The New York Probate Litigation Blog

“Oh What A Tangled Web We Weave…When First We Practice To Deceive”

Posted in LEGAL INFORMATION, NEWS

Walter Scott’s epic words quoted above are a good guide for all of us; especially for attorneys. In what would appear to be a perfectly ridiculous way to lose a law license, New York City attorney James A. Robbins has been disbarred after losing a will entrusted to his safekeeping and then making up a series of completely phony excuses as to why the estate was being delayed without ever disclosing that the will was lost. He evidently compounded his mistake by forging documents filed with the Surrogate’s Court in an elaborate cover up to try to probate the will.

The  completely dumb thing about this is that (as your lawblogger has reported at length in earlier posts) a lost will may be admitted to probate in a situation such as this where the loss and disappearance of the document can be explained by the attorney who was its last custodian. The facts and circumstances reported in the New York Law Journal would indicate that this was a situation where instead of a series of lies and fabrications, counsel could have succeeded in having a copy of the will admitted to probate by simply falling on his sword and admitting to his mistake and explaining that  the will had disappeared in his custody. We all make mistakes and , especially where the results are not fatal, an explanation coupled with an apology and cleaning up the mess is usually sufficient to placate most clients. However, even if the client’s reaction is to fire counsel, the loss of the business and the client is a far acceptable outcome to the loss of a professional license, a felony conviction and 500 hours of community service.

They’re Coming Our Of The Woodwork For A Piece Of Prince’s Estate

Posted in LEGAL INFORMATION, NEWS

There is nothing like the death of a wealthy celebrity who dies without a will to bring scads of would-be relatives out of the woodwork, each claiming to be a long-lost brother, sister, cousin, etc. Loren Barr’s Trust and Estate Blog presents a great picture of the chaos which has unfortunately ensued after the death of music legend Prince this past April.

Prince’s estate is valued at between one hundred million and three hundred million dollars and, as so often happens with artists of his caliber, income continues to pile up not only from sales of his music but also from tours conducted at his palatial home in Minnesota. So far the probate judge has excluded no less than 29 folks hoping to game a piece of Prince’s fortune.

Minnesota law provides that the estate is to be shared equally by Prince’s siblings (and the children of any deceased brothers and sisters) . Getting past the humor of the situation that we see when claims are made by those claiming to be his children (he had none) and a woman claiming to be married to him in secret, the less humorous side of Prince’s estate is the fact that the combined federal and state estate tax bite will be 56%.

While this means that all 330 million of us will share a little piece of Prince’s wealth, your lawblogger finds it shocking that there appears to be no attempt on his part to plan for the inevitability of his death. A will would have been a good start as would be charitable foundations, trusts and other devices which would have allowed him to focus his wealth on people, causes and goals which meant much to him while minimizing the extent of his estate tax. Of course, his untimely death also proved to be a windfall for a battalion of lawyers and accountants who will  be involved in cleaning up the mess.

At the end of the day, this is a lesson for all of us to realize the importance of  getting our own houses in order.

Will Drafting Requires Choosing The Right Words –Something You Should Have A Lawyer Do For You

Posted in LEGAL INFORMATION

Just about anyone who can navigate the web can find a template for a do it yourself will. After all, why go to a lawyer to draft your will when you can figure out how to do it yourself for free?

Your lawblogger has long contended with the misconception that just because somebody is literate in English and can read and write, that they can successfully draft a legal document — even one as critical as their own Last Will and Testament.

A recent article in The Catholic Register illustrates just that point. Keep in mind that you won’t be around to explain to folks just what you meant when you wrote your own will so that any confusion resulting from a poor choice of words will end up in court. In Surrogate’s Court, we try to determine the true wishes of the person who wrote the Will and to follow them if at all possible. Unfortunately, that will likely lead to some high-priced legal talent taking sides and litigating to reach a conclusion as to what your simple words might explain if only you were alive to help solve the problem.

A worst case scenario could lead to your Will being denied probate resulting in your estate being distributed as if you had no will. Your spouse (if you are married) will share your estate with your children who will inherit in equal shares. All well and good except that your spendthrift son who you left nothing to when he ran off to the circus will get his share together with your other kids. On a more somber note, any specific gifts you made to charities or to friends would fail and not be honored. On a real serious note, a child with special needs would have his or her legacy snatched up by the state in the absence of a supplemental needs trust or other some other way to protect those assets.

Another point is that a DIY will lacks the protection that we get from the rite of due execution when your Will’s execution is properly witnessed and supervised by a licensed attorney.

