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Court Decides Will Contest Between Siblings


A 91 year old man died in a nursing home in Westchester County on December 10, 2003. He was survived by his three children: a daughter and two sons. His will provided that his real property in Suffolk County be devised to his daughter; he bequeathed the amount of $50,000 to his youngest son and lastly he bequeathed his residuary estate and personal properties to all his children in equal shares. He also provided that his bank accounts which were held jointly by the 91 year old man and his children shall form part of the estate assets and shall not pass to his surviving co-depositor.

The will was executed before the testator’s long-time lawyer and his office assistant. Both the lawyer and his office assistant were attesting witnesses to the will.

In 2004, the eldest son objected to the probate of his father’s will on the ground that the will was procured by his sister with fraud and undue influence on their father. He also testified that the letters testamentary issued to his sister be revoked as she had caused around $300,000 to be withdrawn from their father’s account and transferred to her own personal account.
Both the sister and the older brother applied for the issuance of letters testamentary. A New York Probate Lawyer said that the Surrogate’s Court urged the parties to stipulate to the temporary appointment of a public administrator.

The older brother asked that he be allowed to examine the attesting witnesses to the will to determine the due execution of the will. According to Westchester County Probate Lawyers he also asked that the lawyer who prepared the will be required to produce certain documents that will prove the extent and value of his father’s estate at or around the execution of the will. He also asked that his sister and her husband be summoned to produce documents referring to the transfer of funds from their father’s estate to his sister.
The lawyer and the brother-in-law refused to appear and be examined and they also refused to bring certain documents. The lawyer claims that attorney-client privilege prevents him from disclosing documents and transactions of the testator. The brother –in-law refused to comply because he was not a party to the probate petition and cannot be made to appear and participate in the proceedings.

The Court held that disclosure of information is required when the information sought is material and necessary to the issue in the case. Disclosure in probate proceedings is broad and it allows the court to inquire into matters which form the basis of an objection to a will.

In this case, the older brother has shown that there are special circumstances not only to examine witnesses but also to require the production of documents relating to the properties and assets of the estate. NY Probate Lawyers said the lawyer and the older sister cannot claim refuse since they enjoyed a confidential relationship with the testator. This confidential relationship is what is claimed to have been abused by them to thwart the wishes of the testator. As things stand, the documents and information sought to be obtained are not only relevant and necessary, but they are also cannot be obtained from any other source. For this reason, the lawyer, the older sister and her spouse are ordered to comply with the disclosure requirements and to bring to the Court the documents enumerated in the subpoena issued to them.

The job of an attorney in contesting the probate of a will requires an interested person to obtain information through documents and through testimony regarding the testamentary capacity of the testator. A attorney can also help find documents that will prove the extent of the estate and its properties. Contact Stephen Bilkis and Associates for guidance and a free consultation.

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