Probate & Estate Litigation

Published on: February 17, 2020

Latham Standard Must Be Applied in Determining Eligibility To Serve as Fiduciary Under SCPA § 707, In the Matter of Walsh, 2007 NY Slip Op 51353(U) (N.Y. Sup. Ct. 7/10/2007)

by Stephen Bilkis

In this case the Surrogate’s Court considered whether the actions of a person who petitioned the court for letters of administration amounted to dishonesty, making him ineligible under Surrogate’s Court Procedure Act § 707.

An executor or estate administrator is the person who is responsible for managing an estate after the death of the testator. The person is referred to as an executor if he (or she) was named in the decedent’s will. In doing so the testator is merely nominating the person. The nominated person must still petition the Surrogate’s Court to receive “letters testamentary.” Letters testamentary is a legal document granting the authority to manage the estate and ultimately distribute its assets. If someone other than the person named in the will wants to be manage the estate and become the estate administrator, then he must petition the court for “letters of administration.” Without letters, whether the person was named executor in the will or not, he has no authority over the decedent’s estate. The court will only grant letters to petitioners who are eligible.

In Walsh, a brother and sister engaged in probation litigation related to the estate of their father. While the father nominated the sister to serve as the executor of his estate, the son petitioned the Surrogate’s Court for letters of administration. The dispute between the siblings centered on two main issues: whether the brother was dishonest about having possession of the father’s 2000 will and whether the daughter was in possession of property owned by the father’s estate.

Published on: February 10, 2020

Father, a Convicted Felon, Not Eligible to Serve as Administrator of the Estate of Minor Child, Passalacqua v. State (N.Y. Ct. Cl. 2012)

by Stephen Bilkis

One of the roles of the administrator of the estate is to bring claims on behalf of the estate. In this case, the administrator filed a wrongful death claim on behalf of the estate of his deceased minor daughter. The defendant responded by challenging the administrator’s eligibility to serve as estate administrator.

In New York there are rules related to who can serve as the administrator of an estate. These rules apply whether the person was nominated in a decedent’s will to serve as the executor or the person petitions the courts to serve as the administrator of an intestate estate. According to Surrogate’s Court Procedure Act § 707, anyone is eligible to receive letters unless he or she is ineligible. Among those who are ineligible are felons.

In Passalacqua v. State, the claimant father of the decedent alleges that the decedent died due to the negligence of the defendant. The claim alleges that the decedent, his 12-year old daughter, was attacked and killed by a parolee who was under the defendant’s supervision and that the defendant was “negligent, wanton, reckless and careless” in that he failed to provide reasonable and proper supervision of the parolee.

Published on: February 10, 2020

In a Will Contest Case the Surrogate’s Court Denied Proponent’s Motion for Summary Judgement on Issues of Mental Capacity and Duress, In re Will of Djavaheri-Saatchi, 2018 NY Slip Op 32754(U) (N.Y. Surr. Ct. 2018)

by Stephen Bilkis

Will contests are by nature acrimonious. While some are based on legitimate concerns supported by actual or circumstantial evidence, others are based on long-standing family disputes. However, just because there is family discord does not mean that the objections to a will are not valid. Regardless of the impetus for filing a will contest, the Surrogate’s Court will not allow a full hearing on objections to a will unless there is a legitimate basis as well as evidence. The grounds for a will contest include improper execution, mental incapacity, undue influence, duress, and fraud.

In the Will of Djavaheri-Saatchi, while the objectant provides 5 legal grounds for challenging the will, another reason for the will contest may lie in family history. The proponent of the will, the daughter of the decedent, provided evidence that the decedent had decided to disinherit the objectant several years prior to the execution of the will at issue. Apparently, the reason was due to the actions by the objectant’s mother. The decedent was upset with the objectant’s mother because he believed that she stole property from him. Also, the decedent disinherited the objectant because she would be entitled to property in Iran. Instead, he decided to leave his entire estate to the proponent of the will.

Of course, being disinherited is not a legal ground for a will contest. The objectant made specific allegations of actions that point to the will not being a true representation of the decedent’s wishes. The objectant argued that the will was not properly executed, that the decedent lacked the mental capacity required to execute a will, that there was undue influence, that the decedent was under duress, and that fraud was involved. Underlying all of her arguments is an allegation that the proponent manipulated the decedent into disinheriting the objectant and leaving his estate to herself. The proponent responded to the objections by filing a motion for summary judgement, arguing that the objectant failed to raise a triable issue of fact with regard to the execution of the will, the testator’s mental capacity, or the existence of undue influence, duress, or fraud. Thus, as a matter of law, the proponent should prevail.

