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Estate Litigation Tidbits Spring 2004

By: Gary E. Bashian & James G. Yastion




The Objectant in this probate proceeding in the Estate of Allan Gormely, N.Y.L.J., August 28, 2003, at 22, col. 2 (Surr. Ct. Kings Co.) was a prisoner for whom a guardian ad litem was appointed.   The issue was whether the Court should permit the prisoner to pursue his Objections, even where the guardian ad litem has found there to be no reasonable legal objection available.

A guardian ad litem must represent his ward’s interests and report the circumstances of the case to the court.  In most cases, there is no conflict between the goals of the ward and those of the guardian ad litem.  Because the ward is often an infant or incompetent, the decision-making is put in the hands of the guardian ad litem to adequately protect the ward’s interests.  See, e.g., New York Life Ins. Co. v. V.N., 711 N.Y.S.2d 90.  The same, however, may not apply to an incarcerated person who has all his mental faculties, but because of his confinement is deemed to be a person under a disability who requires a guardian ad litem. SCPA 103(40)(e).


Here, the ward was a prisoner who objected to the Will.  The Court held that the decisions about how and whether to proceed should be left in the hands of the ward since he was of full mind and body.  The Court reasoned that if the prisoner were to hire an attorney to represent him in the probate proceeding, the attorney would have to pursue the Objections.  The case of a guardian ad litem and a competent, though disabled, person, is no different, the Court held.  This did not relieve the guardian ad litem from reporting to the Court in the manner required by a guardian ad litem.




This proceeding in Estate of Lillian R. Gould, N.Y.L.J., June 5, 2003, p. 24, col. 3 (Surr. Ct. New York Co.) involved a petition which was styled as one seeking “construction and reformation.”


The petitioner, who was the executor, claimed there was an inconsistency in testatrix’s testamentary scheme.  In Article FOURTH of the Will, the testatrix stated “I make no provision for my niece, RHODA FORMAN, not for any lack of love and affection, but because I believe she has sufficient resources and is well provided for.”  In Article TWENTY SECOND, however, the testatrix disposed of her residuary estate between her niece, Rhoda Forman, Roger Levin, who is the petitioner and executor, and another niece, Lynda Elgarten.  In Articles FIFTH through TWENTY, specific pecuniary bequests were made to Roger Levin and Lynda Elgarten and numerous other individuals, but not to Rhoda.


The petitioner argued that Article FOURTH and Article TWENTY SECOND are inconsistent, the Will is ambiguous, and that Article FOURTH disinherited Rhoda.  Rhoda argued that the language of Article FOURTH was only intended to apply to the specific bequests which followed that article, that it is not inconsistent with Article TWENTY SECOND, and that the testatrix did not disinherit her.


A court’s function in a construction proceeding is to ascertain the testatrix’s intent.  See Matter of Gustafson, 74 N.Y.2d 448, 451.  The intent is to be gleaned from the will read as a whole and not a particular word or phrase.  See Matter of Fabbri, 2 N.Y.2d 236, 239.



The Court held that upon reading the Will in its entirety, no ambiguity existed, and in particular, Article FOURTH did not disinherit Rhoda.  The language of Article FOURTH stating that she makes no provision for Rhoda referred only to the specific bequests which followed that Article.  It was apparent that the testatrix believed Rhoda, for whom the testatrix had “love and affection,” was in a better economic position than Mr. Levin and Ms. Elgarten and made up for this difference in their finances by giving an additional amount in the form of a specific bequest to Mr. Levin and Ms. Elgarten. Since Article FOURTH applied to the specific bequests that followed it, it did not apply to the residuary clause in Article TWENTY SECOND.






This was a contested probate proceeding where the central issue was whether the Will, which consisted of several unfastened pages, was properly executed.  Will of Santo Sapienza, N.Y.L.J., June 27, 2003, p. 33, col. 2 (Surr. Ct. Rockland Co.).


The Will at issue consisted of eleven consecutively numbered, unfastened pages.  The Will was part pre-printed and part handwritten.  The page numbered “1″ was pre-printed and not of a testamentary character.  Page “2″ was an undated, pre-printed form titled “Last Will and Testament” with hand written insertions.  Page “3″ was completely in the testator’s handwriting on the front and back and was dated.  The pages numbered “4″ through “10″ were either blank or of non-testatmentary character and page “11″ contained the testator’s signature, the witness’ signatures, an attestation clause, and was notarized.


