Over the past several years, there has been
a substantial increase in the amount of will
contests and trust contests in the various
Surrogate’s Courts of the State of New York.
This increase relates to the fact that demographics
of families have changed considerably.
There are multiple spouses with first, second,
even third marriages and children from this multiplicity
of marriages, not to mention children
who are born out of wedlock. As a result, the
ex-spouses and stepchildren very often have disagreements
over family matters, financial matters
and other issues which give rise to contests of
a decedent’s estate.
While this article is meant to discuss contest
proofing testamentary documents, the results
of a contest can never be guaranteed.
In New
York, there are generally three grounds in which
an interested party may contest a will: (1) that
the testamentary instrument was improperly
executed, (2) that the testator was not mentally
competent, and (3) that the will was a product
of fraud or duress. Here, we will discuss some of
the procedures that practitioners should follow
to defensively assist clients with their estate planning,
so as to minimize a potential will contest.
In addition, the same procedures should take
place relative to living trusts, and other documentation
that may be required such as family
limited partnerships, personal residence trusts,
Grantor retained annuity trusts, grantor retained
income trusts and possibly the establishment of
a family foundation.
The primary responsibilities of an estate planning
practitioner is to assist the client in minimizing
estate taxes and probate expenses and,
most importantly, to assist as much as possible
in making sure that the testamentary documents
executed by the client, which directs his or her
last wishes, be executed in such a manner that
the will shall withstand any objections to probate.
It is very important that the practitioner, when
dealing with estate planning for a client, follow
certain procedures in every single estate planning
matter, regardless of how well the practitioner
knows the client, the business relationship
between the practitioner and the client and the
familiarity that the practitioner has with the client’s
family members.
Everything the practitioner
does in the estate planning field should be based
upon defensive actions for the benefit not only
of the client, but also for the attorney and staff,
when and if a contest does in fact arise. The more
complete the practitioner’s notes, files, and their
showing of revisions of the testamentary instruments
prior to the actual execution of a finalized
document, the more it helps to deter actual court
contests. The practitioner should never shortcut
the estate planning process, which includes the
careful procedures in having the testamentary
documents prepared and executed, because
failing to follow certain procedures may be a
key factor in exposing the decedent’s estate to
attack by one or more of the decedent’s heirs.
Specifically, the practitioner should meet
with the client alone and with no other person
except possibly an assistant, paralegal or other
attorney from the practitioner’s firm. Copious
notes should be taken at that initial meeting,
wherein the practitioner should ask and record
questions and answers about the client’s health,
mental capacity, and reasons why the client
desires certain provisions to be placed in the
testamentary documentation, which may have
an adverse interest on one or more of the heirs,
including a surviving spouse.
After the initial meeting with the client, the
practitioner should create a confidential memorandum,
which should be shared with the client
outlining all of the conditions and terms that
the client discussed regarding the estate planning
documentation and the contents thereof.
Included in this memorandum should be a recitation
about the client’s assets, medical and mental
conditions, and the planned disposition of his
or her assets.
The client should be given a copy
of this memorandum and should discuss that
memorandum with the practitioner at a second
meeting. It is suggested that at the second meeting
not only should the practitioner be present
but again an assistant, paralegal or other attorney
from the firm, who will take additional notes for
the file regarding the client’s discussion relative
to the terms and conditions of the memorandum.
Once the second meeting has taken place, the
documents should be drafted for the client based
upon the information gleaned from the meetings.
That draft document should then be provided in
advance to the client for review. Once examined,
the third, and most times final meeting should
take place with the client with final copies of
the testamentary documents available, so that
the client may execute the same. The various
Terence E. Smolev practices law at the Law Offices
of Terence E. Smolev, P.C. Christina Jonathan is an
associate at the firm.
A N E W Y O R K L A W J O U R N A L S P E C I A L S E C T I O N
Trusts Estates
Can Wills and Trusts
Be Contest-Proofed? BIGSTOCK
testamentary documents are comprised of a will
and/or a living trust, health care proxy, living will,
power of attorney and a disposition of remains,
which directs the named representative as to
where and how to dispose of the client’s body
upon death.
In the event that the client wishes to make any
additional changes in the testamentary documents,
it is generally advisable that the practitioner
keep all prior drafts in the computer or in
the files, for purposes of defending a contest relative
to the testamentary documents. Each draft
should be saved with the new date it was revised,
to track all changes the client has requested.
