Conducting SCPA 1404 Discovery

Monday, September 25, 2017 Albany

Monday, September 25, 2017 Long Island

Tuesday, October 3, 2017 Westchester

Monday, October 23, 2017 New York City

Wednesday, October 25, 2017 Buffalo

Thursday, October 26, 2017 Rochester

NYSBA Co-Sponsors: Trusts and Estates Law Section Committee on Continuing Legal Education This program is offered for education purposes. The views and opinions of the faculty expressed during this program are those of the presenters and authors of the materials. Further, the statements made by the faculty during this program do not constitute legal advice.

Monday, September 25, 2017 – New York State Bar Association, One Elk St., Albany Monday, September 25, 2017 - Long Island Marriott, 101 James Doolittle Blvd., Uniondale Tuesday, October 3, 2017 - Westchester Marriott, 670 White Plains Rd., Tarrytown Monday, October 23, 2017 - New York Society of Security Analysts, 1540 Broadway, NYC Wednesday, October 25, 2017 – Hyatt Place Buffalo, 5020 Main St., Amherst Thursday, October 26, 2017 - R.I.T. Inn & Conference Center, 5257 W. Henrietta Rd., Henrietta

6.0 MCLE Credits (4.0 skills, 1.0 professional practice, 1.0 ethics)

PROGRAM AGENDA

8:30 a.m. – 9:00 a.m. Registration

9:00 a.m. – 9:10 a.m. Introductory Remarks

9:10 a.m. – 10:00 a.m. Basics of SCPA 1404 Examinations

• Purpose of SCPA 1404 discovery • Standing to seek SCPA 1404 discovery • Timing and content of a demand for SCPA 1404 • Examinations - Identifying persons who may be examined; expanding the universe of deponents under SCPA 1404(4) and EPTL 3-3.5(b)(3)(D) • Effects of the safe harbor provisions of EPTL 3-3.5 • Allocation of attorneys’ fees and costs pursuant to SCPA 1404(5)

(1.0 MCLE credit – professional practice)

10:00 a.m. - 10:50 a.m. Preparing for SCPA 1404 Examinations – Part I

• Importance of being thorough (no second-bite rule) • Evidentiary rules applicable to pre-objection discovery • Pre-examination document discovery under SCPA 1404(4) and CPLR 3120 • Obtaining HIPAAs • Expanding the scope of the examination beyond the 3-2 rule of 207.27

(1.0 MCLE credit - skills)

10:50 a.m. – 11:00 a.m. Break 11:00 a.m. – 11:50 a.m. Preparing for SCPA 1404 Examinations – Part II

• Preparing attorney-drafters, attesting witnesses, proponents, nominated fiduciaries, and others for examination • Preparing areas of inquiry that address each element of proof and the parties’ respective burdens of proof • Maximizing the use of documents in the examinations

(1.0 MCLE skills credit)

11:50 a.m. – 12:40 p.m. Taking the SCPA 1404 Examination

• Conduct at the deposition • Developing lines of inquiry relevant to lack of due execution, lack of testamentary capacity, undue influence, fraud (including forgery), and duress • Defending the examination including abiding the CPLR/Uniform Rules on defending depositions

(1.0 MCLE skills credit)

12:40 p.m. – 1:45 p.m. Lunch

1:45 p.m. – 2:35 p.m. The Flip Side: How to Keep Wills Safe from Attack

• Developing an optimal attorney-drafter file • Limiting participation of family members • Establishing capacity contemporaneously with execution • Selecting and making maximum use of attesting witnesses • The pros and cons of videotaping

(1.0 MCLE skills credit)

2:35 p.m. – 3:25 p.m. Ethical Considerations

• Appointing attorney-drafters as fiduciaries • Bequests to attorney-drafters • Testamentary directions requiring fiduciaries to engage the attorney-drafter as counsel • Altering the attorney-fiduciary’s commissions base • Representing nominated fiduciaries in both fiduciary and individual capacities • Representing nominated fiduciaries with potential conflicts • Obligations of counsel for executor who plans to breach fiduciary obligations • Suing the attorney-drafter

(1.0 MCLE credit – ethics) 3:25 p.m. – 3:35 p.m. Question and Answer Session

3:35 p.m. Adjournment

TABLE OF CONTENTS

“Special Circumstances” & Recent Cases Expanding the Scope of the “Three- Year Two-Year” Rule ...... 001 by Gary E. Bashian, Esq.

New York State Bar Association Conducting SCPA 1404 Discovery ...... 007 by Anne C. Bederka, Esq.

Deposition Practice in the Surrogate’s Court, A Pre and Post Objection Primer ...... 025 by Gary E. Bashian, Esq.

Evidentiary Issues In Will Contests ...... 033 by Anne C. Bederka, Esq.

Current Ethics Issues for Trusts & Estates Attorneys ...... 105 by Angelo M. Grasso, Esq.

Professional Responsibility For T&E Attorneys ...... 121 by Ian W. MacLean, Esq.

Conducting SCPA 1404 Discovery - Updated Case Citations (To be read in conjunction with cases referenced/cited in 2008 Course materials) ...... 149 submitted by Andrew R. Frisenda, Esq.

“Special Circumstances” & Recent Cases

Expanding the Scope of the “Three- Year Two-Year”

Rule

Gary E. Bashian, Esq.

Bashian & Farber, LLP White Plains

“Special Circumstances” & Recent Cases Expanding the Scope of the “Three- Year Two-Year” Rule

By Gary E. Bashian*

“There's two possible outcomes: if the result confirms the hypothesis, then you've made a discovery. If the result is contrary to the hypothesis, then you've made a discovery.”

-Enrico Fermi

As all Trusts and Estates litigators know, in a Contested Probate Proceeding, Discovery is limited to the three years prior to the execution of a Will, and two years thereafter - or the date of the Decedent’s death, whichever comes earlier. This rule is known as the “three- year two-year” rule, and is governed by the Uniform Rule for the Surrogate’s Court § 207.27. Under this rule:

“In any contested probate proceeding in which objections to probate are made and the proponent or the objectant seeks an examination before trial, the items upon which the examination will be held shall be determined by the application of article 31 of CPLR. Except upon the showing of special circumstances, the examination will be confined to a three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of decedent’s death, whichever is the shorter period.”

The Nassau County Surrogate’s Court recently held that the three-year two-year rule “is a pragmatic rule designed to prevent the costs and burdens of a ‘runaway inquisition’”1.

However, although the rule is, on its face, straight forward, there are times when the three-year two-year rule can be expanded, i.e., in the presence of “Special Circumstances”.

Whether or not to expand the scope of Discovery is an issue to be determined at the Court’s discretion2. The Courts have held that existing evidence of Fraud and/or Undue Influence on the record constitutes a Special Circumstance warranting an expanded scope of Discovery. The Erie County Surrogate’s Court in In re Griffith held that if conduct suggesting Fraud or Undue Influence is continuous from before the

1 In re Estate of Yagoda, 38 Misc.3d 1218(A) *2 (Nassau Surr. 2013). 2 Estate of Constant, 128 A.D.3d 419 (1st Dept. 2015)

3 execution of a Will, through, or after the execution, disclosure of the facts and circumstances relating to financial transactions outside the three-year two-year rule is “proper, especially where such examination related to a continuous course of conduct which commenced prior to date of execution of will and which could bear weight on [the] question of undue influence or fraud.” 3

Similarly, in In re Partridge4, the Rockland County Surrogate’s Court held that recordings of conversations that took place 6 to 9 years prior to the execution of the Will were admissible to determine if Fraud and/or Undue Influence had been exerted over the Decedent by a housekeeper because of a continuing and longstanding relationship.

When there are multiple Wills with materially different provisions regarding the distribution of property, as well as inconsistent declarations of the natural objects of one’s bounty, Courts have found this to be sufficient to qualify as “Special Circumstances”, warranting the expanded scope of Discovery5.

Therefore, if true, those seeking to extend the three-year two-year rule may argue that problems with the content and substance of the Will itself can constitute Special Circumstances as the three-year two-year rule was only meant for the average case and is, as a result, flexible6.

Another way to help establish Special Circumstances is by providing proof that a Confidential or Fiduciary Relationship existed between the Decedent and another person. A Confidential Relationship can be established based on circumstance, i.e.: where an individual assists another with their daily living needs; finances; or healthcare; provide food; medication; transportation, etc., or may be established more formally, i.e.: in the presence of an Attorney-Client relationship. The question is generally one of dependence, and if the Decedent needed the assistance of another to meet their daily living needs, which in turn places the secondary party – such as a home health aide – in a position to exert Undue Influence or Fraud during the course of the relationship7. Notably, an attorney-client relationship constitutes both a Confidential and a Fiduciary Relationship8.

3 48 Misc.2d 1048 (Erie Sur. 1966) 4 141 Misc.2d 159 (Rockland Sur. 1988) 5 See In re Fiddle, 823 N.Y.S.2d 859 (Monroe Sur. 2006). Fiddle also held that the three-year two-year rule only applies – as stated in the statute – to Post-Objection Discovery. However, the approach is generally not observed by a majority of Surrogate’s Courts. 6 See In re Kaufmann, 11 A.D.2d 759 (Sur. 1960) 7 See generally In re Boatwright, 114 A.D.3d (2nd Department 2014), citing Matter of Connelly, 193 A.D.2d (2nd Dept. 1993); Hennessey v. Ecker, 170 A.D.2d 650 (2nd Dept. 1991). 8 See PJI 7:56; see also Kurtzman v. Bergstol, 40 A.D.3d 588 (1st Dept. 2007)

4 Furthermore, as found by the New York County Surrogate’s Court in Matter of Liebowitz, expansion of the three-year two-year rule is wholly warranted when the Decedent and a Beneficiary/Fiduciary were in a confidential business relationship9. As the Court found in Liebowitz, where an individual acted as a Decedent’s business manager, was involved in the drafting of the Decedent’s Will, and had knowledge of a Decedent’s declining health, a Confidential Relationship existed warranting the expansion of discovery10.

As the Court stated in Liebowitz, “[t]he propounded instrument (the “Will”) was executed on March 6, 2012, and [was] the last of 29 testamentary instruments drafted by proponent for decedent during the dozen or so years immediately preceding her death.”11 Further, the Court held:

“[t]he propounded instrument contains significant bequests for the drafter and the business manager. The undisputed fact of a sizable bequest to the attorney drafter inevitably raises a question as to whether such bequest was a function of the drafter’s intent rather than that of the decedent’s.12 The business manager concedes that decedent substantially relied upon him in relation to her affairs. He does not challenge the authenticity of writings in which decedent herself expressed concern about his role in the preparation of her will. The business manager’s affidavit in opposition – proposing to establish by his untested sworn statements that his influence on decedent was benign and limited – cannot substitute for the opportunity to examine him under oath. The presence of ‘special circumstances’ within the meaning of the statute provides the authority for his examination.”13

Therefore, the Court found “that Movants ha[d] presented enough evidence to meet the requirement of special circumstances. Thus, [the] movant [was entitled to] examine the business manager as to matters occurring between March 2001, the date on which the first of decedent’s 28 wills was prepared, through the date of the decedent’s death.”14

The holding in Liebowitz is important to note as: if a Decedent’s business manager, financial advisor, and/or accountant is involved in their Estate planning to one

9 Matter of Liebowitz, NYLJ 1202750743249, February 16, 2016 10 See Matter of Hirschorn, 21 Misc.3d 1113(A) (West Surr.); see also PJI 7:56.1. 11 Liebowitz, supra. 12 Id., quoting Matter of Putnam, 257 NY 140. 13 Liebowitz, citing SCPA 1404(4) 14 Liebowitz, supra.

5 degree or another, and where, as in Liebowitz, these types of associates are injected into the Decedent’s Estate plan, a “red-flag” should immediately be raised – causing both the Proponent and Objectant to scrutinize the relationship between the Decedent and their “business manager” (or other confidant), and consider whether an expanded scope of Discovery will be appropriate.

Clearly, there will be competing perspectives and objectives between the Proponent on one hand and the Objectant on the other when it comes to expanding the scope of Discovery outside the three-year two-year rule. However, as it is the mandate of the Surrogate’s Court to determine the Testator’s Intent, there is often good cause to allow investigation into the circumstances that led to the Drafts of the Will, and thereafter, beyond the limited five year window allowed under Rule 207.27. Accordingly, all trusts and estates litigators involved in a Contested Probate should apprise themselves of the nuances of the three-year two-year rule, and consider the appropriate Discovery strategy to best achieve their client’s goals.

*Gary E. Bashian is a partner in the law firm of Bashian & Farber, LLP with offices in White Plains, New York and Greenwich, Connecticut. Mr. Bashian is a past President of the Westchester County Bar Association, he is presently on the Executive Committee of the New York State Bar Association’s Trust and Estates Law Section, is a past Chair of the Westchester County Bar Association’s Trusts & Estates Section, past Chair of the Westchester County Bar Association’s Tax Section, and a member of the New York State Bar association’s Commercial and Federal Litigation Section.

Mr. Bashian gratefully acknowledges the contributions of Andrew Frisenda, a Sr. Associate of Bashian & Farber, LLP, and Samantha Osgood, a Candidate for admission to the New York Bar, for their assistance in the composition of this article.

6 New York State Bar Association Conducting SCPA 1404 Discovery

Anne C. Bederka, Esq. Greenfield Stein & Senior LLP New York City

7 8 New York State Bar Association Conducting SCPA 1404 Discovery by Anne C. Bederka1

The purpose of SCPA 1404 discovery is to allow potential challengers to a propounded will to test the instrument’s validity before deciding whether to proceed with litigation. This pre- litigation discovery recognizes courts’ paramount interest in admitting only valid wills to probate. No showing is necessary to obtain SCPA 1404 discovery. Rather, SCPA 1404 presents an opportunity for a fishing expedition, allowing potential objectants to engage in full document discovery and limited examinations of the attorney-drafter, attesting-witnesses, and in some cases other persons before committing to a will challenge. Familiarity with what must be proven and by whom, as well as with the parameters and mechanics of SCPA 1404 discovery, maximizes the chances that potential challengers will be able to make an educated decision on whether to proceed with a will contest.

STANDING TO CONTEST THE WILL Who can contest a will? Any person whose pecuniary interests are negatively impacted by the propounded will has standing to challenge a propounded instrument. That includes distributees who take less under the propounded will than they would in intestacy, legatees under prior wills on file with the court who take less under the propounded instrument that under the prior will on file, and persons adversely affected by a codicil to the will. The list of persons with standing to contest does not include nominated executors under prior instruments unless they are able to show special circumstances and obtain the court’s permission. See SCPA 1410.

1Anne C. Bederka is a partner in the law firm of Greenfield Stein & Senior, LLP, specializing in trusts and estates litigation and Surrogate’s Court practice. She previously served as Principal Law Clerk to Honorable Kristin Booth Glen in the New York County Surrogate’s Court and has served as a court- appointed referee and a guardian ad litem in numerous proceedings, including contested probate proceedings.

PROVING THE NECESSARY ELEMENTS The grounds for challenging a will are exclusive and include only lack of due execution (including forgery), lack of testamentary capacity, undue influence, fraud, and duress. As a threshold issue, a potential objectant must know what he or she must prove to successfully challenge a propounded instrument and, equally important, what the proponent is charged with proving to obtain probate.

Proving Due Execution It is proponent’s burden to prove that the propounded will was properly executed in accordance with the statutory formalities set forth in EPTL 3-2.1. Proof of due execution will require proponent to establish that the testator signed the instrument at the end or directed another person to sign his name to the instrument in his presence (and in the latter case, that the other person also separately signed his name to the instrument); that the instrument was signed in the presence of at least two attesting witnesses or that the testator, having signed the instrument outside their presence, acknowledged his signature to each of them; that the testator declared to the witnesses that the signed instrument was his will; and that the witnesses, at the testator’s request, signed their names and affixed their addresses to the will within 30 days. The testimony of the attesting witnesses and any attorney who supervised the instrument’s execution is critical to meeting proponent’s burden of establishing due execution. E.g., Matter of Falk, 47 A.D.3d 21 (1st Dep’t 2007); Matter of Scalone, 170 A.D.2d 507 (2d Dep’t 1991).

Practice Note: If there appears to be an infirmity in some part of the execution process, look to the case law to determine whether a lack of due execution objection is viable. -E.g.: EPTL 3-2.1 requires a testator to declare to each of the witnesses that the instrument he is signing is his will. The witnesses may state that the testator made no such declaration. But the case law holds that it is enough that the witnesses knew the instrument to be the testator’s will. So, if the witnesses state that the supervising attorney thanked them as they arrived for agreeing to act as witnesses to the testator’s will, that will constitute compliance with the statutory execution formalities.

Proving “Testamentary Capacity”

See: Matter of Kumstar, 66 N.Y.2d 691 (1985) Matter of Schlaeger, 74 A.D.3d 405 (1st Dep’t 2010) Matter of Slade, 106 A.D.2d 914 (4th Dep’t 1984) Matter of Paigo, 53 A.D.3d 836 (3d Dep’t 2008)

Testamentary capacity does not require a mind without fault or a memory without flaw. In fact, it has been described as the lowest level of capacity under the law. To have testamentary capacity, the testator must understand, and be able to recall without prompting:

(i) The nature and extent of her property. -Need not be able to state from memory all property owned and its precise value. -But must be able to call to mind in a general way her real and personal property. (ii) The natural objects of her bounty. -“Natural objects” has historically been defined as those persons who will take in the absence of the Will under EPTL 4-1.1. -But “natural objects” have also been viewed by the Courts as those persons closest to the decedent. -E.g.: If the testator – in giving his attorney a family tree – omitted a cousin he had never met or hadn’t seen since childhood, his failure of recollection is not likely to be considered evidence of incapacity.

(iii) The Will’s disposition of her property. -The testator doesn’t need to have a lawyer’s understanding of the Will and the terms used in it. -But the testator must understand the testamentary plan and the effect of the Will.

The burden is on the proponent to prove testamentary capacity by a preponderance of the evidence. The burden is eased, however, by a presumption that the testator has such capacity. A presumption of testamentary capacity also arises where attesting witnesses have executed a self-proving affidavit. Where a Will has been prepared by an attorney, she has also typically prepared for the witnesses’ signature a sworn statement – known as a self-proving affidavit or a “1406 affidavit” – attesting that the testator appeared to be of sound mind, memory and understanding and not under any restraint at the time of execution.

The self-proving affidavit is usually signed by the witnesses immediately following the execution of the Will. It is usually bound in with the Will at the very back. The self-proving affidavit executed by the witnesses is prima facie evidence of capacity. As discussed below, in the absence of other evidence, the court can and will rely on the affidavit alone to establish capacity. Practice Note: The testimony of the attesting witnesses as to a testator’s capacity often neutralizes other evidence, including medical records showing the testator has some impairment or has exhibited confusion. In fact, attesting witnesses are the only lay witnesses who are permitted to give an opinion as to the testator’s mental capacity to make a will.

The testator need only have capacity at the exact moment of the exact hour of execution (known as a “lucid interval”). E.g., Matter of Hedges, 100 A.D.2d 586 (2d Dep’t 1984); Matter of Buckten, 178 A.D.2d 981 (4th Dep’t 1991); Matter of Woode, NYLJ, Nov. 6, 2001, at 18, col. 3 (Sur. Ct., New York Co.). Consequently, evidence of capacity that is remote in time will be considered irrelevant.