It isn’t all that hard for a competent and qualified attorney to draft your Will. The cost is not prohibitive and pales by comparison to the cost of doing a bad job  on your own.

Appellate Division Allows Admission Of Extrinsic Evidence To Resolve Ambiguous Contract

Posted in Uncategorized

The decision of the Appellate Division’s Second Department to reverse Suffolk County Surrogate John  Czyger in the Matter of Kohn reported at http://2016 NY Slip Op 07194 involves a dispute over the meaning of a pre-nuptial agreement.  No tears here for the respondent wife who sought to sought a judgment entitling her to recover $3,500,000 less the amount of four mortgages and one half the value of joint accounts identified in the agreement. The executor of her late husband’s estate contended that the entire value of the joint accounts should set off against the amount ultimately paid to Ms. Kohn  (a/k/a Lutz).

After finding that both parties offered reasonable interpretations of the agreement, the court ruled that the ambiguities of the contested agreement could be determined on renewal by examining  evidence submitted by the estate indicating that the parties intended that the wife’s recovery should be limited to the $3,500,000 less the mortgages and the entire amount of the joint accounts. The court opined that under normal conditions,  it would  not look outside of the four corners of the agreement in order to interpret it. Here, parol evidence was admitted to explain an ambiguous agreement.

Your lawblogger notes that the court’s ability to determine the intent of the parties here is somewhat hampered by the fact that the decedent is no longer available to tell us his side of the story, thereby making it more understandable to look to the deposition of a non-party (one of the attorneys involved in the negotiation of the original agreement) to assist in making a final determination.

Executors Should Beware Of Serious Pitfalls

Posted in LEGAL INFORMATION

Today’s Wall Street Journal contains a worthwhile but cautionary article about the pitfalls that can face even the most well-meaning executor. As you will see, a lot of the decisions an executor must make need to be made counterintuitively. The results of following a normal instinct may actually prove to be costly if not downright disasterous.

Your lawblogger’s first boss succinctly explained the job of an executor to me some forty years ago. “Take the estate to a good and experienced lawyer. Hand it over to him or her and sign the checks and documents you are given to sign”.  I have followed that recipe ever since. The estate checkbook stays in my desk and we coordinate all of the aspects of the estate with brokers, accountants and the other professionals needed to marshall the assets, sell what needs to be sold, pay the bills and pay the heirs. A lawyer’s prime responsibility is to protect the executors and trustees which can best be done by proceeding “by the book”.

Every once in a while, a client goes “rogue” either by accident or when they are sure that they can take care of business better than their attorney, conveniently ignoring the fact that their lawyer is trained and experienced to handle the estate and the client already has a full-time job. Even if the process is relatively undisturbed by this “freelancing” , it will invariably cause your lawyer to spend much more time on the estate and, in the end, will likely cause your bill to be higher and not lower as a result.

 

David Bowie’s Will Filed In Manhattan Surrogate’s Court — His Estate Valued At 100 Million Dollars

Posted in NEWS

The Will of David Robert Jones was filed earlier this month in New York County Surrogate’s Court giving the value of his estate at 100 million dollars. Not familiar with David Robert Jones? As the New York Times reported, He was far better known to most of you as David Bowie, the iconic musician who passed away on January 10th ( two days after his 69th birthday) after a quiet battle with cancer and just as he released his first new album in years. Since he never legally changed his name to Bowie, his estate goes forward under his birth name.

Your lawblogger remembers him best as Major Tom, whose “Space Oddity” has become a musical classic along with his equally classic “Changes”. Bowie was cremated and he specified that his ashes were to be scattered over Bali.

Bowie was a major celebrity who lived a very quiet life in New York. Generally, this blog highlights estates which are mired in legal controversy and generate perspectives which serve to educate my readers about the pitfalls of estate litigation and a guide for average folks. What strikes me about this estate is that it seems incredibly normal and well-ordered. While I live to be surprised by the unexpected , it sure appears that the estate of this incredibly talented and successful artist will proceed without legal battles or undue complications. If I am  wrong, watch this space for unexpected developments.

Application To Withdraw Waiver Consenting To Probate Denied By Brooklyn Surrogate

Posted in LEGAL INFORMATION, PRACTICE AND PROCEDURE

Prior to the commencement of a probate proceeding or an administration proceeding, the attorney for the estate will normally send a waiver consenting to the admission of the will to probate or to the appointment of an administrator to all interested parties who are members of the closest class of kinship to the decedent or who are mentioned in a will. This is a legal document and, once signed, it is difficult if not impossible to retract.

