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Petitioner Alleges Undue Influence Regarding Will Execution


Decedent died in September 2005 at the age of 93, survived by two nephews, and the issue of a predeceased nephew. The 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to co-executors.

A New York Probate Lawyer said that in August 2006, a legatee of a small bequest discovered that decedent’s testamentary plan had been revised significantly from her penultimate will2 and, further, that decedent’s long-time attorney, had not supervised the 2005 Will’s execution. As decedent’s friend and investment advisor, the legatee had almost daily conversations with decedent and her home attendants in the months preceding execution of the 2005 Will.

A New York Will Lawyer said as he worked on an active trading floor, these telephone calls were recorded. The legatee recalled having had several conversations between March 2005 and May 2005, in the months after decedent had suffered a stroke and preceding execution of the 2005 Will, in which it seemed co-executors were assuming increased control over decedent’s finances and were pressuring decedent to change her will. Legatee requisitioned the tapes of those calls and brought the transcripts to the attention of the other co-executors. The transcripts, including conversations directly with decedent, depict behavior by co-executors that supports an allegation of undue influence.

A Long Island Probate Lawyer said that the respondents argue that co-executor does not have standing to seek vacatur as it would not be entitled to file objections to probate under SCPA 1410. Co-executor asserts that as fiduciary, it has the obligation to ensure that only valid wills are offered for probate.

The Charities, as residuary beneficiaries of the 2001 Will adversely affected by the probate of the 2005 Will, have subsequently joined in as co-movants in this proceeding; thus, the issue of standing is moot.

An application to vacate a probate decree must present a satisfactory showing of a substantial basis for contesting the will and a reasonable probability of success.

Movants contend that the basis for contesting the will is the discovery of new evidence, pursuant to CPLR 5015(a)(2), which suggests a strong probability that the respondents exerted undue influence on decedent, causing her to change her will. Movants further assert that such evidence could not have been found with due diligence prior to the will being admitted to probate.

Respondents argue as a threshold matter that the recorded phone conversations with the legatee do not constitute newly discovered evidence because the legatee’s knowledge of the recorded telephone conversations suggesting undue influence should be imputed to co-executor. Second, they contend both co-executor and legatee failed to act in a timely manner in seeking vacatur. Finally, respondents argue that inasmuch as the Charities possessed information alleging a pattern of misbehavior, as described in their supporting affidavits, and failed to file timely objections to probate, they are precluded from challenging the probate decree at this late date.

Brooklyn Probate Lawyers acknowledge acquired by an agent acting within the scope of his agency is imputed to his principal, and the latter is bound thereby, even though the information is never actually communicated to it. Applying this standard, co-executor is not charged with knowledge of the nephews’ alleged undue influence.

Moreover, co-executor was not dilatory in bringing the new evidence to the Court’s attention. It was only after the transcripts of the phone conversations came to light that co-executor had reason to question the attorney-draftsman, who confirmed his suspicions of undue influence. Within days after he filed the 2001 Will, when co-executor verified the dramatic changes in decedent’s testamentary dispositions, it sought the drastic remedy of vacating the probate decree.

Even were the parties unable to show compliance with CPLR 5105(a)(2), a determination to grant a motion to vacate a probate decree rests in the sound discretion of the court. “It is well established that, independent of statutory provisions, the court rendering a judgment, in its inherent power and control over its own proceedings, may vacate that judgment where it appears that substantial justice will be served and injustice prevented thereby”

Accordingly, under both the standard and the court’s inherent power, the decree dated February 21, 2006 admitting the will of the deceased to probate is vacated. Objections to probate of the 2005 instrument, if any, shall be filed within thirty days of notice of entry of this order.

Here in Stephen Bilkis and Associates, we have New York Estate attorneys who will guide you on what to provide in your last will and testament. We will make it a point that in every provisions of the will, the intention and the last wishes of the decedent were indicated. Our New York Probate lawyers will file the necessary petition in the Court for the probate of the will of the decedent.

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