A testator’s depression, suicidal tendencies, physical infirmities, impaired attention, alcoholism, or mental illness will not necessarily negate capacity. E.g., Matter of McClosky, 307 A.D.2d 737 (4th Dep’t 2003); Matter of Chiurazzi, 296 A.D.2d 406 (2d Dep’t 2002). In contrast, a will made in reliance on insane delusion is invalid. Matter of Honigman, 8 N.Y.2d 244 (1960); Matter of Zielinski, 208 A.D.2d 275 (3d Dep’t 1995), app. dismissed, 86 N.Y.2d 861 (1995). But if there are facts from which the testator could have derived support for her belief, it is not an insane delusion. So, a mistaken belief by a rational testator does not invalidate a Will.

Proving Undue Influence

See: Matter of Walther, 6 N.Y.2d 49 (1959) Matter of Paigo, 53 A.D.3d 836 (3d Dep’t 2008) Matter of Freilich, NYLJ, March 27, 2002, at 20, col. 2 (Sur. Ct., Bronx Co.)

Undue influence is said to occur when a beneficiary overcomes the free will of a testator and imposes her own will to procure a particular testamentary outcome. The influence exercised

must amount to a moral coercion which caused the testator to act against his free will and desire.

To prosecute an undue influence claim, an objectant must prove by a preponderance of the evidence: (i) Motive to influence the testator. (ii) Opportunity to influence the testator.

(iii) Actual exercise of undue influence.

Undue influence is an “all facts and circumstances” test. But in making their case, objectants cannot rely on conclusory allegations. They must point to statements or acts that constitute actual undue influence. Moreover, the evidence offered must not only support a finding of undue influence, it must also exclude any other reasonable explanation for the testator’s acts. If the facts as established could support both the conclusion that the will resulted from undue influence and the conclusion that the will expressed the testator’s voluntary intentions, objectants’ challenge will fail.

If the testator is in a confidential relationship with a beneficiary accused of undue influence and there is circumstantial evidence supporting the claim (such as active involvement in the drafting/execution process or a prior relationship between the beneficiary and the attorney- drafter), an inference of undue influence can be drawn. E.g., Matter of Henderson, 80 N.Y.2d 388 (1992); Matter of Neenan, 35 A.D.3d 475 (2d Dep’t 2006). What is a “confidential relationship”? -Presiding over the testator’s finances or controlling his life. -Serving as the testator’s confidante (attorney, priest, doctor, etc.) The inference does not shift the ultimate burden of proof, but it requires the beneficiary to provide a satisfactory explanation for the bequest (i.e., to establish the bequest was not the result of undue influence). A close familial relationship operates to negate an inference of undue influence, and an explanation by the beneficiary is not required. E.g., Matter of Walther, 6 N.Y.2d 49 (1959); Matter of Scher, 2008 WL 4149757 (Sur. Ct., Kings Co. 2008). But if the facts indicate that the beneficiary did not act out of family duty and smell strongly of undue influence by a family member, the beneficiary will have an obligation to provide an adequate explanation for the bequest.

Proving Duress

See: Matter of Rosasco, 31 Misc. 3d 1214(A) (Sur. Ct., New York Co. 2011)

NY’s Pattern Jury Instructions for will contests do not include a jury charge for duress. The Restatement 3d of Property Section 8.3(c) defines duress as threatening to perform or performing a wrongful act that coerces the donor into making a transfer she would not otherwise have made.

Duress has often been considered a type of undue influence, but it is distinct. Duress involves threats which induce the testator to act or not act out of fear. It is often proved by showing an act of violence or menacing followed by threat or fear that the act will be repeated.

-E.g.: Testator told others that she was afraid to change her will because her grandnephew – who had been violent in the past – would find out about it and hurt his sister.

Proving Fraud

See: Matter of Paigo, 53 A.D.3d 836 (3d Dep’t 2008) Matter of Evanchuk, 145 A.D.2d 559 (2d Dep’t 1988)

To establish fraud, an objectant must establish that a person knowingly made a false statement that caused the testator to dispose of his property in a manner different than he would have in the absence of the statement. To successfully assert fraud, the objectant must be able to establish: (i) a false statement knowingly made, and (ii) causation.

The burden is on an objectant to prove by clear and convincing evidence that a false statement was made and caused a change in disposition. Conclusory allegations won’t do. Accordingly, an allegation that the testator never would have made a bequest in the absence of fraud will not win the day.

DOCUMENT DISCOVERY Prior to conducting SCPA 1404 examinations, a challenger will want to conduct full document discovery, serving CPLR 3120 Notices of Examination and Inspection on the parties and subpoenas on third parties who may have relevant information. As a threshold matter, potential challengers will want to seek the attorney-drafter’s complete file. -Under CPLR 4503(b) – known as the probate exception to the attorney-client privilege – the attorney-drafter is required to disclose information as to the preparation, execution, or revocation or any will or other relevant instrument. Furthermore, New York courts have ruled that objectants in a will contest can waive the attorney-client privilege. E.g., Matter of MacLeman, 808 N.Y.S.2d 918 (Sur. Ct., Westchester Co.); Matter of Bronner, 801 N.Y.S.2d 230 (Sur. Ct., Nassau Co.). In reviewing the attorney-drafter’s notes, counsel should be looking for references to the client’s assets and next of kin (as evidence of capacity); the client’s reasons for bequests and the general plan; and if major changes have been made, the reasons for the changes. Counsel should also review prior wills and related instruments with an eye towards analyzing incremental versus drastic changes to the testator’s historical estate plan. In reviewing the attorney-drafter’s time records, counsel should evaluate time spent with the testator and communications with third parties, especially an alleged undue influencer. Medical and pharmacy records may also offer critical information about a testator’s capacity to execute the propounded will. -Under the Probate Exception to the Doctor-Patient Privilege – CPLR 4504 – the doctor- patient privilege can be waived in a will contest by the personal representative, spouse, next of kin, or any party in interest. The rationale for the rule is that the testator’s mental/physical condition is the main issue. -Exception: Doctors are not required to disclose privileged communications that would tend to disgrace the memory of the decedent. To obtain the testator’s medical or pharmacy records, counsel must obtain a HIPAA release signed by the preliminary executor and must serve it on the medical provider along with a subpoena. In addition to the attorney-drafter’s file and medical records, a challenger might request: -Notes of health-care attendants and paraprofessionals who rendered medical care to the testator.

-Prescription drug information. -Financial records and tax returns (including gift tax returns). -Bank statements, cancelled checks, receipts for medical expenses. -Powers of attorney, living wills, HCPs (executed and unexecuted). -Insurance policies. -Photos of the testator. -Audio and videotapes of the testator. -Appointment books, calendars, diaries, journals of the testator. -All correspondence written by or received by the testator. -The testator’s address book (to identify potential witnesses) -The funeral/memorial sign in book (to identify potential witnesses). These are just a few examples of the documents to be sought by a potential objectant.

SCPA 1404 EXAMINATIONS If information gleaned during document discovery hasn’t ruled out a will contest, the next step in the process is examination of the attorney-drafter and the attesting witnesses. If the will has a no-contest clause, the nominated executor and proponent are also subject to examination. And if respondent believes that there are additional persons who possess critical information about the validity of the propounded will, an application can be made for a court order authorizing their pre-objection examinations as well. To obtain such an order, respondent must show that the proposed deponent possesses information “that is of substantial importance or relevance to a decision to file objections to the will.” See SCPA 1404(4). The potential objectant will want to be thorough in preparing for and conducting these examinations, as there is no second bite at the apple. Respondent’s counsel will not be able to depose the witnesses a second time except upon court order after a showing of special circumstances (e.g., change of testimony, new evidence of fraud/undue influence, expert determination of forgery). The scope of the examinations is any matter that may provide a basis for filing objections to the Will. Note, however, that the examinations are confined to events that occurred 3 years before execution of the propounded will and 2 years after unless the period is expanded due to special circumstances (i.e., allegations of fraud or a continuing course of wrongful conduct or undue influence). See Uniform Rule 207.27.

The information sought from the attorney-drafter and attesting witnesses should be designed to elicit information that will allow respondent’s counsel to determine whether the instrument was properly executed, whether the testator had capacity, and whether the instrument was freely made and reflects his testamentary desires. Practice Tip: Asking ultimate questions, such as “Was the testator competent to execute a will?” will almost certainly garner predictable answers supporting the propounded will. Instead, counsel will want to probe the factual bases for the witnesses’ conclusions that the testator was competent and the propounded will represents his actual wishes.

Examples of relevant lines of inquiry are: The Testator’s Relationship with the Attorney-Drafter -Did the testator have a longstanding relationship with the attorney-drafter? -How long? -How many times did the attorney-drafter see the testator over the 3-year period prior to execution? -If no prior relationship, who referred the testator to the attorney? -Did the attorney-drafter have a prior relationship with a primary beneficiary? The purpose of this line of inquiry is to probe whether the attorney-drafter was working as the testator’s agent or instead was an instrument of another person who may have unduly influenced the testator.

The Testator’s Participation in Estate Planning -Who set up meetings with the attorney-drafter? -Who attended meetings? -Who gave instructions regarding the terms of the will? -E.g.: If the attorney-drafter says that he was first contacted by the testator’s niece, who conveyed her aunt’s desire to make a will leaving everything to the niece, appropriate follow-up questions would be: -When and where did you first speak with the testator? -Alone or with the niece? -How many times did you meet with the testator prior to execution of the will? -Did you confirm her desire to leave everything to the niece?

-Did you determine why she chose not to leave any portion of her estate to whomever? -Did you send the testator a draft of the will for review? The purpose of this line of inquiry is to assess the testator’s involvement in the process. Did the attorney-drafter simply follow the lead of another person who may have been dictating the terms of the Will? The Testator’s Mental and Physical Condition -Was the testator able to communicate? Was he talkative? Lucid? Strong-minded? -What information did he provide about his family? -What did he tell the attorney-drafter about his assets? -Did he suffer from any mental defects? -Did the testator have any medical issues? Diagnoses? -Was he on any medications? -Had he recently been hospitalized? -What were his living arrangements? -Was he able to take care of personal business? -Was he working and/or managing his own financial affairs?

-Ability to conduct business/financial matters is strong evidence of capacity. E.g., Matter of Nofal, 35 A.D.3d 1132 (3d Dep’t 2006).

The Testator’s Relationships with Legatees/Distributees -Does the propounded will’s scheme match the testator’s relationships at the time of execution? -What reasons did he give for his testamentary plan? -Was this will a significant deviation or sudden disinheritance or did it represent only an incremental change? -If the will does not provide for those nearest and dearest, is there a reason other than undue influence why a beneficiary received a bequest? Practice Tip: To successfully assert an undue influence objection, an objectant will be required to exclude other reasonable explanations for the testator’s actions in providing for the alleged undue influencer.

The Testator’s Dependency Upon Others -Was there a confidential relationship between the testator and any beneficiary?

-Did any beneficiary control the testator’s finances? - Was any beneficiary acting under a power of attorney or health care proxy? -Was the testator isolated from family members?

Particulars of Execution -Where did execution take place? -Did the attorney-drafter speak with the testator before execution? -What did they speak about? -Who else was present for that conversation? -Did the attorney-drafter review the will with the testator? -Did the testator have any questions or did he confirm that the will represented his testamentary wishes?

-When did the attesting witnesses come into the room? -How were the witnesses related to the testator or to the attorney-drafter? -Did the attorney-drafter follow a particular protocol for executing wills? -What was it? -Did s/he follow it here? -Who signed the will first? Practice Tip: Have the witness identify her signature and any other signatures she recognizes. -Who filled in the date? -Did the testator “publish” the will to the witnesses? -If the testator did not declare the document to be his will, did the witnesses know they were signing a will? -Was the attestation clause read aloud? -Did the witnesses sign a self-proving affidavit? When?

-Was it customized as necessary if the testator could not read/write English or suffered from a defect in sight, hearing or speech? -Did anyone leave the room during the execution process? -What happened to the original will? What about copies? The purpose of this line of inquiry is to ensure that the requirements of execution as set forth in EPTL 3-2.1 have been met.

If a Witness Does Not Recall the Testator or the Execution Process Forgetful witnesses are a common problem. The attorney-drafter may have forgotten the testator if he was not a long-standing client or if the instrument is very old. Attesting witnesses are even more likely to have forgotten, as they often have only fleeting contact with a testator. If only one of two attesting witnesses has been located and she does not have a specific recollection of the execution ceremony, that does not affect the validity of the will. (Matter of Leach, 3 AD3d 763 [3d Dept. 2004]). If both attesting witnesses say they do not have a specific recollection of the testator or the execution ceremony, that does not affect the validity of the will. See SCPA 1405; Matter of Finocchio, 270 A.D.2d 418 (2d Dep’t 2000); Matter of Collins, 60 N.Y.2d 466 (1983). If none of the attesting witnesses can be found or they cannot testify, the will can be admitted to probate upon proof of the testator’s handwriting and the handwriting of at least one attesting witness and other proof sufficient to prove the will. See SCPA 1405. If the Attorney-Drafter Does Not Recall the Testator or the Execution Process If the attorney-drafter doesn’t remember the testator or his will, proponent’s counsel – charged with proving due execution – might ask: -Does the attorney-drafter recognize his signature and those of the attesting witnesses on the will? -Did he have a particular protocol for drafting a will? -What was it? -Did he always follow that protocol? -E.g.: Was it his practice to forward a draft to the client prior to execution? Was it his practice to review the will’s provisions with the client immediately prior to execution? (This will help to establish that the testator understood the contents of the Will, as required for testamentary capacity.)

-Did he have a protocol for supervising the execution of a will? -What was it? -E.g.: It may have been the drafter’s practice to ask the testator to sign her will and then to ask: (1) What is this document you have just signed? (2) Do you want us to act as witnesses to your will? (3) Do you want us to sign the affidavit at the end stating you are competent to make a will today? And then to read the attestation clause aloud and have the witnesses sign. -Did the attorney-drafter follow the protocol every time? -Would the attorney-drafter have permitted the execution to go forward if he had any question as to the testator’s capacity to make a will or whether it reflected the testator’s true testamentary desires. If the Attesting Witnesses Have Forgotten If an attesting witness does not remember the execution process, proponent’s counsel should nevertheless have her identify her signature on the will and the self-proving affidavit. Counsel might also ask: -Does the witness recognize the signature of any other attesting witness? -Has the witness signed other wills in execution ceremonies presided over by the attorney- drafter? -If the answer is yes, have the witness describe the usual execution process. (The attesting witness should, if possible, verify the attorney-drafter’s recollection of his usual practice.) -Would the witness have agreed to witness any will if he had concerns about the testator’s capacity or freedom from restraint? Relying on Presumptions in the Absence of Relevant Testimony In the absence of relevant testimony, the proponent can rely on presumptions. If the execution was supervised by an attorney, there is a presumption that the statutory requirements of execution were met and the will was properly executed. Matter of Falk, 47 A.D.3d 21 (1st Dept 2007); Matter of Moskoff, 41 A.D.3d 481 (2d Dept. 2007). If the will has an attestation clause, there is also a presumption of compliance with the statutory requirements. Matter of Falk, 47 A.D.3d at 26; Matter of Moskoff, 41 A.D.3d at 482; Matter of Malan, 2008 WL 4816337 (2d Dep’t 2008).

If the witnesses have executed self-proving affidavits, there is a presumption of testamentary capacity and the affidavit constitutes prima facie evidence of the facts attested to therein. Matter of Clapper, 279 A.D.2d 730 (3d Dep’t 2001); Matter of Friedman, 26 A.D.3d 723 (3d Dep’t 2006). These presumptions are not overcome merely because the attesting witnesses are unable to recall the details of the execution ceremony. E.g., Matter of Scaccia, 66 A.D.3d 1247 (3d Dep’t 2009); Matter of Leach, 3 A.D.3d 763 (3d Dep’t 2004); Matter of Finocchio, 270 A.D.2d 418 (2d Dep’t 2000). This means that if there is no other evidence, legal presumptions alone can be used to establish testamentary capacity and due execution. In the appropriate case, proponents can and will rely on them in concluding that the testator had capacity and the will was properly executed.

WHETHER AND WHEN TO PROSECUTE OBJECTIONS After document discovery and SCPA 1404 exams are complete, respondent will have to decide whether objections should be filed. Under SCPA 1410, objections must be filed within 10 days after the examinations are complete or within the time frame fixed by the parties or the court. In deciding whether to prosecute objections, respondent must look at the big picture. If there are ten prior testamentary instruments that have to be successfully challenged before respondent fares measurably better that under the propounded instrument, that must clearly factor into the decision. Respondent must also keep in mind the odds of winning. Burdens of proof, the presumptions that apply, the rules of evidence,2 and even the funding of the litigation stack the deck against objectants.

2One example of a rule of evidence that skews the odds is CPLR 4519 – the so-called Dead Man’s Statute. Under that rule, any person who will gain or lose depending on the outcome of the will contest is precluded from testifying in his or her behalf as to personal transactions or communications with the decedent. The rule bars all testimony that the testator, if living, could contradict or explain. The statute does not apply if the witness is testifying against his or her own pecuniary interest or if the witness is being examined on behalf of the adverse party. Moreover, the statute applies only to testimony, not documentary evidence, and applies only at time of trial, not to pre-trial disclosure. Protection of the statute can be waived by the personal representative or by failure to object to testimony, by opening the door through questioning an adversary, etc.

Finally, respondent must consider the costs of a will contest. The proponent’s fees are borne by the estate unless the will has not been offered in good faith. Objectants, in contrast, pay their own way.

PARTIAL PROBATE: ELIMINATING THE ATTORNEY-DRAFTER FROM THE WILL See: NY Rules of Professional Conduct, Rule 1.8(c), Eff. April 1, 2009 Matter of Putnam, 257 N.Y. 140 (1931) Lawyers are prohibited from soliciting bequests/gifts from clients. Lawyers are also prohibited from drafting instruments giving them or any related person a bequest unless the lawyer or related person is related to the client and a reasonable lawyer would conclude the transaction is fair and reasonable. “Related persons” include a spouse, descendants, ancestors, or other relatives or individuals with whom the lawyer or client maintains a close, familial relationship. If the will gives a bequest to the attorney-drafter or his family, respondent – relying on Rule 1.8(C) – might argue for what is known as “partial probate,” a means by which an improper gift is excised from the will as invalid. The court may schedule a so-called “Putnam hearing” to determine whether the gift to the attorney-drafter resulted from undue influence. The burden is on the attorney-drafter to show the bequest was freely made.

UNDUE INFLUENCE BY ATTORNEY DRAFTERS SEEKING APPOINTMENT

See: Matter of Weinstock, 40 N.Y.2d 1(1976)

If respondent has uncovered evidence to establish that the attorney-drafter has been appointed as executor through undue influence, misrepresentation, or other wrongful conduct, respondent may object on that limited ground and seek to have the attorney-drafter disqualified as executor.

