A man died at age 84 and he is a resident of Westchester County. The man’s sole heir is his 15-year-old granddaughter who is the daughter of his estranged son who predeceased the man in 2004. A New York Probate Lawyer said the man was also survived by 10 nieces and nephews, including the complainant nephew and the opponent niece. The man had been married twice, with both marriages ending in divorce — the second of which was finalized shortly before the man’s death.
The following pertinent facts have been gleaned from transcripts of pre-trial testimony given by the nephew and the niece and from affidavits submitted on their behalf. Around October 2004, shortly after the man underwent quadruple by-pass surgery, the man’s second spouse, left the man and purportedly seized nearly $140,000.00 of assets held in a joint account in their names. Over the next two years, the man was beset with numerous physical ailments such as pneumonia, broken shoulder, diabetes and kidney-related problems, which caused him to be hospitalized and undergo physical rehabilitation on numerous occasions during that period.
Shortly after the second spouse left him, the man contacted the nephew, who was the man’s personal accountant since the late 1990’s, in order to gain his assistance in trying to recover from his second wife the proceeds from the joint account. At that time, the man informed his nephew that under his then-existing will (executed in or around 1993), he had bequeathed his entire estate to his second wife, and he wanted to change his testamentary plan to bequeath his estate to his nephew and/or his nephew’s son. Thereupon, the nephew who resides in Rockland County contacted her counsel of record in the instant proceeding — with whom petitioner has had a mutual professional relationship for client referrals since the late 1990’s.
The nephew’s counsel agreed to assist the man in pursuing his claim to recover the assets from the joint account and, following a meeting with the man, the nephew’s counsel prepared a draft of a new will for the man. However, shortly after the draft was prepared, the man expressed to petitioner his dissatisfaction with certain aspects of his nephew’s counsel’s legal services. Thereupon, the nephew contacted a female attorney who is a distant cousin of the nephew’s spouse — whose law office is located in Rockland County. The nephew dispatched a copy of her counsel’s draft to the female attorney, who adopted the draft in preparing a testamentary instrument for the man. On December 30, 2004, at her law office, the female attorney supervised the man’s execution of the 2004 instrument, pursuant to which the man bequeathed his entire residuary estate to his nephew, and in the event that his nephew predeceased him, to the spouse of his nephew, and in the event she predeceased the man, to his nephew’s then-living issue. The will also nominated the nephew to be the sole executor and the nephew’s spouse as successor/alternate executrix. The will also specifically disinherited the man’s second wife, for having abandoned him without justification and specifically disinherited any issue of the man’s estranged son, due to the man’s estrangement from his son and his son’s children. The complainant nephew acted as liaison between the female attorney and the man in arranging for the man’s execution of the 2004 will by transporting the man to the female attorney’s office; being present when the man executed the will; and by paying $150.00 to the female attorney for her services and was not reimbursed therefore.
Subsequently, in or around early 2005, the opponents assumed primary responsibility for assisting the man in many aspects of his daily routine, including paying his bills, managing his medication and health care assistance, scheduling his medical appointments, and acting as liaison between the man and the law firm which the man ultimately retained to represent him in the divorce action that his second wife had commenced against him. During this time, the man decided to appoint his niece as his attorney-in-fact and his health-care proxy. In conjunction with that decision, while he was hospitalized for a shoulder injury he had sustained, the man executed a testamentary instrument under the supervision of two attorneys from the law firm.
Also, at or around that time, the man executed a power of attorney and health-care proxy in his niece’s favor. Under the 2005 will, the man specifically revoked the 2004 last will and bequeathed the sum of $10,000.00 to his nephew. He also bequeathed his entire residuary estate to his niece, and in the event she failed to survive him, the residuary estate will go to the man’s nephew. The 2005 will also appointed his niece as sole executrix and his nephew as alternate executor. The 2005 last will also specifically disinherit the man’s second wife.
In early or mid-February 2006, during a conversation between the man and his nephew at the man’s home concerning his ongoing efforts to recover the proceeds from the joint account, the man informed his nephew of the existence of the 2005 last will. According to the man’s nephew, during the conversation, the man told him that the man’s niece had pressured him into signing the 2005 last will while he was in the hospital. Upon learning the information, the nephew contacted the law firm and requested that a copy of the 2005 last will be sent to the man’s home. When he received the copy a day or so later, the man’s nephew went over the terms of the 2005 last will with the man and, upon the man’s expression of discontent with the terms, the nephew suggested that he execute another will. During the conversations, the nephew discussed with the man that the man owed him between $10,000.00 and $15,000.00 for various loans that his nephew had made to him and for the unpaid professional services that his nephew had performed for him, and the man indicated to his nephew that he wanted to divide his estate between his nephew and his niece, in percentages of 60% to his nephew and 40% to his niece. At the time of the foregoing conversations, the nephew assisted the law firm in reviewing the man’s assets for the purpose of negotiating a settlement of the divorce action that the man’s second wife had commenced against him.
In mid-February 2006, the man contacted the female attorney and advised her that he wanted to execute a new will, virtually identical in many respects to the 2004 last will that she had previously prepared for him, except that the man now wanted his residuary estate to be divided between his nephew and his niece, in percentages of 60% to his nephew and 40% to his niece. The female attorney drafted the 2006 last will in accordance with the man’s instructions, and forwarded a copy of the draft to the man’s nephew to give to the man.
On February 23, 2006, as the nephew was driving the man to the female attorney’s office to execute the 2006 last will, the man suddenly informed her nephew that he wanted him and his niece to split his residuary estate in equal 50% shares. At that point, the nephew contacted the female attorney through her cellular telephone, and after providing her with the background information attendant to the man’s execution of the 2005 last will, informed her of the man’s requested adjustment to his residuary disposition. Long Island Probate Lawyers said the female attorney who has drafted the last will and/or supervised the will execution ceremonies on an average of two to five occasions annually since 1991, made the requested revision prior to the man’s nephew and the man’s arrival at her office.
Brooklyn Probate Lawyers said when they arrived, the female attorney met privately with the man, at which time the man expressed his concerns to the female attorney about the propriety of the 2005 last will he had executed in the hospital. According to the female attorney, from conversations she had with both the nephew and the man, even though she had not prepared a family-tree diagram of the man’s relatives, the man made her aware that his only son had predeceased him and that he had a grand-daughter. During their private conference, the female attorney went over each and every term of the 2006 last will with the man thoroughly and upon his approval thereof they rejoined the complainants in a conference room to commence the execution ceremony.
The nephew of the man and the proponent of the last will executed on February 23, 2006 moved for summary judgment to dismiss the objections to probate and to his prospective appointment as executor filed by the opponent, the niece of the man, who opposes the motion. The motion is granted in part, and denied in part.
The objection seeking the nephew’s disqualification as executor due to his want of understanding, dishonesty, and unfitness for the execution is dismissed
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