Frank W. Streng, Esq. McCarthy Fingar LLP 11 Martine Avenue White Plains, NY 10606-1934 914‑946‑0134 (fax) 914-385-1022 (voice) email: fstreng@mccarthyfingar.com web: http://www.mccarthyfingar.com	Gary E. Bashian, Esq. Bashian & Farber, LLP 235 Main Street White Plains, NY 10601 (914) 946-5100 Ext. 470 (voice) (914) 946-5111 (fax) email: garybashian@aol.com web: http://www.bashianfarberlaw.com
Rita K. Gilbert, Esq. Hyman & Gilbert 1843 Palmer Avenue Larchmont, NY 10538 (914) 833-5297 (voice) (914) 833-5294 (fax) email: rkg@cloud9.net	Joseph M. Accetta, Esq. Court Attorney/Referee Surrogate's Court 111 Martin Luther King Boulevard 18th Floor White Plains, NY 10601 (914) 824-5655 (voice) email: jaccetta@courts.state.ny.us

Westchester County Bar Association – Trusts & Estates Section

Will Contests Including Preparation and Taking the Deposition and SCPA 1404 Witnesses

May 14, 2007

Agenda and Cast of Characters:

1. 10 minute (Rita K. Gilbert) – Intro and review of facts in fact pattern;
2. 35 minutes – (Gary Bashian; Frank Streng; Joseph Accetta) – 1404 basics and strategies;
3. 65 minutes 1404 examination of Attorney Draftsman:
1. 2 minutes – Rita K. Gilbert – prima facie – 1404
2. 63 minutes – Examination of Bill Noplan (played by Michael E. Friedman, Esq.), as attorney draftsman

i. Gary E. Bashian, counsel to co-petitioner, Michael Evil, as co-executor, and sole beneficiary;

ii. Frank W. Streng, prospective objectant’s counsel;

iii. Rita K. Gilbert, counsel to attorney draftsman and co-petitioner and co-executor, Bill Noplan

iv. Joseph M. Accetta – court attorney/referee

4. 10 minutes – Q & A

A. Fact Pattern (Rita K. Gilbert)

Sally Jones (SJ) died on February 5, 2004 at age 49, from complications in connection with ovarian cancer. SJ taught elementary school in Westchester County. SJ became ill about 3 years ago, with a diagnosis of ovarian and cervical cancer. List of surgeries:

1. April 13th, 2000. Sally's first surgery. Ovaries removed.

2. April 19th, 2001. Port removed after chemotherapy completed.

3. June 18th, 2001. Sally's mother, Marion Jones, passed away.

4. February 7th, 2003. Sally's surgery. Bladder removed.

5. November 14th, 2003. Sally's surgery. Clear blockage. Replaced external bladder.

Our client is Jill Smith (75), decedent’s aunt and sole distributee. Jill and her son, John Smith (33), were very close to Sally. Sally is also John’s godmother.

Jill was with Sally every step of the way.

Sally was never married but 7 years ago, Michael Evil, age 69, moved in with Sally and her parents, since Michael needed a place to stay. Sally’s father, Joseph Jones, died 5 years ago. They met each other at the Coach Inn in Ossining, NY, 10 years ago. Michael is apparently on a second marriage and apparently had children from his first marriage. Client describes Michael as “violent” with an “uncontrollable temper” and “extremely jealous” of both John and Jill. Jill was called Aunt Julie by SJ. Michael’s relationship with SJ is somewhat strange in that, among other things, no one seems to know about Michael. Words to describe Sally: “naïve”, “shy”, “overly protective”. Considered to be “afraid” of Michael, according to friend of family. SJ’s parents died 5 years ago.