Note, at any rate, that an attorney-drafter who is appointed as executor must comply with SCPA 2307-a. When an attorney prepares a will naming himself, his employee, or an affiliated

23 attorney as executor, the must sign an acknowledgment,3 in the presence of a witness, that the testator was informed that:

-Any person is eligible to serve as executor.

-Absent contrary agreement, any person (including an attorney) who serves as executor is entitled to statutory commissions.

-If the attorney serves as executor and also renders legal services to the estate, he will receive both commissions and legal fees. -If the acknowledgment is not signed, an attorney-executor will only receive ½ of the statutory commissions.4 The purpose of SCPA 2307-a is to assure that clients appointing their attorneys as fiduciaries understand the financial ramifications. If the requirements of SCPA 2307-a are not met, the commissions of an attorney-executor (or his employee) are reduced to one-half.

A determination of whether there has been statutory compliance will be made by the court when the will is admitted to probate.

A.C.B.

3 The acknowledgment must be in a document separate from the will. See SCPA 2307-a. 4 This fourth prong, spelling out the consequences of not signing, was added by a subsequent amendment to the statute.

24 Deposition Practice in the Surrogate’s Court,

A Pre and Post Objection Primer

Gary E. Bashian, Esq.

Bashian & Farber, LLP White Plains

25 26 Deposition Practice in the Surrogate’s Court, A Pre and Post Objection Primer

By Gary E. Bashian, Esq.*

“The real voyage of discovery consists not in seeking new landscapes, but in having new eyes.”

― Marcel Proust

In any litigation, the importance of the Discovery process, and in particular Depositions, cannot be overstated. The manner and approach with which evidence is obtained, including documents and witness testimony, are without question instrumental to successfully achieving the goals of your client. However, not all Courts deal with Discovery in the same way, and the unique procedures adopted by each Court substantially change the way even the most seasoned litigator crafts their litigation and Discovery strategy. To that end, a perfect illustration of how procedure can fundamentally shape litigation strategy presents itself when comparing the rules regarding Depositions in the Supreme Court vs. those in the Surrogate’s Court - in particular during a Contested Probate Proceeding.

As most practitioners know, the Discovery process in Surrogate’s Court involves the interplay between CPLR Article 31 and the Surrogate’s Court Procedure Act (“SCPA”). The SCPA specifically provides that the CPLR governs procedural issues only where the SCPA remains silent, acting as a gap filler. Conversely, if a conflict emerges between a procedure specified in the SCPA and one included in the CPLR, the SCPA will control.1

Pursuant to SCPA 1404, and in stark contrast to the rules governing Depositions in the CPLR, pretrial Discovery in a Contested Probate proceeding has two distinct stages: pre-Objection Discovery, and post-Objection Discovery. Unlike in the Supreme Court, a potential Objectant in a Contested Probate proceeding - effectively the Plaintiff for purposes of comparison - may conduct examinations of specific witnesses before the Objections - the equivalent of a Pleading - are even filed. Indeed, SCPA 1404

1 See Matter of Estate of Devine, 126 A.D.2d 491 (1st Dep't 1987)

27 authorizes a potential Objectant to conduct both document Discovery, and examine the attesting witnesses and attorney draftsman of a Will prior to the filing of Objections2. The SCPA even goes so far, in the event the Will at issue contains and in terrorem clause, to authorize a pre-1404 Deposition of the Proponent and/or the nominated Fiduciaries3 without triggering the clause itself. This pre-Objection Discovery is prescribed by statute with the intention that a potential Objectant can gather information about the facts surrounding the execution and drafting of the Will offered for Probate, and consider their likelihood of success before bringing suit.

After Objections have been filed – which they almost always are after pre-1404 Discovery has been completed - an Objectant may conduct further Depositions of the attesting witnesses, drafting attorney, and the Proponent of the Will, and engage in all types of Discovery authorized by CPLR Article 31, including non–party discovery. However, if pre-Objection testimony has been obtained from the attesting witnesses, draftsperson, and/or Proponent, the subjects of their testimony are thereafter off limits during the post-Objection examinations of these same witnesses. In most Surrogate’s Courts, this second bite at the apple is not permitted unless new documentary evidence is disclosed and/or new lines of questioning are explored. This limitation can, of course, complicate matters if testimony obtained at the previous Deposition was not as thorough as needed. Nevertheless, post-Objection Depositions can prove fruitful if there are un- addressed facts that have since become known, or new issues subject to amended Objections.

Notably, in the event that Depositions of the attesting witnesses were taken before the filing of Objections, then pursuant to SCPA 1404(5) the pre-Objection Deposition expenses for the first two attesting witnesses are the responsibility of the Estate (with limited exceptions for out of State witnesses). Alternatively, if no Depositions were taken of these witnesses before the Objections were filed, or in the event post-Objection Depositions are needed to supplement the pre-Objection

2 Charles H. Groppe, Colleen F. Carew, Martin W. O’Toole, and Mark E. Haranzo, Harris 6th Edition, New York Estates: Probate Administration and Litigation, page 426§24:80, Volume 2, 2012 (citing SCPA1404 (4)). 3 SCPA 1404

28 Depositions, then the Objectant is responsible for the full costs of the examinations, and for all other witnesses that they call to be deposed. Similarly, the Proponent of the Will is responsible for the Deposition costs of the post-Objection witnesses they call4.

Unsurprisingly, CPLR 3114, which mandates that an interpreter must be provided if the witness insists, still controls in the Surrogate’s Court - these costs also being allocated to the examining party. As a practice tip, if there is any question regarding a language barrier, err on the side of caution and retain an interpreter so that no issue can be made at a later time about a lack of understanding of a question, or a misstated response.

Most Surrogate’s Courts require that all examinations before trial be held in the Court so that a ruling can be quickly obtained during the testimony without interruption or delay; the use of an attorney’s office to conduct the deposition being rare absent a physical infirmity or some other extenuating circumstance requiring that the Deposition not be conducted at the Courthouse. If the Depositions take place outside the Courthouse, this sometimes gives the examining party more leeway than they would otherwise have as it is much more difficult to promptly get rulings and limit improper lines of questioning when the Court is not made immediately available.

Another unique component of a Deposition in a Contested Probate proceeding is the limitation imposed by the “three year-two year rule,” which, pursuant to 22 NYCRR 207.27 restricts questioning to the three years before the signing of the Will, two years thereafter, or date of death – whichever comes first. However, this is only a general rule as special circumstances can extended this truncated period - but such allowances are rare, and subject to Court scrutiny before approval is granted. The three year – two year approach to disclosure is pragmatic, and intended to prevent the abuses which can emerge during the discovery process, i.e.: a “runaway inquisition,” “wild goose chase,”5 or what is usually referred to as an open ended “fishing expedition.” However, this rule is not without exception as the scope of Discovery may be extended by the Court when

4 SCPA 1404 (5) directs practitioners to the CPLR regarding who bears the financial burden for post- objection Depositions. Unless otherwise directed by the Court, CPLR 3116 (d) states that the party taking the Deposition shall bear this expense. 5 Estate of Das, NYLJ, 5/1/2009, at 31 [Sur Ct Nassau County].

29 “special circumstances” exist, such as when “a scheme of fraud or a continuing course of conduct of undue influence” is alleged,6 or other good cause can be established warranting inquiry beyond these borders. If such an extension is granted, the relevant items to be discovered include, but are not limited to: the facts and circumstances leading up to the preparation of the Will, the preparation of the Will, and “the testator’s character and personality, his or her physical and mental condition, relationship with the beneficiaries and those persons disinherited.”7 The more facts that can be presented to the Court in support of the “special circumstances” asserted, such as: the Decedent’s mental and/or medical condition beyond the time frame, the presence of a confidential relationship that had a long history outside the scope of the rule, or where there was a pattern of financial transactions departing from the Decedent’s ordinary expenditures, etc., the greater chance that the scope of the inquiry will be expanded.

Another practical consideration in Surrogate’s Court Deposition practice is that there is less flexibility with adjournments without Court notice and approval - the Discovery process as a whole often being subject to closer oversight by the Court attorney placed in charge of the case than that in Supreme Court. However, this control varies as some Surrogate’s Courts exercise close supervision and issue Discovery Orders shortly after and the Citation return date, while others exert far less control or docketing oversight than one might expect. Nevertheless, as with many things in life, courtesy counts when it comes to adjourning Depositions. There are limits though - multiple adjournments, adjournments that will upset a Court Ordered Deposition schedule of future contingent Depositions, and those that will cause the loss of testimony due to a witness’ unavailability, remain valid and accepted reasons for not consenting to an adjournment.

As with any stage of litigation, preparation for either pre or post 1404 depositions is key. It is clearly the better practice to be over-prepared in your review of the facts and operative documents (i.e.: previous testamentary plans, medical and financial records, handwriting samples, etc.) than not. The examiner must not only know the facts of the

6 22 NYCRR 207.27 7 Id.

30 case inside and out, but also have an equally thorough knowledge of the applicable statutes and common law as they relate to the matter. All the while juggling the interplay between the law and the facts, one must then invite the Deponent to give expansive answers (despite the best efforts of their counsel to keep their answers limited), yet at the same time ensure that the witness answers the question that has been asked. Thorough and detailed preparation beforehand will, without question, lead to a better Deposition experience, and a better record created.

This preparation process includes the attorney being well versed in the way that Objections are governed under the Uniform Rules of the Court (22 NYCRR 221.1; 221.2) so as to know how to craft the lines of questioning in proper form, and for which topics, though there are few, are off limits. Indeed, as proper objections at a Deposition are few and far between these days, one should be sure to avoid questions that are in improper form so as to avoid the ubiquitous “objection to form” as much as possible. When defending a Deposition, directing a witness not to answer is only allowed in the limited circumstances, i.e. where necessary to: (i) preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper, not relevant, and would, if answered, cause significant prejudice to any person.

Nevertheless, and perhaps more regularly than in most civil litigation, the Court attorney is often called in a Contested Probate proceeding to make a ruling on a particular issue or objection. Although not inevitable in all Will contest Depositions, more often than not there will be a disagreement that cannot be resolved between the parties, and will require Court intervention to resolve. If and when this occurs, be mindful of the limitations on objections, and be sure that you have a well thought out reason for pressing the point.

Perhaps the most important part of this process is developing a clear strategy so that both your thoughts, and the record, are organized. Planning that leads to well- structured and purposeful questions will better elicit the information sought. Structuring the lines of questioning with specific attention to the burdens of proof of the Deponent, and organizing them by subject - i.e.: due execution, capacity, undue influence, and

31 fraud - builds a framework within which to obtain the testimony you need. However, this framework should not be restrictive. The examining attorney should feel free to question the deponent extemporaneously, crafting their inquiries in reaction to the responses received, and constantly following up. Peripheral issues will emerge that must be explored, developed, and incorporated into the lager narrative being created as un- elicited testimony might come out that can prove valuable, evidence previously unknown might be produced, and positions of the Objectant that the examining attorney may not even considered might be revealed.

Overall, though the differences between Deposition practice in Supreme and the Surrogate’s Court are pronounced, with a firm understanding of the SCPA’s procedural directives those litigators who properly prepare will prove successful.

*Gary E. Bashian is a partner in the law firm of Bashian & Farber, LLP with offices in White Plains, New York and Greenwich Connecticut. Mr. Bashian is a past President of the Westchester County Bar Association, he is presently on the Executive Committee of the New York State Bar Association’s Trust and Estates Law Section, is a past Chair of the Westchester County Bar Association’s Trusts & Estates Section, past Chair of the Westchester County Bar Association’s Tax Section, and a member of the New York State Bar association’s Commercial and Federal Litigation Section.

Mr. Bashian gratefully acknowledges the contributions of Andrew Frisenda, an associate at Bashian & Farber, LLP for his assistance in the composition of this article.

32 EVIDENTIARY ISSUES IN WILL CONTESTS

Anne C. Bederka, Esq.

Greenfield Stein & Senior LLP New York City

33 34 EVIDENTIARY ISSUES IN WILL CONTESTS

Anne C. Bederka, Esq.1

INTRODUCTION

Courts presiding over will contests are faced not only with parties clamoring to tell their stories, but also with the task of guiding the storytellers through a maze of sometimes competing evidentiary principles, including the principles of relevance and admissibility. Set forth below is a discussion of what constitutes relevant evidence in a will contest and, equally important, how much of that evidence is competent to be heard by the trier of fact.

RELEVANCE GENERALLY

To be admissible into evidence in a contested probate proceeding, testimony and documents must first and foremost be relevant to the issues at hand. All relevant evidence can be admitted into evidence unless its admission violates one or more exclusionary rules. People v. Lewis, 69 N.Y.2d 321 (1987). The trial court may nevertheless exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice or the danger that it will confuse the jury. People v.

Scarola, 71 N.Y.2d 769 (1988).

1 Anne Bederka is a partner in the law firm of Greenfield Stein & Senior, LLP, a trusts and estates litigation firm in New York City. She is the former principal law clerk to retired Surrogate Kristin Booth Glen.

35 Defining Relevance. Generally speaking, evidence is relevant if “it has any tendency in reason to prove the existence of a material fact; i.e., it makes determination of the action more probable or less probable than it would be without the evidence . . . .”

Richard T. Farrell, Prince, Richardson on Evidence § 4-101 (11th ed. 1995), quoting

People v. Scarola, 71 N.Y.2d 769, 777 (1988). See also People v. Davis, 43 N.Y.2d 17

(1977), rearg. dismissed, 61 N.Y.2d 670 (1983) (defining relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”).

Relevance in a will contest is logically determined by the issues raised in the objections to probate, which may include allegations that the propounded instrument was not properly executed by decedent, that the decedent lacked capacity to execute the instrument, and/or that the instrument was the product of fraud or undue influence practiced by a third party.

Relevance as to Undue Execution. Where an objectant contends that a will has not been duly executed, proof of due execution in accordance with EPTL 3-2.1 will require the proponent to establish by a preponderance of the evidence that: the testator signed the will at the end or directed another person to sign his name to the will in his presence (and, in the latter case, that the other person also separately signed his own name to the will); the will was signed in the presence of at least two attesting witnesses or that the testator, having signed the will outside their presence, acknowledged his signature to each of them; the testator declared to the witnesses that the signed instrument

2 36 was his last will and testament; and the witnesses, at the testator’s request, signed their names and affixed their addresses to the will within thirty days. See EPTL 3-2.1(a).

To meet proponent’s burden, testimony relating to execution of the will, including testimony by the attesting witnesses and any attorney who supervised execution, will be relevant. See, e.g., Matter of Scalone, 170 A.D.2d 507 (2d Dep’t 1991); Matter of Falk,

47 A.D.3d 21 (1st Dep’t 2007). Indeed, the testimony of the attesting witnesses is

“entitled to great weight.” Matter of Collins, 60 N.Y.2d 466, 473 (1983).

Relevance as to Testamentary Capacity. Where an objectant contends that the testator lacked testamentary capacity, the proponent is required to show, by a fair preponderance of the evidence, that the testator understood the nature and extent of his property, could identify the natural objects of his bounty, and understood the nature and consequences of executing his will. Matter of Kumstar, 66 N.Y.2d 691 (1985); Matter of

Paigo, 53 A.D.3d 836 (3d Dep’t 2008). Thus, testimony concerning the testator’s mental condition at or near the time of execution will be relevant; particularly germane will be the testimony of the attorney-drafter (and any other attorney who supervised execution of the will) and the attesting witnesses. See, e.g., Matter of Nofal, 35 A.D.3d 1132 (3d

Dep’t 2006); Matter of Bush, 85 A.D.2d 887 (4th Dep’t 1981); Matter of Rudolph, NYLJ,

Aug. 31, 2007, at 38, col. 4 (Sur. Ct., Westchester Co.); Matter of Woode, NYLJ, Nov. 6,

2001, at 18, col. 3 (Sur. Ct., New York Co.); Matter of Frazita, NYLJ, July 24, 1996, at

25, col. 6 (Sur. Ct., Nassau Co.). Relevant also will be the testimony of treating physicians or other medical professionals familiar with the testator’s condition and decedent’s medical records, as well as the testimony of witnesses who can impart their own observations of the testator’s statements and conduct at or around the time of

3 37 execution of the will. See Matter of Paigo, 53 A.D.3d 836 (3d Dep’t 2008); Matter of

Nofal, 35 A.D.3d 1132 (3d Dep’t 2006); Matter of Scher, 2008 WL 4149757 (Sur. Ct.,

Kings Co. 2008); Matter of Rudolph, NYLJ, Aug. 31, 2007, at 38, col. 4 (Sur. Ct.,

Westchester Co.); Matter of Lyons, NYLJ, May 16, 2002, at 24, co. 4 (Sur. Ct., Nassau

Co.); Matter of Frazita, NYLJ, July 24, 1996, at 25, col. 6 (Sur. Ct., Nassau Co.).

Relevance as to Undue Influence. Where an objectant asserts that the testator was unduly influenced in the making of his will, the burden is upon him to show, by a fair preponderance of the evidence, that the alleged undue influencer had the motive and opportunity to influence the testator, and also actually did so “by a moral coercion which the testator was unable to resist and which constrained him to act against his free will.”

Matter of Freilich, NYLJ, March 27, 2002, at 20, col. 2 (Sur. Ct., Bronx Co. 2002). See also Matter of Walther, 6 N.Y.2d 49 (1959); Children’s Aid Soc. v. Loveridge, 70 N.Y.

387 (1877); Matter of Bianco, 195 A.D.2d 457 (2d Dep’t 1993). Undue influence is rarely proven by direct evidence; rather, testimony concerning the testator’s mental and physical state, family relations, dependency upon others, control exercised by the alleged influencer, and prior testamentary plans might all be relevant to prove the case. Matter of

Anna, 248 N.Y. 421 (1928); Rollwagen v. Rollwagen, 63 N.Y. 504 (1876).

Relevance as to Fraud. Where an objectant alleges that a will was procured by fraud, he or she must prove, by clear and convincing evidence, that a false statement was made upon which the testator relied, and which caused her to execute a will disposing of her assets differently than she would have done in the absence of the false statement.

Matter of Paigo, 53 A.D.3d 836 (3d Dep’t 2008); Matter of Colverd, 52 A.D.3d 971 (3d

Dep’t 2008); Matter of Evanchuk, 145 A.D.2d 559 (2d Dep’t 1988). Thus, the actions of

4 38 the third party alleged to have committed fraud or undue influence, as well as decedent’s conduct and thoughts, will be relevant.

It is impossible to catalog all possible evidence that may be considered relevant to determining the above objections to probate; set forth below, therefore, are mere examples of evidence considered by New York courts in adjudicating will contests.

RELEVANCE: ACTS AND CONDUCT OF THE TESTATOR

The Testamentary Plan. The testamentary plan reflected in the propounded instrument is obviously highly relevant both to claims of lack of capacity and claims of undue influence. See, e.g., Matter of Donovan, 47 A.D.2d 923 (2d Dep’t 1975); Miller v.

Miller, 150 A.D. 604 (1st Dep’t 1912).

