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Court Rules on Case Involving Lost Will


A New York Probate Lawyer said in this Will Contest proceeding, a motion was filed for the allowance of an attorney from testifying at an examination before trial, and for a further order precluding the respondent for failure to file an adequate bill of particulars.

A New York Will Lawyer said that in August 1980, the decedent consulted another attorney, in connection with the preparation of a new will which because of her death shortly thereafter was never prepared or executed. The lawyer has been briefly examined, the examination was interrupted in order to obtain rulings from the court in regard to the attorney-client privilege.
While an attorney will generally not be compelled to testify as to matters revealed to him by his client within the course of his professional employment, there are, however, several exceptions, one of which permits an attorney “to disclose information as to the preparation, execution, or revocation of any will or other relevant instrument” in an action involving the probate, validity, or construction of a will. The proponent argues that this exception clearly applies in the instant proceeding.

However,New York City Probate Lawyers said several cases contain dicta that the exception does not permit an attorney to testify with respect to a consultation with a client looking toward the drawing of a will when no will was actually prepared or executed. At the time the case law was decided the exception did not, as at present, permit the attorney to disclose information as to the preparation of “any will”; rather disclosure was only permitted as to the preparation of the “will so offered for probate or required to be construed or of any prior will.” The case specifically prohibited the attorney “who neither directly or indirectly took part in the preparation or execution of the instrument offered for probate” from testifying. It is at least arguable that the result in the case should be confined to its interpretation of the former and not the present statute. Moreover in another case law, the conversation the attorney had with the decedent apparently sought legal advice about her existing will and it does not appear that there was any discussion of the preparation of a new will.

Manhattan Probate Lawyers said it has been argued that the modern trend towards freer admissibility of evidence should correspondingly limit the attorney-client privilege and that the direction should be towards a narrow construction and the development of further conditions and exceptions. Apparently reinforcing this trend, the proposed New York State Code of Evidence suggests that the exception should read as follows: “As to a communication relevant to an issue concerning the validity of, or intention with respect to, a deed of conveyance, will or other writing executed by a deceased client purporting to affect an interest in property.”
As can be noted, there is no suggestion that the attorney as a precondition to disclosure must have involved himself in the preparation and execution of any will or other document.

Concededly the above discussion can be considered largely dicta since it is clear here that while the attorney did not prepare or supervise the execution of a new will, he at least had discussions relating to a revocation of the former will and presumably codicil. The statute specifically authorizes an attorney to disclose information as to “the * * * revocation of any will.”
Admittedly the major significance of the lawyer’s testimony to the petitioner are conversations with regard to the existence of her will at the time of their consultation. Apparently the decedent was told by the lawyer to bring her old will to his office when she returned to execute the new will in order to physically destroy it. While such testimony may not be barred because of privilege, it does not appear to be admissible at the trial under New York’s traditional view of competency of evidence on revocation. Nevertheless there should be no objection to it being disclosed at a pretrial examination.

Accordingly the examination of the lawyer is directed to be continued on a mutually agreeable date, or failing agreement, on ten days written notice at which time he may disclose any and all information relating to the revocation of the decedent’s will and codicil, and any other conversations surrounding such communications.

The motion to preclude is based on an allegedly defective bill of particulars, which was supplied by respondent to petitioner in accordance with 1830.19 of the Second Department Surrogate Court Rules. Respondent’s answer to this is contained in paragraph 3 of his bill of particulars which states “The instrument purported to be the copy of the Last Will and Testament offered for probate is not signed by the deceased or attested to by the witnesses, nor is it the original of said Last Will and Testament which original was in the custody of the deceased. The presumption is that it is revoked.” Petitioner claims that this answer is not responsive because it does not specifically state the time and means of any alleged revocation as required by § 1830.19(a)(3)(ii) of the Second Department Surrogate’s Court Rules. § 1830.19(a)(3)(ii) states that if a contestant alleges that a will is not the last will, the proponent shall be entitled to a bill of particulars which shall state whether it is claimed that the instrument offered for probate was revoked and if so, state when and the method by which the revocation was accomplished. Respondent’s reliance on the presumption of revocation implies when and how the revocation was accomplished and therefor it is a sufficient answer.

However, a copy of a lost will is only used to prove contents and cannot be probated. “The instrument offered for probate” actually refers to the lost original will which proponent is attempting to probate. Therefore respondent’s answer is insufficient and respondent is ordered to supply a new answer as to whether it is merely claimed that the instruments offered for probate, the missing original will and the original codicil, were not executed in accordance with statutory requirements. Motion granted to the extent of requiring a further bill as indicated above and otherwise denied.

Probate is necessary in order to make the provisions of the will effective. Here in Stephen Bilkis and Associates, we have Nassau County Probate lawyers, who will represent the named executor of the last will and testament of the decedent. We also have Nassau County Estate attorneys for your other concerns. Contact us now for more details.

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