Contested Probate Proceedings

Frank W. Streng, Surrogate’s Court Lawyers
by Frank W. Streng on 06/07/1999

Joseph M. Accetta, Esq.

Law Assistant

Surrogate’s Court

140 Grand Street

White Plains, NY  10601                                                    914-285-3730

914-285-3727 (voice)


Gary E. Bashian, Esq.

Smith, Ranscht, Connors,

Mutino, Nordell & Sirignano, P.C.

235 Main Street                                 

White Plains, NY  10601

914-946-8800 (voice)

914-946-8861 (fax)


James R. Gmelin, Esq.

Principal Law Assistant

Surrogate’s Court

140 Grand Street

White Plains, NY  10601                                                    914-285-3730

914-285-3730 (voice)



Frank W. Streng, Esq.

McCarthy, Fingar, Donovan,

Drazen & Smith, L.L.P.

11 Martine Avenue

White Plains, NY  10606-1934

914-946-3700 (voice)

914-946-0134 (fax)






Westchester County Bar Association – 6/7/99




The Facts in Will Contest


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.





  • Measures to be taken shortly after the Decedent’s Death


  • Petitioner’s Perspective


  • Issues of representation 
    • Counsel for petitioners in probate proceeding
    • Counsel for petitioner, in individual capacity, as the surviving spouse and as a named beneficiary under the Will


  • 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


  • 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)


  • 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


  • 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


  • 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
        • 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 protected 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


  • 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


  • Discovery


  • 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 (death 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
    • Outright share or trust share for spouse


  • Types of Settlements:
    • Admit propounded Will to probate, subject to lump sum payment to objectant
    • 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
    • Pursuant to SCPA 1411(6), settlement is binding on all persons under propounded Will who has not appeared upon service of the citation upon the filing of objections


  • 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