New York Trusts & Estates Law Blog » Estate Litigation

Will contests: surviving summary judgment

Saul Elnadav — Thu, 07 Jan 2010 23:18:33 +0000

Surrogate Calvaruso of Monroe County issued a decision in Matter of Feller on January 4, 2010, worth reading for its succinct summary of some of the burdens of proof and presumptions that have to be overcome to survive summary judgment in a will contest.

In Feller, the decedent’s will left her estate to 10 charities and 4 individuals in equal shares. Eight of her 11 distributees filed objections based upon due execution, testamentary capacity and undue influence. The Attorney General, on behalf of the charities, filed a motion for summary judgment. The court rejected all claims by the distributees and granted summary judgment.

Due Execution

The claim that the will was never properly executed was based on the fact that the testatrix had only responded in the affirmative to the attorney’s queries regarding the request that witnesses sign the will, and that she had not herself requested that the witnesses sign the will. The court (thankfully) rejected this claim:

Attorneys routinely lead their clients through the will execution formalities in order to ensure that the requirements of EPTL 3-2.1 are satisfied in order to qualify a document as last will and testament entitled to be admitted to probate. Such publication and instruction of a request is not required to be in any “ironclad ceremonial or ritualistic language.”

Testamentary Capacity

The objectants also claimed that the testator lacked testamentary capacity at the time she executed her will. The court found that the objectants failed to offer sufficient evidence to raise a triable issue of fact. The court wrote:

Proponent [of the will] bears the burden to prove testamentary capacity at trial. For purposes of a summary judgement motion, once a proponent makes a prima facie case for probate, the burden switches to the objectant to show a triable issue of fact….

There is a presumption of testamentary capacity when a will is drafted and the execution is supervised by an attorney, particularly when the evidence indicates that the testatrix executed the will only after careful review and discussion of its contents. Here, objectants have failed to raise competent evidence creating a genuine issue of fact to overcome the presumption.

Undue Influence

The court also rejected the claim of undue influence because objectants failed to present any evidence of undue influence:

At a minimum, the objectant must make a showing of actual acts of undue influence, including time and place of the occurrence….

Though undue influence is typically proved by circumstantial evidence rather than direct evidence, this does not preclude summary judgement where a material issue of fact has not been shown. In fact, it is proper for the Surrogate to issue summary judgement where objectant has not made out a prima facie case of undue influence. Where a reasonable conclusion other than undue influence is supported by the facts, it is improper to conclude that undue influence existed:

[Undue influence] may be proved by circumstantial evidence but the circumstances must lead to it not only by a fair inference but as a necessary conclusion. To avoid the will of a competent testator on the ground of undue influence, the contestant must show facts entirely inconsistent with the hypothesis of the execution of the will by any means other than undue influence. In re Will of Henderson, 253 A.D. 140, 145 (1937).

The full text of the decision can be read here.

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Testamentary capacity and undue influence in criminal proceedings

Saul Elnadav — Wed, 24 Jun 2009 20:49:19 +0000

An article in Monday’s New York Law Journal raised the interesting question of whether a criminal trial is the best place to get to the bottom of issues surrounding Brooke Astor’s estate.

The case has all the hallmarks of a classic will contest. Anthony Marshall, Brooke Astor’s son, is accused of taking advantage of his mother’s dementia to divert assets from her estate to himself by influencing her to amend her will. The matter is now the subject of a criminal trial in State Supreme Court in Manhattan, but the issues – testamentary capacity and undue influence, among others – are most often seen in Surrogate’s Court.

It’s not just a question of which forum the case is tried in. The issues involved can get very sticky when applied in the real world. Family dynamics are always nuanced. When elderly parents, particularly those with diminishing mental capabilities, rely on their children, are the children being helpful, are they being controlling, do the parents feel controlled? What goes on outside of the earshot of the lawyers preparing the will? In the Astor case, the lawyers themselves are alleged to be part of the problem.

I noted earlier that whether someone has testamentary capacity is not a simple yes or no. Someone can suffer with Alzheimer’s disease and lack testamentary capacity, but wake up one morning with a clear mind and sign a will. The will may be valid, but proving capacity is another matter entirely.

These issues frequently arise in will contests, and Surrogate’s Court has the expertise to deal with them. A criminal fraud and conspiracy trial, on the other hand, may not be the best way to untangle what exactly was or was not on Brooke Astor’s mind when she signed the amendment to her will. In this particular case, the drama involving the so-called “doyenne” of New York society and her son, the cameo appearances of famous people like Henry Kissinger and Barbara Walters as witnesses, and news, blog and tabloid coverage (in no particular order), will certainly compound the difficulties of a careful analysis of the issues.