Surrogate Diana Johnson of Kings County recently denied a motion seeking to retract a waiver in the Estate of Miles. The movant who had given the waiver was represented by counsel and had signed the waiver as a result of misconceptions she had about the meaning of the document. The court ruled that in the absence of some proof of fraud or deception, the waiver was binding and could not be retracted.

It cannot be emphasized enough that there is generally a finality about signing a waiver. Your lawblogger frankly does not understand how counsel may have failed to impart this importance   to the person executing the waiver  even though I must confess that I was not a fly on the wall and was  not privy to their conversations on this matter. Suffice to say that if you have any doubts whatsoever about whether or not to sign a waiver, there is generally no harm to you in simply not signing. In such a case, you will eventually be served with a citation and will have the opportunity to appear in court and explain your concerns to the Surrogate and probably one of the court attorneys. If you realize that you will need legal representation, you will be given the opportunity to hire a lawyer to protect your interests.

As an additional afterthought, I would point out that there is no need to fear service of a citation. Like a summons, it is a jurisdictional device. It merely confers jurisdiction on the Surrogate to hear and determine the issues raised in the estate proceeding.

Ex- Wife Compelled To Turnover Life Insurance Proceeds After Her Interest In Decedent’s Insurance Policy Was Extinguished

Posted in LEGAL INFORMATION, PRACTICE AND PROCEDURE

Revisions to New York’s Estate Powers and Trusts Law (EPTL) enacted in 2008 were intended to correct inadvertent failures of a spouse to correct provisions to eliminate ex spouses as beneficiaries. The Matter of Suggs  involves just this type of situation. When the decedent and his spouse divorced, the court made provisions concerning the disposition of a life insurance policy which was to be split 60/40 in favor of the decedent. However, taking into account a debt owed by Mrs. Suggs to her husband, court further found that she no longer had a marital interest in the policy.

In a classic example of carelessness, the decedent neglected to remove his ex wife as beneficiary from the policy and she naturally applied to Prudential for payment of the death benefit upon her ex husband’s death years later.  Surrogate Barbara Howe noted that “under the prior statute, when a couple divorced, the divorce automatically revoked dispositions under the will and, more recently, transfers under Article 13-4.1 (securities held in transfer-on-death form). L.2005, ch. 325, §3. It did not, however, affect the ex-spouse’s rights to in-trust-for bank accounts (Totten Trusts), life insurance policies, lifetime revocable trusts, or joint tenancies with right of survivorship. The statute now terminates the ex-spouse’s interest in all such assets.

The statute readopts several provisions of its predecessor. The ex-spouse is treated as having predeceased the decedent for purposes of her dispositions. If the spouses remarry, the gift is revived if its revocation happened solely because of the divorce. Property held jointly with right of survivorship transforms upon the divorce into a tenancy in common” (Margaret Valentine Turano, Supp Practice Commentaries, id., 2014 Supp Pamph at 66-67, emphasis added).

these revocation-by-divorce statutory provisions were enacted, at least in part, to prevent “inadvertent” dispositions to former spouses:

“Revocation-by-divorce statutes adopt the presumption that in the vast majority of cases the testator’s failure to revoke his will subsequent to divorce is due to neglect.”

Your lawblogger would like to add some additional thoughts to Surrogate Howe’s logical and useful decision. Yes, the revised EPTL did save the estate from the carelessness of the decedent and prevented his ex spouse from reaping undeserved insurance benefits which the judgment of divorce clearly precluded her from receiving. But consider that long periods of time will often pass from the date of a divorce to the date that one of the spouses dies. Consider also that records may be lost or destroyed during this time and that death often comes at a time of great confusion and emotional distress.

It is not such a good idea to rely on the law to save you in situations such as this where your estate may be confronted by an avaricious former spouse and an insurance company that may or may not be aware of who is entitled to what [ as an aside, consider how many former girlfriends of World War II GIs have reaped the benefits of a GI life insurance policy issued to a young soldier who passed away three generations later having forgotten that the policy ever existed!]. It is a much better idea to periodically review the beneficiary provisions of your life insurance policies, retirement plans , etc to make sure that nothing has slipped through the cracks. Remember also that sometimes when insurance companies and retirement plan administrators merge, data on beneficiaries is accidentally and irretrievably purged. You need to keep on top of these policies yourself while you are healthy and sharp!

