Last Will

February 22, 2011

Contested Will Results in Settlement after Undue Influence Alleged with Dementia Patient

The beneficiaries of the estate of a wealthy Connecticut woman have agreed to settle a dispute over changes made to her Will after she was diagnosed with dementia, Bloomberg News reported.

Sadly, theft from the elderly and other forms of estate fraud are an all-too-common occurrence. A New York City estate planning attorney can assist residents with making estate plans that minimize such risks. In some cases, a loved one may file for Article 81 Guardianship in New York to take over the affairs of a vulnerable or aging loved one.And safeguards in probate court may also offer some protection. In still other cases, contesting a Will in New York may be the best option.

In this case, a trial over the $3.6 million estate was set to begin this month in West Harford. However, the sides have reached an agreement. The 89-year-old art teacher’s fortune was left to several colleges and other beneficiaries. Her husband, an aviation executive, died in 1999 and their only child passed away in 1963.

The dispute centered around two people who were close to her at the time of her death; they were set to inherit about $1.3 million after changes were made to her Will in 2006. The settlement will largely restore the directives of a previous Will. The changes eliminated large donations to several colleges and other beneficiaries, which led to the probate court challenge.

The decedent left $1 million to the University of Hartford to establish a scholarship in her daughter’s name. Jeanne died of meningitis while a freshman at the university. The 2006 Will cut the donation to just $100,000. Other schools that were set to receive money until being cut from the 2006 Will were Columbia University’s Teachers College, New York University and Parsons.

The settlement calls for the University of Harford to get about $900,000 and for the three New York schools to get about $160,000 each. The 2006 Will was completed shortly after doctors diagnosed her with dementia. She was moved to an assisted living facility a month later.

January 12, 2011

Safekeeping of A New York Last Will Is Vital To Protect Beneficiaries

by Jules M. Haas

The New York Probate Law Blog previously talked about the importance of maintaining a Last Will in a safe and secure location. After investing the time and effort to develop an estate plan and finalize a Will and other estate planning documents such as advance directives, it would be unfortunate if the Will could not be located after a person dies.

As previously pointed out, there are a number of alternatives available with regard to safeguarding a Will. The original can be left with an attorney or kept by the person himself. A Will can also be filed with the Surrogate’s Court. Keeping a Will in a safe deposit box can be problematic since a Court Order may be required to open the box after a person’s death, thus delaying estate settlement proceedings. Also, a legal presumption may arise that the Will was revoked if it is kept by the person himself or herself and the Will cannot be located after death. Attempting to probate a photocopy of a misplaced Will can be extremely difficult.

Issues that arise concerning locating a decedent’s Will are evident from a recent lawsuit filed by the sibling’s of Mama Cass, who was a member of the 1960’s group The Mamas and The Papas. As reported in the New York Law Journal on January 11, 2011, from an article appearing in The National Law Journal by Leigh Jones, Mama Cass’ died in 1974. In their lawsuit, the siblings alleged that a law firm which recently located Mama Cass’ 1967 Will in their archives, had told them at the time of her death that a Will could not be found. Since Mama Cass had apparently died without a Will, her estate was distributed pursuant to California’s law of intestacy rather than in accordance with the terms of the just found Will. As a result, the siblings claim that they were damaged by not receiving a part of the estate. “The lawsuit claims malpractice, negligent misrepresentation and fraud.”

December 29, 2010

New York Estates Often Involve Issues Concerning The Transfer of Real Estate

by Jules M. Haas

A New York estate usually contains many different types of assets. These assets can include bank accounts, stocks and bonds, retirement accounts and real estate. A beneficiary’s interest in these assets is determined by the nature or manner in which these assets are owned or titled. For example, a bank account in the sole name of a decedent will be distributed according to the decedent’s Last Will or, if none, the laws of intestacy. However, a bank account held in the name of the decedent “in trust for” a named beneficiary will be distributed directly to the designee upon the decedent’s death regardless of the Last Will or intestacy laws.

