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.


Nassau County Surrogate Edward McCarty III likes to begin his weekly Wednesday calendar call with a folksy chat to the usually packed courtroom. This week, the judge lamented the recent decision of the state to make new staff cuts of court personnel. The court is now losing its cashier as well as the clerk responsible for indexing new matters as they are filed.

Wow! Considering that a relatively small estate generates a $625 filing fee for the state and above half million dollars the fee is double that, Nassau County Surrogate’s Court is a real money maker. The Surrogate bar has also long regarded this court as the gold standard for surrogate’s courts in New York. That is unfortunately going to change since there are simply not enough folks left in critical positions here to make the wheels turn smoothly, process cases and get out a steady stream of well-written decisions.

Not long ago, a lawyer submitting a complete probate package with no problems obtaining jurisdiction on a relatively simple estate matter could advise his or her clients that Letters Testamentary or Letters of Administration could issue in about eight days. We are now up to four to six weeks and the projected cutbacks already in the pipeline will no doubt increase the wait substantially. Imagine waiting up to 90 days for a simple estate to process so that mom and dad’s home could be sold, stock accounts liquidated and surviving relatives can just get on with their lives.

Your lawblogger has never been a big fan of trusts. I have always felt that the probate process offered a level of protection and helped to insure that a decedent’s wishes would better be known and followed. I have always felt that the word “closure” is not a good as it is cracked up to be. Now, however , it may be time to take a fresh look at living trusts. They circumvent the probate process and provide a smooth transition of a family’s business and speed up the disposition of assets when a loved one dies. It may cost more to do a living trust but it is becoming a lot neater and simpler way to wrap up one’s earthly affairs.


Your lawblogger recently attended a seminar given by Evan Carroll, the author of  “Your Digital Afterlife”,  a book speaking to the growing issues that have arisen as our activities on line have continued to branch out and multiply. You may not have considered the nature and volume of your pictures stored on Facebook or your years of email on Gmail, Yahoo or the other internet service providers. What happens to them if something happens to you?

It is years since we could purchase film for cameras which took pictures which we could store in our homes. For the twentieth century, photographs were the way in which we all kept pictorial histories of our families. Since the advent of the smart phone, complete with its own digital camera, printed photographs hardly exist. We generally take our pictures and store them digitally, either in the cloud, on Facebook or other similar services. These family pictures are usually stored on websites which we do not own and are password protected. Anyone who has lost a home as a result of a fire or some other disaster will tell you that the most priceless items of personal property which were lost are the family pictures which simply cannot be replaced. Today, you could  replace these pictures by getting copies from the online service where they are stored —but not if the passwords were no longer known. Without the legal ability to recover these passwords and the pictures they protect, you could lose the link to the most cherished memories of your loved one.

Are you aware that these on line custodians of your correspondence, pictures and memories have policies concerning the ability of your next of kin or legal representatives to recover and keep –or delete– these items?  The first hurdle to recovering this information is having the password…..which most folks cannot find when a loved one has died. This is especially true since we are learning to use a multiplicity of passwords which we are now schooled to change frequently. In the past, Facebook has required next of kin to get court orders for passwords and the contents of an account. While they are moving towards a procedure to gain access to an account, this has required litigation in the past, an extremely aggravating and painful experience for the families of servicemen and women killed in combat after years of communicating by email, Facebook and other services.

Many states are in the process of developing a legal process to deal with these issues including drafting uniform legislation. At this time, there is no uniformity in the laws of the various states as to how to treat digital assets. In the meantime, we should keep inventories of our passwords and leave instructions permitting our legal representatives to obtain our digital assets .  These are truly uncharted waters and we should be aware of that.

The Star Tribune has reported today that Ernie Banks, all star shortstop of the Chicago Cubs who died January 23rd at the age of 83 has left his estate to his caregiver Regina Rice. Banks made his will last October and the witnesses reported that he told them he was not intending to leave anything to his family. No surprise that although a Cook County judge has ruled that the Will was valid, Banks’ family is challenging it in court.

While there are often good reasons to justify a large bequest to a caregiver, the relationship  between a caregiver and his or her patient is one which allows substantial opportunity to exert undue influence on a testator. It is a relationship which warrants scrutiny, especially if the attorney drafter was retained by the caregiver and was not the personal attorney for the patient. This one will be in and out of the headlines for a while.

Stay turned.

