Published on:

Court Decides Will Contest Case


The testator before his death had written a will. He freely gave all his estate to his living heirs except for his erring daughter. Upon his death, his living wife who then was suffering from a disease brought the will and testament to an estate administration court. Her cousin and an estate attorney represented decedent’s wife. The court appointed her guardians who have appeared for her in the probate proceedings. Estate lawyers and wife’s cousin filed a respectful consideration of election as executor to be named on her behalf.

Upon learning that a notice of election was filed for her mother’s favor, the erring daughter filed to the estate litigation courts her objections. She particularly stated that the document was malicious because testator did not give her any property. The document also mentioned of her evil past actions, the reason of testator’s disinheriting her. While testator was in existence, said daughter sold some properties owned by the family. She forged her parent’s signatures, and used falsified power of attorney. She also converted some of her father’s estate to her name. Testator and his wife acted steadily and filed criminal actions against the erring daughter that resulted in her plea of guilty to a class A demeanor.

A New York Probate Lawyer said that though she filed objections to the estate administration courts, she never appeared and proved her sworn statement true. She presented her dissentient before the trial held out of estate administration court without any judge present. Nor did the erring daughter produce any document to prove the court that as testator’s daughter she was entitled to the estate. It was found out that her fundamental intention was to delay the probate proceedings. She filed a manifestation to the probate court that she was suffering from a psychological condition that prevented her from appearing in court.

The estate litigation courts unconvinced of that contention, by decision and order granted decedent’s wife summary judgment. The contention of the erring daughter that the contested will was based on fraud and undue influence, upon which the erring daughter bears the burden of proof were dismissed.

Thereafter, decedent’s wife moved for summary judgment dismissing the remaining objections of lack of testamentary capacity and due execution. Erring daughter failed to oppose the motion and it was submitted for decision.

A written application was made by the husband of the erring daughter to the estate administration courts to obtain some acts to be done in favor of the grandchildren of the decedent. Included in his plea was to ask the estate courts appointment of guardianship in his name for the property of his infant children. Further asked for permission to file late objections to the summary judgment.

Before the estate litigation courts, husband of the erring daughter mentioned in his objections, that decedent had written his wills and testament. Nassau Probate Lawyers said that the documents actually made mention of giving some properties to his erring daughter and would be grandchildren as possible beneficiary of the estate. By decision and order, the probate courts directed the issuance of additional proof to validate husband’s claim. An additional order of service upon the children and any other persons named in the former contested wills who would have been adversely effected by the admission to probate court of the propounded instrument were also requested by the court.

After jurisdiction was properly obtained over all necessary parties enjoined, the estate administration courts appointed an independent guardian ad litem to represent the interests of decedent’s grandchildren. The guardian ad litem investigated the case, reviewed the entire typed copy documents, examined attesting witnesses, and interviewed several parties and non-parties, including representatives of the district attorney’s office involved in erring daughter’s criminal matter. He continued protecting the ward by negotiating with decedent’s wife probates lawyers upon which they have given their approval. The probate court’s appointed guardian ad litem by dedicated negotiations was able to propose a settlement between decedent’s wife. He offered to the probate courts the agreement and further asked the court to allow admission to probate of the alleged old version of the will and testament of the testator, specifying the mention of giving by the testator part of his properties to his grandchildren. He further requested payments of the wards from the estate proceeds. He further recommended approval of the proposed agreement with the decedent wife party. He particularly opposed the motion by erring daughter’s husband permission to file objection on behalf of the grandchildren.

However, probate lawyers for the husband objected the recommendation of the guardian ad litem. They believe that the contents of the reports were less impressive.

The estate administration courts did not share the view of estate lawyers for the husband. They considered the objection and asked the husband party to furnish them with affidavits to support their cause.

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.

The burden shifts to the party opposing the motion of summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, which required a trial of the action. Brooklyn Probate Lawyers said that summary judgment in contested probate proceedings was appropriate when a contestant failed to raise any issues of fact regarding execution of the will, testamentary capacity, undue influence, or fraud.

