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Court Hears Case Regarding Family Dispute Over Will


The appeal concerns a family dispute over the last Will and testament of the mother. The court is asked to determine whether various actions undertaken by the respondent sons in relation to the validation of the Will violated the apprehensive clause contained in the ninth paragraph of the Will. Based on the intent of the mother who made the Will, the respondents’ actions violated the apprehensive clause and therefore the respondents have forfeited their right to take under the Will. Indeed, the apprehensive clause at issue was included in the subject Will in response to deteriorating family relations, and was both in anticipation of, and a forceful attempt to prevent, the very type of conduct at issue, conduct by the respondents that would delay the validation of the will, place the Will in jeopardy and harass the petitioner.

A New York Probate Lawyer said that the mother died in 1994. Under her last will and testament, the petitioner daughter, was named as the executor of the Will and was given the bulk of the real property and personal effects, and one-half of the remaining estate. The respondents are the sons and were each given one quarter of the remaining property. The children were not always treated unequally under the Wills, of which there were several. For example, in a Will dated September 22, 1986, the children were to take essentially in equal shares. A change started to occur in the late 1980’s, after the husband died. The period saw a marked deterioration in the relationships between the siblings, and between the mother and her sons, while the bond between the mother and her daughter strengthened. These changing relationships were evidenced by, among other things a letter sent to the mother her son. In the letter, her son accused her of engaging in an elaborate scheme to isolate and alienate her from her sons. The son demanded that the mother revoke her then-latest will (which was very favorable to the daughter); reinstate a prior Will which divided the property essentially equally among the children, and stop aiding the daughter financially unless she could prove need. If his demands were met, the son promised to keep the matter within the family. However, if his demands were not met, he threatened to take immediate legal action to nullify his mother’s then-latest Will as a product of fraud and undue influence and obtain the appointment of a conservator for the mother. He also intended to publicize the matter, an act loathsome to the mother’s sense of privacy. In an undated note in the mother’s handwriting, the mother wrote that her other son had stated that the property would be in court so long that the daughter would never see any of the money. Finally, in a Will dated May 25, 1990, the mother noted that the more favorable treatment of the daughter under the Will was based on the loving care and attention she had shown both her mother and her late husband during his long illness as contrasted with the less than exemplary behavior of her sons. Further, the mother expressly stated that the Will was the product of long and careful thought and her deeply held feelings toward her children and was not in any way the product of any undue influence by her daughter.

Westchester County Probate Lawyers said that in June 1993 the mother met with a new lawyer to discuss the drafting of a new Will, the subject Will. The mother stated that her continuing desire was to leave the bulk of her property to her daughter, but that she feared that her sons would try to cause trouble for her daughter. Accordingly, the subject Will included the apprehensive clause stating that if any beneficiary under the Will in any manner, directly or indirectly, contests the Will or any of its provisions, any share or interest in the property given to the contesting beneficiary, or to such beneficiary’s issue, under the Will is revoked and shall be disposed of by adding such share or interest proportionately to the shares of the remaining beneficiaries who have not so contested the Will.

In June 1994 the mother died and the subject Will was offered for validation. Preliminary letters testamentary were issued to the daughter in July 1994.

The respondents served a verified answer to the petition for validation. The respondents objected to their mother’s nomination of the daughter as executor on the grounds of dishonesty, improvidence and substance abuse. The verified bill of particulars set forth the basic allegations that were to be repeated and amplified throughout various proceedings. The respondents set forth detailed factual scenarios indicating a course of conduct by the daughter spanning several years wherein she allegedly employed lies, deceit, subterfuge, sabotage, and even acts of a criminal nature to isolate her mother from persons and places familiar to her, to alienate her affections from the respondents and those she trusted, and which threatened her mother’s health and life. The alleged goal of the scheme, which the respondents asserted was highly successful, was to defraud the mother out of substantial assets while she was still living and to exert undue influence on her testamentary intent. The bill of particulars was verified by both respondents as being, unless otherwise indicated, based on personal knowledge. Pretrial activity during the period included the testimonies of the draftsman of the Will and the two subscribing witnesses, the service of various notices of testimony and subpoenas on parties and nonparties, and court appearances and conferences.

The respondents were successful in obtaining an order compelling the daughter to post a bond, contrary to the provisions of the Will. New York City Probate Lawyers said that the motion which resulted in that order sought additional disclosure. Later on, objections to the validation of the Will were served on the petitioner’s attorney but were apparently never filed. It was alleged that the mother lacked mental capacity and that the will was a product of fraud and undue influence by the daughter. The bill of particulars served in support of these objections merely incorporated by reference the allegations made in the respondents’ bill of particulars. Pretrial activity during the period included the initial testimony of the daughter, the testimony of each of the respondents, the service of notices of testimony and subpoenas on several nonparties, and various court conferences and orders. There were also attempts to settle the matter. However, by letter, counsel for the respondents noted that the respondents are unwilling to withdraw the objections at that time.

