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Court Discusses Revocation of a Waiver


On 22 April 2009, EB, a resident of Nassau County died purportedly leaving a will dated 20 March 2009. He was survived by his wife from a second marriage, JB, and by five children.

A New York Probate Lawyer said that under the purported will, one-third (1/3) of the residuary estate is to be placed in a supplemental needs trust for the decedent’s wife; the remainder of the residuary estate is to be divided into seven equal shares with one share for each of the EB’s children (other than P) and the decedent’s three step-children; and, it nominates KH, EB’s daughter, and PH, KH’s husband, as executors.
Consequently, the purported will was offered for probate by the nominated executors. On 12 May 2009, a waiver and consent was signed by JB. On 16 June 2009, it was filed with the court. P, one of EB’s children, is under a disability. Thus, a guardian ad litem was appointed for her.

A New York Will Lawyer said that H and PH, the petitioners, filed an application for preliminary letters testamentary. JB opposed the application and moved to revoke her waiver and consent.

The evidence:

Nassau County Probate Lawyers according to JB, in her affidavit, in support of her motions, she and the decedent were married in 1977, they both had previous marriages, with their former spouses having passed away; she had three children from her first marriage and EB had five children from his first marriage; at the time of their marriage, JB owned a residence located at 69 Ransom Avenue, Sea Cliff, New York; prior to the marriage, EB sold his residence and moved in with JB; it was always their intention that upon her death, her residence would be given to her children reserving the right for EB to reside there; in 2007, at the urging of the EB’s daughter and son-in-law, she and EB consulted with an attorney at which time she expressed her desire that the residence pass to her children; the attorney prepared a will for each of them and an Irrevocable Trust; she did not understand the intricacies of the trust agreement but was advised and assured that upon her death, her children would get her residence; in December 2008, she became ill from dehydration and was hospitalized; after a two week stay in the hospital, she entered a nursing home; during her stay in the nursing home, the petitioners began a process to make her eligible for Medicaid; she was not aware of what needed to be done to achieve this, and at no time was she made aware of the fact that her residence would be transferred in a manner to prevent her from ever leaving it to her children; on 21 April 2009, the day before EB died, she re-entered the hospital for an emergency operation; it was only after her husband was buried and while she was still in the hospital that she learned for the first time from her sons that “arrangements” had been made so that her residence would not be going to her children, instead, the residence could be sold and the proceeds shared by them together with EB’s children; upon learning this, she asked KR, Esq., the attorney who prepared the will, to see her to discuss the issue; she then told KR that it was always her intention to leave the residence only to her children; and, there, it became apparent to her that KR was not acting in her interest.
According to JB, as to her signature on the waiver and consent, to her knowledge, she never signed such a document but she may have signed other documents represented to her for the purpose of qualifying for Medicaid when she was in the nursing home; no one explained the waiver and consent to her or what executing such a document meant; she never saw her husband’s will; and, thus, she asks for permission to revoke her waiver and consent so that she may file objections based, in part, upon her belief that her husband was not competent to sign a new will.

A Staten Island Probate Lawyer said that according to JB, to establish EB’s incompetency, her husband suffered a stroke in early 1986; in December 1986, after surgery, he suffered another stroke which left him unable to speak; thereafter, his speech returned over time but was never fluent; after that, he suffered a number of mini-strokes; in March 2009, when the purported will was signed, he suffered from dementia to the extent that he would have been incapable of understanding and appreciating what he was doing or signing; and, EB would not have purposely and knowingly deprived her of her right to leave her residence to her children or to reside in her home after his death.

According to KR, JB’s counsel, in her affirmation in support of the motion, the residence at 69 Ransom Avenue was transferred into a joint irrevocable trust naming KH and PH as trustees as a result of the consultation with her in 2007; in early 2009, PH and KH, as trustees, transferred the residence out of the trust and into KH’s individual name; thereafter, KH transferred the residence into EB’s name; this was done without JB’s consent or awareness; and, ten days later, EB executed a new will which provided that the home would be divided equally among his children and JB’s children.

