Joseph M. Accetta, Esq.
140 Grand Street
White Plains, NY 10601 914-285-3730
Gary E. Bashian, Esq.
Smith, Ranscht, Connors,
Mutino, Nordell & Sirignano, P.C.
235 Main Street
White Plains, NY 10601
James R. Gmelin, Esq.
Principal Law Assistant
140 Grand Street
White Plains, NY 10601 914-285-3730
Frank W. Streng, Esq.
McCarthy, Fingar, Donovan,
Drazen & Smith, L.L.P.
11 Martine Avenue
White Plains, NY 10606-1934
Westchester County Bar Association – 6/7/99
CONTESTED PROBATE PROCEEDINGS
John Smidren (“John”), age 90, married his nurse, Mary Black (“Mary”), age 60, on May 1, 1997. John, a divorcee, had 3 children from his first marriage, Steven, Jessica and Robert. Robert has Down’s Syndrome and lives in a group home. In 1990, John was diagnosed with Alzheimers, and Mary, a practical nurse, was hired by Steven Smidren to take care of his father in 1994 when John’s condition had begun to deteriorate. Steven handled his father’s finances pursuant to a Durable Power of Attorney signed by John in 1989 at the time that John last revised his Will.
In 1995, Mary moved into John’s home against the wishes of Steven and Jessica, and began what Mary described as a “great romance” with John. At the same time, Mary assumed total control over John’s finances and arranged to have her personal lawyer, Alan Justin, prepare and supervise the execution of a new Durable Power of Attorney form designating Mary as agent and authorizing Mary to exercise broad powers and specifically authorizing Mary to make gifts to herself and John’s children. Mary announced plans for her marriage to John in mid-April, 1997, despite the fact that John had just commenced an aggressive chemotherapy and radiation treatment for his prostate cancer, which was diagnosed in February, 1997. The wedding ceremony took place at the hospital where John was undergoing treatment for his prostate cancer and was officiated by the pastor at Mary’s church, Reverend Jones, with no other family members in attendance. At the time of their marriage, John had assets in the range of $4,500,000, including $1,500,000 in an IRA Rollover Account at SmithBarney. Mary had about $50,000 in assets and had stopped working in 1995 when she moved into John’s home.
Whether as a result of Alzheimer’s or his cancer treatments, John began suffering major mental lapses in early 1998. John was hospitalized at St. Agnes Hospital on February 17, 1998 as a result of complications from his prostate cancer, and he was on a breathing tube as a result of some respiratory problems. On May 1, 1998, Mary consulted with Alan Justin about the possibility of Mr. Justin preparing a new Will for her husband. In her discussions with Mr. Justin, Mary advised Mr. Justin that, in discussions with Mary, John told Mary that he wished to make a new Will in which John (a) gives a Credit Shelter Bequest in equal shares to his three children; (b) gives the balance of the estate to Mary; and (c) appoints Mary and Mr. Justin as executors. Mary also said that John wanted to name her as beneficiary of his $1,500,000 IRA Rollover Account. Mary also gave Mr. Justin the original of John’s 1989 Will in which John distributed his estate in equal shares to his children, but created a Supplemental Needs Trust for Robert’s benefit. Mr. Justin said that he would need to talk to John before preparing a new Will for John, and Mr. Justin and Mary agreed that Mr. Justin, alone, would visit John in the hospital the following day in the afternoon. However, the following morning, May 2nd, Mr. Justin received a fax from St. Agnes Hospital signed by John in which John gave Mr. Justin instructions for the preparation of his new will and change in beneficiary designation on his IRA Rollover Account that mirrored the discussion that Mr. Justin had with Mary. Within minutes of his receipt of this fax, Mr. Justin received a telephone call from Mary at St. Agnes Hospital in which Mary said that John wanted to talk to Mr. Justin. John then got on the phone and said: “Prepare the legal documents that I asked you to”. Mary then got on the phone and asked Mr. Justin to bring the documents to the hospital the following morning.
With some reservations, Mr. Justin obtained a Change of Beneficiary Designation form from SmithBarney on John’s IRA Rollover Account and prepared a draft of a Will for John in accordance with the instructions given to him. Mr. Justin also inserted an in terrorem clause in the Will. Mr. Justin also prepared the Attorney Fiduciary disclosure document in strict accordance with SCPA 2307-a. On May 3, 1998, Mr. Justin then send the draft documents to John at the hospital by messenger together with a brief letter of transmittal which invited John to call him if he had changes he desired in the documents and confirmed that he would come by at 2:00 p.m. that day to supervise the execution of the documents. When Mr. Justin arrived at John’s hospital room at 2:00 p.m., Mary and Reverend Jones were already there. Mr. Justin then showed John the original of the Will, Change of Beneficiary Designation form and Attorney Fiduciary statement. With Mary and Reverend Jones present, John nodded in response to Mr. Justin’s query to John whether John was “ready to sign the legal documents” Mr. Justin then attempted to have John initial each page of the 10 page will, but John threw the pen on the floor after he initialed page 2 of the Will. Nevertheless, John signed all three documents with Reverend Jones and Mr. Justin acting as witnesses. Reverend Jones and Mr. Justin also signed a self-proving affidavit, and the affidavit was notarized by Mr. Justin’s secretary at Mr. Justin’s office. Mr. Justin brought the originals of the documents back to his office and sent to SmithBarney the Change of Beneficiary Designation form.
Later on in the same day, May 3, 1998, Steven learned about some “legal” documents that were brought to his father through a nurse. As evidenced by the medical notes, this same nurse had mentioned to Steve that his father was experiencing mental lapses and was occasionally incoherent. On the same day, Steven then talked to his father, who told Steven that he did sign some documents, that he did not know what he signed and that he only signed them because he was afraid that if he did not sign them Mary would disconnect his breathing tube.
In early June, 1998, Mary delivered to SmithBarney the Durable Power of Attorney form. A week later, she withdrew $1,000,000 from John’s IRA Rollover Account and deposited the funds in a joint and survivor account that she opened with John in January, 1998, to increase the balance in the bank account to $1,100,000. John died on July 4, 1998.
The players: Gary Bashian represents Mary and Mr. Justin as executors. Frank Streng represents Steven and Jessica Smidren. Joe Accetta is the Guardian ad Litem for his ward, Robert Smidren. Jim Gmelin is the Law Assistant at the Surrogate’s Court assigned to the matter.