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Petitioner Brings Case to Probate Lost Will


A New York Probate Lawyer said that a probate proceeding was brought by the Petitioner for the probate of a lost will purportedly executed by her decedent brother.

A New York Will Lawyer said that the decedent died in September 2005. A will executed on in 2003, which provided for his wife, and his three children was admitted to probate by this court in 2005. The petitioner in this proceeding seeks to admit a later instrument to probate as a lost will and revoke the earlier will’s probate decree. The allegations contained in the petition may be summarized as follows. Before he died, in 2005, decedent sought the services of his long-time attorney to change the 2003 Will in light of changing circumstances with his wife, specifically her commencement of divorce proceedings against the decedent. As a result of his discussions with the lawyer, the decedent had a new will prepared, the final version of which was completed and then executed by decedent in August 2005.
The terms of the 2005 will differ significantly from the terms of the 2003 Will. The 2005 Will reduced the wife’s share to her elective share, it left nothing to the decedent’s two children and the terms of an option to purchase the decedent’s businesses granted to decedent’s son which existed under the 2003 Will as well, were much less favorable to him under the 2005 Will. Also, the 2003 Will provides for a single executor, while the 2005 Will provides for three executors, and petitioner. The petitioner in this lost will proceeding is the decedent’s sister. Relevant to this motion is the nature of the relationship the decedent had with an individual.

Westchester County Probate Lawyers said the decedent had a longstanding personal and professional relationship with and individual who worked with him since 1979 in decedent’s insurance business. In addition, the decedent allegedly resided with said individual at the time of his death. After the decedent’s death, said individual was involved in litigation with several of the companies which resulted in a stipulation and “Confidentiality Order” issued in February 2007. The stipulation requires that documents and/or information that are designated “confidential” shall not be disseminated in any action or proceeding involving the plaintiffs in the aforementioned action, as well as the Estate of the decedent.

Suffolk County Probate Lawyers said that furthermore, said individual entered into several Settlement Agreements. These settlement agreements contain both confidentiality provisions, as well as the incorporation of the terms of the Confidentiality Order. The court notes that the Confidentiality Order was an “order” signed by a special referee in the Supreme Court. This fact will prove to be irrelevant to the reasoning of this decision.

The requirements to prove a lost will are set forth at SCPA § 1407 which provides that “[a] lost or destroyed will may be admitted to probate only if: (1) [i]t is established that the will has not been revoked, and (2) [e]xecution of the will is proved in the manner required for the probate of an existing will, and (3) [a]ll of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.”
In addition, when a will cannot be found after death and the will was in the testator’s possession at the time of death there is a strong presumption that the will was revoked by the testator. It is the burden of the proponent to prove non-revocation of the lost will. The proponent can rebut the presumption using “facts and circumstances which show that the will was fraudulently destroyed” during the testator’s lifetime.

For discovery purposes, New York courts have liberally construed the scope of disclosure for material that is “material and necessary.” More specifically, the New York Court of Appeals has stated that “material and necessary” must be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy.” Although CPLR 3101[a] allows for “full disclosure of all matter material and necessary in the prosecution or defense of an action.” this provision is subject to a limitation, the test for which is one of “`usefulness’ and `reason'”. As long as the material sought meets this minimal limitation “pretrial discovery is to be encouraged” (Id.). CPLR 3101(a)(4) authorizes disclosure of material and necessary matter from non-party witnesses who do not otherwise fall within the scope of CPLR 3101(a)(3). Such disclosure may be had upon notice stating the circumstances or reasons disclosure is sought or required.

In the instant case, petitioner bears the heavy burden of demonstrating that decedent did not revoke his will prior to his death. Under SCPA § 1407 of the three requirements that petitioner must meet, the first requirement will be the most difficult to satisfy. The first requirement under SCPA § 1407 requires petitioner to prove that the will had not been revoked; petitioner seeks to meet her burden by demonstrating that the decedent’s children, were responsible for the destruction or disappearance of the original 2005 Will. In support of this position, petitioner has subpoenaed for a deposition and for production of corporate documents relating to the corporations. Petitioner seeks the production of documents relating to the Net Annual Commissions and Unpaid Principal Balance to demonstrate that the probate of the 2003 Will was more favorable to decedent’s children, thereby showing that the actions of decedent’s children on the night of decedent’s death were suspicious in nature, and therefore, explaining the disappearance of the original 2005 Will.
Through the subpoena, petitioner seeks the production of financial records of the corporations, more specifically, information relating to the Net Annual Commissions of the corporations and of the Unpaid Principal Balance of the corporations.
The objectants seek a protective order from this court preventing the production of documents which, they argue, are confidential and immaterial to the current proceeding before the court. The Confidentiality Order that the objectants base their argument on provides that “‘Confidential Material’ is defined as material designated as `Confidential Material’ based upon a good faith assertion that disclosure of such material might adversely affect a Producer’s competitive business revenues, profitability or operations”. The subpoenaed information requested is limited in its nature; petitioner seeks only the Net Annual Commissions information from calendar year 2004 and all documents concerning the Unpaid Principal Balance of the Corporations, not all financial information from each of the businesses. The subpoenaed information would not appear to disclose any information relating to how the businesses operate, thereby obviating the concern that the companies will be adversely affected in terms of business revenues or profitability. To further quell any concern the objectants may have regarding disclosure of financial documentation of the corporations, petitioner’s counsel noted in his affirmation that petitioner would be willing to enter a Confidentiality Order for this case to prevent disclosure of this financial information to any of the competitors of the corporations.

The objectants seek to prevent disclosure of the settlement agreements on the grounds that the settlement agreements are confidential and to prevent disclosure of trade secrets of the corporations. New York courts have no generally accepted definition of a trade secret, however, several courts have used the definition of trade secret set forth in the Restatement of Torts § 757, comment (b). Under the Restatement definition a trade secret is “any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it”.
The objectants have the burden of establishing that the subpoenaed information consists of trade secrets. The objectants have simply stated that the settlement agreements contain trade secrets but have not presented any information that, in fact, the agreements do contain trade secrets of the corporations. Conclusory statements from the attorney for the party seeking protection from disclosure on grounds of trade secret are not generally sufficient to prevent disclosure.

The production of the financial records of the corporations, as well as the production of any settlement agreements may have entered into with numerous other parties as a result of the prior 2005 action are “material and necessary” under the CPLR’s broad interpretation for the disclosure of relevant material in a proceeding. In this action, petitioner seeks to show that there is a plausible explanation for why the original 2005 will has not been located and that reason is that certain of the decedent’s issue have either hidden or destroyed the original 2005 Will.
Petitioner seeks to demonstrate how much of a benefit the decedent’s son, enjoyed when he exercised his option to purchase the decedent’s businesses under the 2003 Will as compared to the 2005 Will. It should be noted that one need look no further than the terms of the 2003 Will versus the 2005 Will in order to see that the son would enjoy a significant benefit by exercising his option to purchase under the 2003 Will, however, the additional financial documentation sought by petitioner seems to be reasonably calculated in order to further support her explanation as to why the original 2005 Will could not be located.

A lost last will and testament may be proven and be the subject of probate if the requirements set forth by law are present. Here in Stephen Bilkis and Associates, our Nassau County Probate attorneys will help you implement the provisions in the will by filing a proper petition for probate. We also have Nassau County Estate Administration lawyers who will guide you on the proper steps to undertake in filing court actions related to estates.

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