The proof at trial indicated that the testator went to a pharmacy in his neighborhood with the document which was later offered for probate.  The testator knew the owner and certain of the employees who were present at the pharmacy.  The testator signed the document in the presence of the owner and three of the employees.  He declared that it was his Will, the employees signed the document on page eleven and the owner notarized the document.  The employees testified that they remembered the first and last pages and the owner testified that all the pages which were being offered for probate were part of the document at the time of the signing.



The requirements for due execution are contained in EPTL § 3-2.1 and are five in number.  Neither this statute nor any other statute forbids the use of separate sheets or directs how they should be joined together.  Only slight evidence of joining the papers in some permanent form will suffice.  See Matter of Field’s Will, 204 N.Y. 448.


The Court found that the Petitioner had proved due execution in conformity with EPTL § 3-2.1, and further held that the eleven pages of the instrument itself  “set forth a logical connection between the unfastened pages of the will in forming a single instrument.”  In so holding, the Court rejected the Objectant’s argument that certain pages of the document were not present at the time of the Will’s execution.  The Will was admitted to probate.








The issue in this attorney malpractice action in the Estate of Jamieson Spatola, N.Y.L.J., August 7, 2003, p. 29, col. 5 (Surr. Ct. Richmond Co.) was whether the law firm was discharged for cause.  The Court held the firm was discharged for cause, and therefore, no compensation was due.


The decedent died as a result of medical malpractice.  The surviving spousE was appointed administrator in order to bring a cause of action for wrongful death.  She hired a firm to represent her in connection with the wrongful death action.  She retained the same firm to bring a personal injury action.  The personal injury action was ultimately settled for $200,000.  During the pendency of the personal injury action, the firm became aware that it had missed the statute of limitations on the wrongful death action.   The wrongful death Defendant sought summary judgment which was granted.  The firm, however, did not disclose its mistake until the personal injury action was settled.  The surviving spouse/plaintiff immediately discharged the firm upon learning of its mistake.



The Plaintiff then sued the firm for malpractice and the Plaintiff refused to pay the firm its fees.  The firm argued that it was entitled to its fees because it successfully settled the personal injury action which services were unrelated to its negligence in the wrongful death action.  The firm further argued that the Plaintiff, therefore, lacked cause to discharge it and it should be compensated for its successful efforts in settling the personal injury action.  The Plaintiff countered that she would have terminated the firm at the time they missed the statute of limitations had she been informed of same.


A client may discharge an attorney from the performance of further services with or without cause.  See Matter of Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655.   If the attorney is discharged without cause, the attorney is entitled to recover the fair and reasonable value of the services rendered.  See Teichner v. W & J Holsteins, 64 N.Y.2d 977.  If the attorney is discharged for cause, he is not entitled to any compensation.  See Teichner, 64 N.Y.2d 977.


The Court held that the firm was discharged for cause, and therefore, it was not entitled to any compensation.  It was not important whether the Plaintiff would have discharged the firm earlier had the firm advised her that it missed the statute of limitations.  Rather, the Court noted that the fundamental basis of the attorney-client relationship was one of trust and faith.  The Court reasoned that when an attorney fails to disclose critical information, this trust and confidence is eroded to such an extent that the client has cause to discharge the attorney.  Insofar as the firm failed to disclose the fact that it missed the statute of limitations, the Plaintiff was provided with cause to discharge it.








The issue in Estate of August a/k/a Auguste Lauer, N.Y.L.J., Feb. 13, at 20, col. 1 (Surr. Ct. Dutchess Co.) was whether the Department of Veterans Affairs (“DVA”)had standing to object to the Decedent’s Will.



The Decedent’s Will divided his estate between the DVA and several other beneficiaries.   The Decedent had no surviving heirs at law.  He died while a patient at a VA facility.  The Will was subsequently offered for probate and the DVA attempted to file Objections.  The Petitioner countered that the DVA lacked standing to file Objections because it was not “adversely affected” under SCPA §1410.  The DVA claimed it would be adversely affected because under the Will it is entitled to 10% of the Decedent’s estate, whereas, under 38 U.S.C. §§8520 and 8521, it would be entitled to the entire residuary estate.  These sections provide that where a person dies intestate who, at the time of his/her death is receiving treatment at a veterans facility and does not have any surviving heirs at law, the DVA shall be entitled to the entire estate.


