Home » Speaking Engagements » Frank W. Streng, White Plains lawyer, Will Contests Including Preparation and Taking the Deposition and SCPA 1404 Witnesses

Frank W. Streng, White Plains lawyer, Will Contests Including Preparation and Taking the Deposition and SCPA 1404 Witnesses

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 http://www.mccarthyfingar.com www.mfdds.com

 

web:

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:

web:

 

garybashian@aol.com 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:

 

 

 

  • 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

     

    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.
    •  

     

       

    1. 1404 Basics and Introduction to Will Contests
    2.  

     

     

     

    •  

         

      • 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)
      •  

       

       

       

       

       

       

      •  

           

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

       

         

      • Petitioner’s Perspective (Gary Bashian)
      •  

       

       

      •  

           

        • Court’s Perspective (Joseph Accetta)
        •  

           

           

           

        1. Prototype 1404 Examination
        2.  

          ESTATE OF SALLY JONES

           

          SCPA 1404 EXAMINATION

           

          TOPICS

           

          PETITIONER’S PRIMA FACIE CASE (Rita Gilbert)

           

           

             

          • 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 affidavit) before Joe Smith, as the notary public?

               

            • ANSWER
            •  

          •  

           

          TOPICS FOR EXAMINATION OF BILL NOPLAN

           

           

             

          • Probative period - will of 11/12/03

               

            • 3 years before (11/12/03); and
            •  

               

            • 2 years after. DOD: 2/15/04
            •  

          •  

           

             

          • Show documents from Noplan file:
          •  

             

          • Will packet sent with cover letter addressed to Michael;

               

            • Letter

                 

              • Why is letter sent to Michael
              •  

            •  

               

            • Will information forms
            •  

          •  

             

          • Note from Sally to Noplan re acknowledgement of package;

               

            • What, if anything, did you do after you received this letter
            •  

               

            • Any draft of Will to client?
            •  

               

            • Any transmittal letter to client re draft of Will
            •  

          •  

             

          • Single note by Noplan re mentioning "aunt and cousin"

               

            • Are you aware how close SJ was with my client, Jill Smith, and her cousin, John.
            •  

          •  

             

          • Conformed copy of Will;

               

            • Did you send this to client
            •  

               

            • Any copy of original will maintained
            •  

               

            • Any transmittal to client
            •  

          •  

           

             

          • Bill addressed to Michael for $350;

               

            • Why is bill issued to Michael
            •  

          •  

             

          • Check signed by Sally for bill.
          •  

           

             

          • Show original of Will. Seek re will 11/12/03

               

            • Notes re
            •  

               

            • discussion with SJ before 11/12/03
            •  

               

            • discussion with SJ on 11/12/03
            •  

               

            • drafts of Will
            •  

               

            • diaries/calendars re appointments with SJ
            •  

               

            • correspondence with SJ

                 

              • before 11/12/03
              •  

                 

              • 11/12/03 or thereafter
              •  

            •  

               

            • time underlying bill
            •  

               

            • whereabouts of original will

                 

              • where maintained initially
              •  

                 

              • as of death
              •  

                 

              • discussion with/SJ re custody of original
              •  

            •  

               

            • discussion with SJ regarding provisions of will

                 

              • before 11/12/03
              •  

                 

              • who is present
              •  

                 

              • on 11/12/03
              •  

                 

              • who is present
              •  

                 

              • after 11/12/03
              •  

                 

              • who is present
              •  

            •  

          •  

           

             

          • Discuss SJ’s medical condition and health during (1) any initial meetings re will, (2) will execution and (3) any meetings after will execution
          •  

           

             

          • Discussions with nurses about her condition on 11/12/03
          •  

           

             

          • Discussions with doctors about her condition on 11/12/03
          •  

           

             

          • Discussions with Michael Evil regarding SJ’s condition
          •  

           

             

          • Access to decedent’s medical chart on 11/12/03
          •  

           

             

          • Attorney’s experience with will executions
          •  

           

          •  

               

            • # of will preparation
            •  

               

            • # of trust executions
            •  

               

            • typical location of will execution
            •  

               

            • use of attestation clause
            •  

               

            • location of original of will (file, vault, client)
            •  

               

            • read attestation clause aloud
            •  

               

            • charges for services (time, fixed fee)
            •  

           

             

          • Will execution - details
          •  

           

          •  

               

            • location (address)
            •  

               

            • location (room)
            •  

               

            • location (testator in room)
            •  

               

            • time of date
            •  

               

            • address (who inserted)
            •  

               

            • date clause (who inserted)
            •  

               

            • sequence of execution by witnesses on attestation and witness clauses
            •  

               

            • read attestation clause clause aloud
            •  

               

            • describe ceremony of execution from beginning to end.
            •  

               

            • questions asked of testator by Mr. Noplan - (1) read instrument; (2) understand contents; (3) declaration as will; and (4) request witnesses to act as witnesses
            •  

               

            • conversations with testator (1) before will execution; (2) during will execution; and (3) after will execution
            •  

               

            • electronic/video recording of ceremony
            •  

               

            • how did it come about that Hillary Peters and Lila Krump became witnesses
            •  

               

            • anything unusual about will execution
            •  

               

            • length of entire meeting on 11/12/03, including will execution
            •  

               

