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Court Analyzes Will Due to Allegations of Undue Influence


A New York Probate Lawyer said that the complainant moves to dismiss the objections filed contending that they are not legally cognizable. A deceased woman’s last will and testament nominated the accountant, her brother, as administrator of her estate and made him the beneficiary of the residuary that comprised 49% of the estate. The deceased’s son, who received a 35% share of the estate in trust, contested the will which was denied after the jury found the proponent had exercised undue influence. Preliminary letters then issued to the complainant were subsequently revoked.

A New York Will Lawyer said sources revealed that the first objection interposed to the account must be dismissed as legally insufficient. Further, no statute compels a fiduciary, prior to judicial settlement of his account, to make application to charge the estate with counsel fees acquired in offering the will for probate with the exception of an attorney-fiduciary who does not have at least one co-fiduciary who is not rendering legal services. Furthermore, an affidavit of services having been filed, the opponent’s claim that no documentation of the services rendered was presented lacks merit.

Queens Probate Attorneys said the center of the controversy revolves about the second objection which asserts the preliminary administrator has no right to recover commissions, or to charge the estate with counsel fees he incurred as the unsuccessful proponent.

Long Island Probate Lawyers said that based on records, a preliminary administrator is not entitled to commissions unless the last will is admitted to probate and letters testamentary are issued to him. Where the will is denied probate or the letters of the preliminary administrator are revoked during pendency of a probate proceeding, the fiduciary is relegated to such compensation, if any, as the court shall determine to be reasonable not to exceed the commissions to which an administrator would be entitled.

The last will here having been denied probate, the preliminary administrator is restricted to such compensation, if any, the court finds reasonable. Although the criterion for payment is the reasonable value of the preliminary administrator’s services, the statute places a ceiling on the amount that may be awarded by directing his compensation shall not exceed the commissions payable to an administrator. By similarity, the instances in which the court, under the law, may refuse to award compensation to a preliminary administrator should fit together with those situations in which an administrator would be disallowed commissions. With that, the court found no compensation that is due with the accountant.

The withholding of compensation is consequently mandated, and the denial of attorney’s fees is similarly in order with reference to services rendered in the contested probate proceeding.

The court stated that the purpose of the law is to enable the administrator named in a will to diligently and actively pursue his duty to present the last will for validation and to protect it from attack from any source. The circumstance that the nominated administrator is also beneficially interested as a legatee does not relieve him of his obligation nor does it preclude him from receiving an allowance for attorney fees. However, the operation of the law is not set in motion until triggered by a showing of good faith. Further, good faith is not demonstrated, as the complainant advocates, simply because the jury did not find fraud in addition to undue influence.

Sources revealed that it is not a case where the nominated administrator was not a party to the misconduct that affected the document .The proponent in the case was not only the named administrator and trustee but the beneficiary of nearly one-half of the assets. The finding of the jury that the proponent exercised undue influence over the deceased woman in procuring the execution of the last will, which largely favored him, is conclusive on the court.

Further, the action of the proponent in offering the will for probate is of itself an act of bad faith. The consequences intended to be accomplished by attempting probate is to deceive the court and to defraud the natural objects of the decedent’s bounty from their rightful share of the estate. An allowance of attorney fees in such instance would constitute a perversion of justice. The attorneys must therefore look to their client for payment of their fee.

In the case, however, an examination of the request for attorney fees is required because not all the services rendered by the different attorneys employed by the complainant related exclusively to the contested probate proceeding. The various affidavits of services disclose that estate tax liens were released and an accounting filed. The said services are free from the taint of fraud, and would necessarily have been performed whether or not the last will was admitted to probate.

The first attorney engaged by the preliminary administrator has been paid $2,000 from estate funds, and it is the amount of compensation sought in the citation. Although his affidavit of services requests an additional $2,000, the allowable relief is circumscribed by the request set forth in the citation. The bulk of the first attorney’s services being connected with the contested probate proceeding, compensation thereof is disallowed. However, to the extent he filed an affidavit form and obtained a release of estate tax lien, he is awarded an allowance of $600 which is without prejudice to any claim against the client. The complainant is surcharged the sum of $1,400, representing the balance of the fee paid, together with interest at the legal rate from the dates of payment.

A man acted as trial counsel in the probate contest and no compensation may be allowed to him for such services, but the said determination is without prejudice to any claim he may possess against the complainant.

The firm prepared the complainant’s account, and handled the accounting contest which exclusively concerned the complainant’s right to be awarded commissions and attorney fees. The said firm also obtained a transcript of the trial which it examined with a view towards taking an appeal.

Sources revealed that the circumstances lead the court to reduce the $4,281.25 fee requested to $2,500 to cover the filing of the accounting together with disbursements for filing and process server’s fees in the sum of $332.50. The said allowance is also made without prejudice to any claim the firm may have against the complainant. The account shall be amended to reflect the aforementioned modifications and a decree submitted.

Consequently, the request for decision without trial is granted in favor of the complainant dismissing objections labeled as first that do not constitute a defense to the appeal. Further, objections designated as second set forth matter that constitutes in part a complete defense to that part of the petition and account seeking payment of administrator’s commissions and attorney fees related to the contested probate proceeding. While, the motion searches the record, the opponents are awarded partial decisions dismissing the petition to that extent and the items of the account requesting that relief are disallowed. Moreover, legal services unconnected to the contested probate may be recovered.

Therefore, the allegations in the objections marked as second, which seek to deny such fees do not state a legal defense and are stricken except with respect to the amount that may be allowed on the accounting. The court, however, as noted, have fixed the value of such services on the assumption that the various affidavits of services and the objections made thereto were submitted for that purpose.

People who formulate last will and testaments trust the persons that they name to be beneficiaries and executors. If someone hinders the execution of your will probate application, ask the Nassau County Probate Lawyers together with the Nassau County Will Contest Attorneys from Stephen Bilkis and Associates to fight with you in the courtroom.

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