The proponent of a will offered for probate had the burden of proving, by a fair preponderance of the credible evidence, that the instrument was properly executed and that the testator was mentally competent. All testators enjoyed a presumption of competence and the mental capacity required for wills was less than that required for any other legal instrument. The supervision of a will’s execution by an estate attorney will give rise to an inference of due execution. Elements of due execution were: testator’s signature would be at the end of the will, attesting witnesses must know that the signature was the testator’s, attesting witnesses must know that it was the testator’s will and the attesting witnesses must sign within a thirty-day period. Testimony of the attesting witnesses and the attorney drafter unequivocally establish that the execution of the instrument was in conformity with the statutory requirements and there was no evidence to the contrary.

Proponent also had the burden of proving testamentary capacity. Testator had to 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 was required to execute a will than any instrument. Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia was not necessarily inconsistent with testamentary capacity and do not preclude a finding thereof as the relevant inquiry was whether the decedent was lucid and rational at the time the will was made.

Evidence clearly established 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. Testator advised the attorney drafters that he was disinheriting elder daughter in favor of his wife. He also described his substantial financial assets and how those assets were titled from memory without prompting, notes, or other documentations.

Erring daughter’s husband affidavit were submitted in support of his claim, but did 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 had to bear 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 tester 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 was simply no evidence adduced that the will was the product of a fraudulent conduct.

In order to prove undue influence, an objectant must show: existence and exertion of an influence; effective operation to subvert the mind of the testator at the time of the execution of the will, and execution of a will was for undue influence.

The will would not have been executed showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed was sufficient.

Mere speculation was an apt characterization of the extent of objecant husbands evidence that petition was any way influenced the decedent to execute the propounded instrument. As petitioner counsel observed, it was objectant’s conduct which most directly influenced the testator to disinherit her branch of the family from his estate plan.

Based on the foregoing, the estate administration courts found the best interests of the dececent’s estate was protected and the infant grandchildren were promoted by approving the settlement negotiated by the petitioners counsel and the guardian ad litem; the guardian ad litem’s request for permission to enter into the settlement on behalf of his wards was granted.

The petitioner’s motion to dismiss objectant’s remaining objection to the will’s admission to probate was granted. As the court had determined that there were no triable issues of fact, objectant’s husband motion for permission to file objection on behalf of his children was denied.

The estate litigation courts had 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 to approving legal fees that were 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 was no hard and fast rule to calculate, reasonable compensation to an attorney in every case, the surrogate was required to exercise his or her authority with reason, proper discretion and of arbitrarily.

In evaluating the cost of legal services, the court considered number of factors. They were: time spent, complexity of the questions involved, nature of the services provided, amount of litigation required, amount involved and the benefit resulting from the execution of such services, lawyer’s experience and reputation; and the customary fee charge by the Bar for similar services.

In discharging the duty to review fees, probate courts cannot apply a selected few factors which might be more favorable to one position or another but must striked a balance by considering all of the elements set forth by law. In addition, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting and adverse reflection on the services provided.

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 were reasonable for the various tasks performed.

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

Here, the guardian ad litem was directly responsible for the ultimate resolution of probate cases. His efforts included review of the probate file and the transcript of the examination of the attesting witnesses and the attorney drafter. 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 negotiated on behalf of his ward’s with the petitioner’s counsel. Considering all of the foregoing, the probate courts fixed the fee of the guardian ad litem, payable from the general estate within days of entry of the probate decrees.

Estate Administration courts will always recognize the testator’s wishes and his freedom to give his bounty to heirs who have satisfactorily given him honor and respect during his lifetime.

New York will contest lawyers can go on top over probate case that seems difficult to solve. Stephen Bilkis & Associates with its legal team, have company throughout the New York Metropolitan area. Call us today for a free consultation.

Contact Information