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Court Discusses Appointment of Guardian Ad Litem


A New York Probate Lawyer said in this probate proceeding, the guardian ad litem for the decedent’s minor children has submitted a preliminary report wherein she recommends that the purported will be admitted to probate if construed and/or reformed as suggested in her report.

A New York Will Lawyer said that the decedent died in June 2006, a resident of Nassau County. The decedent was survived by her husband and her two minor daughters. The will offered for probate is dated October 20, 2000. The will nominates the decedent’s husband as executor. Preliminary letters testamentary issued to the decedent’s husband on June 21, 2006. The gross testamentary estate is valued between $10,000,000 and $15,000,000.

A Long Island Probate Lawyer said the purported will disposes of the residuary estate in two parts, Fund A and Fund B. Fund A is given to a trust for the decedent’s husband for his life with the remainder payable to the decedent’s two children, or the survivor of them. Fund B, is given to the decedent’s husband outright. The proffered will directs that estate taxes, or similar death taxes, with respect to testamentary assets are to be paid out of Fund B. Article Third expresses the decedent’s intention to take maximum advantage of the available tax benefits so that there will be no federal estate taxes due with respect to her estate.

Brooklyn Probate Lawyers said the guardian ad litem’s preliminary report concludes that jurisdiction has been obtained over all necessary parties. The guardian ad litem also concludes that the decedent had testamentary capacity and that the purported will was duly executed. The guardian ad litem, however, states that the language of the will does not accomplish the decedent’s tax planning intention unless it is construed and/or reformed. Accordingly, she recommends that the propounded will be admitted to probate only if construed and/or reformed in accordance with the decedent’s intention.

The guardian ad litem also states that the language in Article Third that directs that there shall not be allocated to the unified credit any asset that does not qualify for inclusion therein is generally used in connection with the marital deduction provisions of a will and not the unified credit provisions of a will. The guardian ad litem asks that this language be given effect as applying to the marital deduction portion of the will as opposed to the credit shelter portion. Similarly, the guardian ad litem opines that the language in Article Third that directs that any provision in the will that would prevent the allowance of the unified credit with respect to Fund A should be read as not existing should, in fact, apply to the marital deduction provisions of the will and not the unified credit provisions of the will.

The petitioner’s counsel has submitted a reply in response to the guardian ad litem’s report wherein she argues that any ambiguities or inconsistencies in the language of the will or superfluous clauses have no bearing on the decedent’s intent and are wholly cured by the savings clause in Article Third. Counsel agrees that the Fund A trust should be funded with the maximum amount that can pass free of federal estate tax by reason of the unified credit available at decedent’s death; she disagrees that a construction is necessary to achieve that result. Petitioner concedes, however, that a construction or reformation must be made to rectify the inconsistency regarding the distribution upon termination of the Fund A trust. The petitioner intends once the will has been admitted to probate to bring such a proceeding to provide that distributions are made per stirpes.

The Court of Appeals has held that “probate logically precedes construction for otherwise there is no will to construe.” The writing must first be proved as a lawfully executed will before there can be any investigation of the legal effect of its terms” The other issues relate to questions of construction only and may not be considered until said paper writing has first been admitted to probate, the Court of Appeals reasoned that “[i]f the only disposing clause of a will should devise and bequeath all the property of the testator to a trustee for 100 years, the surrogate could not refuse to admit it to probate because the gift was void under our statutes, although it would be apparent upon the face of the instrument. It would be his duty to admit the will to probate upon due proof of the statute requirements, and, if asked to construe it, to pass upon the validity of the gift afterward.”

Here, the guardian ad litem has done a thorough and comprehensive review of the purported will. She has concluded that there is no basis not to admit the will to probate, yet she also concludes that the provisions of the will as drafted may not effectuate the decedent’s intent, as stated in Article Third of the will, to minimize estate taxes. The court declines to construe and/or reform the purported will until it has been admitted to probate and the court is requested to construe it. The court also is of the opinion that the guardian ad litem’s report, although denominated as a preliminary report, is comprehensive and may be considered a final report.

Accordingly, the will shall be admitted to probate. The guardian ad litem is directed to submit an affidavit of services within twenty (20) days of the date of this decision.

In case a will was left by a decedent, you can engage the services of our Nassau County Probate lawyers here in Stephen Bilkis and Associates, we will help you file a petition in Court for the probate of this will. In case there was a problem in the settlement of the estate of a deceased, you can consult our Nassau County Estate litigation attorneys and they will inform you of the steps to take and the consequences of every step.

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