 

Handwritten Note Fails To Revoke Will–Just Another Example Of It’s Never A Good Idea To Write On A Will

Posted in LEGAL INFORMATION, Uncategorized

Oneida County Surrogate Louis Vigliotti’s decision in the Estate of Patricia Powers    is one more example of what happens when you write on a will —-generally nothing. Here it appears that the testator wrote a note on the face of the Will that she was revoking it and writing a new will (which she apparently never did).Your lawblogger uses the word “appears” advisedly since Ms. Powers is no longer in a position to tell us whether or not she actually wrote those words or whether some clever imposter was merely trying to put her estate into intestacy as part of his or her own agenda. That, by the way, is why we require anything a testator does relating to a Last Will and Testament to be witnessed according to law.

It really isn’t hard to revoke a will. Tear it up. Burn it. Take a pen and visibly obliterate a portion of it (then if you write “revoked” next to the obliteration, it will probably carry some weight.). Patricia Powers did none of these things.  In fact, the court points out that nothing that was written on her will so much as touched, obliterated or even defaced a single printed word . The court further notes that there was”no burning, tearing , cutting or mutilation of any kind”. The statutory formalities prescribed by EPTL 3-4(a)(1)A) were not observed at all and the court ruled that the Will remains in effect and could be admitted to Probate.

As I have mentioned earlier on this blog, it is never a good idea to write on the face of a will. Sometimes a testator will attempt to change his or her own will, doubtless in a vain attempt to avoid a trip to visit their attorney in the mistaken belief that this will save some money.  Some will write notes on their Will attempting to change percentages or amounts being left to some beneficiary or another or even draw a simple line through somebody’s name to take them out of the Will.

Such actions result in only two possible unintended results. First is that merely writing on the Will has no effect at all and whatever changes might have been easily (and relatively inexpensively ) achieved by having a lawyer redraft the Will will not occur. Second is that if in attempting to make some correction or addition to the Will, a portion of it is accidentally obliterated (for example, blacking out cousin Ralphie’s name with a magic marker and writing cousin Randy’s name in with pen or pencil) will serve to revoke the Will and result in intestacy, with the instrument becoming totally meaningless.

Your attorney is capable of making the changes you want and keeping you from doing really serious harm to your estate plan which, once you are gone, cannot be corrected.

 

Undue Influence Claim Deemed Sufficient To Go To Trial

Posted in PRACTICE AND PROCEDURE

Undue influence has always been one of the most difficult claims to prove in an estate contest. New York County Surrogate Nora Anderson has determined in The Matter of Wechsler ,2015 Slip Op 3100 U, that sufficient issues of fact have been raised by the Petitioner to warrant a trial on the question of whether or not Lewis Wechsler  was the victim of undue influence when his second wife of 32 years advised his executor that there was no need to probate his Will since she had already transferred his assets to her. This totally frustrated a long-standing testamentary scheme which had been memorialized by no less than four very similar Wills which provided for the children of the decedent’s first marriage as well as his wife. As a result of her actions, more than eight hundred thousand dollars in brokerage accounts together with a Park Avenue Coop apartment were siphoned out of Mr. Wechsler’s estate!

Surrogate Anderson’s decision is a veritable clinic for those who wish to understand and deal with situations where undue influence may be an issue.  Rarely do any of us make a decision which is not the product of one form of influence or another. In fact, most things which influence decisions might best be classified as “due influence”. The exercise of undue influence involves literally taking over the ability of another person to make his or her own decisions; a substitution of one’s own will for the free will of another.

This is your lawblogger’s case. Much of the evidence used to demonstrate the argument that undue influence led to the improper transfer of the assets of the decedent came from the medical records and especially the nurses’ notes in his hospital records. The Petitioner was the attorney for the decedent for many years and had drawn all of his Wills, none of which provided for his children to be disinherited. He also testified that the decedent’s sister and neice had called him to try to convince him to draft a new will favoring Mrs. Wechsler. What the record reveals –but the decision does not specify– is that both of these women are experienced psychiatrists, thereby raising an inference that they may have used their professional skills to influence the decedent to sign documents transferring his assets to his wife when he was hospitalized. The record revealed a man in a seriously weakened condition having suffered from a myriad of debilitating conditions, leaving him open to pressure to abandon his long-standing and well constructed testamentary scheme.

It is important to consider that Mr. Wechsler died in February 2006, a full nine years ago and this middling – sized estate is still in litigation. It may be that the court’s decision on this motion  — which was filed in March 2013— will be appealed, thereby adding at least another twelve to eighteen months to the process. If the decision is affirmed –or if no appeal is taken– there will be a trial. The case will go on for at least a total of ten years. Hopefully, we will be able to report on the conclusion of this matter before then.