Home » Publications & Outlines » Frank W Streng, White Plains Lawyer, How to Examine Witnesses to Will; Defensive Estate Planning - 3-15-05

How to Examine the Witnesses to a Will & Defensive Estate Planning

Frank W. Streng, Esq.

McCarthy Fingar LLP

11 Martine Avenue

White Plains, NY 10606-1934

914-946-0134 (fax)

914-946-3817 ext. 256 (voice)

e-mail:

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

web:

Carla D. Glassman, Esq.

Glassman & Brown, LLP

99 Court Street

White Plains, NY 10601

914-686-0108

914-288-9291 (fax)

 

 

 
   

 

 

Westchester Women’s Bar Association – Trusts & Estates Section

 

March 15, 2005

 

Agenda:

 

 

  • What is Defensive Estate Planning?
  •  

     

     

    •  

         

      • Representing One or More members of "Dysfunctional" Families
      •  

         

      • Dysfunctional – Webster defines it as "impaired or abnormal functioning"
      •  

         

      • Examples of Dysfunctional Families
      •  

    •  

         

      • "Bad families with No Parental Control": No one likes each other, including the parents
      •  

         

      • "Bad families with Parental Control": No one likes each other, but the parents are able to require members of the family to act with propriety and respect
      •  

         

      • Good Family with Bad Marriage: Children seem to respect each other, but parents hate each other
      •  

         

      • "Good Families that are Broken through Divorce"
      •  

         

      • "Good Families that are Broken through Remarriage (with children from second marriage)
      •  

         

      • "Good Families that are Broken through Remarriage (without children from second marriage)
      •  

         

      • "Good/Bad Families" on the Death of the Survivor Parent: Throw out the Family Rule Book and Become Super Dysfunctional
      •  

         

      • "’Good Families" that have Very Good Actors in which One or More members Hate Each other
      •  

     

    •  

         

      • Client’s Goal: Hiring you to protect integrity of client’s decisions in estate plan (e.g., preparing will where client cuts out distributees or makes so-called unequal distributions)
      •  

    •  

       

    • Fact Pattern
    •  

       

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

       

      1. April 13th, 2000. Sally's first surgery. Dr. Chung. 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. Dr. Chung. Bladder removed.

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

       

      Jill Smith (75) 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 not married but, nearly 27 years ago, Michael Evil, age 69, moved in with Sally and her parents, since Michael needed a place to stay. They met each other at the Coach Inn in Ossining, NY. 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. Michael dependent upon SJ.

       

      Will dated November 12, 2003, signed at Westchester Medical Center, and witnessed by a nurse, Lila Krump, and an apparent neighbor, Hillary Peters. 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 named as sole executor and sole beneficiary.

       

      Sally’s assets:

       

      TPP: 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

       

      John is beneficiary of various Teacher Retirement funds, which seem to aggregate about $315,000. John is also beneficiary of various Emigrant ITF accounts, but there is also a joint account at Emigrant with Michael.

      John paid for funeral.

      There may also be other benefits in Teachers’ retirement.

       

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

       

         

      • Will packet sent with cover letter addressed to Michael;

           

        • Letter
        •  

           

        • Will information forms
        •  

      •  

         

      • Note from Sally to Noplan re acknowledgement of package;
      •  

         

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

         

      • Conformed copy of Will;
      •  

         

      • Bill addressed to Michael for $350;
      •  

         

      • Check signed by Sally for bill.
      •  

       

      C. Defensive Estate planning in Fact Pattern and Otherwise:

       

      •  

           

        • To be effective lifetime trust must be in

             

          • Writing
          •  

             

          • Executed by the creator and at least one trustee
          •  

             

          • Acknowledged or executed in the presence of two witnesses
          •  

        •  

           

        • Grantor can be sole trustee
        •  

           

        • Oral trusts not recognized in statute
        •  

           

        • Amendment/Revocation is effective if in

             

          • Writing
          •  

             

          • Executed by the person authorized to amend or revoke
          •  

             

          • Acknowledged or executed in the presence of two witnesses
          •  

             

          • Notice of amendment or revocation shall be delivered to at least one other trustee

               

            • Effective date the date of execution
            •  

               

            • Failure to give notice does not make invalid
            •  

               

            • No liabilities for actions of trustee prior to actual notice
            •  

          •  

        •  

           

        • Funding of Lifetime Trust

             

          • Valid as to assets transferred to trust
          •  

             

          • Transfer is not accomplished by "recital of assignment, holding or receipt in the trust instrument:
          •  

             

          • Transfer is accomplished through "written assignment describing the assets with particularity" or, in the case of "real estate, stocks, bonds, bank and brokerage accounts and the like" a recording of deed or "completion of registration of the asset"
          •  

        •  

       

      •  

           

        • Additional procedural obstacles for challenging validity of revocable trusts, or transfers to trusts

             

          • Contrasts of Will Contests v. Trust Contests
          •  

             

          • Lack of identified procedural remedies in trust contests
          •  

             

          • Challenging client’s capacity in execution of documents that results in transfer to revocable trusts
          •  

        •  

       

       

         

      1. How to Win a Will Contest: Perspectives of Petitioner, Objectant and Court
      2.  

       

      FWS speaks for 30 minutes on basics of 1404 stuff.

