A New York Probate Lawyer this is a proceeding where JPM Bank (JPM), co-executor, moved pursuant to CPLR §5015(a)(2) to vacate the decree admitting to probate the decedent’s will dated 24 June 2005 (2005 Will) due to newly discovered evidence. Several charities, the residuary legatees under a prior instrument that are adversely affected by the 2005 Will, join in the application; and, movants seek removal of JPM’s co-executors and appointment of JPM as sole preliminary executor.
The following are the pertinent events that took place:
On 12 September 2005, the decedent died at the age of 93 years. He was survived by two nephews, MF and SF, and the issue of a predeceased nephew. On 21 February 2006, the 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to JPM, MF and ME.
A New York Estate Lawyer said sometime in August 2006, AL, a legatee of a small bequest, discovered that the decedent’s testamentary plan had been revised significantly from her penultimate will and that the decedent’s long-time attorney, LS, had not supervised the 2005 Will’s execution.
According to AL, as the decedent’s friend and investment advisor, he had almost daily conversations with the decedent and her home attendants in the months preceding the execution of the 2005 Will; as he worked on an active trading floor, these telephone calls were recorded; he recalled having had several conversations between March 2005 and May 2005, in the months after the decedent had suffered a stroke and preceding execution of the 2005 Will, in which it seemed MF and SF were assuming increased control over decedent’s finances and were pressuring the decedent to change her will; he requisitioned the tapes of those calls and brought the transcripts to the attention of JPM; and, the transcripts, including conversations directly with the decedent, depict behavior by MF and SF that supports the alleged undue influence.
In November of 2006, upon reviewing the transcripts, JPM interviewed LS, who revealed that he too had concerns about the family members’ undue influence.
According to LS, he had consulted outside counsel after meetings with MF and SF led him to believe that they were unduly pressuring the decedent to change her 2001 Will, which LS had drafted and which the decedent had executed under his supervision. LS’s files, thereafter produced, provide some of the strongest evidence of undue influence and corroborate the transcripts provided by AL.
A Nassau County Criminal Lawyer said on January 2005, the decedent suffered a stroke that affected her physical, but allegedly not her mental, faculties.
According to LS, after the decedent suffered a stroke, he began to receive repeated calls from MF and SF who suggested that the decedent wanted to modify her will to increase dispositions to them and to ME. Thus, LS made four separate visits to the decedent to discuss the said potential changes but each time the decedent stated unequivocally that she had no intention of changing her will. LS, concerned that the decedent’s nephews had been “browbeating” her to make changes she did not desire, cautioned MF and SF that their actions could constitute undue influence.
A Staten Island Probate Lawyer on 23 May 2005, LS again visited the decedent. This is LS’s fifth visit to the decedent to discuss the subject. At this time, the decedent indicated that she now wanted to change her will. Despite his grave concern about the issue of undue influence, LS drafted a new will and mailed a copy to the decedent. However, when LS visited the decedent on three subsequent occasions between 23 May 2005 and 24 June 2005, he determined that the decedent was not able to freely execute the will.
As MF and SF were anxious to have the new will executed, they contacted a new attorney, JK, and arranged to have her preside over the execution of the new will drafted by LS. On 24 June 2005, JK supervised the will execution.
On 12 September 2005, the decedent died.
Consequently, JPM filed the application at bar seeking to vacate the probate decree. As stated, the Charities have joined in this application.
MF, SF and ME opposed.
In the responsive papers are LS’s files and an affidavit dated 16 August 2007, filed by MF, in which he acknowledges his attempts to influence decedent’s testamentary plan. Stating that he felt “insulted” by the bequest to him under the 2001 Will, MF concedes his repeated entreaties that decedent increase his share.
According to the respondents, JPM does not have standing to seek vacatur as it would not be entitled to file objections to probate under SCPA 1410.
According to JPM, it has the obligation as fiduciary to ensure that only valid wills are offered for probate.
The Charities, as residuary beneficiaries of the 2001 Will adversely affected by the probate of the 2005 Will, have subsequently joined in as co-movants in the proceeding at bar. Thus, the issue of standing is moot.
Under the rules, an application to vacate a probate decree must present a satisfactory showing of a substantial basis for contesting the will and a reasonable probability of success.
According to the movants, the basis for contesting the will is the discovery of new evidence, pursuant to CPLR 5015(a)(2), which suggests a strong probability that the respondents exerted undue influence on the decedent, causing her to change her will; and, that such evidence could not have been found with due diligence prior to the will being admitted to probate.
According to the respondents, the recorded phone conversations with AL do not constitute newly discovered evidence because AL’s knowledge of the recorded telephone conversations suggesting undue influence should be imputed to JP; both JPM and AL failed to act in a timely manner in seeking vacatur; and, inasmuch as the Charities possessed information alleging a pattern of misbehavior, as described in their supporting affidavits, and failed to file timely objections to probate, they are precluded from challenging the probate decree at this late date, the institution of the proceeding at bar.
Knowledge acquired by an agent acting within the scope of his agency is imputed to his principal, and the latter is bound thereby, even though the information is never actually communicated to it.