The Estate of Robyn Lewis reported in the Watertown Daily Times  presents a state of facts perfect for a bar examination question.  When Robyn Lewis and her husband James Simmons divorced in Texas in 1966, Robyn retained ownership of a home in upstate New York. Even though the couple had executed “mirror” wills   (in which each left his or her entire estate to the other)  prior to their divorce, it is well-established that the each was effectively disinherited by the divorce. Robyn’s will provided that if she was predeceased by her husband, her father in law James R Simmons would be her executor and sole heir.

In 2007, Robyn made a new will leaving her two brothers as her beneficiaries. Evidently the will was in a large clearly marked envelope which was given to a neighbor for safekeeping. Unfortunately, Robyn passed away at the young age of 43 and when no one in her family found her will, her brothers applied for and received Letters of Administration.  The plot thickened when her ex Googled her by chance, only t0 learn that she had died. Although he could no l0nger take the inheritance provided for in Robyn’s will, there was no such restriction on his father who then produced the original document and applied for letters Testamentary in New York.

Robyn’s brothers objected to this and , although the will she executed in 2007 was apparently lost, the neighbor gave what the court described as credible testimony to support the existence of the will and that it had disappeared in her safekeeping and her friend had not herself revoked it. Nonetheless the Surrogate ultimately revoked the Letters of Administration granted to the Lewis brothers and admitted the earlier Texas will to probate, naming James R Simmons (Robyn’s former father in law) as executor. The Surrogate, as well as the Appellate Division also noted that there were issues arising out of the fact that Texas law might also have applied here.

So now this rather twisted set of facts will be decided by the Court of Appeals. On one hand, your lawblogger finds it hard to believe that given that two teams of lawyers will be locked in combat over a relatively small  -$200,000- estate  without somebody realizing that there should be an agreeable number out there to serve as a base for a settlement. On the other hand, I cannot help but look at the myriad of interesting issues in this “lost will” case and wonder how the highest court will resolve them. For sure there will be some precedents set here.

Stay tuned!



The Brooklyn Eagle has reported that Kings County Surrogate  Diana Johnson  has denied a petition to renounce a  bequest to a grandchild of a decedent in the six million dollar estate of Sharon Lindsay. The total bequest to the decedent’s husband passes free of both federal and state tax but any inheritance received by the children or grandchildren is subject to New York tax which attaches to estates of more than one million dollars. In this instance, the tax on the grandchild’s inheritance would be two hundred thousand dollars. Petitioner asked the court to permit the renunciation of the infant grandchild’s gift to save the tax.

Basically what the court said is “Nothing doing!”.  The court noted that even though the petitioner’s position is that the money would be applied to the child’s good and welfare and that the child would suffer no loss by renouncing, there was absolutely no guarantee that the child would absolutely receive the bequest which would have been safeguarded until she reached the age of eighteen. The court found that the best interests of the child had to be given consideration in addition to the claims of the petitioner that the tax saving would benefit the child indirectly . Your lawblogger also notes that there are a myriad of intervening events that could end up by costing the grandchild the inheritance that her grandfather obviously intended she receive. The intentions of the testator need to be heeded. At the end of the day, this was a novel but totally understandable and appropriate finding.

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.


Every Spring, when the snowbirds have returned to New York, your lawblogger gets a rash of inquiries about trusts. Some folks are absolutely insistent but don’t really have a good explanation for this. I usually ask at this point which Florida clubhouse ran the program where they suddenly realized they must have a trust. An excellent article in Forbes Magazine will enlighten you and may answer your questions as to whether or not you should be trusting a trust. Start with a well-drawn Will. Then determine if you require a trust to meet your financial planning needs.

The ABA Journal reports on the final failure of the Estate of Anna Nicole Smith to recover  hundreds of millions of dollars from the estate of her late husband J. Howard Marshall. Marshall, a Texas oil billionaire died at 89, a year after his marriage to Smith who was then 26. Not only are Smith and Marshall long gone, but also Smith’s son E  Pierce Smith passed away in 2006 after waging a war in bankruptcy court after Smith first lost in probate court in Texas. In dismissing the case –probably for the last time- Judge David O. Carter bemoaned the heavy cost of the protracted litigation upon the American taxpayer and compared the case to Bleak House, the Charles Dickens novel.After splashing across our headlines for the nearly twenty years, the case is finally at an end. Enough is Enough.