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Court Decides Case Regarding Lost Will


A New York Probate Lawyer said a deceased man was survived by his wife and three adult children. Afterward, his last will was offered to probate. The man’s 2003 last will bequeathed his personal property, shares of stocks and real property to his wife. A trust is also established for the benefit of his wife, and upon her death, the property was to be held in trust for their three children until they reached the age of thirty.

A New York Will Lawyer said the article sixth of the man’s 2003 last will provides that the man’s interest for various companies and real property is to be held in trust for the benefit of his wife, but subject to the option of his son to purchase the same.

Afterward, the last will was admitted to probate and the letters testamentary was issued to the estate administrator.

Subsequently Queens Probate Lawyers said, a proceeding was initiated to probate a copy of a later proposed last will and testament of the man, hereinafter the man’s 2005 last will, as a lost will and to revoke the earlier last will’s.

The complainant of the man’s 2005 last will probate proceeding is the man’s sister, who is named as one of the co-administrator of the 2005 last will, along with two individuals. The man’s 2005 last will also revokes all prior wills and leaves the man’s wife only her elective share, with the remainder to the man’s mother.

The man’s 2005 last will also leaves nothing to the man’s two children. The man’s son however is given the option to purchase the corporations and a property, but on less favorable terms than those set forth in the man’s 2003 last will.

Consequently, the man’s wife and her three children all object to probate a copy of the man’s 2005 last will as a lost will.

The man’s family previously moved to dismiss the proceeding but his sister cross moved seeking admission of the man’s 2005 last will to probate and vacating the letters testamentary issued to the 2003 last will’s administrator.

By decisions, the court denied both the motion and cross motion finding that there is an issue of fact as to whether the man revoked his 2005 last will.

Sources revealed that the decision was affirmed on an appeal. The parties thereafter entered into a pretrial conference order signed by the court which directed that all discoveries in the proceeding were to be concluded by all parties.

Subsequently, the man’s sister served a subpoena seeking all the log-books, sign-in books, computer logs, or any other method utilized by the attorney of the estate administrator, evidencing the dates and/or times the man’s wife and others visited the offices of their attorneys.

But, the man’s wife’s attorney refuses to produce the documents requested by the complainant claiming that the request is overly broad, unduly burdensome and costly, and that the information sought is in no way material and necessary to the prosecution or defense of the proceeding.

Later, the man’s sister served subpoenas to take depositions and to produce documents to various companies c/o the attorney of the administrator, seeking, any and all documents and correspondence concerning the unpaid principal balance for each of the corporations.

In response to the request, the attorney of the opponents provided the complainant with copies of a note for $1,800,000.00 from various companies and the man’s properties. The attorney later produced documents regarding notes payable to the man from insurance agency and from his son, but claims that there are no other documents available responsive to that request.

Subsequent to the deposition of the administrator, the man’s sister made additional requests for production of documents, including cell phone records, documents concerning the identity of the locksmith who was present at the office of her brother, 2005 tax returns for the man’s group of companies, documents concerning any notes payable and/or due to the man at the date of his death, whether current, satisfied, or in default, documents concerning any letters of credit issued as security for the purchase of the corporations, documents concerning any distributions made from the assets of the man, including payments to attorneys and payments for the estate administrator’s bond, documents concerning a promissory note from the man’s son to his father, documents regarding the identity of the attorneys who were present during any meetings regarding the decision to sell the corporations and the subsequent valuation of the corporations, documents regarding the identity of the attorneys present during any meetings regarding the decision to probate of the man’s 2003 last will and documents regarding the identity of any attorneys present during the meetings regarding the decision not to probate the man’s 2005 last will.

In a letter responding to the letter of man’s sister, the man’s wife’s attorney requested additional documents as the opponent’s attorney stated that he and his office staff had searched and were unable to locate the cell phone records requested, no documents regarding the identity of the locksmith could be found, no 2005 tax returns for the man’s group of company, a note executed by the president of the group company that already been provided, there are no letters of credit, the request for documents regarding distributions from the assets of the man seeks documents which are not material and necessary in the prosecution of a lost will proceeding, no such promissory note from the estate administrator to the man is in their possession; and with regard to the letter requests requesting documents identifying attorneys, objected to the requests as overly broad, unduly burdensome and costly, as well as immaterial and unnecessary to the prosecution or defense of a lost will proceeding.

Long Island Probate Lawyers said the man’s sister further asserts that the opponents and their attorney have failed to fully comply with the document requests made by the complainant both by subpoena and by letter, and the complainant therefore moves to compel a response.

She also argues that the administrator waived his attorney-client privilege in the proceeding when he answered several questions by saying he had acted upon the advice of his attorney. While a party may be deemed to have waived the attorney-client privilege when that party intends to prove his claim or defense by use of the privileged materials, such an at issue basis for waiver has been narrowly interpreted and is inapplicable in the matter.

The court avers that since the burden of proof in the lost will proceeding rests solely upon the man’s sister, neither the estate administrator nor any of the other opponents, have any need to rely upon their privileged communications with the attorney to support a claim or defense in the matter and so such communications have not and will not be put in issue by the opponents.

Consequently, the court found that there is no basis for finding a waiver of the administrator’s attorney-client privilege. By the complainant’s strained reasoning, anytime a party during a deposition responds to a question by saying that he spoke to the attorney or relied on his advice, that party would have waived his attorney-client privilege. The court also stated that such interpretation is untenable. The administrator’s answers during his deposition that he relied on the advice of his attorney in the matter do not constitute a waiver of his attorney-client privilege and complainant’s attorney may not inquire of either him or his attorney as to the nature of the attorney’s advice.

It is the right of the family members to seek what they deserved with regards to the estate of their loved one. Whenever you want to file a dispute with the decision of the court, you can ask assistance from Nassau County Estate Lawyers at Stephen Bilkis and Associates office. Also, you can hire the Nassau County Probate Lawyer or Nassau County Estate Administration Attorneys if you want to offer for probate the last will of your parent.

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