Will dated November 12, 2003, signed at Westchester Medical Center, prepared by Bill Noplan. The Will was witnessed by a nurse, Lila Krump, an apparent neighbor, Hillary Peters, and Bill Noplan. She entered the hospital on November 10, 2003 for surgery. Lila is described as being in Michael’s “back pocket”. Will prepared by Bill Noplan of Noplan & Noplan, of Yorktown. Client believes that Noplan is Michael’s attorney and that they apparently go to the same church. Grace Church is mentioned as the church, but client describes Michael as catholic. Michael is co-executor and sole beneficiary under Will; there are no alternate beneficiaries. Bill Noplan is co-executor under the Will. Bill did not get a 2307a statement from the decedent. Bill Noplan is also the subject of pending complaints filed against him by other clients in the 9^th Judicial District Grievance Committee. The most important complaint deals with Bill Noplan’s sexual relationship with a former female client. Based upon discussions with Sally’s next door neighbors, Jill and John believe that Michael promised that, after SJ’s death, Michael would make a will giving assets given to him by SJ under the Will to Jill and John on Michael’s death.

Sally’s assets:

Tangible Personal Property: owned by Jill and John but in possession of SJ;

House: 9 Smith Road, Yorktown Heights, NY; has mortgage of $50,000, and probably worth $500,000

Securities: $5 million

What do we know about Mr. Noplan’s file and his work?

• Mr. Noplan met the decedent several times to discuss her Will, but Michael is always present – twice in his office and once in the hospital;
• Mr. Noplan has notes, indicating (a) her assets, (b) her limited family, (c) the malignancy of her cancer; and (d) “all to Michael”
• Bill addressed to Michael for $350;
• Check signed by Sally for bill.

B. 1404 Basics and Introduction to Will Contests

· Petitioner’s Perspective (Gary Bashian)

· Petition for probate and for Preliminary letters

· Requirements for Attorney-Fiduciary under SCPA 2307-a

· Issuance of citation

· Need for appointment of Guardian ad Litem for persons under a disability

· Marshalling of assets and other matters incident to estate

· Objectant’s Perspective (Frank Streng)

· Petition for temporary letters (SCPA 901)

· If preliminary letters granted, consider a petition to revoke

· if Will is facially (arguably) improper

· if proper grounds under SCPA 711 or 719

· If preliminary letters not sought, then possibly seek temporary letters

· Petition to compel production of Will (SCPA 1401) for prior instruments

· Pursuant to SCPA 1412(4)(b), take whatever actions necessary to make sure that “papers and records of the decedent” are properly preserved by the preliminary executor

· Options on Return date of Probate Citation

· Objectant’s Perspective (Frank Streng)

· Conduct examination of attesting witnesses pursuant to SCPA 1404

· Defer date for objections to probate until conclusion of examination of witnesses

· Permits attorney and client to make studied decision as to whether to object to probate

· If there is an in terrorem clause (EPTL 3-3.5), puts off decision as to possible forfeiture of client’s interest that may be caused by unsuccessful objections to probate

· Pursuant to local rule of Surrogate's Court, Westchester County, expense of transcripts of examinations of two witnesses are paid by estate

· Defers other CPLR discovery devices until after objections are filed and issue is joined

· 1404 examinations are to take place at Surrogate's Court pursuant to Rule 207.28, unless the Court otherwise provides; and usually cannot be conducted until personal jurisdiction is complete

· File objections to probate and to the issuance of letters

· Grounds for objections to probate of will

· Due execution

· Consider not filing objection if it cannot be arguably supported based upon 1404 examinations

· Testamentary Capacity

· Fraud

· Undue Influence

· Demand for jury trial

· Permits immediate use of CPLR discovery devices

· Objectant generally pays for transcripts of depositions, including examinations of attesting witnesses

· Objections to issuance of letters

· Grounds generally under SCPA 711 and 719

· For Attorney-fiduciaries, see SCPA 2307-a

· If there is a person under a disability adversely effected by the Will and represented by a Guardian ad Litem (GAL), work closely with GAL

· Consider options as to status of parties, e.g., is the spouse a distributee or not?

