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Petitioner Contends Undue Influence


A New York Probate Lawyer said in this Will Contest proceeding, the decedent died in May 2006, survived by his wife and their two children, the proponent and the objectant. The wife suffers from Alzheimer’s disease. Her cousin and an attorney, were appointed her guardians pursuant to Article 81 of the Mental Hygiene Law and they have appeared for her in this proceeding. They filed a notice of election on her behalf.

Queens Probate Lawyers said that the proponent filed the petition for probate in June 2006 and jurisdiction was obtained over all necessary parties in August 2006. The propounded will leaves nothing to objectant, allegedly because the decedent believed that she had converted assets worth $3 million from him and from the wife by use of a power of attorney they had given her. In fact, he pressed criminal charges against her which resulted in her plea of guilty to a Class A misdemeanor. The objectant filed objections to probate; however, she never appeared for her deposition in this proceeding, nor did she ever produce any documents demanded by petitioner. Her initial reason for seeking to delay her deposition was that doing so would violate her Fifth Amendment right against self-incrimination. However, she never appeared for deposition even after the conclusion of the criminal matter when she no longer had a claim of constitutional privilege. She then averred that she was suffering from a psychological condition which prevented her from being deposed. Being unconvinced of that contention, the court, by decision and order, granted the summary judgment motion to the extent that objectant’s objections of fraud and undue influence, upon which the objectant bears the burden of proof, were dismissed.

A New York Will lawyer said regarding petitioner’s motion for summary judgment, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in contested probate proceedings is appropriate where a contestant fails to raise any issues of fact regarding execution of the Will, testamentary capacity, undue influence or fraud.

Long Island Probate Lawyers said the proponent of a Will offered for probate has the burden of proving, by a fair preponderance of the credible evidence, that the instrument was properly executed and that the testatrix was mentally competent. All testators enjoy a presumption of competence and the mental capacity required for Wills is less than that required for any other legal instrument. The supervision of a Will’s execution by an attorney will give rise to an inference of due execution. The elements of due execution are that the testator’s signature should be at the end of the Will, the attesting witnesses must know that the signature is the testator’s, the attesting witnesses must know that it is the testator’s Will and the attesting witnesses must sign within a thirty-day period.

The SCPA 1404 testimony of the attesting witnesses and the attorney draftsman unequivocally establish that the execution of the instrument was in conformity with the statutory requirements and there is no evidence to the contrary.

The proponent also has the burden of proving testamentary capacity. It is essential that a testator understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property and his relation to the persons who ordinarily would be the natural objects of his bounty. A testator must understand the plan and effect of the will and, as noted, less mental faculty is required to execute a will than any other instrument. Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and do not preclude a finding thereof as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made.

Here, again the evidence clearly establishes that at the time of the execution of the propounded instrument, the testator was of sound mind and memory and fully competent to execute a will. The testator advised the attorney draftsman that he was disinheriting the objectant in favor of the proponent. He also described his substantial financial assets and how those assets were titled from memory without prompting, notes, or other documentation. Objectant’s affidavit, and the others submitted in support thereof, does not raise a triable issue of fact regarding the testator’s capacity on the date the will was executed.

The objectant in a probate proceeding bears the burden of proof on the issues of fraud and undue influence. To prove fraud, the contestants must show by clear and convincing evidence that a false statement was made to the testator that induced him to make a will disposing of his property differently than he would have if he had not heard the fraudulent statement. There is simply no evidence adduced that the will was the product of fraudulent conduct.

In order to prove undue influence, an objectant must show: (1) the existence and exertion of an influence; (2) the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will, that, but for undue influence, would not have been executed. Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient. Mere speculation is an apt characterization of the extent of objectant’s evidence that petitioner in any way influenced the decedent to execute the propounded instrument. As petitioner’s counsel observes, it was her conduct which most directly influenced the testator to disinherit her branch of the family from his estate plan.

Based on the foregoing, the court finds that the best interests of the decedent’s estate and the infant grandchildren will be promoted by approving the settlement negotiated by the petitioner’s counsel and the guardian ad litem; the guardian ad litem’s request for permission to enter into the settlement on behalf of his wards is granted.

The court has also reviewed the affirmation and supplemental affirmation of legal services submitted by the guardian ad litem. With respect to the issue of attorney fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed.

These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee.

Here, the guardian ad litem was directly responsible for the ultimate resolution of this case. His efforts included review of the probate file and the transcript of the SCPA 1404 examinations of the attesting witnesses and the attorney draftsman. In addition, he interviewed at least eight parties and non-party witnesses before concluding there was no good-faith basis upon which to oppose the will’s admission to probate and recommending the resolution he negotiated on behalf of his ward’s with the petitioner’s counsel. Considering all of the foregoing, the court fixes the fee of the guardian ad litem in the sum of $15,000.00, payable from the general estate within 30 days of entry of the probate decree.

The provisions of a last will and testament of a decedent becomes effective only upon the allowance by the court through probate. Here in Stephen Bilkis and Associates, the named executor in the last will and testament will be represented by our New York Probate attorneys in order to make the last wishes of the testator granted. Also, our New York Estate lawyers will help you divide your property in accordance with law.

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