Testator’s Relationships With Legatees and Disinherited Distributees. The testator’s relationship with her various family members and other loved ones – and whether the provisions of the will are consistent therewith – may support or undermine any claim of undue influence. Dobie v. Armstrong, 160 N.Y. 584 (1899); Matter of

Panek, 237 A.D.2d 82 (4th Dep’t 1997); Matter of Lamonica, 19 A.D.2d 503 (2d Dep’t

1993); Matter of Elco, 153 A.D.2d 860 (2d Dep’t 1989); Matter of Spitz, 123 A.D.2d 322

(2d Dep’t 1986); Matter of Mahnken, 92 A.D.2d 949 (3d Dep’t 1983); Matter of

O’Donnell, 91 A.D.2d 698 (3d Dep’t 1982); Matter of Bush, 85 A.D.2d 887 (4th Dep’t

1981); Matter of Elmore, 42 A.D.2d 240 (3d Dep’t 1973); Miller v. Miller, 150 A.D. 604

(2d Dep’t 1912); Matter of Scher, 2008 WL 4149757 (Sur. Ct., Kings Co. 2008); Matter of Coviello, 2007 WL 926343 (Sur. Ct., Orange Co. 2007); Matter of Freilich, NYLJ,

March 27, 2002, at 20, col. 2 (Sur. Ct., Bronx Co.); Matter of Engelhardt, NYLJ, June 1,

5 39 1994, at 26, col. 6 (Sur. Ct., Westchester Co.). A bequest to the natural objects of the testator’s bounty is consistent with a claim that the testator was not unduly influenced to make the gift. In contrast, a significant bequest to a relative stranger, Matter of Hermann,

87 Misc. 476 (Sur. Ct., New York Co. 1914), may support a claim of undue influence.

Prior Wills. A testator’s previous testamentary plan may also be relevant to show undue influence, especially where the proffered instrument deviates substantially from prior testamentary dispositions. Matter of Antoinette, 238 A.D.2d 762 (3d Dep’t 1997);

Matter of Mahnken, 92 A.D.2d 949 (3d Dep’t 1983); Matter of Elmore, 42 A.D.2d 240

(3d Dep’t 1973); Matter of Stacer, 13 A.D.2d 164 (4th Dep’t 1961), aff’d, 11 N.Y.2d 780

(1962); Matter of Brush, 1 A.D.2d 625 (1st Dep’t 1956); Matter of Scher, 2008 WL

4149757 (Sur. Ct., Kings Co. 2008); Matter of Lyons, NYLJ, May 16, 2002, at 24 (Sur.

Ct., Nassau County); Matter of Driscoll, NYLJ, July 22, 1998, at 32, col. 3 (Sur. Ct.,

Westchester Co.); Matter of Lachat, 184 Misc. 492 (Sur. Ct., New York Co. 1944), app. dismissed, 269 A.D. 1013 (1st Dep’t 1945); Matter of Campbell, 136 N.Y.S. 1086 (Sur.

Ct., New York Co. 1912). In particular, the sudden disinheritance of the natural objects of a testator’s bounty and/or legatees under prior wills is relevant to determining whether undue influence has been practiced. See Matter of Antoinette, 238 A.D.2d 762 (3d Dep’t

1997). See also Matter of Fiumara, 47 N.Y.2d 845 (1979); Matter of Hollenbeck, 65

Misc. 2d 796 (Sur. Ct., Jefferson Co. 1969), aff’d, 37 A.D.2d 922 (4th Dep’t 1971). In contrast, evidence that the current testamentary plan strays only slightly from prior plans may be used to rebut the charge of undue influence. Matter of Hermann, 87 Misc. 476,

489 (Sur. Ct., New York Co. 1914). However, prior wills have been held irrelevant

6 40 where the sole ground for challenge is decedent’s testamentary capacity. Matter of

Kemble, 149 A.D.2d 899 (3d Dep’t 1989).

Value of Estate. The value of the testator’s probate estate is relevant in determining whether undue influence has been practiced. E.g., Matter of Goldman, 6

Misc. 2d 663 (Sur. Ct., Kings Co. 1956); Matter of Mirsky, NYLJ, May 9, 1984, at 13, col. 2 (Sur. Ct., Bronx Co.)

Testator’s Mental State. The conduct and statements of a testator, made reasonably close in time to execution of the will, are always relevant to establishing his capacity to make a will. And the testator’s mental, physical and emotional states are clearly relevant to a determination of whether his will was the result of undue influence.

Matter of Donovan, 47 A.D.2d 923 (2d Dep’t 1975); Matter of Roche, 244 A.D. 756 (2d

Dep’t 1935); Matter of Katz, 2007 WL 1674237 (Sur. Ct., Nassau Co.).

Testimony of the attorney-drafter and the attesting witnesses concerning the testator’s mental condition at the time of execution of the will is obviously highly probative. See, e.g., Matter of Nofal, 35 A.D.3d 1132 (3d Dep’t 2006); Matter of Bush,

85 A.D.2d 887 (4th Dep’t 1981); Matter of Woode, NYLJ, Nov. 6, 2001, at 18, col. 3

(Sur. Ct., New York Co.); Matter of Frazita, NYLJ, July 24, 1996, at 25, col. 6 (Sur. Ct.,

Nassau Co.). Testimony by decedent’s treating physician2 and/or by disinterested witnesses that the decedent was alert and fully aware at or around the time of execution is

2 See, e.g., Matter of Fiumara, 47 N.Y. 845 (1979). Note, however, that expert medical testimony has been found to be of little evidentiary value where the expert did not examine the decedent. See, e.g., Matter of Eshaghian, 2008 WL 4260790 (2d Dept. 2008); Matter of Chiurazzi, 744 N.Y.S.2d 507 (2d Dep’t 2002); Matter of Swain, 125 A.D.2d 574 (2d Dep’t 1986), leave denied, 69 N.Y.2d 611 (1987); Matter of Slade, 106 A.D.2d 914 (4th Dep’t 1984); Matter of Vukich, 53 A.D.2d 1029 (4th Dep’t 1976), aff’d, 43 N.Y.2d 668 (1977); Matter of Barbaro, NYLJ, April 10, 1990, at 28, col, 5 (Sur. Ct., Kings. Co.).

7 41 likewise highly relevant. Matter of Nofal, 35 A.D.3d 1132 (3d Dep’t 2006); Matter of

Scher, 2008 WL 4149757 (Sur.Ct., Kings Co. 2008).

Testator’s Ability to Conduct Business and Financial Affairs. A testator’s ability to conduct business and financial matters at or around the time of execution of his will is considered strong evidence of testamentary capacity. Matter of Graham, 63 N.Y.S.2d

572 (Sur. Ct., Delaware Co. 1946). See also Matter of Nofal, 35 A.D.3d 1132 (3d Dep’t

2006); Matter of Bush, 85 A.D.2d 887 (4th Dep’t 1981); Matter of Hollenbeck, 65 Misc.

2d 796 (Sur. Ct., Jefferson Co. 1969), aff’d, 37 A.D.2d 922 (4th Dep’t 1971); Miller v.

Miller, 150 A.D. 604 (2d Dep’t 1912).

Testator’s Ability to Meet Personal Responsibilities. A testator’s ability to manage her own personal affairs and remain active and social during the period in question also bears strongly on the issue of capacity. Matter of Camac, 300 A.D.2d 11

(1st Dep’t 2002); Matter of Elco, 153 A.D.2d 860 (2d Dep’t 1989); Matter of Mahnken,

92 A.D.2d 949 (3d Dep’t 1983); Matter of Cottone, 49 A.D.2d 940 (2d Dep’t 1975), aff’d, 40 N.Y.2d 1007 (1976); Matter of Freilich, NYLJ, March 27, 2002, at 20, col. 2

(Sur. Ct., Bronx Co. 2002); Matter of Hollenbeck, 65 Misc. 2d 796 (Sur. Ct., Jefferson

Co. 1969), aff’d, 37 A.D.2d 922 (4th Dep’t 1971); Matter of Campbell, 136 N.Y.S. 1086

(Sur. Ct., New York Co. 1912).

Conversely, a decline in mental acuity and in the ability to conduct financial and other personal matters is obviously relevant to proving incapacity. Matter of Rosen, 296

A.D.2d 504 (2d Dep’t 2002); Matter of Slade, 106 A.D.2d 914 (4th Dept 1984).

Testimony to the effect that decedent’s memory, decision-making ability, comprehension, alertness etc. were failing at or around the time of execution is highly probative. Matter

8 42 of Paigo, 2008 WL 2682513 (3d Dep’t 2008); Matter of Podolak, 10 A.D.2d 794 (4th

Dep’t 1960); Matter of Woode, NYLJ, Nov. 6, 2001, at 18, col. 3 (Sur. Ct., New York

Co.).

Testator’s Physical Condition. Decedent’s physical condition is a relevant consideration too, as a person in a weakened state may be more susceptible to undue influence. Matter of Panek, 237 A.D.2d 82 (4th Dep’t 1997); Matter of Driscoll, NYLJ,

July 22, 1998, at 32, col. 3 (Sur. Ct., Westchester Co.); Matter of Freilich, NYLJ, March

27, 2002, at 20, col. 2 (Sur. Ct., Bronx Co. 2002). Testimony as to the effect of a given disease upon decedent’s brain is clearly relevant. Matter of Roche, 244 A.D. 756 (2d

Dep’t 1935). Medication taken by a decedent at or around the time of execution also bears on the issue. Matter of Elmore, 42 A.D.2d 240 (3d Dep’t 1973). But old age, physical weakness, and poor health, in and of themselves, are not evidence of lack of capacity. Matter of Fiumara, 47 N.Y.2d 845 (1979); Matter of Haggart, 33 A.D.2d 124

(4th Dep’t 1969), aff’d, 27 N.Y.2d 900 (1970); Matter of Villani, 28 A.D.2d 76 (1st Dep’t

1967); Matter of Rudolph, NYLJ, Aug. 31, 2007, at 38, col. 4 (Sur. Ct., Westchester Co.).

Testator’s Participation in Estate Planning. The decedent’s level of participation in the creation and execution of the propounded will may be critically relevant. See, e.g.,

Matter of Roche, 244 A.D. 756 (2d Dep’t 1935). Courts will look to such things as:

Whether the decedent located and contacted the drafting attorney herself or whether she was referred to the drafter by the alleged undue influencer. Matter of Neenan, 35 A.D.3d 475 (2d Dep’t 2006); Matter of Buchanan, 245 A.D.2d 642 (3d Dep’t 1997), app. dismissed, 91 N.Y.2d 957 (1998); Matter of Elmore, 42 A.D.2d 240 (3d Dep’t 1973); Matter of Coviello, 2007 WL 926343 (Sur. Ct. Orange Co. 2007); Matter of Silverman, NYLJ, March 16, 2004, at 25, col. 2 (Sur. Ct., Westchester Co.); Matter of Warych, NYLJ, April 9, 2004, at 34, col. 3 (Sur. Ct., Kings Co.); Matter of Schneider, NYLJ, July 16, 2003, at 20, col. 5 (Sur. Ct., Bronx Co.); Matter of Hermann, 87 Misc. 476 (1914).

9 43

Whether she relayed her testamentary desires directly to the drafter and whether the drafter met with her alone or with others to discuss the terms of the will. Matter of Buchanan, 245 A.D.2d 642 (3d Dep’t 1997), app. dismissed, 91 N.Y.2d 957 (1998); Matter of Bush, 85 A.D.2d 887 (4th Dep’t 1981); Matter of Waldman, NYLJ, Oct. 2, 2007, at 37, col. 5 (Sur. Ct., Kings Co.); Matter of Hollenbeck, 65 Misc. 2d 796 (Sur. Ct., Jefferson Co. 1969).

Whether she reviewed a draft of the will prior to signing. Matter of Driscoll, NYLJ, July 22, 1998, at 32, col. 3 (Sur. Ct., Westchester Co.); Matter of Buchanan, 245 A.D.2d 642 (3d Dep’t 1997), app. dismissed, 91 N.Y.2d 957 (1998); Matter of Coviello, 2007 WL 926343 (Sur. Ct., Orange Co. 2007).

Whether she attended the execution of the will alone or was accompanied by interested persons. Matter of Mahnken, 92 A.D.2d 949 (3d Dep’t 1983); Matter of Waldman, NYLJ, Oct. 2, 2007, at 37, col. 5 (Sur. Ct., Kings Co.); Matter of Roth, NYLJ, Oct. 16, 2006, at 46, col. 5 (Sur. Ct., Suffolk Co.); Matter of Silverman, NYLJ, March 16, 2004, at 25, col. 2 (Sur. Ct., Westchester Co.); Matter of Schneider, NYLJ, July 16, 2003, at 20, col. 5 (Sur. Ct., Bronx Co.); Matter of James, NYLJ, July 23, 2001, at 30, col. 3 (Sur. Ct., Bronx Co.); Matter of Driscoll, NYLJ, July 22, 1998, at 32, col. 3 (Sur. Ct., Westchester Co.).

Confidential Relationships. The nature of decedent’s relationship with an alleged undue influencer is also highly relevant. Where there is a “confidential” relationship between the decedent and a beneficiary (such as the relationship between a testator and his attorney, his doctor, his spiritual advisor, or his accountant/financial advisor), an inference of undue influence may be drawn and the beneficiary will then be required to satisfactorily explain the circumstances of the bequest. See e.g., Matter of Putnam, 257

N.Y. 140 (1931); Matter of Henderson, 80 N.Y.2d 388 (1992); Matter of Smith, 95 N.Y.

516 (1884); Matter of Neenan, 35 A.D.3d 475 (2d Dep’t 2006); Matter of Bach, 133

A.D.2d 455 (2d Dep’t 1987); Matter of Collins, 124 A.D.2d 48 (4th Dep’t 1987) Matter of

Burke, 82 A.D.2d 260 (2d Dep’t 1981); Matter of Satterlee, 281 A.D. 251 (1st Dep’t

1953); Matter of Bureiesci, NYLJ, Dec. 27, 2005, at 31, col. 5 (Sur. Ct., Suffolk Co.);

Matter of Bartel, 161 Misc. 2d 455 (Sur. Ct., New York Co. 1994), aff’d, 214 A.D.2d 476

44 (1st Dep’t 1995). Note, however, that the relationship between a decedent and a close family member is not considered to be “confidential” for the purpose of triggering the inference. Matter of Walther, 6 N.Y.2d 49 (1959); Matter of Scher, 2008 WL 4149757

(Sur. Ct., Kings Co. 2008).

Mental Defects and Diseases. While evidence of a decedent’s progressive dementia, disorientation, irrationality, confusion, alcoholism or delusions is, of course, highly relevant in a will contest, none of these facts is guaranteed to carry the day for the objectant. See e.g. Matter of McClosky, 307 A.D.2d 737 (4th Dep’t 2003); Matter of

Chiurazzi, 296 A.D.2d 406 (2d Dep’t 2002); Matter of Buchanan, 245 A.D.2d 642 (3d

Dep’t 1997), app. dismissed, 91 N.Y.2d 957 (1998); Matter of Morris, 208 A.D.2d 733

(2d Dep’t 1994); Matter of Buckten, 178 A.D.2d 981 (4th Dep’t 1991), leave denied, 80

N.Y.2d 752 (1992); Matter of Elco, 153 A.D.2d 860 (2d Dep’t 1989); Matter of Hedges,

100 A.D.2d 586 (2d Dep’t 1984); Matter of Betz, 63 A.D.2d 769 (3d Dep’t 1978); Matter of Kaplan, 50 A.D.2d 429 (3d Dep’t 1976), aff’d, 41 N.Y.2d 870 (1977); Matter of

Brush, 1 A.D.2d 625 (1st Dep’t 1956); Miller v. Miller, 150 A.D. 604 (2d Dep’t 1912);

Matter of Scher, 2008 WL 4149757 (Sur.Ct., Kings Co.); Matter of Waldman, NYLJ,

Oct. 2, 2007, at 37, col. 5 (Sur. Ct., Kings Co.); Matter of Petrix, 2007 WL 1532288 (Sur.

Ct., Monroe Co.); Matter of Woode, NYLJ, Nov. 6, 2001, at 18, col. 3 (Sur. Ct., New

York Co.); Matter of Waltemade, NYLJ, June 29, 1998, at 35 (Sur. Ct., Westchester Co.);

Matter of Rowehl, NYLJ, May 31, 1995, at 33, col. 1 (Sur. Ct., Nassau Co.); Matter of

Engelhardt, NYLJ, June 1, 1994, at 26, col. 6 (Sur. Ct., Westchester Co.); Matter of

Campbell, 136 N.Y.S. 1086 (Sur. Ct., New York Co. 1912).

11 45 Insane Delusions. Proof that decedent suffered from an insane delusion that controlled his or her testamentary wishes can work to invalidate a will even if the testator is found to have had general testamentary capacity at the time of execution. Matter of

Honigman, 8 N.Y.2d 244 (1960); Matter of Zielinski, 208 A.D.2d 275 (3d Dep’t 1995), app. dismissed, 86 N.Y.2d 861 (1995). Delusions that do not appear to have affected the testamentary outcome do not have the same effect. Matter of Heaton, 224 N.Y. 22

(1918); Matter of Elco, 153 A.D.2d 860 (2d Dep’t 1989); Matter of Campbell, 136

N.Y.S. 1086 (Sur. Ct., New York Co. 1912). The provisions of the will itself may reveal whether the delusions affected a testator’s capacity. Whether or not such delusions effected the decedent’s testamentary plan is a question best left to the jury. Matter of

Honigman, 8 N.Y.2d 244 (1960).

Appointment of Guardian. The appointment of an Article 81 guardian for the decedent prior to or shortly after execution of the will, while relevant, does not provide conclusive evidence of incapacity for the purposes of making a will, as such a guardian may be appointed merely upon a finding that decedent was unable to manage his property. See Mental Hygiene Law § 81.01 et seq.; Matter of Gallagher, NYLJ, Oct. 29,

2007, at 19, col. 1 (Sur. Ct., Kings Co.); Matter of Rowehl, NYLJ, May 31, 1995, at 33, col. 1 (Sur. Ct., Nassau Co.).

Proximity in Time to Execution. The most important evidence of capacity is that which is closest in time to execution; “evidence relating to the condition of the testatrix before or after the execution is only significant insofar as it bears upon the strength or weakness of mind at the exact hour of the day of execution.” Matter of Hedges, 100

A.D.2d 586 (2d Dep’t 1984). See also Matter of Margolis, 218 A.D.2d (2d Dep’t 1995)

12 46 (will of decedent who exhibited disorientation and confusion admitted to probate where evidence established she was alert and comprehending at time of execution); Matter of

Morris, 208 A.D.2d 733 (2d Dep’t 1994) (will of decedent who suffered from disorientation and confusion admitted to probate where evidence showed she was alert and oriented at time of execution); Matter of Buckten, 178 A.D.2d 981 (4th Dep’t 1991)

(will of decedent found to be confused in period prior to execution admitted to probate upon testimony that decedent had lucid intervals and was alert and comprehending at time of execution); Matter of Katz, 2007 WL 1674237 (Sur. Ct., Nassau Co. 2007)

(medical records from testator’s hospitalization for depression that pre-dated execution of the will had no bearing on testamentary capacity); Matter of Woode, NYLJ, Nov. 6, 2001, at 18, col. 3 (Sur. Ct., New York Co.) (test of capacity is “whether the testator was lucid and rational at the time the will was executed”).