First, JPM is not charged with knowledge of the nephews’ alleged undue influence for two reasons: JPM Securities, Inc. and JPM are separate corporate entities and no evidence has been presented to suggest that an agency relationship exists between AL, an investment advisor for JPM Securities, Inc. and JPM; and, even if AL was an agent of JPM, the relevant conversations between AL and the decedent and her health care providers were clearly personal in nature and did not relate in any way to the investment services offered by the securities arm of the bank. At the time the 2005 Will was offered for probate, there was nothing to suggest that JPM, as nominated executor, knew or should have known about the special relationship that had developed over time between the decedent and her broker, or the existence of the recorded conversations that catalog the deeply personal concerns of the decedent and her attendants about the pressure being brought to bear on the decedent by her nephews. In brief, the knowledge gained by AL falls outside of the scope of his agency as an investment advisor for JPM Securities, Inc.
Second, JPM was not dilatory in bringing the new evidence to the Court’s attention. It was only after the transcripts of the phone conversations came to light that JPM had reason to question the attorney-draftsman, LS, who confirmed his suspicions of undue influence. Within days after LS filed the 2001 Will, when JPM verified the dramatic changes in decedent’s testamentary dispositions, it sought the drastic remedy of vacating the probate decree.
Third, the Charities were not dilatory in failing to file objections when the 2005 Will was offered for probate. At that time, the 2001 Will, under which they received significantly larger bequests, had not been filed with the Court. Only after LS filed the 2001 Will on 1 June 2007, a year after letters testamentary were issued, were the Charities aware of the extent to which their bequests had been reduced by the 2005 Will.
In Matter of Musso, 227 AD2d 404 [2d Dept 1996], several charities had been notified only days before a will was admitted to probate that a penultimate will provided them substantially larger bequests. Eight months later, they moved to vacate the probate decree and alleged undue influence and lack of testamentary capacity. In granting the motion, the court observed that “while vacatur disrupts the orderly process of” estate “administration and creates xxx uncertainty and nonfinality xxx the Court should also be slow to say that an injustice may not be corrected.”
Here, JPM and the Charities bear the burden of proving a probability that undue influence can be established by a preponderance of the evidence.
Under the law, proof of undue influence requires (1) motive, (2) opportunity and (3) actual undue influence such that the testator acts contrary to her wishes because she cannot refuse or is too weak to resist. The mere fact that a new will alters the testamentary scheme contained in a prior will does not by itself raise a presumption of invalidity. A departure, however, from a previously expressed intention along with other suspicious facts may raise an inference of moral coercion that amounts to undue influence.
First, the taped conversations, along with the corroborating notes by LS, provide sufficient evidence of motive, opportunity and actual undue influence to suggest a probability of success. Sadly, the facts presented here paint a picture of a 93 year old woman who believed she “had no choice” but to change her will to accord with the unremitting demands of her closest family members.
Second, the fact that the will was executed under the supervision of an attorney who affirmed the decedent’s capacity does not overcome the evidence presented of undue influence.
Third, while JK, the presiding attorney, memorialized her 24 June 2005 meeting with the decedent in a memorandum concluding that the decedent possessed the requisite testamentary competency, JK possessed few facts that would have caused her to question whether the decedent was making a new will of her own volition. Indeed, she may not have known of the nature and extent of the changes to the 2001 Will, including the significant reduction of bequests made to the Charities; she could not have known of the multiple visits made by LS to the decedent in which the latter declined to make further changes to her 2001 Will; and, she could not have known of LS’s conclusion that the decedent’s nephews had sought to unduly pressure the decedent to do so. JK may have been confident as to the decedent’s testamentary capacity, but the inquiry does not end there. A determination of testamentary capacity should not preclude an independent determination that a testator succumbed to undue influence.
All told, there is clearly a reasonable probability that if the subject evidence had been produced in the form of objections to the probate of the 2005 Will, it would have resulted in a finding of undue influence.
Even were the parties unable to show compliance with CPLR 5105(a)(2), a determination to grant a motion to vacate a probate decree rests in the sound discretion of the court. “It is well established that, independent of statutory provisions, the court rendering a judgment, in its inherent power and control over its own proceedings, may vacate that judgment where it appears that substantial justice will be served and injustice prevented thereby.”
Accordingly, under both the Weingarten standard and the court’s inherent power, the decree dated 21 February 2006 admitting the will to probate was vacated. Objections to probate of the 2005 instrument, if any, was ordered filed within thirty days of notice of entry of the order. Upon vacatur of the probate decree, letters testamentary issued to JPM, MF and ME were ipso facto revoked. As the probate proceeding is to be reopened, the question arises as to which parties might be eligible for preliminary letters testamentary. Based upon a bona fide allegation of undue influence or other wrongdoing, the court may deny the issuance of preliminary letters pursuant to SCPA 707. The allegations against MF are sufficient to deny him preliminary letters testamentary. There is, however, little evidence to support an allegation of undue influence by ME. Although ME may very well have acted to thwart efforts of co-executor JPM by refusing to consent to the release of LS’s files, this does not in and of itself meet the standard required to deny preliminary letters. The courts should nullify a testator’s choice of executor only upon a “clear showing of serious misconduct that endangers the safety of the estate.” Thus, preliminary letters testamentary shall issue to JPM and ME upon duly qualifying.
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