But there’s another important consideration. Unlike Supreme Court, Surrogate’s Court can’t impose criminal sanctions. It can order Anthony Marshall to return assets, but it can’t send him to prison for committing fraud. According to a former prosecutor quoted in the Law Journal article, “as the problem of elder financial abuse has gotten more serious, the courts have recognized that the penal law must be read more broadly to fully fulfill its purpose.”

Dementia and the question of testamentary capacity

Saul Elnadav — Mon, 11 May 2009 21:27:00 +0000

Paula Span’s post today on the blog The New Old Age does a good job explaining the challenges of establishing whether someone with dementia had the capacity to sign or change a will.

The occasion for the post is, of course, the ongoing criminal trial of Brooke Astor’s son, Anthony D. Marshal, and lawyer, Francis X. Morrissey Jr., who are accused of diverting money from Astor’s estate. One of the issues at trial is whether Astor, who was diagnosed with Alzheimer’s disease, had the mental and legal capacity to make changes to her will.

As Paula Span writes:

Alzheimer’s sufferers may experience days of comparative lucidity alternating with days of bewilderment. Cognitive ability “may even vary throughout the day,” said Dr. Ronald C. Petersen, a neurologist at the Mayo Clinic who chairs the medical and scientific advisory board of the Alzheimer’s Association. “A person might be relatively sharp in the morning and by evening be quite confused.”

Caregivers are familiar with the late-day agitation called “sundowning.” Medications, disrupted sleep, social stimulation and even a minor cold can affect these diurnal cycles. Though a variety of doctors are expected to testify during the two-month trial, they may shed little light on whether Mrs. Astor had, in legalspeak, “testamentary capacity” on a particular January afternoon in 2004, when she altered her will.

Read the full article here. At the end is a short video of Brooke Astor speaking at her 100th birthday party. The video was recently shown in court.

Family Feud Over Estate Nears an End After 25 Years (NYTimes)

Saul Elnadav — Mon, 30 Mar 2009 14:09:00 +0000

The New York Times published an interesting piece yesterday by Charles V. Bagli, Family Feud Over Estate Nears an End After 25 Years.

The article begins:

For nearly 30 years, Evelyn and Diana Sakow believed that their father, a small-time real estate broker and developer from the Bronx, had died broke and without a will in 1956. They worked their way through college, becoming public school teachers.

They lived quiet, uneventful lives — until 1983. That’s when Diana said she uncovered a secret while taking a night course in real estate: Not only had her father, Max, owned as many as 100 properties in the Bronx, Brooklyn and Manhattan at the time of his death, but he had left a handwritten will leaving the sisters a portion of his estate.

The revelation turned into a betrayal of biblical proportions, after the two sisters learned that their older brother, Walter, with the acquiescence of their mother, had built a real estate empire using their father’s legacy, court records and interviews show.

Read the rest of the story here.

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Testamentary capacity and undue influence in criminal proceedings

French forced heirship law vs. New York public policy

Saul Elnadav — Fri, 20 Mar 2009 17:54:00 +0000

According to a July 29, 2007, article in the New York Post:

The jilted heir of storied Lazard Freres investment banker Andre Meyer, who advised Jackie Onassis, LBJ and William Paley, is making a desperate grab for his mother’s spent estate by invoking French probate law in a Manhattan court.

Patrick Gerschel, 61, the grandson of Meyer, who helmed the famed firm for 35 years, alleges that a cabal of his socialite mother’s friends siphoned $32 million of her estate.

Gerschel’s action was based on the French forced heirship law which limits the right of a domiciliary of France to disinherit children, whether by will or by gifts given during the decedent’s lifetime. Gerschel claimed that under French law his mother, Francine Meyer, was required to leave 75% of her estate to her three children, which would have come to $11 million for each child. Instead, she made lavish donations and gave gifts to friends during her lifetime, including a $17 million gift to the Emerald Foundation, a New York charity.

Gerschel also argued that under French law, a decedent’s children can sue to recover lifetime gifts from the gift recipients to the extent that assets passing by will or trust are insufficient to satisfy the forced heirship claim.

The Manhattan Surrogate’s Court dismissed the claims, finding that Francine Meyer was not considered a domiciliary of France.

As today’s NYLJ reports, the Appellate Division upheld the dismissal in a written decision yesterday, but noted that the case was litigated on the incorrect premise that French law applied at all. Rather, New York has a public policy of “encouraging foreign persons to place assets in New York,” a principle illustrated by earlier decisions holding that Totten Trusts and bank accounts held by foreigners as joint tenants pass according to New York law, not the law of account holder’s domicile. Likewise,

forced heirship provisions of a civil law jurisdiction like France are inapplicable to inter vivos transfers of property executed in New York, irrespective of whether the transferor’s domicile was New York or France. This is because the validity and effect of these transfers, as well as the capacity to effect them, are governed by the law of the state where the property was situated at the time of the transfer.

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