Published on: February 3, 2020

Decades Old Sexual Abuse Allegations Not Sufficient to Disqualify Executor, Matter of Kalikow, 2008 NY Slip Op 33353(U) (N.Y. Surr. Ct. 12/16/2008)

by Stephen Bilkis

In a will, the testator names the person or persons who he (or she) wants to serve as the executor of his estate. The executor has a great deal of responsibility, as he will be responsible for managing the decedent’s assets, paying estate bills, and distributing them to his beneficiaries. Upon the testator’s death, the person named in the will must petition the Surrogate’s Court to be formally appointed executor. At that point, the person will receive letters testamentary. While the court will give great deference to the judgement of the testator as to who is to serve as executor, the person named in the will is only a nominee. The person must meet New York’s eligibility requirements in order for the court to issue him letters.

Under New York law, a person who is “dishonest” is not eligible to serve as a fiduciary. This means that even if a person was nominated as an executor, if there is evidence that the person is dishonest, the Surrogate’s Court will deny his (or her) petition for letters testamentary and will prohibit him from managing the administration of the decedent’s estate. If the letters have already been issued, the court will revoke them.

In Matter of Kalikow, the decedent named co-executors. Preliminary letters were issued. However, beneficiaries under the will objected to the appointment of one of the co-executors. They alleged that pursuant to Surrogate’s Court Procedure Act § 707, he was not eligible on the grounds of “dishonesty, improvidence, [and] want of understanding.” The court admitted the will to probate but did not issue letters testamentary.

Published on: February 3, 2020

Court Considers Whether to Probate a Will that was Handwritten in Italian, In re Prob. Proceeding, 2019 NY Slip Op 52107(U) (N.Y. Surr. Ct. 2019)

by Stephen Bilkis

New York has strict rules about how a will must be drafted and executed in order for it to be valid. There are also rules related to when a New York Surrogate’s Court will admit a foreign will to probate. The purpose of these technical rules is to ensure that a will is authentic and that it truly represents the last wishes of the testator. In this case the Surrogate’s Court had to consider whether a will that was written in Italian, executed in Italy, and hand-scribed by a notary should be admitted to probate.

Foreign wills, whether executed in another country or another state, will be admitted to probate in New York as long as it meets New York’s requirements. For a will to be valid in New York, it must be writing, signed at the end by the testator, and witnessed and signed by two people.

In this case the will was written by a notary at the request of the testator. The preamble to the will written by the notary states that the testator declared that the document was written by the notary to be the testator’s last will and testament and that there were witnesses present. The document was signed at the end by the testator, two witnesses, and the notary. The notary also stamped the document next to his signature. However, the will did not have an attestation clause. An attestation clause is a statement at the end of the will where the witnesses certify that they saw the testator sign the will and declare that it is his or her last will and testament. Failure to include an attestation clause make a will contest more likely.

Published on: January 27, 2020

No Undue Influence Where Testamentary Plan is Not Unnatural- Matter of Estate of Malone, 46 A.D.3d 975 (N.Y. App. Div. 2007)

by Stephen Bilkis

In this case the Surrogate’s Court considered whether the petitioners presented sufficient evidence of undue influence for the court to declare a will invalid. When J. Malone passed away, a petition to probate her will was filed. Several relatives, collectively the objectants, filed objections contesting the validity of the will on the grounds of lack of testamentary capacity, lack of due execution, and undue influence.

Under New York law, once a petition for probate is filed with the Surrogate’s Court, any interested party has the right to file an objection to probate. However, the objecting party must state the basis for his (or her) objection. Common grounds include lack of testamentary capacity, lack of due execution, undue influence, duress, and fraud. Merely stating the basis for the objection is not enough. The objectant must also provide evidence, either direct or inferential, of the existence of the basis for the objection.

In Malone, the petitioners moved for summary judgment dismissing all objections. The objectants only opposed summary dismissal to the objection related to undue influence. Thus, the Surrogate’s Court examined whether there was any evidence, direct or circumstantial, to support the objectants’ claim that J. Malone had been subjected to undue influence when she made her will.