After being deposed, the respondents amended the bill of particulars to provide that the factual allegations therein were made upon information and belief, rather than upon personal knowledge as originally claimed, despite the fact that various events set forth in the bill of particulars were alleged to have been personally witnessed.

In 1995, one of the sons petitioned for temporary letters of administration in order to bring an action to recover damages for wrongful death and intentional tort against both the daughter and the hospital in which the mother died. He alleged that his sister, assisted by the hospital staff, had acted in a manner that hastened their mother’s death. Further, although not relevant to the allegations in his petition, he submitted an affidavit wherein he reiterated the allegations of fraud and undue influence by his sister. By decision in 1995, the court determined that the son was not entitled to such temporary letters because the proposed tort claims were time-barred. As to the new issues and new charges concerning fraud and undue influence by their sister as raised by the son in his affidavit, the court found that such allegations should be addressed in an accounting proceeding.

Just six days after being denied the temporary letters of administration, the son commenced an action against his sister and her husband in the Supreme Court. He simply recast the allegations set forth in, among other pleadings, the respondents’ bill of particulars to claim that his sister and her husband had deprived him, and the property of valuable assets. The complaint also alleged that the subject Will was the product of fraud and undue influence by the daughter and her husband. By order, the complaint was dismissed by the Supreme Court upon motion by the daughter of the deceased and her husband. The Supreme Court held, inter alia, that all of the claims raised by the son were covered by the proceeding pending in Court, that the son lacked standing to enforce claims on behalf of the mother’s property, and that the court, in its decision, had already passed on and determined to dismiss the claims made in the complaint.

In early 1996 the respondents continued their deposition of the sister in the validation proceeding and there were several calendar status conferences. At one such conference, counsel for the sister noted that discovery would soon be completed and that she intended to file a motion for dismissal dismissing the respondents’ answer and objections. Soon thereafter, a schedule for the completion of discovery was drafted and the deposition of the husband was noticed. At another conference, respective counsel again conferred on the possibility of a settlement. Further, it was noted by the court that the objections to validate could not be found in the court file and there was no indication that the requisite filing fee had been paid. However, upon assurances from counsel for the respondents that the objections had been filed and that inquiries would be made, disclosure continued. The next day, settlement discussions broke down and it was agreed that discovery should be completed. On July 24, 1996, the sister and the respondents were further deposed. In August, while inquiries were still being made concerning the filing of the objections to validate, there was continued contact between the parties and additional disclosure.

By letter dated September 3, 1996, counsel for the respondents informed the court that, although his clients were not interested in entering into a global settlement, they were not disputing that the objections to the Will had not been properly filed. Thus, counsel noted, although the respondents had no desire to proceed with respect to any Will contest, they saw no need to withdraw their objections, as they were never filed.

At a conference, the objections to the Will were withdrawn, but not the answer. On October 22, 1996, the Surrogate signed a decree admitting the Will to validate. On the court’s own initiative, the words probate not having been contested were struck, and the words no objection having been filed were substituted.

By petition, the sister commenced the proceeding for construction of the apprehensive clause of the subject Will. She alleged that the extensive pretrial litigation of the Will by the respondents violated the clause, thereby resulting in forfeiture of their bequests under the Will. In the order and decree appealed from, the court found, that the clause had not been violated.

As a threshold issue, the respondents argue that all of the proceedings at issue, with the exception of the objections to validate, were either legitimate inquiries to determine the fitness of the sister to serve as executor and/or to aid the court in determining whether the proffered will should be admitted for validation, or concerned challenges to actions undertaken by her or her husband prior to the mother’s death which did not implicate the Will. Thus, the respondents argue, other than the objections to validate, none of the proceedings at issue even implicate the apprehensive clause of the Will. Further, they argue, because the objections to validate were never filed and the requisite fee never paid, such objections were a nullity and should not be considered. One of the sons also argues that, in any event, he should not suffer from the consequences arising from the objections to validate because he was not a named as the one who object. The arguments lack merit.

Inheritances are given as tokens of love and appreciation. They are given to us to help us in any way possible. When family members squabble over money, it opposes the purpose of the reason why it was given. If you find yourself in this kind of situation, consult with Stephen Bilkis and Associates.

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