Mistake, Disqualification of Counsel and Personal Jurisdiction

April 18, 2016

Reprinted with permission from New York Law Journal, Monday, April 11, 2016 issue.

The past several months have been witness to opinions that have addressed important matters affecting trusts and estates.

Impacting almost every probate proceeding are the issues of testamentary capacity and undue influence. This month’s column will discuss the issue of mistake as it affects the validity of a will. In addition, this month’s column will examine decisions addressed to the disqualification of counsel, and the jurisdictional predicate for a proceeding to compel the production of a will.

Alleged Mistake and Will

Before the Surrogate’s Court, Queens County, in In re Cookson, was a contested probate proceeding in which objections were filed alleging lack of due execution, lack of testamentary capacity, mistake, fraud and undue influence.

The decedent died, on Nov. 2, 2013, survived by a son and a daughter. Pursuant to the pertinent provisions of her will, dated March 14, 2012, the decedent devised her home to her son, and the residue of her estate in the following percentages: 65 percent to her son, 15 percent to her daughter, and 10 percent each to her daughter’s two children. The instrument nominated her son as the executor, and her daughter as the alternate executor. The decedent’s son petitioned for probate of the instrument, and objections thereto were filed by the decedent’s daughter. Following the completion of discovery, the decedent’s son moved for summary judgment dismissing the objections and admitting the propounded instrument to probate.

In granting the motion, the court noted that summary judgment in a contested probate proceeding is proper where the petitioner submits a prima facie case for probate and the objectant fails to raise any genuine factual issues regarding the validity of the propounded instrument. To defeat a motion for summary judgment, an objectant must present affirmative proof demonstrating the existence of triable issues of fact.

Allegations must be specific and substantiated by evidence in the record, rather than based upon mere conclusory assertions, bearing in mind that the motion papers are scrutinized in a light most favorable to the opposing party.

With respect to the issue of due execution, the objectant alleged that the testator did not publish the instrument as her last will and testament, that she did not request the wit­ nesses to sign the instrument as witnesses, that the witnesses did not sign the instrument in the testator’s presence or in the presence of each other, and that the notarization on the self-proving affidavit affixed to the instrument was defective.

The court noted that in support of his motion for summary relief, the petitioner included a copy of the will offered for pro­ bate, which contained an attestation clause. The clause indicated that the will was signed, sealed, published and declared by the testator as her last will and testament in the presence of the witnesses, and that the witnesses, at the testator’s request and in her presence and in the presence of each other, subscribed their names as witnesses. The court opined that where an attestation clause is complete, and the signatures genuine, and the circumstances corroborative of due execution, there is a presumption that the will was duly executed, even when the attesting witnesses are unable to recall the execution ceremony. Additionally, a presumption of due execution arises where, as in the instant case, the execution of the will was supervised by an attorney.

In further support of his motion , the petitioner also submitted a copy of the transcript of the SCPA 1404 examination of one of the two attesting witnesses to the execution, who testified that the testator reviewed the propounded instrument in her presence, and in the presence of the supervising attorney, that counsel asked the testator if she wanted the two of them to act as witnesses to its execution, that the testator responded affirmatively to the inquiry, and that all three signed the instrument at the same time. The court noted that the objectant declined to take the testimony of the supervising attorney, who was also the draftsman of the instrument, even though he was present and available for an examination.

Based upon the foregoing, the court held that the objectant had failed to demonstrate, at the proof established that the testator had published her will. Although the testator did not expressly declare the instrument to be her will and request that the witnesses sign the instrument, the court found that publication could be inferred from the circumstances, which included an announcement by the supervising attorney that the instrument was the decedent’s will, and a request by him, in the presence of the testator, and with her tacit approval, that the witnesses sign in that capacity.

The court found that the objectant had f ailed to submit any proof contraindicating the due execution of the instrument, or that the self-proving affidavit affixed to the will was defective. Indeed, the court noted that a self­ proving affidavit was not an integral part of   a will, and thus not essential to its validity. Accordingly, summary judgment dismissing the objection on the grounds of due execution was granted.

With respect to the issue of testamentary capacity, t he court found that the petitioner had established a prima facie case of the testator’s capacity, based upon the SCPA 1404 testimony of one of the attesting witnesses, the affidavits of both attesting witnesses in support of the motion, and t he attestation clause. The court concluded that the object­ ant had failed to produce any medical records or other evidence establishing an issue of fact regarding the capacity of the testator at the time of execution of the will, and thus, on the bas is of the undisputed record, granted summary judgment in petitioner’s favor on this issue.

Similarly, the court granted summary judgment in petitioner’s favor on the issues of fraud and undue influence. The court found that based upon the documentary evidence and testimony of the attesting witnesses, the petitioner had established a prima facie showing t hat the decedent was free from fraud or restraint at the time she executed her will. On the other hand, the court held that the objectant had failed to demonstrate with particularity, that any false statements were actually made by the petitioner to the decedent that would require a trial on the issue of fraud, or to proffer any evidence that created a triable issue of fact on the issue of undue influence.

Finally, the court dismissed the objectant’s claims that the pro pounded instrument was executed by the decedent by mistake, in that she did not understand the contents of the instrument at the time of its execution. More specifically, the objectant alleged that the decedent did not understand the value of her residuary estate at the time the will was executed, and what the value of t he estate would be at her death. Moreover, the object­ ant maintained that the decedent believed that t he changes made to her will in favor of the petitioner were based on a mistaken belief in his trustworthiness to fulfill her testamentary wishes.