According to KR, with respect to the notary acknowledgment on the waiver and consent purportedly exercised by JB, while JB claims that the notary whose signature and stamp appears on the waiver did not visit JB at the nursing home on the date the waiver was purportedly signed or on any other date, the nursing home records indicate that she was the only visitor on that date.

According to JB, the notary is the friend neighbor and/or co-worker of PH.

According to JB, as to the application for preliminary letters, she will be prejudiced if letters are issued because then the Ransom Avenue home can be sold.

A Queens Probate Attorneys said that according to the petitioners, in their answer, JB had a complete understanding of each and every transfer, document, trust or other legal matter relating to her and husband’s affairs; JB received verbal and written communications from KR and met with KR alone on more than one occasion; KR never represented them; EB sold his house and paid for all the bills while they lived as husband and wife; while EB was doing this, JB made gifts of approximately $150,000.00 to her children; they had no input or advice in the estate planning process and EB and JB relied upon expert legal advice; and, EB always had mental capacity.
The court’s ruling on the request for preliminary letters:

When it comes to the issuance of preliminary letters testamentary, SCPA 14121 is what governs. This was enacted to provide a form of letters to the named executor which would allow for the immediate estate administration when there may be a delay in probate. Its purpose is to honor the testator’s preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest.

As a rule, a testator’s wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Nonetheless, preliminary letters may be denied where the nominated executor’s eligibility is at issue. Where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that the dishonesty makes him ineligible under SCPA 707. Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters. Further, if it is in the best interest and protection of the estate and its beneficiaries to appoint a fiduciary other than the nominated executor, temporary letters may issue to the Public Administrator.

Here, JB’s allegation that petitioners are not qualified to act as fiduciaries failed to go beyond conclusory allegations which are clearly insufficient to provide a basis for the denial of preliminary letters testamentary. JB failed to demonstrate “good cause” or serious wrongdoing which would permit the court to nullify the testator’s choice of fiduciaries.

Accordingly, petitioners’ application for preliminary letters testamentary was granted. However, JB raised an issue regarding the petitioners’ actions on the transfer of the Ransom Avenue house out of the trust and into KH’s individual name. Thus, the preliminary letters testamentary included an order that restricted the preliminary executors from selling the Ransom Avenue house without prior court approval.

The court’s ruling on the revocation of waiver and consent:

Generally, courts are reluctant to allow the withdrawal of a waiver and consent since “such actions disrupt the orderly process of administration and create a continuous aura of uncertainty.” The burden of proof lies on the party attempting to revoke the waiver. The test for withdrawal of a waiver and consent differs depending upon whether a probate decree has issued. If a decree has issued, it is more difficult to revoke the waiver because vacatur is also required. Whether the withdrawal is sought pre-decree or post-decree, the party seeking to revoke the waiver must show that the waiver was obtained by fraud or overreaching, or was the product of misrepresentation or misconduct, or that newly discovered evidence, clerical error or other sufficient cause warrants revocation. If withdrawal is sought predecree, such a showing is sufficient absent prejudice to the other side.

In various cases, revocation of a waiver has been denied where the applicant claims that he did not understand the effect or significance of the waiver, yet his education and general experience belies such claim. Further, it has been held that necessary parties are deemed to have read and understood the contents and consequences of signing a waiver and consent. A necessary party is chargeable with knowledge of the contents and the legal effect of a waiver, whether or not he availed himself of the advice of counsel at the time of the execution thereof.
Indeed, there are certain situations where a necessary party will be permitted to withdraw a waiver and consent. This is true in cases when: it may alter the outcome of the probate proceeding; factual issues are raised surrounding the decedent’s testamentary capacity; when the proponent of the purported will, also the draftsman, misled them into signing the waivers; and, in the interest of justice, a withdrawal would not result in prejudice.

Here, pursuant to SCPA 401(4), a waiver must be acknowledged. However, allegations were indeed raised concerning the acknowledgment by the notary on JB’s waiver. JB raised an issue concerning the actions of the proponents in securing her waiver.

Accordingly, mindful of the fact that a withdrawal was being sought prior to the issuance of a decree, a conference was set for an evidentiary hearing on 15 July 2010 in order to determine the validity of JB’s waiver and consent and set down a discovery schedule, if necessary.
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