       

       

       

      •  

           

        • Marshalling of assets and other matters incident to estate
        •  

       

         

      • Objectant’s Perspective
      •  

      •  

         

      • 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
        •  

         

         

         

         

         

         

        •  

             

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

         

         

           

        • Petitioner’s Perspective
        •  

         

         

        •  

             

          • 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
          •  

             

             

             

          1. Prototype 1404 Examination
          2.  

            ESTATE OF SALLY JONES

             

            SCPA 1404 EXAMINATION

             

            TOPICS

             

            PETITIONER’S PRIMA FACIE CASE

             

             

               

            • Where was such subscription made?

                 

              • ANSWER
              •  

            •  

             

               

            • Where on that paper writing is your signature?

                 

              • ANSWER
              •  

            •  

             

               

            • Who was present besides yourself 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 Ms. Krump/Peters, declare the instrument so subscribed by her to be her Last Will and Testament?

               

            • ANSWER
            •  

               

             

               

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

               

            • 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
              •  

            •  

             

             

             

             

             

             

            TOPICS FOR EXAMINATION OF BILL NOPLAN

             

             

               

            • Sally Jones: how did you become acquainted with her.
            •  

               

            • When he first met her
            •  

               

            • Relationship with Michael Evil

                 

              • When he first met him
              •  

                 

              • Are you Michael’s attorney?
              •  

            •  

             

               

            • 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
                    •  

                  •  

                     

                  • Michael being executor

                       

                    • Alternate executor
                    •  

                  •  

                •  

              •  

            •  

             

             

               

            • 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
            •  

             

            TOPICS FOR EXAMINATION OF LILA KRUMP

             

             

               

            • Background - Relationship with SJ
            •  

               

            • When she first met SJ
            •  

               

            • Familiarity with medical chart

                 

              • Did you know SJ’s medical diagnosis
              •  

                 

              • Treatment
              •  

                 

              • Kinds of things that you did for SJ
              •  

            •  

               

            • Conversations with SJ

                 

              • Topics?
              •  

                 

              • Her relationship with Michael Evil
              •  

                 

              • Her relationship with Jill Smith

                   

                • John Smith
                •  

              •  

            •  

             

               

            • Probative period - will of 11/12/03- 3 years before (11/12/00) and 2 years after (dod – 2/5/04)
            •  

             

               

            • Show "will" of 11/12/03 and identify signature

                 

              • SJ
              •  

                 

              • Lila Krump
              •  

                 

              • Hillary Peters
              •  

            •  

             

               

            • Will execution - details
            •  

             

            •  

                 

              • Describe what happened from beginning to end when SJ signed the Will
              •  

                 

              • How was it that you became a witness to this will
              •  

                 

              • location (address)
              •  

                 

              • Westchester Medical Center
              •  

                 

              • location (room)
              •  

                 

              • location (testator in room)
              •  

                 

              • date clause (who inserted)
              •  

                 

              • address (who inserted)
              •  

                 

              • sequence of execution by witnesses (Hillary Peters)
              •  

                 

              • Did you and other witness read attestation clause aloud
              •  

                 

              • Do you know William Noplan
              •  

                 

              • Did he "supervise" the execution of this document
              •  

                 

              • Do you recall any statements made by SJ before the execution of the Will
              •  

                 

              • In what way did SJ indicate that she had

                   

                • read instrument;
                •  

                   

                • understood contents;
                •  

                   

                • declared the document to be her will;
                •  

                   

                • requested you and Hillary Peters to act as witnesses
                •  

              •  

             

            •  

                 

              • conversations with testator

                   

                • before will execution
                •  

                   

                • during will execution; and
                •  

                   

                • after will execution
                •  

              •  

             

            •  

                 

              • electronic/video recording of ceremony
              •  

                 

              • 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
              •  

                 

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

                 

              • discussion, if any, with other witness immediately after will execution
              •  

                 

              • procedures of hospital re acting as witnesses to will
              •  

             

               

            • Show witness original Will and blank on page 2

                 

              • Any discussion about that blank in your presence
              •  

                 

              • Any discussion about substantive provisions of will in your presence

                   

                • Michael being beneficiary?

                     

                  • Alternative beneficiary
                  •  

                •  

                   

                • Michael being executor

                     

                  • Alternate executor
                  •  

                •  

              •  

            •  

             

               

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

             

               

            • Opinion regarding SJ’s ability to understand what she was doing on 11/12/03
            •  

             

               

            • Is there a point in which SJ’s ability to understand is in question.
            •  

             

             

               

            • Other information regarding Will of 11/12/03
            •  

             

            •  

                 

              • Notes she may have taken incident to Will
              •  

                 

              • diaries re meetings with SJ re will
              •  

                 

              • nurses diaries re Will
              •  

                 

              • whereabouts of original will
              •  

                 

              • discussion w/SJ re custody of original will
              •  

             

               

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

             

               

            • Number of times that you have acted as a witness on a will execution
            •  

             

               

            • Affidavit of attesting witness: were you presented with the original document at the time you signed this affidavit?
            •  

             

               

            • Discussion with anyone prior to today’s 1404? Any discussions with Michael Evil? Any discussions with any lawyer at Smithy & Smithy? Any one else?
            •  

             

               

            • 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. Employment
          6.  