Here, it is uncontested that the Decedent died without heirs and died while a patient at a VA facility.  The DVA, however, did was not entitled to the estate.  This is because the DVA’s entitlement under the statute was one based on contract.  As such, “the DVA is no more than a potential creditor of the veteran’s estate,” and a creditor is specifically excluded from objecting to probate.  SCPA 103(39).







Marking a departure from the law set forth in a number of cases, the Court in Estate of Ethel Tier, N.Y.L.J., Feb. 9, 2004, at 26, col.6 (Surr. Ct. New York Co.) held that the party to gain from certain handwritten changes to a Will had the burden of proving that those changes were made prior to execution of the Will.


The Public Administrator, c.t.a. petitioned the Court to admit to probate the Last Will of a 91 year old woman which contained a number of handwritten changes.  These changes included the deletion of certain pre-residuary bequests and the deletion of the nomination of a successor executor.  The Public Administrator, c.t.a. asked that these changes be given no effect.



The law in this area is that an alteration made prior to execution is part of the will and should be honored, whereas, an alteration made after the execution should be ignored.  EPTL 3-4.1.  The critical inquiry, therefore, is the timing of the change.  Proof of the timing of the change can be by extrinsic or intrinsic evidence.  Where no proof has been adduced, many cases have held that an alternation will be valid in the absence of evidence to the contrary.  See, e.g., Matter of Kelly, N.Y.L.J., July 31, 2002, at 21 col. 4.   Such cases established a kind of presumption of validity.


This Court declined to take this approach finding that “to presume an alternation preceded execution makes no more sense than to presume it postdated execution.”  Rather, the Court took a “sufficiency of evidence” approach which essentially holds that the question of when the changes were made is a question of fact.  Furthermore, the burden of proof is on the party who stands to gain by the insertion or deletion of the phrase since that party would have the greatest incentive to collect and present evidence of validity.


Here, the residuary beneficiaries would gain by the deletion of the pre-residuary beneficiaries bequests in the Will.  The residuary beneficiaries, however, offered no proof that the changes were made before the execution of the Will and the changes were held to be invalid.







The question in Estate of Linda O. Danyluck, N.Y.L.J., February 26, 2004 (Surr. Ct. Broome Co.) was whether the executor, who was also the attorney draftsman, should have received half his commissions under SCPA 2307-a, rather than full commissions.


The decedent executed her Will in 1971.  The Will named the attorney draftsman as the executor.  At the time of the execution, no disclosure was made to the testatrix regarding the attorneys right to dual fees, i.e. legal fees and commissions.  In or about 1995, the attorney retired from the practice of law and moved to Virginia.  In 1998, he moved back to New York.  Throughout this period until 2000 he retained his license to practice until 2000 when his license lapsed.  He had limited contact with the testatrix between 1995 and 2000. The decedent died in 2003.



SCPA 2307-a was enacted in 1995 and was made applicable to estate of decedents dying after January 1, 1996.  The statute provides that for estates of decedents dying after December 31, 1996, where a will names the attorney-draftsperson as executor, full executor’s commissions will only be awarded where the attorney has disclosed and the testatrix has signed a written acknowledgment that the attorney-draftsperson/executor is entitled to dual fees.


For estates of decedents dying after December 31, 1996, but where the will was executed before January 1, 1996, the requirement of a written acknowledgment can be avoided for “good cause shown.”  Good cause will be shown where there was a good faith effort by the attorney after the enactment of the statute to either make the required disclosure or obtain the written acknowledgment, SCPA 2307-a (9)(b)(ii)(A) or other reasonable grounds excusing the requirement of the section.  SCPA 2307-a (9)(b)(ii)(B).


The attorney was unable to show “good cause.”  He offered no acceptable proof that he attempted to make the required disclosure. It was not sufficient to show the attorney could not contact the testator because the testator was “very ill” in 1995 and in a nursing home in 1999 until his death.  Moreover, it was no excuse to say that the attorney was not knowledgeable of the rules enacted in 1995 when he was in Virginia.


Finally, the attorney was not granted full commissions on the grounds that he hired other counsel to represent him as executor because at the time he drew the Will, he failed to make the required disclosure.

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