RELEVANCE: ACTS AND CONDUCT OF ALLEGED UNDUE INFLUENCER

As stated above, to establish undue influence, the objectant must not only establish motive and opportunity, but also the actual practice of undue influence. Thus, evidence bearing upon the relationship between the decedent and the alleged undue influencer at or around the time of execution is critical.

Control over Decedent’s Affairs. Control by the alleged undue influencer over the general affairs of the decedent is relevant in determining whether undue influence was practiced. Matter of Malone, 46 A.D.3d 975 (3d Dep’t 2007); Matter of Buchanan,

245 A.D.2d 642 (3d Dep’t 1997), leave dismissed, 91 N.Y.2d 957 (1998). In particular, the extent to which decedent relied and was dependent upon the undue influencer bears

13 47 upon the issue. Matter of Panek, 237 A.D.2d 82 (4th Dep’t 1997); Matter of Brush, 1

A.D.2d 625 (1st Dep’t 1956); Matter of Coviello, 2007 WL 926343 (Sur. Ct. Orange Co.

2007); Matter of Banner, NYLJ, Feb. 26, 2003, at 23, col. 6 (Sur. Ct., Bronx Co.); Matter of Freilich, NYLJ, March 27, 2002, at 20, col. 2 (Sur. Ct., Bronx Co.).

Control over or participation in decedent’s financial affairs is a significant fact in determining whether undue influence was practiced. Matter of Rosen, 296 A.D.2d 504

(2d Dep’t 2002); Matter of Bach, 133 A.D.2d 455 (2d Dep’t 1987); Matter of Buchanan,

245 A.D.2d 642 (3d Dep’t 1997); Matter of Panek, 237 A.D.2d 82 (4th Dep’t 1997);

Matter of MacLeman, 808 N.Y.S.2d 918 (Sur. Ct., Westchester Co. 2005); Matter of

Lagomarsino, NYLJ, Aug. 15, 2003. at 20, col. 2 (Sur. Ct., Queens Co. 2003).

Isolation of Decedent. The extent to which the alleged undue influencer sought to isolate decedent from her family and friends and/or control access to decedent is also relevant. Matter of Delyanis, 252 A.D.2d 585 (2d Dep’t 1998); Matter of Panek, 237

A.D.2d 82 (4th Dep’t 1997); Matter of Burke, 82 A.D.2d 260 (2d Dep’t 1981); Matter of

Roche, 244 A.D. 756 (2d Dep’t 1935); Matter of Freilich, NYLJ, March 27, 2002, at 20, col. 2 (Sur. Ct., Bronx Co.); Matter of Bonavero, NYLJ, Jan. 11, 2001, at 30 (Sur. Ct.,

Kings Co.); Matter of Driscoll, NYLJ, July 22, 1998, at 32, col. 3 (Sur. Ct., Westchester

Co.).

Participation in Decedent’s Estate Planning. The extent to which the alleged undue influencer participated in or sought to orchestrate the drafting and signing of the will is highly probative. See, e.g., Matter of Paigo, 53 A.D.3d 8363 (3d Dep’t 2008);

Matter of Malone, 46 A.D.3d 975 (3d Dep’t 2007); Matter of Neenan, 35 A.D.3d 475 (2d

Dep’t 2006); Matter of Camac, 300 A.D.2d 11 (1st Dep’t 2002); Matter of Rosen, 296

14 48 A.D.2d 504 (2d Dep’t 2002); Matter of Elmore, 42 A.D.2d 240 (3d Dep’t 1973); Matter of Rosenwasser, NYLJ, Sept. 29, 2006, at 30, col. 3 (Sur. Ct., Kings Co.); Matter of

Driscoll, NYLJ, July 22, 1998, at 32, col. 3 (Sur. Ct., Westchester Co.). Where the alleged undue influencer did not have any significant contact with decedent until after the will was executed, courts are likely to dismiss a claim of undue influence. See, e.g.,

Matter of Engelhardt, NYLJ, June 1, 1994, at 26, col. 6 (Sur. Ct., Westchester Co.). In contrast, the drafting of a will in secrecy has been characterized as “striking proof” of undue influence. Matter of Collins, 124 A.D.2d 48 (4th Dep’t 1987). See also Matter of

Rowehl, NYLJ, May 31, 1995, at 33, col. 1 (Sur. Ct., Nassau Co.) Similarly, threats by the alleged undue influencer in the event a new will was not made were considered significant evidence of undue influence. Matter of Piscani, NYLJ, Nov. 19, 1998, at 37, col. 5 (Sur. Ct., Nassau Co.)

Prior Transfers Made by Decedent. The extent of prior transfers made to the alleged undue influencer is also considered. Matter of Rosen, 296 A.D.2d 504 (2d Dep’t

2002); Matter of Driscoll, NYLJ, July 22, 1998, at 32, col. 3 (Sur. Ct., Westchester Co.);

Matter of Freilich, NYLJ, March 27, 2002, at 20, col. 2 (Sur. Ct., Bronx Co.); Matter of

Rowehl, NYLJ, May 31, 1995, at 33, col. 1 (Sur. Ct., Nassau Co.).

Proximity in Time to Will Execution. Inasmuch as the constraint upon the testator’s free will must be present at the time of execution, Matter of Kaufmann, 14

A.D.2d 601 (1st Dep’t 1961), evidence offered to support a claim of undue influence that is remote in time may be determined to be irrelevant.

Prior Bad Acts. Generally speaking, proof that a person acted in a particular manner may not be established by a showing that he committed a similar act in the past.

15 49 People v. Molineux, 168 N.Y. 264 (1901). However, proof of other similar acts is admissible to establish, inter alia, motive, intent, or a common scheme or plan. Matter of

Brandon, 55 N.Y.2d 206 (1982).

Procedural Points

Exclusion of Prejudicial Evidence. The trial judge has discretion to exclude otherwise relevant evidence if its probative value is substantially outweighed by undue prejudice. People v. Scarola, 71 N.Y.2d 769, 777 (1988).

Exclusion of Cumulative or Remote Evidence. The trial judge also has discretion to exclude otherwise relevant evidence if it is cumulative, remote, or too time consuming.

Berry v. Jewish Board of Family and Child Services, 173 A.D.2d 670 (2d Dep’t 1991).

Pre-Trial Motions to Exclude Evidence. A motion in limine may be made prior to trial to exclude irrelevant evidence or even relevant evidence that may be prejudicial or is otherwise objectionable. However, the trial court will rarely make such decisions outside the context of the trial itself. See, e.g., Matter of Steinberg, NYLJ, April 10, 1998, at 27, col. 2 (Sur. Ct., New York Co.); Matter of Sheen, NYLJ, Dec. 20, 1989, at 29, col. 2

(Sur. Ct., Bronx Co.).

No Appeal. A trial court’s evidentiary rulings are not separately appealable; they are reviewable by an appellate court only after a post-trial judgment has been rendered.

Kopstein v. City of New York, 87 A.D.2d 547 (1st Dep’t 1982); Matter of Sheen, NYLJ,

Dec. 20, 1989, at 29, col. 2 (Sur. Ct., Bronx Co.).

Admissibility for Limited Purpose. There are many times when evidence is admissible for one purpose but inadmissible for another. For example, as discussed

16 50 below, the declarations of a testator may be admissible to show his or her state of mind but not to show the truth of the facts asserted.

DEAD MAN’S STATUTE

Historical Background. Relevant evidence is admissible and may be considered by the trier of fact unless it is otherwise subject to an exclusionary rule. CPLR 4519 – known as the Dead Man’s Statute – is such a rule. The Dead Man’s Statute is derived from the old common law rule prohibiting the testimony of parties and other interested persons. Although the general rule was long ago abolished, CPLR 4519 – enacted in

1869 – preserves the rule with respect to the testimony of interested persons regarding prior transactions or communications with decedents.

The rule is founded upon concern that, inasmuch as the decedent cannot speak for himself, allowing testimony by the surviving party to the transaction may result in perjured testimony and fraudulent claims. The rule has been criticized for its sometimes unfair results, with some courts (and commentators) suggesting that the self-interest of the witness should go to the weight of his testimony, rather than its admissibility. See, e.g., Matter of Wood, 52 N.Y.2d 139 (1981); Brezinski v. Brezinski, 84 A.D.2d 464 (4th

Dep’t 1982); Matter of Hamburg, NYLJ, Sept. 11, 1991, at 26, col. 2 (Sur. Ct., Bronx

Co.) Nevertheless, the rule lives on, and its application can provide one of the most onerous impediments to proving one’s case in a contested probate proceeding.

17 51

Statutory Text. Generally speaking, CPLR 4519 prohibits persons with an interest in the outcome of a probate proceeding (or their predecessors in interest) from offering testimony in support of their interest against an executor or administrator concerning a transaction or communication with the decedent.

CPLR 4519 provides, in pertinent part:

Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person . . . or a person deriving his title or interest from, through or under a deceased person . . . concerning a personal transaction or communication between the witness and the deceased person . . . except where the executor, administrator, survivor . . . or person so deriving title or interest is examined in his own behalf, or the testimony of the . . . deceased person is given in evidence, concerning the same transaction or communication.

Persons Who May Invoke Protections of the Statute. CPLR 4519 offers protection to a circumscribed class, which includes the executor or administrator of the estate and any person deriving his or her interest from, through or under the decedent.

The statute protects nominated fiduciaries as well as those already appointed by the court.

Persons Disqualified. The Dead Man’s Statute seeks to disqualify three categories of witnesses: parties interested in the event, non-parties interested in the event, and persons from, through, or under whom such a party or other interested person derived his or her interest by assignment or otherwise. A witness is deemed to be

“interested” in the event if he or she will “either gain or lose by the direct legal operation and effect of the judgment” or “the record will be legal evidence for or against him in some other action.” Hobart v. Hobart, 62 N.Y. 80 (1875). In other words, a witness is

52 interested if he or she has a financial stake in the outcome. The size of a witness’s interest is irrelevant so long as he or she has something to gain or lose. Matter of Rose,

185 Misc. 39 (Sur. Ct., New York Co. 1945), aff’d, 269 A.D. 933 (1st Dep’t 1946), leave denied, 260 A.D. 979 (1st Dep’t 1946). The interest must, at any rate, be present, certain and vested, as opposed to remote or contingent. Hobart v. Hobart, 62 N.Y. 80 (1875);

Laka v. Krystek, 261 N.Y. 126 (1933); Matter of Sheehan, 51 A.D.2d 645 (4th Dep’t

1976).

The category of witnesses disqualified under the statute includes beneficiaries under the proferred instrument. Matter of Sheehan, 51 A.D.2d 645 (4th Dep’t 1976);

Matter of Katz, 2007 WL 1674237 (Sur. Ct., Nassau Co. 2007). However, if their interest under a penultimate will is identical to or less than under the proferred will, they are not disqualified because they would derive no benefit in the event the proferred will failed.

Harrington v. Schiller, 231 N.Y. 278 (1921); Matter of Saxl, 32 Misc.2d 481 (Sur. Ct.,

New York Co. 1961). For the same reason, beneficiaries who would receive more in intestacy than under the proferred will are not disqualified from rendering testimony in support of the will. E.g., Matter of Malan, NYLJ, Sept. 14, 2007, at 38, col. 6 (Sur. Ct.,

Westchester Co.). Intestate distributees with no interest under the will are, however, disqualified from giving testimony challenging admission of the will to probate. Matter of Aievoli, 272 A.D. 544 (2d Dep’t 1947). Similarly, beneficiaries under a penultimate will but not under the proferred will are disqualified from testifying against the propounded instrument. Matter of Murtlow, 258 A.D.2d 686 (3d Dep’t 1999).

Nominated executors, in contrast, are free to testify in support of the will to transactions or communications with the decedent, provided they are not also

19 53 beneficiaries. Matter of Wilson, 103 N.Y. 374 (1886); Matter of Johnson, 7 A.D.3d 959

(3d Dep’t 2004), leave to app. denied, 3 N.Y.3d 606 (2004); Matter of Stacer, 13 A.D.2d

164 (4th Dep’t 1961), aff’d, 11 N.Y.2d 780 (1962). However, an executor who is accused of undue influence in procuring the will may be precluded from testifying. Matter of

Schrutt, 206 A.D.2d 851 (4th Dep’t 1994), leave denied, 84 N.Y.2d 810 (1994).

Spouses and other family members of interested persons are not disqualified by virtue of the familial relationship from rendering testimony concerning transactions/communications with the decedent. Matter of Mead, 129 A.D.2d 1008 (4th

Dep’t 1987).

Timing of Interest. A witness is disqualified from offering testimony only if he holds an interest at the time the testimony is offered into evidence. Thus, a witness’s transfer of his or her interest prior to testifying will restore his competency to testify. So, for example, a legatee or devisee who renounces his bequest has divested himself of his interest and may testify as to transactions or communications with the decedent. Matter of Wilson, 103 N.Y. 374 (1886). (Note, however, that at least one court has held that distributees cannot be divested of their status as interested witnesses simply by renouncing their distributive share, Matter of Aievoli, 272 A.D. 544 [2d Dep’t 1947]).

Personal Transaction or Communication Defined. Interested witnesses are precluded from testifying “concerning a personal transaction or communication between the witness and the deceased person . . . .” CPLR 4519. The term “personal transaction or communication” has been interpreted broadly by the courts. According to the Court of

Appeals, the statute excludes an interested witness’s testimony concerning “any knowledge which he has gained by the use of his senses from the personal presence of the

20 54 deceased.” Griswold v Hart, 205 N.Y. 384, 395 (1912). Put another way, the Court precluded any testimony “which the deceased person if living could contradict or explain.” Id. at 397. See also Holcomb v. Holcomb, 95 NY 316 (1884) (the terms transaction and communication “embrace every variety of affairs which can form the subject of negotiation, interviews, or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition, or language of another”); Matter of Hamburg, 151 Misc. 2d 1034 (Sur. Ct.,

Bronx Co. 1991) (“a person who is disqualified under CPLR 4519 cannot testify about anything that was gleaned by any of [the] witness’s senses in the presence of the decedent”). In sum, the term “personal transaction or communication” appears to encompass “every method by which a person can derive impressions or information from the conduct, condition, or language of another.” 9 Warren’s Heaton on Surrogate’s Court

Practice §116.04 (7th ed. 2008).

This includes not only verbal interactions and statements made by decedent, but also the witness’s observations of decedent’s conduct and condition. See, e.g., Hadley v.

Clabeau, 140 Misc. 2d 994 (Sup. Ct., Cattaraugus Co. 1988), aff’d, 161 A.D.2d 1141 (4th

Dep’t 1990). In fact, the term transaction/communication has been defined to include what the decedent did not say. Endervelt v. Slade, NYLJ, Nov. 28, 1994, at 26, col. 3

(Sup. Ct., New York Co.), aff’d, 214 A.D.2d 456 (1st Dep’t 1995) (court precluded witness from testifying that decedent failed to inform her of certain facts).

Courts have also excluded indirect testimony that seeks to prove a transaction/communication with the decedent. Testimony that the witness received property has therefore been barred when such receipt would stand as evidence of a

21 55 transfer from decedent himself. Clift v. Moses, 112 N.Y. 426 (1889). But see Matter of

Tremaine, 156 A.D.2d 862 (3d Dep’t 1989) (court permitted testimony about witness’s storage and disposal of furniture alleged to be a gift from decedent, reasoning that such testimony did not reflect a transaction or communication with decedent).

Communications With Decedent’s Representative. Testimony concerning communications/transactions with a decedent’s representative, however, is permitted under the statute. Matter of Herman, NYLJ, May 21, 1993, at 26, col. 6 (Sur. Ct., Nassau

Co.). This is true even if decedent is present, so long as decedent does not participate in the communication. Matter of Ryder, 279 A.D. 1131 (4th Dep’t 1952); Matter of French,

8 A.D.2d 660 (3d Dep’t 1959).

Communications/Transactions Do Not Include Independent Facts. Finally, an interested witness is always permitted to testify to “independent” facts that do not involve a communication or transaction with decedent. Brezinski v. Brezinski, 84 A.D.2d 464

(4th Dep’t 1982), appeal after remand, 94 A.D.2d 969 (4th Dep’t 1983) (interested witness was permitted to testify that account she opened in joint name with decedent was intended by her to be a convenience account); Matter of Hammerman, NYLJ, May 21,

1993, at 26, col. 6 (Sur. Ct., New York Co.) (in action to recover funds from decedent’s brother, brother was permitted to testify that he paid salaries of decedent’s caretakers).

Nature of Testimony. An interested witness is precluded from offering testimony only if it is offered “in his own behalf or interest” or on behalf of a successor in interest.

CPLR 4519. Testimony offered by an interested witness that is antithetical to his interest is not barred. Harrington v Schiller, 231 NY 278 (1921); Matter of Rizzo, 15 A.D.2d 550

(2d Dep’t 1961); Matter of Tremaine, 156 A.D.2d 863 (3d Dep’t 1989). Moreover, an

22 56 interested witness who is called to testify by a party with an adverse interest is not considered to be testifying “in his own behalf” and his testimony will therefore be allowed. Matter of Anna, 248 N.Y. 421 (1928); Matter of Balado, 84 A.D.2d 564 (2d

Dep’t 1981); Matter of Hauck, NYLJ, Dec. 23, 1992, at 25, col. 3 (Sur. Ct., New York

Co.), aff’d, 200 A.D.2d 405 (1st Dep’t 1994).

Documentary Evidence. CPLR 4519 prohibits only the introduction of testimonial evidence. It does not apply to the introduction of documents written by the decedent, which are admissible if properly authenticated. Matter of Callister, 153 N.Y.

294 (1897); Matter of Press, 30 A.D.3d 154 (1st Dep’t 2006); Acevedo v Audubon

Mgmt., Inc., 280 A.D.2d 91 (1st Dep’t 2001); Trotti v. Estate of Buchanan, 272 A.D.2d

660 (3d Dep’t 2000). As a practical matter, it may be difficult to authenticate such documents, as testimony by an interested witness necessary to authenticate the decedent’s handwriting may be barred under the statute. See Acevedo v. Audobon Mgmt, Inc., 280

A.D.2d 91 (1st Dep’t 2001) (Dead Man’s Statute would bar interested witnesses from testifying as to the genuineness of decedent’s handwriting); Matter of Warsaski, 258

A.D.2d 379 (1st Dep’t 1999) (same). Thus, a disinterested witness or an expert witness may be necessary. On the other hand, a document written by the decedent may be admitted into evidence if the parties concede its authenticity. Matter of Reisman, NYLJ,

Feb. 8, 2000, at 31, col.3 (Sur. Ct., Nassau Co.) (portions of decedent’s diary admitted upon stipulation as to its authenticity).

Because CPLR 4519 does not apply to documentary evidence, admission of such a document into evidence does not “open the door” to allow an interested witness to testify to the events referred to in the document. Matter of Edelstein, NYLJ, May 26,

23 57 1990, at 30, col. 3 (Sur. Ct., Nassau Co.); Kiser v. Bailey, 92 Misc. 2d 435 (Civil Ct.,

New York Co., 1977).

