorney-client privilege under CPLR 4503(a). Furthermore, the disclosure of documents that are confidential and private in nature, such as tax returns, is generally disfavored and their production is compelled only upon a strong showing of necessity which necessarily includes a showing “that the information sought was unavailable from other sources akin to the cases of Walter Karl, Inc., v. Wood, Spancrete Northeast v. Elite Assocs., Muller v. Sorensen, Briton v. Knott Hotels Corp. and Penn York Constr. Corp. v. State of New York.
It was held in the case of Matter of Johnson that it would violate the attorney-client privilege to compel counsel, while the client is alive, to state whether the client had executed a will or to deliver a draft of a will that had not been executed or notes that had been made during a conversation with the client concerning the preparation of a will. There would, however, be no basis to invoke the attorney-client privilege if the will was not prepared by counsel and, instead, was prepared by the maker, whether by filling in blank spaces on a form or otherwise.
The court is now confronted with the question of whether a different rule should prevail with regard to disclosure depending upon whether the maker first gave instructions to counsel, who then prepared the will which was thereafter executed by the maker before at least two witnesses, or whether the maker who is not an attorney prepared the document and then signed it before the witnesses. It notes that even in those instances where the will was prepared by an attorney, it can be argued that the maker of the will is merely being compelled to produce a signed, witnessed writing reflecting the testamentary disposition of the maker’s estate at the time that the document was executed and that no one is being compelled to divulge any confidential communication that was uttered to counsel. It does not, therefore, appear that it would violate the attorney-client privilege to inquire of the maker, without allowing any inquiry as to the extent of any attorney’s involvement in drafting the will, whether a particular person is named as a beneficiary in a will executed by the maker.
Whether or not the will is in the possession or under the control of the maker falls under the umbrella of the attorney-client privilege. Concerns hinged on the privacy of instruments dictate that executed wills of living persons should not lightly or routinely be subject to disclosure in any proceeding inasmuch as compelling such disclosure is almost tantamount to directing individuals to divulge their private thoughts on a subject while they still have the opportunity to change their final acts on that subject.
In the case at bar, the respondent correctly points out that whether or not she and the decedent executed wills at or about the same time containing similar provisions with regard to her son is not, in and of itself, determinative of whether she was able to exert undue influence over the decedent. The court also agrees with the respondent that the fact that she might have told her son that she was going to disinherit him does not constitute a complete waiver of the privilege with regard to the entire will. If the respondent’s wills and trusts are not subject to a privilege which bars their disclosure, their production would be helpful to the petitioner in preparing for trial inasmuch as she would clearly be able to adduce proof at the trial that the decedent’s relationship with his nephew remained the same between August and December, 1995 and that he only changed his will and amended his trust, deleting the nephew as a beneficiary when the respondent did likewise in instruments executed by her because she was displeased with her son.
Balancing the petitioner’s need for the requested documents in light of the respondent’s son’s testimony that the respondent threatened him with disinheritance against the respondent’s right to privacy with regard to a will that she has the right to change at any time prior to her death, the court concludes that limited disclosure is appropriate.
The petitioner may inquire of the respondent as to the following: whether she had executed any trusts or wills that had not been revoked prior to 31 August 1995; whether she executed any trusts or wills between 31 August 1995 and 1 March 1996; and whether she made any disposition to her son in any of these instruments, and, if she did, the nature or amount of the disposition. The petitioner, however, shall not be entitled to know the identity of any other beneficiary under the above instruments. The documents submitted to the court, the portion of the documents that are inconsistent with the testimony shall be provided to the petitioner.
With regard to the issue of jurisdiction, it appears to the court that respondent’s contention is based on procedure and not subject matter jurisdiction. This observation is based upon the respondents’ recognition of the fact that the validity of the wills could certainly be determined in a probate proceeding filed under Article 14 of the Surrogate’s Court Procedure Act. The statutory framework permits a person to apply for letters of administration based upon a contention that a purported will is invalid and that no proceeding for its probate has been instituted within a reasonable period of time in accordance with SCPA 1001 and 1003 ). SCPA 202 provides that the proceedings enumerated in the SCPA are not “exclusive” and that the court may exercise any jurisdiction granted to it, notwithstanding that the jurisdiction sought to be exercised in the proceeding is or may be exercised in or incidental to a different proceeding.
The respondents should not be allowed to offer the will for probate only after and in the event that it is established that the trust is invalid due to either or both lack of capacity and undue influence. Inasmuch as the wills and the trust, as amended, were apparently executed within minutes of each other, there are obviously common questions of law and fact with regard to the validity of each of the instruments even if it is assumed arguendo that the capacity required to execute a will is different from that required to execute a lifetime trust and that the party who bears the burden of proof on this issue might also be different depending on whether a will or a lifetime trust is at issue.
These issues should be a consolidated trial rather than to subsequently litigate any issues, not precluded under the doctrine of collateral estoppel, that involve the same facts. The court or the parties should never be required to engage in multiple trials involving issues that can and should be tried in a consolidated proceeding. The court finds that the respondents are correct in contending that any person who might be adversely affected by the determination of the issues raised herein should be given notification of the relief requested and an opportunity to be heard.
Pursuant to SCPA 1401, the court directs the respondents to file all of the decedent’s 1995 wills which are in their possession or under their control. If these documents are not in their possession or under their control, they are to file an affidavit to that effect and they shall also state to the best of their knowledge where these documents might be presently located and who has possession and control of them. In the event that these wills are filed, any person who has the right to seek the admission of either or both of the instruments to probate may institute a probate proceeding. If instituted, jurisdiction shall be obtained over all of the necessary parties and that proceeding shall be consolidated for trial with this proceeding. If any party desires to seek as alternative relief that, in the event that the December, 1995 will is denied probate, the August, 1995 will should be admitted to probate. If the petitioner fails to serve process in this proceeding upon any person who may receive a beneficial disposition or is nominated as a fiduciary under either will, supplemental process shall issue and be served upon any such person.
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