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Court Suspends Letters of Testamentary


A man died leaving a last will and was subsequently admitted to probate. The letters testamentary was issued to the deceased man’s youngest son. Still, the last will bequeath the man’s residuary estate equally to his three sons.

A New York Probate Lawyer said in the court suspended the letters testamentary and issued the new one to the deceased man’s middle son. In addition, the matter was scheduled for a hearing on the issue of removing the youngest son as the administrator.

Prior to the proceeding, the youngest son made a motion to disqualify his brother’s attorney. Then, the parties entered into a written condition resolving the various issues. A New York Will Lawyer said the stipulation provided that the deceased man’s middle son would withdraw his motion against his younger brother and for an accounting. On the other hand, the youngest child would withdraw his motion with regards to the law firm disqualification.

Sources revealed that the basis for the withdrawal of the motions was that both party’s agreeing to buy the middle son’s interest in their father’s property for $205,000.00, payment to be made by the middle son receiving a ten year purchase money balloon mortgage. Second, that the middle son would resign as the new estate administrator and the youngest one will be reinstated. Lastly, in exchange for the mortgage, agreed to release the youngest son as the administrator and acknowledge that his interest in the property had been satisfied.

The stipulation further provided that, in the event the closing did not occur within ninety (90) days, the premises were to be listed with a broker selected by the deceased man’s middle son. The youngest and the eldest son never completed the mortgage and the youngest did not exercise his option to complete the mortgage individually.

A Westchester County Probate Lawyer said the deceased man’s youngest son then move to restore his motion to disqualify the law firm of his brother. He argues that the attorney should be disqualified because he formerly represented him in connection with the probate of their father’s will.

According to the youngest son, he consulted with the attorney after his father’s death. He asserted that he, along with his two brothers, as well as three other people, met with the attorney at their office. After that, the attorney prepared a validation request to have the youngest son appointed as the administrator of the estate. In fact, the attorney’s name appears on the request as the attorney of the youngest son.

Suffolk County Probate Lawyers said the youngest son however had second thoughts and discharged the attorney, and picked up the original last will and testament. He further argues that the attorney is disqualified because he may be called as a witness since he was the attorney-draftsman of the last will. He states that the provision in the last will concerning the distribution of the residuary assets may be the subject of a construction proceeding, and the attorney as draftsman, may be called to testify as a witness.

In addition, he claims that the attorney may be a witness on the removal issue as well since, as the draftsman, he may have pertinent information on the deceased man’s selection of the administrator. He argues that the conflict is clear, and, therefore, not only the attorney but also his firm, which consists of only one other attorney, must be disqualified.

The attorney however argues that neither he nor his law firm should be disqualified from representing the man’s middle son. According to the attorney, the meeting occurred before was attended by the deceased three sons, the youngest child’s girlfriend, the middle child’s wife, and a friend of the eldest’s. At that meeting, the attorney discussed the procedure regarding the validation of their father’s will and answered their questions. He states that they also discussed the building department violations on the deceased’s home and tax issues. Thereafter, the youngest son called the attorney to schedule an appointment.

Later, the youngest son met with the attorney at his law office and advised the attorney that he had decided to handle the matter himself. The youngest son also asked for the original will, and the attorney gave it to him. The attorney also gave him the completed validation requests, waivers of process and consents and the eldest son’s renunciation as co-administrator, which the attorney prepared.

The attorney also points out that the youngest son did not file any of the documents prepared by him with the court, but instead prepared a new request and related papers, which showed he was acting in that way. The attorney argues that the youngest son’s motion should be denied because a civil litigant has the right to be represented by legal counsel of his option. In addition, the attorney points out that there is no construction proceeding pending at that time.

According to the attorney, there is no substantial relationship between the validation proceeding and the removal/compulsory accounting proceeding. He also asserts that the probate proceeding was simply proceeding since all of the deceased’s successor were in agreement as to the validation of the will.

The youngest son however points two grounds for the disqualification of his brother’s attorney and it includes the conflict of interest and the advocate-witness rule.

Based on records, a party seeking disqualification bears the burden of demonstrating that disqualification is warranted. Moreover, disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants.

Further, that an attorney may not represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client. Second, an attorney may not use any confidences or secrets of the former client except as permitted or when the confidence or secret has become generally known.

Consequently, the court of appeals has reprimanded that the code of professional responsibility not be mechanically applied when disqualification is raised in the court.

In the case presented, the attorney formerly represented the man’s youngest son for the purpose of having the will admitted for validation and being appointed as administrator, even if only for a brief period of time. Subsequently, the same attorney is representing the man’s middle son in seeking to remove his younger brother as the administrator.

The court then stated that it clearly shows that the middle son’s interests are materially adverse to the interests of his younger brother and there is a substantial relationship between the attorney’s firm’s previous representation of the man’s youngest son and the proceeding. In addition, given that the attorney was the draftsperson of the deceased man’s will, he may be called as a witness in the removal proceeding, regardless of whether a construction proceeding is initiated.

The attorney admitted that if he is disqualified the firm would likewise be disqualified. As a result, the motion to disqualify the attorney and his law firm as attorneys for the deceased man’s middle son is granted.

Moreover, pursuant to the law no further action shall be taken in the proceeding until thirty days after notice to appoint another attorney has been served. Further, a conference shall be held to set the matter down for a hearing on the issue of the deceased youngest son’s removal as administrator.

When you experience trouble on your parents’ assets, you can seek legal help from the Nassau County Estate Lawyer or Nassau County Estate Administration. You can also have the assistance of the Nassau County Probate Attorney if you want to validate your love ones last will. Simply visit or call Stephen Bilkis and Associates office for more information.

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