Waiver of Incompetency. The incompetency of an interested witness can be waived in at least four ways. First, a failure to object to the admission of incompetent evidence waives the protections of the statute. Once such testimony has been admitted without objection, it will not be stricken. Matter of Maijgren, 193 Misc. 814 (Sur. Ct.,

Monroe Co. 1948). However, inasmuch as the objection may be raised at any time, failure to object to testimony regarding a particular transaction does not waive the right to object to testimony regarding any other transaction. Matter of Honigman, 8 N.Y.2d 244

(1960).

In a probate contest where there are a number of persons with standing to raise the objection, the decision to waive objection to the testimony must be unanimous. The executor’s willingness to waive the protections of the statute by allowing a beneficiary to render testimony in support of the will does not prevent a distributee from raising the objection. CPRL C4519:6(a).

Second, if a protected party testifies concerning a transaction or communication with decedent, such testimony “opens the door” to testimony by an interested witness concerning the same event. CPLR 4519; Matter of Wood, 52 N.Y.2d 139 (1981).

However, testimony elicited by the protected party’s adversary on cross-examination does not open the door to testimony by the interested witness because the protected party is not considered to be testifying in his own behalf. Corning v. Walker, 10 N.Y. 547

(1885); Sepulveda v. Aviles, 308 A.D.2d 1 (1st Dep’t 2003); Sklaire v. Eldridge, 12

A.D.2d 386 (3d Dep’t 1961).

24 58 Be advised that courts have tended to interpret narrowly the scope of this form of waiver. See, e.g., Matter of Wood, 52 N.Y.2d 139 (1981), which held that the executor’s introduction of bank statements and the testimony of a disinterested witness to prove that respondents withdrew money from decedent’s accounts, as well as the executor’s own testimony that the funds were not among decedent’s possessions, did not open the door to testimony by respondents that they returned the funds to decedent. In so holding, the

Court of Appeals reasoned that the executor himself did not testify to a transaction or communication with decedent.

Third, if a protected party examines or cross-examines an interested witness concerning a transaction or communication with decedent, the witness is not considered to be testifying “in his own behalf” and the testimony will be allowed. Matter of Wood,

52 N.Y.2d 139 (1981); Brezinski v, Brezinski, 84 A.D.2d 464 (4th Dep’t 1982), appeal after remand, 94 A.D.2d 969 (4th Dep’t 1983); Matter of Balado, 84 A.D.2d 564 (2d

Dep’t 1981); Matter of Hauck, NYLJ, Dec. 23, 1992, at 25, col. 3 (Sur. Ct., New York

Co.), aff’d, 200 A.D.2d 405 (1st Dep’t 1994); Matter of Dunbar, 139 Misc. 2d 955 (Sur.

Ct., Bronx Co. 1988). Moreover, if a protected party elicits from a disqualified witness a portion of a transaction or communication with the decedent, the witness will be permitted to testify as to the balance of the transaction. Nay v. Curley, 113 N.Y. 575

(1889).

Furthermore, if during a trial a protected party introduces the deposition testimony of a disqualified witness, he will be deemed to have opened the door to the witness’s testimony on the same transaction. Matter of Lamparelli, 6 A.D.3d 1218 (4th Dep’t

2004); Matter of Radus, 149 A.D.2d 348 (2d Dep’t 1988); Matter of Reisman, NYLJ,

25 59 Feb. 8, 2000, at 31, col. 3 (Sur. Ct., Nassau Co.). This rule does not apply, however, when the testimony of the interested witness was derived from an unrelated proceeding in which the protected party played no role in eliciting the testimony. In such a case, the door is not opened to allow the interested witness’s further testimony. Matter of

Sternberg, 81 A.D.2d 1010 (4th Dep’t 1981).

Fourth, if former testimony of the decedent concerning the event is admitted into evidence at trial, the disqualified witness will be permitted to testify as to the same transaction or communication. Tepper v. Tannenbaum, 65 A.D.2d 359 (1st Dep’t 1978);

Matter of Cheney, NYLJ, Oct. 21, 2008, at 35, col. 2 (Sur. Ct., New York Co.). See

Former Testimony discussion, infra.

Procedural Points

Burden of Proof. The burden of proving that a witness is incompetent to testify under CPLR 4519 rests with the party asserting the position. Stay v. Horvath, 576

N.Y.S.2d 908 (3d Dep’t 1991); Matter of Mead, 129 A.D.2d 1008 (4th Dep’t 1987).

Hearsay Exception Does Not Save Barred Testimony. In the event the testimony of an interested witness is barred by CPLR 4519, the fact that the precluded testimony may fall within an exception to the hearsay rule is of no moment. The testimony is inadmissible. Wall Street Associates v. Brodsky, 295 A.D.2d 262 (1st Dep’t 2002).

When testimony is objectionable under both CPRL 4519 and the hearsay rule, counsel is advised to raise both objections on the record.

Challenge is to Witness, Not Evidence. Inasmuch as CPLR 4519 works to disqualify the witness, rather than the evidence, in raising an objection under CPLR 4519, the challenge should be to the competency of the witness, as opposed to the admissibility

26 60 of the testimony itself. Such objection must identify the relevant transaction or communication with the decedent. Hoag v. Wright, 174 NY 36 (1903).

CPLR 4519 Applies Only At Trial. The statute, by its terms, applies only “upon the trial of an action or the hearing upon the merits of a special proceeding.” CPLR

4519. Thus, interested witnesses are permitted to testify to transactions/communications with the decedent during SCPA 1404 examinations and all other pre-trial examinations.

If a protected party either testifies or elicits testimony from interested witnesses during this phase of the litigation, such testimony will not result in a waiver of the statute at the trial stage. Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307 (1972); Matter of Van

Volkenberg, 254 N.Y. 139 (1930).

Barred Testimony Applies to Defeat, but not Support, Summary Judgment. While testimony barred by the statute generally cannot be used to support a motion for summary judgment, it can be used to defeat such a motion. Phillips v. Joseph Kantor & Co., 31

N.Y.2d 307 (1972). See also Tancredi v. Mannino, 75 A.D.2d 579 (2d Dep’t 1980);

Matter of Sheehan, 51 A.D.2d 645 (4th Dep’t 1976); Matter of Katz, 2007 WL 1674237

(Sur. Ct., Nassau Co. 2007). But see Albany Savings Bank FSB v. Seventy-Nine

Columbia Street, Inc., 197 A.D.2d 816 (3d Dep’t 1993) (court granted summary judgment where only evidence in opposition was testimony of disqualified witness);

Matter of Casessa, NYLJ, June 22, 2001, at 24 (Sur. Ct., Kings Co.) (same).

27 61 HEARSAY

Hearsay Defined. Hearsay is an out-of-court statement made by a declarant which is offered in court to prove the truth of the matter asserted therein. Hasbrouck v.

Caedo, 296 A.D.2d 740 (3d Dep’t 2002); Stern v. Waldbaum, 234 A.D.2d 534 (2d Dep’t

1996). The common-law hearsay rule precludes the admission into evidence of such statements on the ground that they are inherently unreliable because the party against whom they are offered does not have the opportunity to cross-examine the declarant to test his or her memory, perception, veracity, etc.

Rule Bars Out-of-Court Statements Offered for Their Truth. The hearsay rule bars admission into evidence of oral statements, as well as written statements, made outside the courtroom and thereafter offered at trial to prove the truth of their content.

See Lindt v. Henshel, 25 N.Y.2d 357 (1969) (letter by decedent to his attorney claiming ownership of property, and testimony by decedent’s sister that decedent told her he wished to give property to a museum, held inadmissible as hearsay); Matter of

Brownstone, 289 A.D.2d 97 (1st Dep’t 2001) (in contested probate proceeding, testimony that witness was informed of decedent’s diagnosis of Alzheimer’s while at a clinic held inadmissible to prove the truth of the matter asserted); Matter of Neenan, 35 A.D.3d 475

(2d Dep’t 2006) (in contested probate proceeding, decedent’s guardianship file was properly deemed inadmissible hearsay); Matter of Katz, 2007 WL 1674237 (Sur. Ct.,

Nassau Co. 2007) (in contested probate proceeding, decedent’s out-of-court statements that he had disinherited daughter due to credit card spending and wanted nothing to do with her held inadmissible hearsay). See also, Wagman v. Bradshaw, 292 A.D.2d 84 (2d

Dep’t 2002) (admission of report of non-testifying healthcare professional would violate

28 62 hearsay rule). The hearsay rule also bars admission of non-verbal conduct when it is intended by the declarant as an assertion of fact. 9 Warren’s Heaton on Surrogate’s Court

Practice § 118.02[3][a] (7th ed. 2008); Helen E. Freedman, New York Objections § 5:10

(2007). Finally, the rule bars out-of-court statements made under oath (unless a hearsay exception applies). Bookman v. Stegman, 105 N.Y. 621 (1887); Matter of Abbate, NYLJ,

June 25, 2003, at 18, col. 2 (Sur. Ct., New York Co.) (affidavit by objectant in will contest stating that decedent was suffering from Alzheimer’s Disease is inadmissible hearsay).

Statements Offered for Purposes Other Than Their Truth. If an out-of-court statement is not offered to establish the truth of the assertions made by the declarant, it is not hearsay and will not be barred from admission into evidence. Provenzo v. Sam, 23

N.Y.2d 256 (1968). Thus, in ascertaining whether an out-of-court statement is subject to the hearsay rule, the determinative inquiry is whether the statement is being offered for the truth of its content. If it is, then the credibility of the declarant himself is of primary importance and the declarant must be subjected to cross-examination.

An out-of-court statement offered for the sole purpose of establishing that the statement was made – without regard to its underlying truth – is not considered hearsay.

Giordino v. Berenbaum, 279 A.D.2d 282 (1st Dep’t 2001); DeLuca v. Ricci, 194 A.D.2d

457 (1st Dep’t 1993). If a statement is not being offered for its truth, then cross- examination of an in-court witness who heard the statement provides sufficient protection, because such an examination will create an opportunity to test the witness’s assertions as to when and where and by whom the statement was made.

29 63 When faced with a hearsay objection to which none of the possible hearsay exceptions apply, a party’s only available course of action is to argue that the testimony sought to be admitted is being offered for a purpose other than to prove the truth of the matter asserted therein. For example, an out-of-court statement may be important to establish a decedent’s intentions or state of mind, such as a belief that a family member was devoted and deserving of a bequest, or instead was thankless and undeserving, regardless of whether the statements made by decedent are true. The fact that a statement was made, regardless of its truth or falsity, may also be relevant to showing, for example, that a party had previously been notified of a dangerous condition. Dawson v. Raimon

Realty Corp., 303 A.D.2d 708 (2d Dep’t 2003). Finally, an out-of-court statement offered for the specific purpose of attacking the credibility of a trial witness by showing that he or she made a prior inconsistent statement is not hearsay. Campbell v. City of

Elmira, 198 A.D.2d 736 (3d Dep’t 1993), aff’d, 84 N.Y.2d 505 (1994).

Double Hearsay. It is possible that a statement made by an out-of-court declarant will contain not only the declarant’s hearsay statement, but also out-of-court statements of other persons, all of which are being offered for the truth of the assertions made therein. This is referred to as “double hearsay.” Quinn v. 1649 Restaurant Corp., 18

A.D.3d 281 (1st Dep’t 2005); Griggs v. Children’s Hospital of Buffalo, 193 A.D.2d 1060

(4th Dep’t 1993) (witness barred from testifying that decedent told her that a doctor at defendant hospital advised decedent not to seek further treatment).

The fact that the declarant’s statements are themselves admissible under a hearsay exception does not mean that other persons’ statements repeated by the declarant are also admissible. In order for such statements to be admissible in their entirety, each level of

30 64 hearsay must be subject to an applicable hearsay exception. Liberto v. Worcester Mutual

Insurance Co., 87 A.D.2d 477 (2d Dep’t 1982). Where some out-of-court declarations qualify for admission and others are barred by the hearsay rule, only those portions that qualify will be admitted into evidence. See Matter of McKanic, 50 A.D.3d 1145 (2d

Dep’t 2008).

Procedural Points

Burden of Proof. The proponent who seeks to admit an out-of-court statement has the burden of proving that a hearsay exception applies. Tyrell v. Wal-Mart Stores, Inc.,

97 N.Y.2d 650 (2001).

Objection is Necessary. To invoke the hearsay rule, a proper objection to admission of the out-of-court statement must be made. Failure to object constitutes a waiver of the protection offered by the rule. Forrester v. Port Authority of NY and NJ,

166 A.D.2d 181 (1st Dep’t 1990). See also Kaiser v. Orange County Dept. of Social

Services, 34 A.D.3d 586 (2d Dep’t 2006).

Admission if no Objection is Made. In the event hearsay is admitted at trial without objection, the trier of fact may consider it and give it such weight as is appropriate under the circumstances. Matter of Findley, 253 NY 1 (1930). However, hearsay alone is not sufficient to support a judgment. Richard T. Farrell, Prince,

Richardson on Evidence § 8-108 (11th ed. 1995).

31 65 TESTATOR’S DECLARATIONS

Generally speaking, a testator’s declarations offered to establish the truth of the matter asserted constitute inadmissible hearsay. Matter of Limberg, 277 N.Y. 129

(1938).

State of Mind Exception. While a testator’s written and oral statements are inadmissible for the truth of the matter asserted therein (e.g., to prove that undue influence was, in fact, practiced), they are admissible to show the testator’s state of mind and her susceptibility to undue influence at the time they were made. Matter of Limberg,

277 N.Y. 129 (1938); Smith v. Keller, 205 N.Y. 39 (1912); Matter of Frank, 253 A.D.

707 (1st Dep’t 1937); Lesster v. Lesster, 178 A.D. 438 (1st Dep’t 1917). Statements by the testator revealing her mental capacity, her attitude and feelings towards family members, her motivation for making testamentary dispositions, her ability to resist the influence of others, etc., are all admissible under the state of mind exception to the hearsay rule. Matter of Putnam, 257 N.Y. 140 (1931); Matter of Ryan, NYLJ, March 8,

2005, at 23, col. 1 (Sur. Ct. New York Co.) (letters written by decedent to various children offered to show decedent was not mentally incapacitated and not subject to influence); Matter of Pinkney, 117 Misc. 262 (Sur. Ct., New York Co. 1921) (“[e]vidence of testator’s conduct, manner of doing business, correspondence, declarations, etc., is received, not for the purpose of showing the trust or falsity of such statements, but to disclose state of mind, strength or weakness of will, capacity, or incapacity or susceptibility to undue influence”); Matter of Reisman, NYLJ, Feb. 8, 2000, at 31, col.3

(Sur. Ct., Nassau County).

32 66 Such declarations are admissible, however, only when made close in time to execution of the will. Matter of Putnam, 257 N.Y. 140 (1931); Matter of Frank, 165

Misc. 411 (Sur. Ct., New York Co. 1937).

Res Gestae. A testator’s statements made immediately before, during or after execution of the will are admissible as part of the res gestae, as they are viewed as an integral part of the signing process. Matter of Athanasiou, 24 Misc. 2d 12 (Sur. Ct.,

Nassau Co. 1960). Such statements may be admitted to reveal the testator’s capacity to execute the will and his or her feelings about persons alleged to have unduly influenced the testator.

Declarations Challenging Validity of Will. A testator’s declarations made either before or after execution of the will, offered for their truth to show the will was the product of fraud or duress, are inadmissible. Smith v. Keller, 205 N.Y. 39 (1912);

Waterman v. Whitney, 11 N.Y. 157 (1854). This rule is grounded in concern that a testator may re-write history for the benefit of the listener. (However, if such declarations were made at the time of execution of the will, they are considered to be part of the res gestae and are admissible on that basis. Waterman v. Whitney, 11 N.Y. 157

[1854].)

Statements of Testamentary Intentions. A testator’s statements with respect to his testamentary intentions, made prior to execution of the will, are admissible to show that the will has carried out those intentions and thus to rebut an inference of undue influence.

39 NY JUR. 2d, Decedent’s Estates, § 541 (2002); Matter of Miller, 134 Misc. 671 (Sur.

Ct., Columbia Co. 1929); Matter of Hermann, 87 Misc. 476 (Sur. Ct., New York Co.

1914). A testator’s prior statements showing testamentary intentions that conflict with

33 67 the provisions of the will, if made close in time to the will’s execution, are also admissible, but only if there exists independent evidence of undue influence. Matter of

Hermann, 87 Misc. 476 (Sur. Ct., New York Co. 1914); Matter of Johnson, 7 Misc. 220

(Sur. Ct., New York Co. 1894). See also 39 NY JUR. 2d, Decedent’s Estates, § 541

(2002).

Declarations as to Physical State. A testator’s declarations as to her present physical state or condition are admissible if made to a doctor for the purpose of receiving medical treatment. Roche v. Brooklyn City & Newtown Railroad, 105 N.Y. 294 (1887);

58 NY JUR. 2d, Evidence and Witnesses § 339 (2000). The Court of Appeals has also held admissible a decedent’s declaration of existing physical pain made to his daughter.

Tromblee v. North American Accident Insurance Co., 173 A.D. 174 (3d Dept. 1916), aff’d, 226 N.Y. 615. Involuntary expressions of pain – including screams and moans – are also admissible. 58 NY JUR. Evidence and Witnesses § 338 (2000). But statements of past pain, even if made to a doctor, are inadmissible. Davidson v. Cornell, 132 N.Y.

228 (1892).

Statements as to Existence or Non-Existence of Will. In the context of a lost will proceeding, a testator’s declarations are not admissible either to prove revocation of her will or to prove its continued existence unless such admissions are part of the res gestae.

Matter of Bonner, 17 N.Y.2d 9 (1966); Matter of Kennedy, 167 N.Y. 163 (1901); Matter of Muller, NYLJ, March 19, 1992, at 23, col. 1 (Sur. Ct., Westchester Co.); Matter of

Gelken, 103 Misc. 2d 772 (Sur. Ct., Nassau Co. 1980); Matter of Flynn, 174 Misc. 565

(Sur. Ct., New York Co. 1940). If such declarations do accompany the act of revocation, they are admitted only for the purpose of showing the testator’s intentions with respect to

34 68 the act. Waterman v. Whitney, 11 N.Y. 157 (1854). While a decedent’s declarations themselves may be inadmissible, his actions tending to show the continued existence of a will – such as an exhaustive search of his home and business – have been admitted into evidence. Matter of Rush, 38 Misc. 2d 45 (Sur. Ct., New York Co. 1962).

ADMISSIONS OF BENEFICIARIES AND UNDUE INFLUENCER

Admissions Exception. Under the admissions exception to the hearsay rule, a party’s out-of-court act or statement, contrary to the position taken by him at trial, may be introduced into evidence against the party as proof of the matter asserted. People v.

Chico, 90 N.Y.2d 585 (1997); Reed v. McCord, 160 N.Y. 330 (1899); Amann v.

Edmonds, 306 A.D.2d 362 (2d Dep’t 2003); Matter of Hermann, 87 Misc. 476, 496 (Sur.

Ct., New York Co. 1914). This is true even if the statement was not contrary to the party’s interest at the time it was made. Helen E. Freedman, New York Objections §

5:150 (2007).