The court held this objection to be “essentially nonsensical,” concluding that very few testators will know the exact size of their residuary estate at the time of their death, especially if a will, such as t he decedent’s will, is executed at a time when death is not imminent. The court, thus, concluded that a mistake or misapprehension on the part of the testator as to the size of her estate at the time of death is not grounds for denying pro bate. Further, t he court held that probate will not be denied on t he grounds that the terms of a will may later need to be construed, or that the decedent allegedly misconstrued the legal import of its terms. “What t he testator has done, not what she meant but failed to do, is to be given effect…”

Accordingly, the objections to probate were dismissed, and the propounded instrument was admitted to probate.

In re Cookson, NYLJ, Dec. 18, 2015, at p. 42 (Sur. Ct. Queens County).

Disqualification of Counsel

In In re Thiel!, the Surrogate’s Court, Suffolk County, was confronted with a mot ion to dis miss the objections to probate of the decedent’s will, or in the alternative, to dis­ qualify counsel f or the objecting and non­ objecting parties.

The decedent died on July 21, 2014, survived by four children, a daughter, who was the petitioner, three sons, and two grandchildren, who were children of a predeceased child. Following her death, an instrument, dated Jan. 7, 1998, was offered for probate by the decedent’s son, William, who was the nominated executor there­ under. Pursuant to the pertinent provisions of this instrument, the decedent bequeathed her jewelry, clothing, and personal effects to her daughter, and her residuary estate in equal shares to her children. Subsequent to the filing of the 1998 will, an instrument, dated May 20, 2014, was offered for probate by the decedent’s daughter. The dispositive provisions of this instrument were similar to those in the 1998 will, with the exception that it devised the decedent’s home in Southampton to her daughter. In addition, the instrument nominated the decedent’s daughter and her son, William, as co-executors.

Objections to probate of the 2014 instrument were filed by the decedent’s other two children and her two grandchildren, alleging, inter alia, that the signature on the instrument was not the decedent’s, that the will was not duly executed, that the decedent was not competent to make a will, and that the instrument was procured by fraud and undue influence.

The decedent’s daughter moved to dismiss the objections, arguing that they contained nothing but bare and conclusory allegations, and were insufficient to rebut the presumption of validity accorded the will, which was executed under t he supervision of an attorney, and contained an attestation clause. In the alternative, she moved to disqualify counsel for the objectants, claiming that she had a conflict of interest in simultaneously representing the beneficiaries of the estate, the objectants, and the decedent’s son, as nominated co-fiduciary of the estate.

The objectants opposed the motion con­ tending that dismissal was premature, and that petitioner had failed to submit any admissible evidence that would entitle her to summary relief. Further, in an affidavit to the court, one of the objectants claimed that he visited the decedent just 10 days after she executed her will, and she displayed confusion, and was under a physician’s care for dementia.

Additionally, it appeared that there was a discrepancy in the date of the will, and the attesting witness affidavits, which objectants argued raised an issue with the due execution of the instrument. Further, the attorney-draftsman of the will was deceased, and one of the attesting witnesses was unavailable to be deposed pursuant to SCPA 1404.

The court held that to the extent that the petitioner sought dismissal of the objections on the merits, the motion was premature. Specifically, the court noted that there were a number of outstanding issues that required additional discovery, one of the attesting witnesses to the will had not as yet been deposed, and the decedent’s medical records had not been produced.

Additionally, the court found the discrepancy between the date of the will and the attesting witness affidavits raised a factual issue which precluded dismissal.

With respect to petitioner’s motion to disqualify counsel for the objectants on the grounds that she represented the objectants and the nominated co-fiduciary of the estate, the court noted that it was not clear that counsel represented the nominated co-fiduciary under the propounded will, inasmuch as he had defaulted in the proceeding. Moreover, and in any event, the court held that simultaneous representation of a fiduciary and beneficiary does not, in itself , create a conflict. It is only when the attorney advances the personal interests of the fiduciary in such away as to harm his other client, or where the interests of the clients are at odds, that a conflict may arise. Inasmuch as there was no indication that counsel represented conflicting interests, petitioner’s motion to disqualify counsel was denied.

In re Thiell, NYLJ, Dec. 7 , 2015, at 33 (Su r. Ct. Suffolk County).

Jurisdictional Issue

Before the Surrogate’s Court, New York County, in In re Slavin, was a petit ion by the decedent’s son, pursuant to SCPA 1401, seeking the examination of the respondent, the decedent’s surviving spouse, and compelling the production of the decedent’s will or any information or papers pertaining to the document.

On July 10, 2015, the court issued an order directing the respondent to appear in court and to submit to an examination respecting paper writings purporting to be the last will and testament of the decedent, and further directed the respondent to produce the original of said writing. On the return date of the court’s order, the respondent moved to dismiss the petition based on the assertion that jurisdiction over her had not been obtained, because she had not been timely served with the petition in the SCPA 1401 proceeding.

The court disagreed finding that neither SCPA 1401, nor any of the jurisdictional provisions of the SCPA upon which the respondent relied, required that she be served with the petition in the proceeding, as well as the order upon which it was based. Rather, the court noted that the provisions of SCPA 1401specifically required that only the order be served upon the respondent. Moreover, the court rejected the respondent’s argument that principles of due process required that the petition be served, together with the order, holding that the statutory requirement of SCPA 1401that a copy of the order be personally served upon the respondent or in such manner as the court directed, was sufficient to ensure that the respondent was afforded notice of the proceeding and an opportunity to be heard.

Turning to the merits of the petition, the court observed that the respondent did not dispute the petitioner’s standing to institute the proceeding, and that the circumstances set forth in the petition established reason­ able cause to believe that the respondent had knowledge and was in possession or control of a testamentary instrument of the decedent. The court thus concluded that the statutory requirements for issuance of a court order directing the respondent to appear in court and produce such instrument were justified.

In re Slavin, NYLJ, Jan. 15, 2016, at 33 (Sur. Ct. New York County).

 

 

 

 

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