Published on: January 20, 2020

Where the Executor and Beneficiary Do Not Get Along the Court Will Appoint a Neutral Administrator, In re Thomas, 26 N.Y.S.3d 727(Table) (N.Y. Surr. Ct. 2015)

by Stephen Bilkis

In this case the Kings County Surrogate’s Court considered a petition filed by a beneficiary to revoke the letters testamentary of the executor.

Under New York law, under SCPA § 711, an interested party such as a beneficiary can petition the court to revoke the authority of the executor. However, the court is loathe to disturb the testator’s choice without a very good reason. There are several “very good” reasons for revocation including:

The executor was never qualified or is no longer qualified (e.g. the executor was convicted of a felony)

Published on: January 20, 2020

Proponent of a will has the burden of proving that the propounded instrument was duly executed, In re Martinico, 2019 NY Slip Op 8409 (N.Y. App. Div. 2019)

by Stephen Bilkis

A will contest is an action brought in the Surrogate’s Court to challenge the validity of a will. In order to contest a will, the objectant must have valid grounds such as improper execution, undue influence, fraud, or duress. In the matter of In re Martinico, the objectants petitioned the Surrogate’s Court of Kings County, objecting to the will being probated for multiple reasons, including improper execution.

Under New York estate law, in order for a will to survive a will contest based on improper execution, the will must be executed in a manner that follows the requirements of New York law. First, the testator must sign the will at the end. Because there are instances in which a testator are not capable of signing a will himself (or herself), it is acceptable for someone else to sign the will as long as the testator directs the other person to sign for him (or her). In addition, the person signing for the testator must sign the will in the presence of the testator and must also sign his own name.

Second, the will must be witnessed by at least two competent individuals who must also sign the will. The two witnesses must be competent. Ideally, both of the witnesses should be present and observe the testator sign the will. Otherwise, the testator must acknowledge to the witnesses that he did indeed sign the will.

Published on: January 13, 2020

Appellate Division Determines Whether Beneficiaries Violated In Terrorem Clause, Sochurek v. Ammirato, 2019 NY Slip Op 5987 (N.Y. App. Div. 2019)

by Stephen Bilkis

An in terrorem clause, also referred to as a “no-contest” is a clause in a will that states that if a beneficiary challenges a provision in the will or the entire will, that beneficiary’s bequest will be void. The purpose of an in terrorem clause is to prevent a will contest. While will contests are often well founded, they are also often unfounded. Because they are time-consuming and costly, testators sometimes include in terrorem clauses because they anticipate that a disgruntled beneficiary will contest the will and wants to discourage him or her from doing so.

In Sochurek v. Ammirato, the decedent was survived by his wife and his two daughters from a previous marriage. He named his wife the executor. The will gave the wife a life interest in a business that he co-owned, and that upon the death of the wife, the daughters would inherit his interest in the business. The will also gave the wife the authority to run, manage, or sell his interest in the business as she saw fit.

In the process of administering the decedent’s estate, the wife did decide to sell the business for $7.5 million. As remainder beneficiaries of the wife’s life estate, it was necessary for a determination to be made of what the daughters’ interests would be in the liquidated assets of the business. The wife entered into a standstill agreement with the daughters to hold the proceeds from the sales in a segregated bank account until a determination was made.

Published on: January 6, 2020

Court Dismissed Will Contest Where There Was a Rational Explanation For “Unnatural” Disposition, Matter of Clapper, Sr. 279 A.D.2d 730 (N.Y. App. Div. 2001)

by Stephen Bilkis

Two reasons for contesting a will are undue influence and fraud. Undue influence occurs when someone intentionally and illegally exerts influence over a testator such that the testator’s will reflects the intent of the influencer and not the testator. Typically, the influencer has a position of power over the testator who is vulnerable. For example, a caregiver providing meals and personal care to a physically frail testator would be in a position to exert undue influence over the testator.

For a will to have been made based on fraud, someone must have knowingly made a false statement that caused the testator to execute a will that he or she would not have made but for the false statement.

In the Matter of Clapper, the decedent had two children: a son and a daughter. He named his daughter the executor of his estate and left her the bulk of his estate. He left his son 1,000 loose pennies ($10.00). Not surprisingly, the son was not pleased with his testamentary gift. Convinced that his sister, the decedent’s daughter, must have somehow manipulated their father into essentially cutting him out of the will, the son initiated a will contest. The son based his objections to the will on undue influence and fraud. However, the Surrogate’s Court was not convinced by the son’s arguments and admitted the will to probate. The son appealed.