            • length of will execution
            •  

               

            • was other witness present during entire meeting on 11/12/03 or just will execution
            •  

               

            • was Michael Evil present on 11/12/03
            •  

               

            • during the will execution
            •  

               

            • did SJ know other witnesses before 11/12/03
            •  

               

            • discussions with witness immediately after will execution
            •  

           

             

          • Any other documents executed on 11/12/03: letters, property power of attorney, health care proxy/living will, trust agreements, etc.
          •  

           

             

          • Discussion with SJ regarding

               

            • assets
            •  

               

            • income sources
            •  

               

            • joint accounts
            •  

               

            • gifts (before execution)
            •  

               

            • gifts (after execution)
            •  

               

            • any effort at completing forms sent to client
            •  

               

            • any effort on your taking notes of client’s assets
            •  

          •  

           

             

          • Discussion with SJ regarding nonprobate assets
          •  

           

             

          • Discussion with Michael Evil regarding SJ’s Will
          •  

           

          •  

               

            • Before execution of Will;
            •  

               

            • During execution of Will;
            •  

               

            • After execution of Will
            •  

           

             

          • Show original Will and blank on page 2

               

            • Any discussion about that blank with SJ
            •  

               

            • Considering that neither page 1 nor page 3 has no substantive provisions, why did you choose to have 5 lines on page 2 with signature on page 3, which has no substantive provisions

                 

              • Would you admit that it seems odd?
              •  

            •  

               

            • Any discussion about substantive provisions of will in the presence

                 

              • of witnesses
              •  

                 

              • of Michael Evil

                   

                • Michael being beneficiary?

                     

                  • Alternative beneficiary

                       

                    • "agreement" with Michael as to him giving assets received from SJ under his Will to Jill and John
                    •  

                       

                    • discussions with Michael

                         

                      • discussions with anyone

                           

                        • during lifetime
                        •  

                           

                        • on death
                        •  

                      •  

                    •  

                  •  

                •  

              •  

            •  

          •  

           

          •  
            •  
              •  

                   

                • Bill Noplan being executor

                     

                  • Alternate executor
                  •  

                •  

           

             

          • Attorney-fiduciary issues
          •  

             

          • 2307a statement
          •  

             

          • options on choice of fiduciaries
          •  

             

          • calculation of commissions

               

            • discussion of such calculations
            •  

          •  

             

          • ethical issues – general
          •  

             

          • discussion of prospective appointment of fiduciary with Michael
          •  

             

          • Bills rendered to Michael on other matters
          •  

             

          • Legal services in estate
          •  

             

          • Other clients in which Bill Noplan served as executors
          •  

             

          • Disciplinary complaints against Bill Noplan on other matters
          •  

           

             

          • Any meetings/discussions with SJ after 11/12/03
          •  

           

             

          • Any scheduled appointments with SJ after 11/12/03
          •  

           

             

          • Any telephone conversations with SJ after 11/12/03
          •  

           

             

          • Discussion with anyone prior to today’s 1404?
          •  

           

             

          • Documents reviewed in preparation of 1404? Seek such documents. Any notes made prior to 1404? Seek such documents
          •  

           

        3. Background - Personal, occupation and professional
        4.  

           

        5. Areas of expertise
        6.  

           

        7. Sally Jones: how did you become acquainted with her.
        8.  

           

        9. When he first met her
        10.  

           

        11. Relationship with Michael Evil

             

          • When he first met him
          •  

             

          • Are you Michael’s attorney?
          •  

             

          • Seek documents
          •  

        12.  

           

        13. 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
          •  

        14.  

        •  

             

          • 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
          •  

      •  

         

         

         

         

         

         

         

         

         

         

         

         

         

         

       
    •  

       

    • 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
    •  

    •  

       

    • 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
    •  

    •  

       

    • Objections to issuance of letters

         

      • Grounds generally under SCPA 711 and 719
      •  

         

      • For Attorney-fiduciaries, see SCPA 2307-a
      •  

    •  

    •  

       

    • Permits immediate use of CPLR discovery devices

         

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

    •  

    •  

       

    • 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
    •  

    •  

       

    • 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
    •  

     

  • 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
  •  

    , 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 9th 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.

     

  • 10 minute (Rita K. Gilbert) – Intro and review of facts in fact pattern;
  •  

     

  • 35 minutes – (Gary Bashian; Frank Streng; Joseph Accetta) – 1404 basics and strategies;
  •  

     

  • 65 minutes 1404 examination of Attorney Draftsman:

       

    1. 2 minutes – Rita K. Gilbert – prima facie – 1404
    2.  

       

    3. 63 minutes – Examination of Bill Noplan (played by Michael E. Friedman, Esq.), as attorney draftsman

         

      1. Gary E. Bashian, counsel to co-petitioner, Michael Evil, as co-executor, and sole beneficiary;
      2.  

         

      3. Frank W. Streng, prospective objectant’s counsel;
      4.  

         

      5. Rita K. Gilbert, counsel to attorney draftsman and co-petitioner and co-executor, Bill Noplan
      6.  

         

      7. Joseph M. Accetta – court attorney/referee
      8.  

    4.  

  •  

     

     

  • 10 minutes – Q & A
  •