Among all of these asset transfer variations, the disposition of real property often presents the most complexity. This is due to the many complex rules regarding the ownership and transfer of real estate.

The New York Probate Lawyer Blog provides a reference to New York issues and problems presented in decedent’s estates and estate settlement. A recent case that dealt with the disposition of a decedent’s real estate was Holder v. Smartt, Index No. 3384/08, Supreme Court Kings County, decided November 11, 2010 and reported in the New York Law Journal on November 29, 2010. In Holder, real property had been tranfered by the executor of an estate by an executor’s deed to “Arthur Holder and Shirley Holder a/k/a Shirley Stewart, his wife, …. and Lydia Smartt ….”

After Arthur Holder died, his surviving spouse Shirley, commenced a partition action against Lydia Smartt to have the real property sold and the proceeds of sale distributed between them. A partition action is a court proceeding whereby a co-owner of real property can have a Court direct the sale of the property and the distribution of the sales proceeds.

In enforcing its determination as to partition, the Honorable David I. Schmidt was asked to rule on the interest of an alleged son of Arthur Holder who claimed that as a distributee of Arthur’s estate, he had an interest in the real property. The Court found that under New York law, “when real property is conveyed to a husband and wife and a third party, the husband and wife have one moiety as tenants by the entirety, and the third person is a tenant in common with them of the other ….” Thus, since Arthur was married to Shirley when he died, his entire interest in the property passed to Shirley upon his death who then owned the property with Lydia Smartt. Since the son had no interest in the property, the Court directed that the sale of the property continue and the sales proceeds be distributed between Shirley and Lydia.

November 19, 2010

New York Pre-Nuptial Agreements Can Avoid Rights of Spouse To Share In Estate

by Jules M. Haas

New York estate laws provide many protections for husbands and wives with regard to their spouse’s estate. For example, if a spouse dies intestate (i.e. without a Last Will), Estates, Powers and Trusts Law section 4-1.1 provides that the surviving spouse will receive the entire estate if no issue (i.e., children) survive or $50,000.00. and one-half of the estate if issue do survive.

Where a spouse dies and leaves a Last Will and Testament, New York Law prevents one spouse from disinheriting the other. New York Estates, Powers and Trusts Law Section 5-1.1-A provides a rather complex set of guidelines that attempt to ensure that a surviving spouse receives at least the greater of $50,000.00 or one-third of the decedent’s estate.

Because of the provisions guaranteeing a spouse an interest in the others estate, concerns may arise where one spouse has substantial family assets and the other spouse has little or no personal estate. The inheritance of a family fortune over successive generations may be an important pre-marital consideration.

In such instances, and also with possible matrimonial divorce concerns in mind, a pre-nuptial agreement may be a consideration. These agreements can limit and delineate spousal rights in the case of death or a divorce. The upcoming royal wedding of William and Kate is a perfect case-in-point. Pre-nuptial agreements, like all estate and financial planning documents, involve much consideration and extensive preparation. They can be very helpful but also the source of dispute and litigation.

November 2, 2010

New York Last Wills Must Be Signed By Two Attesting Witnesses

by Jules M. Haas

A New York Last Will and Testament is subject to many requirements provided by both statutes and Court decisions. These rules determine various aspects of a Will such as its validity and effect or interpretation.

The starting point regarding the proper form for a Will is New York Estates, Powers and Trusts Law Section 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements.” Among this statute’s numerous provisions is a requirement that “there shall be at least two attesting witnesses …” EPTL Sec. 3-2.1(a)(4). The statute also states that “The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses…” EPTL 3-2.1(a)(4). The statute also states that “The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses…” EPTL 3-2.1(a)(2).

While the EPTL mandates “at least two” witnesses, there is no prohibition against having more than the minimum two. In fact, it is a common practice to use three attesting witnesses to insure that at least two of the witnesses may be available if their testimony is needed years after the Will is signed in connection with a probate proceeding.