· Petitioner’s Perspective (Gary Bashian)

· Make sure probate proceeding is aggressively prosecuted

· Interview attesting witnesses and make sure they are available for SCPA 1404 examinations

· If you want to expedite the proceeding, seek a discovery order

· If you have not yet gotten preliminary letters, seek them

· Make sure that your client is doing his/her/its job as fiduciary, i.e., ignore Will contest and administer the estate

· Make sure records of the decedent are preserved

· If a beneficiary under contested Will is also a petitioner, make sure that, at all times, your client is acting properly

· Court’s Perspective (Joseph Accetta)

· Notice of Objections Filed: Before discovery can begin, a citation for notice of objections filed must be obtained from the Court and served upon all beneficiaries under Will whose interest are adversely affected by objections (SCPA 1411; Rule 207.27); conduct discovery after return date of citation

· Document production

· Pursuant to local rule, duces tecum subpoenas for medical records are returnable at Surrogate's Court

· Depositions

· 3 and 2 rule – Unless there are “special circumstances”, discovery limited to the period of three years before and two years after the execution of Will (Rule 207.27)

· Attesting witnesses out of state: Pursuant to SCPA 508 and Rule 207.22, the Court may direct testimony to be taken outside of the state by a commission

· Bills of Particulars

· Generally, the petitioner is entitled to bill as to those objections in which the objectant has the burden of proof

· See Rule 207.23 for further details

· Summary Judgment Motions

· Place burden on objectant to flesh out objectant’s case, if one exists

· With volume of cases, summary judgment motions are getting greater sympathy from Surrogates

· CPLR 4519 (dead man statute) problems do not help movant on summary judgment motion

· Objections on lack of due execution

· Submit transcripts of 1404s and other examinations

· Objections on lack of testamentary capacity, undue influence and fraud

· Make motion after the end of discovery

· More difficult motion: do not make unless your case is compelling

· Trial

· In jury trial, case is not scheduled for trial until the filing of a note of issue and statement of readiness and an order framing issues

· In court trial, you need to file a note of issue and statement of readiness and statement of issues

· Consider possible withdrawal of jury demand to compel court trial if you are the objectant and have asked for a jury trial (SCPA 503(b))

· Critically evaluate your case

· Withdraw objections that you cannot support, such as due execution on a lawyer supervised execution

· Consider CPLR 4519 and how it impacts on petitioner or objectant

· Consider expert witnesses and whether your expert knew the decedent

· Consider relevancy of financial transactions with decedent on objections and effect of such evidence

C. Prototype 1404 Examination

ESTATE OF SALLY JONES

SCPA 1404 EXAMINATION

TOPICS

PETITIONER’S PRIMA FACIE CASE (Rita Gilbert)

• Mr. Noplan, I show you an instrument purporting to the Last Will and Testament of Sally Jones dated November 12, 2003, and I ask you
• If this is your signature?
• ANSWER
• Did you see the decedent subscribe her name to the said paper writing?
• ANSWER

• Where was such subscription made?
• ANSWER

• Where on that paper writing is your signature?
• ANSWER

• Who was present besides yourself, Ms. Krump and Ms. Jones when such subscription was made?
• ANSWER

• At the time of making such subscription did Ms. Jones, in your presence, and in the presence of yourself, Ms. Krump and Ms. Peters, declare the instrument so subscribed by her to be her Last Will and Testament?
• ANSWER

• At the request of Ms. Jones, did you and Ms. Krump and Ms. Peters, sign your names as witnesses at the end of this instrument in each other’s presence, and in the presence of Ms. Jones?
• ANSWER

• Please examine the instrument again and state whether your signature appears on the instrument?
• ANSWER

• At the time of executing said instrument was Ms. Jones at least 18 years of age?
• ANSWER

• Was Ms. Jones in your opinion of sound mind, memory and understanding?
• ANSWER

• Was Ms. Jones acting under any restraint, or in any respect incompetent to make her Last Will and Testament?
• ANSWER

• Showing you this affidavit (self-proving affidavit), do you recognize your signature?
• ANSWER

• Did you sign this affidavit (self-proving affida