             

          7. Education
          8.  

             

          9. How long a nurse
          10.  

             

          11. Employee of Westchester Medical Center
          12.  

             

          13. Specialty as nurse
          14.  

             

          15. Background - Personal, occupation and professional
          16.  

             

          17. Areas of expertise
          18.  

             

          19. Ms. Krump/Peters, 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
              •  

            •  

               

            • If you witnessed the decedent subscribe her name to the said paper writing?
            •  

               

            • ANSWER
            •  

          20.  

          •  

               

            • 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
            •  

          •  

               

            • Settlement Options
            •  

          •  

               

            • Factors:

                 

              • Non probate and gifted assets
              •  

                 

              • Estate tax apportionment
              •  

                 

              • Distributions under the intestacy statute
              •  

                 

              • Distributions under the elective share statute
              •  

                 

              • Interest of beneficiaries under prior Wills
              •  

                 

              • Appointment of executors and trustees
              •  

                 

              • Interest of persons under a disability and working with GAL
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              • Outright share or trust share for spouse
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            •  

          •  

               

            • Types of Settlements:
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            • Admit propounded Will to probate, subject to lump sum payment to objectant
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            • Deny probate to propounded Will, admit prior Will to probate, subject to lump sum payment to petitioner
            •  

               

            • Revise testamentary scheme to accommodate interests of petitioner and objectant
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            • Pursuant to SCPA 1411(6), settlement is binding on all persons under propounded Will who have not appeared upon service of the citation upon the filing of objections
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          •  

               

            • Trial
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          •  

               

            • 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
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          •  

               

            • 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))
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          •  

               

            • Critically evaluate your case
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            • 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
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        •  

           

           

           

           

           

           

           

           

           

           

           

           

           

           

           

           

           

         
      •  

         

      • 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 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 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
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    •  

       

    • 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
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    •  

       

    • Your engagement as counsel

         

      • Separation between Sally and Michael
      •  

         

      • Attorney-client privilege
      •  

         

      • Joint representation issues
      •  

    •  

       

    • Diligence in legal work

         

      • Detailed interview with memoranda
      •  

         

      • Detailed description of assets and liabilities

           

        • Discussion with client as to nonprobate assets, including joint assets and intentions of client
        •  

      •  

         

      • Obtaining copies of existing and prior wills/trust agreements/power of attorney forms/health care proxies
      •  

         

      • Satisfying yourself that client has capacity and is not subject to undue influence
      •  

         

      • Sending drafts of instruments with letters of explanation
      •  

         

      • Dealing with Client, and Client alone, as to drafts and redrafts
      •  

         

      • Supervision of execution
      •  

         

      • No shortcuts
      •  

         

      • Exclusion of Michael from room for will execution
      •  

         

      • Other estate planning
      •  

         

      • Living will/health care proxy
      •  

         

      • Durable power of attorney
      •  

         

      • Revocable trusts

           

        • Attorney’s Perceived Resistance of Revocable Trusts
        •  

           

        • Client’s perspective: attorneys have self-interest in assuring probate through earning a huge percentage fee in estate
        •  

           

        • Client’s Misperceptions

             

          • Revocable trusts always avoid probate
          •  

             

          • Assets cannot pass through revocable trust unless asset is transferred to trust
          •  

             

          • Revocable trusts avoid estate and other taxes
          •  

             

          • Tax neutrality of revocable trusts
          •  

        •  

           

        • Advantages of revocable trust re procedural and substantive obstacles to "will contest"
        •  

           

        • Revocable trusts as "continuing" will

             

          • Effect of client managing financial matters through all-inclusive features of brokerage account for trust
          •  

        •  

           

        • Mechanics of Creation of Trusts – EPTL 7-1.17
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      •  

    •  

  •  

     

  • Attorney’s Perspective
  •  

     

  • Ethical Considerations

       

    • Attorney-Client Privilege
    •  

       

    • Who is your client
    •  

       

    • Actual or Potential Conflict of Interest
    •  

       

    • Irreconcilable conflicts of interests
    •  

       

    • Reconcilable conflicts of interests

         

      • Exoneration by multiple clients with full disclosure
      •  

    •  

       

    • Engagement Letters
    •  

       

    • Ethical considerations
    •  

       

    • Financial considerations
    •  

  •  

     

  • 10 minute intro and review of facts in fact pattern (SSB)
  •  

     

  • 30 minutes – FWS – 1404 basics and strategies
  •  

     

  • 30 minutes 1404 –

       

    1. 10 minutes – CG – prima facie – 1404
    2.  

       

    3. 20 minutes – FWS –

         

      1. SSB as attorney draftsman
      2.  

         

      3. JSK – nurse witness
      4.  

    4.  

  •  

     

  • 20 minutes – forum on defensive estate planning
  •  

    SCPA 1404: How to Examine the Witnesses to a Will and Defensive Estate Planning `