Published on:

Court Decides Validity of Will Instrument


A New York Probate Lawyer said a man died with assets having a value of slightly less than $1,000,000, divided approximately equally between testamentary and non-testamentary assets. The proposed last will contains pre-residuary legacies to each of the man’s two nieces, his only successors, and to a friend.

The residuary estate is given in equal shares to two men, and their shares pass to their respective issue in the event they predeceased the deceased man.

Based on records, the main difference between the proposed last will and the deceased man’s penultimate will is that under the penultimate will, man B shared the residuary estate with man’s A’s mother and as the mother predeceased the deceased man and that last will did not contain an alternate disposition to her issue, man B would have been the sole beneficiary of the residuary estate under the penultimate will.

Consequently, a New York Will Lawyer said the deceased man named one or more members of either or both the man B and the man A families as beneficiaries under several other prior wills. However, the man A was named as a beneficiary for the first time in the proposed will.

A Manhattan Probate Lawyer said the complainant in this matter is one of the deceased man’s beneficiaries under a prior instrument. The complainant alleges that the deceased man was incapable of executing a last will, had failed to declare that the instrument was his will, and the will was the product of undue influence and/or fraud committed by man A, another person, the attorney-drafter of the last will, and the nominated administrator.

The evidence was then presented at trial and establishes that the deceased man forged a friendship with the two men’s families. A New York Will Lawyer said although the deceased man was not an accountant, he was employed as the assistant comptroller. The deceased man continued to maintain a friendship with his two former co-employees and their spouses after the company was sold, and his friendship with their respective wives continued after each of his former co-employees died.

The nominated administrator first met the deceased man when the administrator became a summer employee at the company as a high school student. After the company was sold, the administrator employed the deceased man for a period of time at his accounting firm.

It appears that some time, the deceased man began to seek assistance with his financial affairs. The mother of man A assumed the role of assisting the deceased man with his financial affairs and her name was added to at least some of his accounts. The man’s B’s name had been added previously to some of the deceased man’s other accounts.

Later, the deceased man, a chronic alcoholic, fell and was admitted to a hospital for various ailments. Upon his discharge from the hospital, he was admitted to a nursing home, where he continued to reside until he was again hospitalized shortly prior to his death. The nursing home records indicate that, throughout his stay, the deceased man received physical therapy for injuries arising from his fall and medication for depression and psychosis.

The deceased man’s treating physician at the nursing home, is in evidence. The doctor opined that the deceased man suffered from some dementia which he could not quantify. He stated that the deceased man’s ability to give either an informed consent for medical treatment or to make financial decisions was a day-to-day situation. However, it was less likely that the deceased man was capable of making financial decisions than an informed medical decision.

A social worker at the nursing home also testified that the deceased man was a difficult resident who was required to wear an electronic ankle bracelet because he roamed. She stated that the deceased man was aggressive and abusive when he did not want to do something, and she never succeeded in obtaining his signature on an advance health care directive, despite her numerous attempts. In her opinion, and as the nursing home records reflect, the deceased man suffered from both long and short term memory loss during his entire stay at the facility. However, she conceded that his short term memory was better than his long term memory, as there were occasions when he accurately described the activities in which he participated that day.

A Suffolk County Probate Lawyer said the man A, an attorney who is employed as a vice president by a bank, was called as a witness by the complainant. The man A and her cousin went to the nursing home to inform the deceased man that the man’s A’ mother died in an automobile accident. The man A and her cousin testified similarly with respect to what transpired at the nursing home. The deceased man was shaken by the bad news. However, after the he calmed down, he was delighted that the man A volunteered to substitute for her mother in taking care of his financial affairs. The deceased man signed three blank checks from his own account so that man A could use them to pay some of his bills. The deceased man told man A that he wanted her to replace her mother in every way, named as his attorney-in-fact and named as the beneficiary of one-half of his residuary estate in a new last will which he requested that she draft. Although the man A drafted a last will for the deceased man, she told him that she could not draft the new last will because she was to be named as a beneficiary. He then told her to call his administrator who would give her the name and number of the attorney who prepared his penultimate will.

Subsequently, the man A conveyed to his attorney who drafted the penultimate will, the deceased man’s wishes with respect to the power of attorney, the bank accounts and the last will.

Consequently, there is no proof that the administrator or his attorney actually exerted undue influence upon the deceased man through the use of a promise or threat to perform or not perform services that the deceased man needed. Accordingly, the portion of the objections alleging that the administrator and his attorney exercise undue influence upon the complainant is dismissed.

Further, the objections alleging lack of due execution are dismissed. Moreover, the complainant failed to present any proof that anyone made a false statement to the deceased man that caused him to make any testamentary disposition that he would not otherwise have made, and the objection alleging fraud is also dismissed.

Appropriately, the court finds that the proposed last will must be denied to probate. As the complainant failed to establish that the administrator is lacked of good faith basis for proposing the last will. The court also finds no basis upon which to impose sanctions or to deny to him the reasonable attorneys fees he acquired.

Prior to settling a judgment, the parties are directed to appear for a conference following the calendar call. The issues to be discussed include who is to be appointed fiduciary of the estate pending the appointment of a permanent fiduciary, and the status of the pending discovery proceedings that were held in abeyance pending the determination of the last will contest.

Lastly, the court also ordered the chief clerk to mail a copy of the decision, which constitutes the order of the court directing attendance at the conference, to all parties.

When you want to file contentions on your kin’s estate, you can seek the legal help of the Bronx County Will Contest Lawyer or Bronx County Estate Lawyers. Also, you can avail of the legal guidance of the Bronx County Probate Attorney if you want to probate your love one’s last will. Simply visit Stephen Bilkis and Associates office for more details.

Contact Information