While having two witnesses sign the Last Will in the presence of the Testator appears to be a simple and straightforward requirement, there are may instances where this requirement has not occurred. For example, in In Re Postma, 895 NYS2d 778 (Surrogate’s Court, Westchester County 2009), the Court reviewed a Will which had been signed at the end by one witness and by a notary public. The Court denied the Will probate because it had only been signed by one attesting witness. The Court pointed out that EPTL 3-2.1 requires two attesting witnesses and that a person who signs a Will in the capacity of a Notary Public does not comply with the statutory requirement.

It is important to utilize the advise and direction of an attorney experienced with the requirements of the execution of a Will as well as the Probate procedure in the New York Surrogate’s Courts.

September 20, 2010

Fight over Benihana Steakhouse Chain Highlights need for Comprehensive Estate Planning

by Jules M. Haas

A probate court ruling has granted control of a family trust to the third wife of late Benihana founder Rocky Aoki, which could ultimately determine the fate of the Japanese steakhouse company, the New York Post reported.

New York City probate attorneys and estate planning lawyers are frequently called to assist in planning or administering estates that include a family business. The advantages of proper estate planning are many and may include trusts that bypass the probate process, as well as proper planning for the payment of taxes without forcing the liquidation or sale of a family business. The presence of multiple former spouses, and/or children, may also complicate the administration of an estate. But proper planning can go a long way toward ensuring that your wishes are followed after your death and that an estate’s administration is not subjected to long delays or excessive costs involving litigation.

The two-year court fight has resulted in Rocky’s third wife and widow being granted power over the trust that controls 38 percent of the steakhouse chain. The trust had been in the hands of his children, who were using the shares in an attempt to gain board seats and shakeup management, the Post reported. A lawyer for his widow, Keiko Aoki, said he expects her to become sole trustee by the end of the week.

The power shift came last week when a New York probate judge admitted Rocky’s Last Will and Testament for probate, rejecting an attempt by his children to block it. The Will calls for Keiko to be sole trustee of the entity controlling his shares until his children turn 45. Shares of Benihana were trading on the NASDAQ this week at $6.45 and are up 70 percent on the year.

September 3, 2010

New York Last Will Endures for Half Century, Leaves Second Wife out of Estate

by Jules M. Haas

A New York Appeal’s Court ruling offers a stark reminder of the power of a Will or other estate planning document and the need to seek the advice of a New York City probate lawyer when settling estate issues.

A New York physician left an estate of $28 million dollars upon his death in June 2006, which relatives thought would be divided in accordance with New York law governing intestate estates. Intestate estates are estates which have no Last Will to govern their disbursement and are, therefore, divided in accordance with New York law. As we reported in our New York Probate Lawyer Blog, intestate law would divide the estate among a decedent’s closest living relatives, beginning with a wife who would receive half the estate.

In this case, the physician’s first wife died in 1981. His daughters sought to probate a purported Will executed in 1958. The document was witnessed by the physician’s attorney and two employees of his medical office. The Will left the vast majority of the estate to the decedent’s children and also to his first wife who had predeceased him.

The Court could find no material issue of fact that would exclude the Will and, therefore, admitted it to probate. The second wife appealed. The appeals Court upheld the ruling of the lower Court and the Will was admitted to probate despite being written more than a quarter-century before the physician’s second marriage.

This case is an example of the complications that can arise form the failure to update a Last Will and properly plan for the division of an estate. Here, the decedent had an estate valued at $28 million and had outlived his first wife by 25 years. Yet, he had apparently done little or no estate planning in the past half century that would have provided for the death of his first wife and his remarriage. An estate plan can provide peace of mind, tax savings and the knowledge that your estate will be distributed in accordance with your wishes and that your loved ones will be cared for in your absence. A Last Will should be reviewed and updated to reflect the current status of a person’s relationships and plan.