Exception Generally Does Not Apply to Probate. Generally speaking, however, the admissions exception to the hearsay rule does not apply in probate contests. Matter of

Ryan, NYLJ, Mar. 8, 2005, at 23, col. 1 (Sur. Ct., New York Co.) (admissions exception to hearsay rule did not apply to declaration by decedent’s son that he influenced decedent to disinherit other children). Where two or more beneficiaries are named in a will, an out-of-court declaration by any one of them that would serve to support an attack on the validity of the will is not admissible, as proof of the matter asserted, if such statement would redound to the detriment of the other legatees. Matter of Hayden, 261 A.D. 103

(4th Dep’t 1941); Lesster v. Lesster, 178 A.D. 438 (1st Dep’t. 1917); Matter of Dawalker,

35 69 63 A.D. 550 (4th Dep’t 1901); Matter of Kupfer, 138 Misc. 821 (Sur. Ct., New York Co.

1930); Matter of Hermann, 87 Misc. 476 (Sur. Ct., New York Co. 1914). For example, if one legatee declared the testator to be incompetent at the time the will was executed, such an admission would be excluded from evidence -- even as against the declarant -- so as to protect the interests of the other legatees. Matter of Kennedy, 167 N.Y. 163 (1901);

Matter of Naul, 75 A.D.292 (2d Dep’t 1902). This rule is necessitated by the reality that if the will falls as to one beneficiary, it falls as to all of them.

The fact that the declarant is the primary beneficiary of the will does not impact this analysis, so long as the interests of other beneficiaries would be affected by the admission of his declaration into evidence. Matter of Seagrist, 11 Misc. 199, aff’d, 1

A.D. 615 (1st Dept. 1896), aff’d, 153 N.Y. 682 (1897).

Exception Applies if Declarant is Sole Legatee. But in the event the declarant is the sole legatee under the will, admissions made by him will be deemed competent evidence. Matter of Myer, 184 N.Y. 54 (1906); Matter of Campbell, 67 A.D. 418 (3d

Dep’t 1901); Matter of Esterheld, 173 Misc. 1056 (Sur. Ct., Monroe Co. 1940). See also

Matter of O’Donnell, 91 A.D.2d 698 (3d Dep’t 1982) (statements by sole residuary beneficiary admitted into evidence).

Exception May Apply if Declarant’s Interest Alone Would be Excised. Where an objection is made solely on the ground of undue influence or fraud and the objectant seeks to deny probate only with respect to the specific provision in the propounded instrument that benefits the alleged wrongdoer,3 or where a successful motion for summary judgment leaves to be tried only a claim of undue influence/fraud in obtaining a

3 See, e.g., Matter of Crissy, 35 A.D.3d 462 (2d Dep’t 2006) (objectant sought to have invalidated portion of will making bequest to attorney-drafter); Matter of Wharton, 114 Misc. 2d 1017 (Sur. Ct., Westchester Co. 1982)(objectant sought to have invalidated portion of will making bequest to attorney-drafter’s wife).

36 70 specific provision in the instrument, the admissions of the alleged wrongdoer might be deemed competent evidence under the rationale of the authorities listed above. Indeed, in such a case, the only question is whether the bequest to the undue influencer – as opposed to the will as a whole – will be invalidated. Thus, any admission by him will not affect the interests of the other beneficiaries. However, in the event it would be difficult, prior to trial, to determine whether the alleged wrongdoing affected the making of the entire will or only a severable portion of it, see e.g., Matter of Korchmar, NYLJ, July 2, 1993, at 27, col. 6 (Sur. Ct., Westchester Co.), the admissions of the wrongdoer would presumably be excluded from evidence so as to avoid jeopardizing the other legacies. To date, there are no reported cases concerning whether the out-of-court admission of an alleged undue influencer or perpetrator of fraud may be admitted into evidence where the objectant seeks only to challenge the bequest to the alleged perpetrator.

Admission as Res Gestae. Even where a will names multiple beneficiaries, a declaration by one beneficiary may be admissible as part of the res gestae where the statement is made close in time to the execution of the will, particularly where the declarant is charged with unduly influencing the testator. Matter of Wheeler, 5 Misc.

279. See also, Matter of Kupfer, 138 Misc. 821 (Sur. Ct., New York Co. 1930); Matter of

Hermann, 87 Misc. 476 (Sur. Ct., New York Co. 1914).

Admission as Evidence of State of Mind. A declaration by a beneficiary who is alleged to have engaged in undue influence may also, where appropriate, be admitted under the state of mind exception to the hearsay rule for the limited purpose of establishing the beneficiary’s intention in committing the acts alleged. Matter of

Budlong, 7 N.Y.S. 289, aff’d 126 N.Y. 423 (1891).

37 71 Facts Underlying Admission. Regardless of whether an admission is excludible from evidence under the above guidelines, a legatee is nevertheless competent to testify at trial regarding the facts underlying his admission. Matter of Hayden, 261 A.D. 103 (4th

Dep’t 1941). Only the admission itself is excludible from evidence.

Impeachment by Admission. Finally, even where an admission is excludible as evidence-in-chief, it can nevertheless be used to impeach the testimony of a witness who, contrary to her admission, renders testimony that the testator had sufficient capacity to execute the will. 38 N.Y. JUR.2d, Decedent’s Estates § 379 (2002); Lesster v. Lesster,

178 A.D. 438, 448 (1st Dep’t 1917).

ATTORNEY-CLIENT PRIVILEGE

CPLR 4503 governs the disclosure of confidential communications between attorney and client. There is no counterpart in the SCPA; by virtue of SCPA 102, CPLR

4503 applies to proceedings in the Surrogate’s Court.

Statutory Text. CPLR §4503 provides in pertinent part as follows:

(a) 1. Confidential Communication Privileged. Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing . . . .

2. Personal representatives. (A) For the purposes of the attorney-client privilege, if the client is a personal representative and the attorney represents the personal representative in that capacity, in the absence of an agreement between the attorney and the personal representative to the contrary:

(i) No beneficiary of the estate is, or shall be treated as, the client of the attorney solely by reason of his or her status as beneficiary; and

38 72 (ii) The existence of a fiduciary relationship between the personal representative and a beneficiary of the estate does not by itself constitute or give rise to any waiver of the privilege for confidential communications made in the course of professional employment between the attorney or his or her employee and the personal representative who is the client.

(B) For purposes of this paragraph, “personal representative” shall mean (i) the administrator, administrator c.t.a., ancillary administrator, executor, preliminary executor, temporary administrator or trustee to whom letters have been issued within the meaning of [SCPA 103(34)] . . . .; “beneficiary” shall have the meaning set forth in [SCPA 103(8)][;] and “estate” shall have the meaning set forth in [SCPA 103(19)].

(b) In any action involving the probate, validity or construction of a will, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent.

Statute Codifies Common Law. CPLR 4503 is a re-enactment of the common law privilege; thus, the scope of the privilege is determined by common law principles.

Spectrum Systems Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371 (1991); Mayorga v. Tate,

302 A.D.2d 11 (2d Dep’t 2002).

Elements of the Attorney-Client Privilege. The elements of the attorney-client privilege have been stated succinctly as follows: “Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by his legal advisor, (8) except the protection be waived.” CPLR C4503:1, quoting 8 J. Wigmore,

Evidence § 2292, at 554 (1961).

For the attorney-client privilege to apply, the communication must be made in the course of an established attorney-client relationship for the purpose of obtaining legal

39 73 advice. Richard T. Farrell, Prince, Richardson on Evidence § 5-203 (11th ed. 1995); 9

Warren’s Heaton on the Surrogate’s Court § 118.01[2][b] (7th ed. 2008). If the attorney is not representing the client at the time the communication is made, the privilege does not apply. Matter of Tremaine, 156 A.D.2d 862 (3d Dep’t 1989).

If an attorney-client relationship exists, communications made by and to the client for the purpose of obtaining legal advice, if intended to be confidential, are subject to the privilege. In re Bekins Record Storage Co., 62 N.Y.2d 324 (1984). Both written and oral communications enjoy the privilege.

Privilege Applies to Communications Between Attorney and Personal

Representative. CPLR 4503(a)(2) – enacted in 2002 – extends the attorney-client privilege to clients acting as personal representatives.4 As a result, beneficiaries of an estate are not entitled to disclosure of communications between an executor (or preliminary executor) and his counsel simply because the executor owes a fiduciary duty to them. Rather, confidential communications between a personal representative and his counsel made for the purpose of obtaining legal advice are cloaked with the privilege.

The attorney-client privilege permanently protects such communications from disclosure, and they are not subject to disclosure even in the event the fiduciary is removed from office. Matter of Darretta, July 23, 2007, at 37, col. 5 (Sur. Ct., Suffolk

Co.)

4 Prior to enactment of CPLR 4503(a), communications between a fiduciary and his counsel were discoverable by beneficiaries of an estate upon a showing of good cause under the so-called “fiduciary exception” to the attorney-client privilege. Hoopes v. Carota, 74 N.Y.2d 716 (1989). However, where the fiduciary had consulted counsel with an eye toward litigation with the beneficiaries, courts were unlikely to find that the good cause requirement had been met. See Matter of Baker, 139 Misc. 2d 573 (Sur. Ct., Nassau Co. 1988).

40 74 Communications to Third Parties Not Privileged. Only communications between the client and the attorney or a member of the attorney’s staff are privileged. CPLR

4503(a); Hudson Valley Mar., Inc. v. Town of Cortlandt, 816 N.Y.S.2d 183 (2d Dep’t

2006). Oral communications between the attorney and client made in the presence of third parties, as well as written communications copied to third parties, are, generally speaking, not subject to a claim of privilege. People v. Harris, 57 N.Y.2d 335 (1982);

Morgan v. New York State Dept. of Environmental Conservation, 9 A.D.3d 586 (3d Dep’t

2004); Bauman v. Steingester, 213 N.Y. 329 (1915); Matter of Kotick, NYLJ, April 25,

2008, at 36, col. 3 (Sur. Ct., New York Co.). Furthermore, if the attorney speaks with third persons such as the client’s accountant or broker concerning the matter, those communications are not privileged. See, e.g., Central Buffalo Project Corp. v. Rainbow

Salads, 140 A.D.2d 943 (4th Dep’t 1988).

Communications Concerning Preparation, Execution and Revocation of

Decedent’s Will Not Privileged. Under the so-called “probate exception” to the attorney- client privilege, communications between an attorney (or the attorney’s employee) and a deceased client concerning the preparation, execution or revocation of the client’s will are not privileged in probate proceedings. Rather, the communications are subject to disclosure except to the extent they would tend to disgrace the memory of the decedent.

CPLR 4503(b).

To be admissible under the probate exception, the confidential communications between an attorney and testator must relate to “the preparation or execution of any will or instrument relevant to the validity or construction of the will being offered for probate.” 9 Weinstein, Korn & Miller, New York Civil Practice: CPLR ¶ 4503.28 (2d

41 75 ed. 2008). See Warsaski v. Spiegel, 258 A.D.2d 379 (1st Dep’t 1999) (attorney-drafter permitted to testify concerning will’s preparation). Both the testimony of the attorney- drafter of the proferred will and the testimony of attorney-drafters of any prior wills of the testator may be admitted under the probate exception. Matter of Stacer, 13 A.D.2d

164 (4th Dep’t 1961), aff’d, 11 N.Y.2d 780 (1962).

The probate exception has been held to permit disclosure of attorney-client communications even if the will drafted by counsel remains unexecuted at the time of decedent’s death. Matter of Posner, NYLJ, May 4, 1994, at 30, col. 2 (Sur Ct., New

York Co.); Matter of Rabinowitz, NYLJ, Jan. 21, 1982, at 11, col. 3.

The probate exception also applies to permit disclosure of communications between an attorney and client concerning the revocation of any will. Matter of Stacer,

13 A.D.2d 164 (4th Dep’t 1961), aff’d, 11 N.Y.2d 780 (1962); Matter of Be Gar, 110

Misc. 2d 562 (Sur. Ct., Nassau Co. 1981) (attorney who did not draft instruments permitted to disclose conversations with decedent concerning revocation of will and codicil offered for probate).

The probate exception has been held not to apply, however, to allow disclosure of communications between a decedent and an attorney who neither drafted the will nor supervised its execution. Matter of Matheson, 283 N.Y. 44 (1940) (construing earlier version of statute);5 Matter of Delano, 38 A.D.2d 769 (3d Dep’t 1972); Matter of

Bronner, 801 N.Y.S.2d 230 (Sur. Ct., Nassau Co. 2005) (dicta); 2 Harris 5th Edition New

York Estates: Probate, Administration and Litigation §19:71 (1996). But see Matter of

5 Inasmuch as Matheson was construing an earlier, more restrictive version of CPLR 4503(b), it has been argued that Matheson’s holding should be “confined to its interpretation of the former and not the present statute.” Matter of Be Gar, 110 Misc. 2d 562, 563 (Sur. Ct., Nassau Co. 1981).

42 76 Be Gar, 110 Misc. 2d 562, 563 (Sur. Ct., Nassau Co. 1981) (arguing, in dicta, that communications between attorney and testator should be disclosed under CPLR 4503[b] even if attorney was not directly involved in preparation or execution of any will).

The probate exception requires disclosure only of communications between attorney and deceased client.6 Communications between third parties and their counsel do not fall within the exception even if they concern preparation of decedent’s will.

Matter of Seelig, 302 A.D.2d 721 (3d Dep’t 2003) (communications between charitable beneficiary and its counsel not subject to disclosure under CPLR 4503[b]). See also,

Matter of Osgood, NYLJ, Dec. 2, 1992, at 26, col. 4 (Sur. Ct., Nassau Co. 1992)

(communications between decedent’s husband and attorney not subject to disclosure under CPLR 4503[b]).

The probate exception applies only to probate and construction proceedings, and has not been extended to accounting, discovery or other proceedings. Matter of

Matheson, 283 N.Y. 44 (1940); Matter of Fishman, 32 A.D.2d 1063 (2d Dep’t 1969), aff’d, 27 N.Y.2d 809 (1970); Matter of Swantee, 90 Misc. 2d 519 (Sur. Ct., New York

Co. 1977).

Underlying Facts Not Privileged. Even where the privilege applies, only the communications themselves are privileged; the underlying facts are not. Facts cannot be made subject to privilege simply by conveying them from client to attorney. Upjohn v.

United States, 449 U.S. 383 (1981); Matter of Johnson, NYLJ, April 11, 1984, at 12, col.

6 Courts have differed on the issue of whether contents of the will of a living person are subject to the attorney-client privilege. Compare, Matter of Johnson, 127 Misc 2d 1048 (Sur. Ct., New York Co. 1985) (privilege applies) with Matter of Freilich, 179 Misc. 2d 884 (Sur. Ct., Bronx Co. 1999) and Matter of MacLeman, 808 N.Y.S.2d 918 (Sur. Ct., Westchester Co. 2005) (wills not protected by privilege). Nevertheless, disclosure of the terms of a living person’s will should generally not be required absent a “strong showing of necessity.” Matter of Freilich, 179 Misc. 2d 884 (Sur. Ct., Bronx Co. 1999); 9 Weinstein, Korn & Miller, New York Civil Practice: CPLR ¶ 4503.25 (2d ed. 2008).

43 77 3 (Sur. Ct., New York Co.). Likewise, documents previously sent to third parties cannot be made subject to the privilege simply by delivering them to the attorney. Matter of

Krup, 173 Misc. 578 (Sur. Ct., Kings Co. 1940).

Mixed Legal and Business Communications. If a communication between lawyer and client consists of both legal matters and business matters, the privilege applies if the communication is predominantly a legal one. Rossi v. Blue Cross Blue Shield, 73 N.Y.2d

588 (1989).

Routine Information Not Subject to Privilege. A retainer or other fee agreement between attorney and client is not privileged. Hoopes v. Carota, 74 N.Y.2d 716 (1989);

Priest v. Hennessy, 51 N.Y.2d 62 (1980). However, invoices describing legal services rendered may be subject to a claim of privilege. Matter of Gildersleeve, NYLJ, Aug. 1,

2002, at 23, col. 3 (Sur. Ct., Westchester Co.). The name and address or location of a client is not privileged. Priest v. Hennessy, 51 N.Y.2d 62 (1980); Matter of Jacqueline

F., 94 Misc. 2d 96 (Sur. Ct., Bronx Co. 1978). Accounting and other records necessary to determine the value of a deceased client’s estate may also be subject to disclosure.

Matter of Hall, 204 A.D.2d 785 (3d Dep’t 1994).

Waiver of the Privilege. As stated above, the privilege may be waived by the client, either through disclosure to third parties or by the client’s testimony revealing confidential communications. See, e.g., People v. Patrick, 182 N.Y. 131 (1905), app. dismissed, 203 U.S. 602 (1906); Jacobleff v. Cerrato, Sweeney & Cohn, 97 A.D.2d 834

(2d Dep’t 1983); Pye v. Hoehn, 31 Misc. 2d 712 (Sup. Ct., Nassau Co. 1961). If the client shares information with third persons concerning the communications, such

44 78 communications lose their protected status. Matter of Kerekach, NYLJ, Aug. 30, 1989, at 26, col. 1 (Sur. Ct., Nassau Co.).

The privilege belongs to the client alone, and may not be waived by the attorney without the client’s consent. People v. Cassas, 84 N.Y.2d 718 (1995); Mead v.

Cavanagh, 161 A.D. 177 (3d Dep’t 1914). Even where a client has elected to disclose privileged communications, his actions do not release the attorney to make disclosure of other privileged information. Matter of Eno, 196 A.D. 131 (1st Dep’t 1921); Matter of

Topliffe, 191 Misc. 466, aff’d, 274 A.D. 760 (1st Dep’t 1948).

A party may be found to have waived the privilege by failing to object to submission by another party of privileged documents in a pending proceeding. Matter of

Arrathoon, NYLJ, Oct. 22, 2007, at 31, col. 5 (Sur. Ct., New York Co.) Where such documents have been submitted by the opposing party, the party seeking to assert the privilege is well advised to seek a protective order immediately.

Where a client has consented to extrajudicial disclosure of confidential communications by his attorney, he will be found to have waived the privilege only as to those portions of the communications that were disclosed. See Von Bulow v. Von Bulow,

828 F.2d 94 (2d Cir. 1987). See also Brown & Williamson Tobacco Corp. v. Wigand,

228 A.D.2d 187 (1st Dep’t 1996), leave to app. granted, 89 N.Y.2d 808, app. withdrawn,

90 N.Y.2d 901 (1997) (limited waiver of attorney-client privilege only to extent of public disclosure made).

Waiver of the Privilege on Behalf of Estate. Supplementing the probate exception under CPLR 4503(b) are several important case law exceptions allowing waiver of the attorney-client privilege after the client’s death. The personal representative of

45 79 decedent’s estate is authorized to waive the attorney-client privilege between decedent and her attorney in the interests of the estate. Matter of Bassin, 28 A.D.3d 549 (2d Dep’t

2006); Matter of Johnson, 7 A.D.3d 959 (3d Dep’t 2004), leave to app. denied, 3 N.Y.3d

606 (2004); Mayorga v. Tate, 302 A.D.2d 11 (2d Dep’t 2002); Matter of Colby, 187

Misc. 2d 695 (Sur. Ct., New York Co. 2001). In addition, an objectant in a probate contest has been permitted to waive the privilege where such waiver was found to be in the best interests of the estate. Matter of MacLeman, 808 N.Y.S.2d 918 (Sur. Ct.,

Westchester Co. 2005); Matter of Bronner, 801 N.Y.S.2d 230 (Sur. Ct., New York Co.