Furthermore, if there is any reason to believe
the client’s mental capacity will be challenged in
a will contest, it is highly recommended that the
practitioner utilize extra preventative methods
and/or services, such as arranging for a legal
videographer to be present during the meetings
and execution of documents. A professional legal
videographer includes a stenographer as well,
so your client will have the safeguards of a video
and transcript. During the execution ceremony,
the practitioner should explain in the video who
each person is in the room, he should have the
client read the will aloud, acknowledging his
comprehension of each paragraph therein verbally
and he should make sure he thoroughly
questions the client to ensure that this is his or
her final wish upon demise.
If the practitioner is drafting testamentary
documents for both a husband and wife, or
domestic partners, there should be a joint representation
document signed by the clients stating
that they understand that the practitioner is
representing both of them, is meeting with both
of them and will be drafting testamentary documents
for both of them. The joint representation
document should include statements that both
clients understand that there is no attorney-client
privilege as to and between anything discussed
privately by either client with the practitioner.
This is very important so that in the event there
is ever a will contest by one of the married individuals,
or the partners, there cannot be any
claims that the practitioner violated attorney client
privilege or did not advise both parties as
to the status of the representation.
That letter
should be signed not only by the practitioner
but also by both clients.
Another valuable means of attempting to
contest proof testamentary documentation is
to suggest to the client that family meetings
should be held with open discussions regarding
the estate planning that the client wishes
to undertake. Sometimes families ask that the
practitioner be present at these meetings. It is
important that the practitioner take notes as to
the discussions at the meeting, and the planned
outcome from those discussions. It is generally
our advice that an assistant, paralegal or another
attorney attend the family meeting with the
practitioner. Basically, we are preparing for a
potential will contest, having notes as to who
said what, when and where for use in defending
a potential contest.
Also note that some practitioners are under
the impression that inserting an in terrorem
clause in the client’s will in and of itself shall
detract contests. Basically, an in terrorem clause,
also known as a “no-contest clause,” generally
provides that if the beneficiary of a testamentary
instrument unsuccessfully challenges the instrument’s
validity, then that beneficiary forfeits his
or her bequest.
The major oversight with this
clause is that if your client wishes to disinherit
a beneficiary completely, then that beneficiary
has nothing to lose by challenging the validity
of the testamentary instrument with an in terrorem
clause, since he or she was not entitled to
anything in the first place. A good recommendation
to make for potential hostile beneficiaries is
not to disinherit. Rather, leave a bequest that is
sufficient enough for the beneficiary so that they
are in fear of losing the same if they decide to
challenge the testamentary instrument.
Typically, the larger the size of the estate, the
more protection is needed to safeguard your
client against potential contests. An infamous
case in New York involved the late Brooke Astor,
whose net worth was over $198 Million. Astor
was a New York City philanthropist and socialite,
who passed away at the age of 105 in 2007.
Unfortunately, the feuding over Astor’s Estate
commenced well before she even passed away,
during several “hotly-contested Article 81 proceedings
concerning the health, care and finances of
society icon Brooke Astor.”1
Herein, Astor’s only
son, Anthony D. Marshall had various powers of
attorneys and health proxies; however, Astor’s
grandson, ironically the son of Anthony D. Marshall,
petitioned the court to remove his father and
void these documents. The issue boiled down to
Astor’s mental capacity. Needless to say, the fighting
between the father and son carried forward
once Astor passed away, tying up the distribution
of her estate. Ultimately, the New York County
Supreme Court found Anthony D. Marshall guilty
of fraud and conspiracy charges against Astor’s
estate, as well as first-degree grand larceny. He
was sentenced to one to three years in prison
in 2009, which was affirmed on appeal. According
to a New York Time’s Article dated Dec. 1,
2014, Anthony D. Marshall served two months
in Fishkill Correctional Facility in 2013, before he
was approved and released for medical parole.
He recently passed away on Nov. 30, 2014, at the
age of 90.
Astor’s case is one of many that encompasses
elder abuse, duress, fraud, and stealing of assets.
This is why it is extremely important for the practitioner
to safeguard his client’s final wishes by
following the tips herein.
Again, following these
procedures does not guarantee that there will not
be a contest; however, contests are unlikely to
survive if the attorney draftsman has extensive
notes documenting the client’s mental condition,
demeanor and most importantly directions upon
his or her demise, with the reasoning therein.
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1. In re Phillip Marshall, 14 Misc.3d 1201(A), 831 N.Y.S.2d
360 (Table), 2006 WL 3615041 (N.Y.Sup.), 2006 N.Y. Slip Op.
52365(U).
Monday, January 5, 2015
Everything the practitioner
does in the estate planning
field should be based
upon defensive actions for
the benefit not only of the
client, but also for the attorney
and staff, when and if a contest
does in fact arise.
Reprinted with permission from the January 5, 2015 edition of the NEW YORK
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