Articles Posted in Probate & Estate Litigation

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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)
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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.

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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.

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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.

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In this case the Appellate Division had to consider whether the spouse of a decedent was entitled to certain assets in his estate in light of the provisions of the couple’s prenuptial agreement.  Upon the death of the husband, a dispute developed between the executor of the decedent’s estate and the decedent’s surviving spouse.  The question was based on the terms of the couple’s prenuptial agreement.

The language of the prenuptial agreement was that the wife was entitled to liquid assets in the amount of $3,500,000, “reduced by the amounts of four (4) mortgages … and any accounts that pass to [the wife] by operation of law.”  The executor’s position was that the $3,500,000 payment to the wife was to be reduced by the mortgages as well as by entire value of the money in the joint accounts to which she would be entitled.  As a result, the wife should not receive any assets from the joint accounts.  On the other hand, the wife’s interpretation of the agreement was that since under the law she would be entitled to 50% of the joint accounts, that the $3,500,000 payment should be reduced by the amount of the 4 mortgages and only 50% of the value of the joint accounts.  Under the wife’s interpretation, she would receive more, as the base amount of $3,500,000 would be reduced by the mortgages and reduced by only half of the value of the joint accounts.

The differing interpretations of the terms of the prenuptial agreement formed the basis for estate litigation before the Surrogate’s Court.  The Surrogate’s Court sided with the wife, granting her motion for summary judgement.  The executor appealed.

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The issue before the Surrogate’s Court is whether the petitioner made enough of an effort to locate a lost will before petitioning the court to proceed with an intestate administration.

In the case of In re Estate of Karp, after the death of R. Karp, a “paper writing” of Karp’s 1995 will was found, but the original was not found.  It appears as if the will that was found was either a copy of the original or a draft of the will that was eventually executed. Regardless, the document found was not the duly executed last will and testament of R. Karp.  The petitioner, who was also one of the decedent’s distributees, asked that the court not admit that will to probate. Instead, the petitioner asked that the court appoint her as the administrator. In doing so, the court would have to find that R. Karp died intestate. Because she has an interest in the decedent’s intestate estate, under SCPA § 1002 the petitioner would be entitled to be appointed administrator.

Under the 1995 will, there were 21 beneficiaries.  However, not all of the 21 beneficiaries were also distributees.  There were only 5 distributees, included the petitioner.  If the will is not probated then most of the beneficiaries, including the objectants, would not be entitled to any part of the estate.

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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.

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When a testator nominates someone to serve as the executor of his (or her) estate, the court does everything possible to fulfill the wishes of the testator by appointing that person.  Courts are loathe to substitute their judgement for that of the testator.  However, if the court determines that the executor nominated by the testator is not qualified or does not fulfill the duties of the job as required by law, it has the authority to decline to appoint the person as executor or to remove that person.

In Delaney, the decedent, H. Frankowski, died in 2013 leaving three children: J. Frankowski, A. Porter, and S. Roman.  J. Frankowski was appointed executor of H. Frankowski’s estate. When J. Frankowski died in 2014, the Surrogate’s Court appointed A. Porter as successor executor.  There were some irregularities related to the decisions that A. Porter made as executor.  As a result, on May 18, 2015, the Surrogate’s Court suspended A. Porter as successor executor and ordered that she no longer make any distributions from H. Frankowski’s estate.  However, the next month, on June 24, 2015, the Surrogate’s Court issued another order reinstating A. Porter. While she was given essentially the same authority as she had previously, the court restricted the amount of money that she could distribute from the estate to a maximum of $50,000.

A. Porter filed an accounting that included disbursements that she made after May 18, 2015 amounting to $198,668.31. In response, the petitioner, K. Delaney, who was also the executor of the estate of J. Frankowski, asked the court to immediately suspend A. Porter’s as successor executor for repeated violations of orders for the court. In response, A. Porter pointed out that she was not given proper notice of her suspension as she was not served with a certified copy of the order that suspended her as the law required.

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In the case of In re Carney’s Will, the Surrogate’s Court considered whether it should allow a  party to reopen probate and contest a will a year after the will was admitted to probate letters testamentary issued to the executor.

New York requires that certain procedures must be followed to ensure that anyone with a potential interest in an estate is notified that a probate petition has been filed.  This means that all interested parties must be notified and given the opportunity to object to the will.  Interested parties typically include anyone who is named in the will as a beneficiary, anyone who was named as a beneficiary in a prior will, anyone who is an heir of the decedent under the rules of intestate succession as described in EPTL § 4-1.1 and EPTL § 4-1.2, and known creditors.  In addition to listing the names of interested parties on the citation, the petitioner must send each of them a  notice known as “citation.”  This requirement protects rights of those who have an interest in the decedent’s estate by ensuring that they are aware of the proceedings and giving them the opportunity to participate in the proceedings.  For example, if an interested party is aware of when the hearing will be held to admit a will to probate, he can show up and file a will contest if he questions the validity of the will.  However, anyone entitled to a citation can waive it.  On the other hand, if the appropriate parties are not properly notified of a probate proceeding, the Surrogate’s Court may determine that it must reopen probate.  This is the very issue in the case of In re Carney’s Will.

In Carney, E. Carney, the sole distributee of the decedent’s will, petitioned the Surrogate’s Court to re-open the decedent’s estate because he claimed that the waiver of citation that he signed was obtained fraudulently.  Three days after the decedent passed away, his funeral was held.  At the funeral, an attorney presented E. Carney with a waiver of citation and asked him to sign it.  E. Carney had the opportunity to read the waiver, and his mother advised him not to sign it.  After reading the waiver and being assured that by signing the waiver he would not be giving up any rights that he had in the estate, E. Carney signed the waiver.  The waiver was clear in stating that by signing it E. Carney would not receive notice of the probate proceedings.

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In a contentious probate case, the specific issue that is before the Surrogate’s Court is whether it should revoke the letters of the preliminary executor based on misrepresentations and negligence.

Under New York law, regardless of who a testator nominates in his (or her) will to serve as executor of his estate, the Surrogate’s Court will only appoint that person if he is qualified.  In order to serve as an executor, the person must be at least 18 years old, must be a U.S. citizen or legal resident living in New York, must not have been adjudicated to be incapacitated, and must not have been convicted of a felony.  After being appointed, the Surrogate’s Court can revoke an executor’s authority upon a finding that he is no longer qualified because of negligent or improper management of the estate, or that he is no longer capable of managing the estate. Examples of actions that would be grounds for removing an executor include stealing of assets from the estate, mismanagement of estate assets, failure to pay creditors, failure to timely account to beneficiaries, or substance abuse.

In the Estate of Haber, the Surrogate’s Court appointed E. Haber as the preliminary executor after a prior preliminary administratrix was removed by the court.  E. Haber is also the half-brother of the objectants.  In an effort to convince the court that E. Haber was not fit to serve as executor, the objectants cited several actions of E. Haber as grounds for removal.  In his place, the objectants wanted the court to either appoint one of them as executor, or a third party.

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