Today’s New York Daily News reports the tale of a brawl with potentially  wide-reaching implications for the Administrator of a New York County Estate. The administrator of the 3.1 million dollar estate was arrested for a brawl outside of a New Jersey strip club in which he has  been accused of assaulting a police officer. Tow truck operatorJohn Mattarazo was also accused by a cousin of illegally taking thousands of dollars from the estate of  the very successful hair care business built up by his aunt Maria Matarazzo.

While a felony would normally automatically exclude one from eligibility as a fiduciary, Mattarazo was given deferred prosecution and was not convicted of a crime. Nevertheless he was appointed the administrator of the estate. Now a cousin, citing his numerous alleged misdeeds has moved to have him removed as administrator.

Were this a case of an executor under a will, a court might  be willing to give more credence to the nomination of a fiduciary since we would go to great lengths to follow the dictates of a decedent choosing his own executor. That direction simply is not present where a court is asked to remove a fiduciary who has  not adhered to basic standards of fiduciary behavior. Continue to watch this space for more news from the court’s ruling on this attempt to remove the fiduciary.

The New York Law Journal has reported that newly appointed Kings County Surrogate John Ingram has barred the testimony of a widow in an action about whether or not she may exercise her spousal right of election in the matter of her late husband’s estate. Irving Berk, who died in 2006, left a five million dollar estate to his children and his grandchildren.

Mr. Berk’s caregiver, Hua Wang, has attempted to exercise the spousal right of election after having married the him secretly. Finding that the widow would be testifying about her relationship with  her deceased husband while having a pecuniary interest in the outcome of her testimony, the court barred her from giving what would be a one-sided narrative. The issue as to whether the widow has forfeited her ability to exercise her right of election will be decided absent her testimony.

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.

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.

 

Twenty years ago, we always told our clients to make an inventory of their important information, give a copy to a child or trusted family member and leave a copy in a secure place for safekeeping. It’s amazing how much has changed in such a short time but that advice given today would be a recipe for disaster since most of our vital information is no longer kept on paper. It is kept in one computer or another.

In this day and age, even grandparents well into their seventies and eighties have become computer savvy. Credit cards, bank accounts,pension funds, medical records and just about every other important source of important personal information is stored on line and password protected. We have even  begun to use encryption in our everyday lives. Rarely does a week pass when some new form of information is linked to a user name and a new password. With every new horror story about how bad guys in eastern Europe or the heart of Asia are stealing passwords and compromising the records of major banks or big box stores, we are encouraged to revise our passwords and to make them more complex. Of course we are constantly warned never, ever to share them with anyone.
Keep in mind that folks are also electing to go paperless. That means no utility bills, cable bills or store bills. Each such account comes equipped with its own user name and password. Add alarm codes.  And of course there are the passwords to the computer . The plot thickens.

So what happens when Granny dies with all of her passwords locked securely in her cranium? Ultimately it will probably be possible to unlock all of her financial information once her assets are identified when the 1099 forms start arriving after the first of the year . However, it certainly would be far easier if passwords and user names were stored in a safe place known to a trusted relative.

We have long been telling our clients to store their wills, cemetery information and other important documents in a location accessible to a trusted relative or friend. These documents now should be joined by your electronic records.