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Executor Moves to Preclude Decent’s Grandchildren from Will


In this probate proceeding the proponent, the decedent’s son who is the nominated executor and sole beneficiary under the propounded instrument moves to preclude the objectant, the guardian of the property of one of the decedent’s grandchildren who is an infant, from offering any evidence or testimony in this proceeding on the grounds that the objectant’s bill of particulars was untimely served (81 days after the demand instead of 30 days) and 15 days after all disclosure was to be completed, and that the responses therein are not in conformity with the specificity requirement set forth in Uniform Rules for the Surrogate’s Court.

A New York Probate Lawyer said the decedent died at the age of 73. The decedent’s only distributees are the petitioner, the infant grandson for whom a guardian ad litem (court appointed) was appointed and another grandson who consents to the probate of the propounded instrument. Although the guardian ad litem for the infant filed a report indicating that he found no basis to object to the admission of the will to probate, the infant’s father disagrees. After some delay caused in part by the necessity of obtaining guardianship of the infant’s property, the father eventually filed objections on the infant’s behalf.

A conference was held with the court in which the guardian ad litem participated and indicated that he would favor settlement of the issues raised. A New York Wills Lawyer said as no settlement was reached, the court rendered a decision relieving the guardian ad litem of his representation of the infant unless he was needed for any subsequent settlement discussions, inasmuch as the infant was represented by counsel retained by the guardian of his property who would vigorously prosecute the objections.

Counsel for the objectant sets forth excuses for the delay that vex his adversary and might strain credibility, especially after the initial delay in filing the objections, the counsel’s alleged inability to respond to the demand for a full month due to a trial in Rockland County, delayed review of medical records by a doctor who, rather than being furnished with copies, could only review them at the court one morning a week. Nevertheless, Brooklyn Probate Lawyers said that instead of seeking summary judgment based upon proof establishing a legitimate case and that the objectant failed to raise any triable issue of fact, the proponent, in effect, seeks to deprive an infant interested party of his day in court based upon delay and an alleged lack of specificity in his bill of particulars. Notwithstanding that no party should expect that a failure to meet a deadline will be without consequences, the court, in the exercise of its discretion, will review the bill of particulars, and if it is found in any way to be deficient, make such order as may be just.

The proponent argues that the delay and lack of specificity merit preclusion of evidence with respect to all of the objections, while the objectant glosses over the delay and relies on his alleged likelihood of success on the merits, primarily on the issues of lack of testamentary capacity because the decedent was suffering from a terminal illness at the time the will was executed and undue influence due to the circumstances under which the objectant claims the will was executed.

Long Island Probate Lawyers said the object of a demand for particulars is to amplify the pleadings so as to eliminate surprise at trial, and not to serve as a further disclosure device. A party is not obligated to respond to particulars on any issue that the party does not have the burden of proving at trial.

Against this backdrop it is clear that no proof should be taken solely for the purpose of submitting Objection 1 to the jury, and consequently, this objection is stricken without in any way precluding the proof that the objectant may adduce in support of any other valid objection. Briefly, Objection No. 1, “that the will is not the last will of the decedent in that it did not express her true wishes and intent,” is not a cognizable independent objection where, as here, there is no allegation of a forgery and there are objections alleging lack of testamentary capacity, undue influence and fraud.

Objection 2 contains the usual allegation of lack of testamentary capacity at the time the instrument was executed. As the proponent has the burden of proof on this issue, the objectant is not required to provide any further amplification of this objection. Nonetheless, in light of the fact that the objectant indicated in opposition to the instant motion that they were in the process of both obtaining an expert opinion on the issue of testamentary capacity and additional medical records, the branch of the proponent’s motion seeking to preclude objectant from using any material not supplied to the proponent prior to the date that disclosure was to be completed is granted with respect to expert testimony and additional medical records unless, within 45 days of the date of the order to be entered hereon, the objectant furnishes to the proponent the information required with regard to the expert’s testimony and any additional medical records have been delivered to the court or otherwise made available to the proponent.

Objection 3 alleges both fraud and undue influence, two separate objections. With respect to undue influence, the objectant claims that the proponent or his girlfriend exerted undue influence on the decedent to procure the instrument at issue. It is frequently said that direct evidence of undue influence is seldom available. Accordingly, the law permits undue influence to be shown by facts and circumstances leading up to and surrounding execution of a will. The objectant alleges that it was not natural for the decedent to devise her house solely to the proponent as the infant objectant had lived there with the decedent, and at the time the will was executed the decedent suffered from physical and mental distress because she was in the final stage of a protracted battle with cancer and because her daughter, the mother of the objectant, had committed suicide approximately one month prior to the will execution ceremony. The objectant also avers that the proponent and his girlfriend exerted undue influence is demonstrated by the fact that the proponent arranged for the decedent and the attorney drafter to meet, and the $50,000 bequest in the propounded instrument to the proponent’s girlfriend in the event that the proponent predeceased the decedent is at the expense of the decedent’s grandchildren with whom the decedent had a close relationship. Inasmuch as the response sufficiently appraises the proponent that the objectant will rely upon the facts and circumstances surrounding the execution of the instrument and the medical evidence and expert testimony concerning the decedent’s condition in meeting his burden on the undue influence objection, the response on that issue is sufficient.

As the objectant has the burden of proof on the issue of fraud and admits that he is unaware of any specifics about any false statement that constitute the alleged fraud, preclusion is granted with respect to that branch of Objection 3 alleging fraud.

Objection 4 alleges that the decedent was not of the physical ability to understand and/or appreciate the provisions of the will. As was the case with Objection 1, the objectant is not precluded from establishing the facts stated therein in support of his other valid objections, however, as these allegations do not support any objection independent of other valid objections, this objection is stricken.

Finally, Objection 5 deals with “such other and further objections as may become apparent upon the production of discovery to be conducted in connection with this proceeding.” The proponent correctly notes that the time for the objectant to interpose additional objections has long since passed, and he is precluded from doing so.

Any party who seeks summary judgment shall make the motion returnable no later than September 5, 2012. Thereafter, or following the court’s determination of any summary judgment motion, the probate proceeding may be placed upon the court’s ready for trial calendar upon compliance with Uniform Rules for Surrogate’s Court.

When parties in a will related proceedings disagree, the longer the time it would take them to enjoy the things that they would get from the will. If someone is trying to jeopardize a probate proceeding, the Bronx County Probate Lawyer or the Bronx County Will Contest Attorneys from Stephen Bilkis and Associates are the best persons to approach.

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