2005). See also Ilene S. Cooper & Joseph T. La Ferlita, A New Weapon for Objectants?

Probate Contests and Waiver of the Attorney-Client Privilege, 78 N.Y.S.B.J. 46 (Oct.

2006). These cases are founded upon the assumption that the testator would have wanted his confidential communications revealed to effect his testamentary intentions.

“At Issue” Waiver. A waiver of the attorney-client privilege may also be found to occur where confidential communications with counsel bear directly on the issue before the court or application of the privilege would deprive the opponent of information vital to his case. Where, for example, the fiduciary of an estate sought to void an inter vivos transfer made pursuant to a power of attorney, his contention that the decedent did not intend to make a gift was found to have waived the privilege with respect to communications between decedent and his attorney concerning the scope of the power of attorney. Matter of Kislak, 24 A.D.3d 258 (1st Dep’t 2005).7 See also Matter of Puckett,

2005 WL 2428364 (Sur. Ct., Nassau Co. 2005) (where administrator challenged validity of inter vivos transfer on grounds of undue influence and lack of intention to make gift,

7 Kislak has been criticized. See Michael M. Martin, Attorney Communications With Since-Deceased Clients, NYLJ, Dec. 14, 2007, at 3, col. 1.

46 80 privilege was waived as to communications between decedent and his attorney on that subject); Matter of Seelig, 302 A.D.2d 721 (3d Dep’t 2003) (finding no waiver where communications were not “vital” to claim of undue influence); Matter of Slavin, NYLJ,

Sept. 10, 2003, at 21, col. 6 (Sur. Ct., Queens Co.) (where personal representative commenced discovery proceeding placing in issue ownership of joint accounts, the privilege was deemed waived with respect to communications between decedent and her attorney concerning accounts).

Inadvertent Disclosure. Inadvertent disclosure of privileged documents does not necessarily constitute a waiver of the privilege. In determining whether the mistaken production of documents containing privileged attorney-client communications waives the privilege, courts consider such factors as whether the client intended the communication to be confidential; whether reasonable steps were taken to prevent inadvertent disclosure; the extent of the disclosure; whether the disclosing party took prompt steps to correct the error; and whether the party to whom disclosure was made will suffer any undue prejudice if the error is rectified. AFA Protective Systems v. City of

New York, 13 A.D.3d 564 (2d Dep’t 2004); New York Times v. Lehrer McGovern Bovis,

300 A.D.2d 169 (1st Dep’t 2002).

Use of Agents. Where a person is acting as agent either for the client or the attorney during the course of a privileged communication, the presence of the agent does not jeopardize the privilege. Matter of Sosnow, NYLJ, July 19, 2007, at 34, col. 3 (Sur.

Ct., Nassau Co. 2007); Stroh v. General Motors Corp., 213 A.D.2d 267 (1st Dep’t 1995).

To employ the agency exception, two requirements must be met: the party invoking the privilege must have had a reasonable expectation of confidentiality, and the agent’s

47 81 presence must have been necessary to facilitate the giving of legal advice. National

Education Training Group, Inc. v. Skillsoft Corp., NYLJ, July 8, 1999, at 37 (2d Cir.);

Stroh v. General Motors Corp., 213 A.D.2d 267 (1st Dep’t 1995); Matter of Beiny, 129

A.D.2d 126 (1st Dep’t 1987); Matter of Nigro, NYLJ, Oct. 5, 2004, at 20, col. 1 (Sur. Ct.,

Nassau Co.).

Procedural Points

Burden of Proof. The burden of proving the privilege is upon the party asserting it. Spectrum Systems International Corp. v. Chemical Bank, 78 N.Y.2d 371 (1991);

Priest v. Hennesy, 51 N.Y.2d 62 (1980); Matter of Kotick, NYLJ, April 25, 2008, at 36, col. 3 (Sur. Ct., New York Co.)

How and When Invoked. The privilege can and should be invoked at any stage in the probate proceeding during which confidential communications are sought to be disclosed, including during pre-trial disclosure. CPLR 3101. Typically, the privilege is invoked via objection to inquiries that call for disclosure of confidential communications, followed by a refusal to answer those questions on the ground of privilege.

In Camera Review. The court is not bound by claims of privilege, and may require that documents be submitted for in camera review. 9 Weinstein, Korn & Miller,

New York Civil Practice: CPLR ¶ 4503.22 (2d ed. 2008). See also Matter of Aylin

Radomisli-Cates, NYLJ, Dec. 14, 1995, at 31, col. 6 (Sur. Ct., Westchester Co.); Wynard v. Beiny, NYLJ, July 5, 1994, at 32, col. 4 (Sur. Ct., New York Co.).

48 82 PHYSICIAN-PATIENT PRIVILEGE

The physician-patient privilege is embodied in CPLR 4504, which prohibits certain medical personnel from disclosing information obtained in the course of treating a patient if such information is necessary to treatment, unless the patient waives the privilege. See CPLR 4504(a).

Policy and Construction. The confidential treatment afforded doctor-patient communications is meant to “promote uninhibited communication between patient and physician for the purpose of obtaining appropriate medical treatment.” People v. Sinski,

88 N.Y.2d 487, 491 (1996). The privilege is to be construed broadly to carry out this policy, and statutory exceptions to the privilege are to be construed narrowly. Id. at 493.

See also Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130 (1983).

Foundational Requirements. To assert the physician-patient privilege, it must be shown that: (i) a statutorily-recognized relationship exists between a patient and a medical professional; (ii) the medical professional obtained information about the patient in the course of the professional relationship; (iii) the information obtained was necessary for treatment or diagnosis of the patient; and (iv) the patient intended the information to be confidential. CPLR C4504:2, citing State v. General Electric Co., 201 A.D.2d 802

(3d Dep’t 1994). See also Mayer v. Albany Medical Center Hospital, 56 Misc. 2d 239

(Sup. Ct., Albany Co. 1968). If the foundational requirements are met, the privilege applies to exclude both the medical professional’s testimony and the patient’s medical/hospital files revealing confidential communications. Dillenbeck v. Hess, 73

N.Y.2d 278 (1989); Williams v. Roosevelt Hospital, 66 N.Y.2d 391 (1985). Non-medical

49 83 data contained in those files is not protected, however. Matter of Waller, NYLJ, Dec. 30,

1981, at 7, col. 1 (Sur. Ct., New York Co.)

Recognized Professional Relationships. CPLR 4504(a) limits the protections of the statute to relationships between patients, one the one hand, and doctors, registered professional or licensed practical nurses, dentists, podiatrists and chiropractors, on the other. It does not apply to communications between a pharmacists and a decedent

(including medications provided by the pharmacist). Matter of Miner, 206 Misc. 234

(Sur. Ct., Kings Co. 1954). But see Hobbs v. Hullman, 183 A.D. 743 (3d Dep’t 1910)

(applying privilege to communications with unregistered nurse); People v. Mirque, 195

Misc. 2d 375 (Crim. Ct. 2003) (applying privilege to EMTs who treat patients at the scene and transmit information to treating physicians).

Intention of Confidentiality. To determine whether a patient intended his or her communication with a medical professional to be confidential, courts look to the patient’s subjective intent. Thus, the presence of third parties (such as family members or even police guards) does not, in and of itself, vitiate the privilege. See People v. Decina, 2

N.Y.2d 133 (1956).

Privilege Applies to Observations as Well as Communications. The doctor- patient privilege applies to protect from disclosure not only direct communications between doctor and patient, but also the doctor’s observations concerning the patient’s condition unless the facts observed do not require professional training and would be obvious to a layperson. Dillenbeck v. Hess, 73 N.Y.2d 278 (1989); 2 Harris 5th Edition

New York Estates: Probate, Administration and Litigation § 19:79 (1996).

50 84 Waiver of the Privilege. Waiver of the physician-patient privilege can occur in several ways: an express waiver of the privilege (such as the introduction of testimony or documents revealing the patient’s medical condition/treatment); a failure to object when privileged information is elicited during discovery or at trial; or affirmatively raising the issue of the medical condition of the patient. 2 Harris 5th Edition New York Estates:

Probate, Administration and Litigation § 19:84 (1996); CPLR 4504(a). Indeed, the privilege may be waived simply by calling the physician to the witness stand.

Statutory Exception for Deceased Patients. Where the patient has died, an exception to the general privilege rules exists under CPLR 4504(c):

(c) Mental or physical condition of deceased patient. A physician or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subdivision (a), except information which would tend to disgrace the memory of the decedent, either in the absence of an objection by a party to the litigation or when the privilege has been waived:

1. by the personal representative, or the surviving spouse, or the next of kin of the decedent; or

2. in any litigation where the interests of the personal representative are deemed by the trial judge to be adverse to those of the estate of the decedent, by any party in interest; or

3. if the validity of the will of the decedent is in question, by the executor named in the will, or the surviving spouse or any heir-at-law or any of the next of kin or any other party in interest.

Decedent’s Treating Physician Subject to Examination. Under CPLR 4504(c)(3), the decedent’s treating physician is subject to examination in a probate contest. Matter of

Podalak, 10 A.D.2d 794 (4th Dep’t 1960). The fact that decedent’s treating physician has also been engaged as an expert witness in the probate contest does not insulate him from examination concerning his observations, treatment, and conclusions concerning

51 85 decedent’s mental and physical condition. Matter of Braman, NYLJ, May 1, 1990, at 25, col. 5 (Sur.Ct., Nassau Co.); Matter of DeFilippo, 149 Misc. 2d 598 (Sur. Ct., Chemung

Co. 1990).

Privilege May Be Waived by Authorized Persons. As CPLR 4504(c) indicates, in a probate contest, the doctor-patient privilege may be waived by a broad class of persons consisting of the nominated executor, decedent’s distributees, or any other party in interest. See Matter of Cincotta, NYLJ, Mar. 31, 2005, at 31, col. 6 (Sur. Ct., Kings Co.)

(distributees may waive privilege); Matter of Adamopoulos, NYLJ, May 3, 2004, at 28, col. 2 (Sur. Ct., Queens Co.) (surviving spouse may waive privilege); Matter of

Lagomarsino, NYLJ, Aug. 15, 2003, at 20, col. 2 (Sur. Ct., Queens Co.) (distributees may waive privilege); Matter of Allalemdjian, NYLJ, Dec. 9, 1999, at 36, col. 5 (Sur. Ct.,

Nassau Co.) (fiduciary of deceased next of kin may waive privilege); Matter of Cesario,

NYLJ, July 22, 1992, at 27, col. 1 (Sur. Ct., Westchester Co.) (any person interested in decedent’s estate may waive privilege); Matter of Johnson, NYLJ, June 7, 1984, at 6, col.

1 (Sur. Ct., New York Co.) (heirs at law may waive privilege).

To Which Communications Does Exception Apply? While the statutory text suggests that only a doctor or nurse will be required to disclose privileged information concerning the mental or physical condition of a deceased patient, in fact disclosure must be made – upon waiver of the privilege – by a hospital as well. See, e.g., Matter of

Allalemdjian, NYLJ, Dec. 9, 1999, at 36, col. 5 (Sur. Ct., Nassau Co.).

Disclosure that Disgraces Decedent’s Memory. It is within the purview of the court to decide whether disclosure of a communication would disgrace the memory of the decedent. Compare Tinney v. Neilson’s Flowers, Inc., 61 Misc. 2d 717, aff’d, 35 A.D.2d

52 86 532 (2d Dep’t 1970) (privilege cannot be waived as to records showing decedent was a chronic alcoholic) with Matter of Postley, 125 Misc. 2d 417 (Sur. Ct., Nassau Co. 1984)

(disclosure of decedent’s alcoholism would not disgrace his memory in light of current medical consensus that alcoholism is a disease) and Matter of Podolak, 10 A.D.2d 794

(4th Dep’t 1960) (doctor’s testimony in probate contest as to decedent’s failing mental acuity would not disgrace his memory).

HIPAA. Effective April 2003, the Health Insurance Portability and

Accountability Act (HIPAA) governs medical information maintained by health care professionals. Disclosure may be made only upon the consent of the patient or, where the patient has died, the personal representative of his estate. An executor may be compelled, however, to authorize disclosure of a decedent’s medical records in the course of discovery. Matter of Ettinger, 7 Misc. 3d 316 (Sur. Ct., Nassau Co. 2005). The

Ettinger court directed proponent in a will contest to provide objectants with HIPAA- compliant authorizations for the release of decedent’s medical records. See also Matter of MacLeman, 808 N.Y.S.2d 918 (Sur. Ct., Westchester Co. 2005) (objectants directed to prepare HIPAA-compliant authorizations for release of medical records for temporary administrator’s signature).

Procedural Points

Burden of Proof. The burden of proving all of the foundation elements of the doctor-patient privilege have been met is upon the party asserting it. Koump v. Smith, 25

N.Y.2d 287 (1969); People v. Hedges, 98 A.D.2d 950 (4th Dep’t 1983).

Assert Privilege At Earliest Possible Moment. The privilege should be asserted at any stage in the probate proceeding during which confidential communications are

53 87 sought to be disclosed, including during pre-trial disclosure. 9 Warren’s Heaton on the

Surrogate’s Court § 118.01[5][c] (7th ed. 2008).

No Showing of Unavailability Necessary for Physicians. CPLR 3117 authorizes admission at trial of prior deposition testimony rendered by a physician without any requirement that the physician appear and testify. See CPLR 3117(a)(4). See Matter of

Adamopoulos, NYLJ, May 3, 2004, at 28, col. 2 (Sur. Ct., Queeens Co.) (in will contest, court admitted deposition testimony of neurological surgeon who treated decedent). To the extent that any party objects to admission of a physician’s deposition testimony, the burden is upon such party to establish that they would be prejudiced by use of the transcript rather than in-court testimony. Id.

OPINION EVIDENCE: LAY OPINION

It is settled that a lay witness cannot give her opinion concerning the mental capacity of a testator. Matter of Coddington, 307 N.Y. 181, 185 (1954); Matter of

Vickery, 167 A.D.2d 828 (4th Dep’t 1990). However, an ordinary witness “may describe the acts of a person whose sanity is in question and state whether those acts impressed her as rational or irrational.” Matter of Vickery, 167 A.D.2d at 828; Matter of Coddington, supra (lay witnesses “may only state their contemporary impressions as to the rationality or irrationality of the conversations or conduct testified to by them”); Matter of Brower,

112 App. Div. 370 (2d Dep’t 1906).8 An ordinary witness can also express an opinion on

8 Matter of Nogueira, 32 Misc.2d 446 (Sur. Ct. Westchester Co. 1961), provides an interesting twist in the application of the foregoing principles. In that case, the Surrogate overruled objections to the testimony of a Portuguese notary (and two attesting witnesses) as to the mental capacity of the decedent who executed his will before them, upon expert testimony that, under the applicable Portuguese law, the notary was required to appraise the mental capacity of the testator, ascertain his intentions and reduce them to entries in his will book, and cause the entries to be verified by each of the witnesses.

54 88 whether or not the decedent was intoxicated. See Ryan v. Big Z Corp., 210 A.D.2d 649

(3d Dep’t 1994); Allan v. Keystone Nineties, Inc., 74 A.D.2d 992 (4th Dep’t 1980), appeal dismissed, 52 N.Y.2d 899 (1981). A lay witness can also testify to “the apparent physical condition of a person, which is open to ordinary observation,” including a person’s

“general strength, vigor, feebleness, illness and comparative condition from day to day.”

Richard T. Farrell, Prince, Richardson on Evidence § 7-202(d) (11th ed. 1995).

Attesting Witnesses. Exception to the general rule prohibiting testimony on the ultimate issue of capacity is made for attesting witnesses, who are permitted to render their opinions as to the testator’s soundness of mind. Matter of Vickery, supra; Matter of

Ward, NYLJ, Oct. 27, 2005, at 31, col. 5 (Sur. Ct., Suffolk Co.). Such witnesses are deemed to have been chosen by the decedent for that very purpose. Richard T. Farrell,

Prince, Richardson on Evidence § 7-202(m) (11th ed. 1995).

Decedent’s Handwriting. Unlike the issue of testamentary capacity, the opinion of a lay person who is familiar with a decedent’s handwriting is admissible on the question of the genuineness of his signature on a will. Matter of Fertig, 184 A.D.2d 1015

(4th Dep’t 1992); Matter of Marlowe, NYLJ, Sept. 8, 2000, at 32, col. 1 (Sur. Ct. Nassau

Co.); Richard T. Farrell, Prince, Richardson on Evidence §§ 7-203, 7-318(a) (11th ed.

1995). Of course, those who are most familiar with a decedent’s handwriting may be barred from testifying by the Dead Man’s Statute.

55 89 OPINION EVIDENCE: EXPERT OPINION

The use of expert opinions in Surrogate’s Court practice centers primarily on the issue of testamentary capacity. Expert testimony as to a decedent’s handwriting is also useful where forgery is claimed.

Qualification. The qualification of a psychiatrist or other expert called to testify as to a decedent’s mental capacity generally does not present a substantial hurdle in a probate proceeding. As in the case of any expert, it must be shown that she is “possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.” Matott v.

Ward, 48 N.Y.2d 455, 459 (1979); Hofmann v. Toys “R” Us-N.Y. Limited Partnership,

272 A.D.2d 296 (2d Dep’t 2000).

A treating physician, although not a psychiatrist or psychologist, has been held qualified to testify to his patient’s competence where he had treated the patient, a proposed conservatee, for seven years and was an expert in geriatric medicine. Matter of

Steinberg, 121 A.D. 872 (1st Dep’t 1986).

Occasionally, the standard for qualification has been held not to have been met.

In Matter of Beecham, NYLJ, Dec. 1, 2003, at 28, col. 2 (Sur. Ct., New York Co.), the objectant, who claimed that a will had been altered, submitted an affidavit by the chief operating officer of a company operating retail photocopying and stationary stores opining that a page claimed to have been substituted in decedent’s will was printed at a different time than the remainder of the will. The court held that the expert’s affidavit should be given no probative value on the proponent’s summary judgment motion because it failed to include any information concerning his educational background or

56 90 specific qualifications and expertise concerning the technical issues on which he based his opinion.

Another interesting issue the Courts have considered is whether the testimony of a handwriting expert may be admitted on the question of a decedent’s testamentary capacity. Relying on the supposed science of “graphology,” such “experts” contend that they can determine an individual’s mental capacity and other characteristics from an analysis of their handwriting. Such arguments have received a chilly reception. See

Matter of Palmentiere, 171 A.D.2d 871 (2d Dep’t 1991) (handwriting expert was not competent to testify as to decedent’s mental capacity); Cameron v. Knapp, 137 Misc.2d

373 (Sup. Ct., New York Co. 1987) (noting that “courts across this country have uniformly disapproved attempts to have a handwriting ‘expert’ testify as to an individual’s mental or physical condition based on a handwriting sample”); Daniels v.

Cummins, 66 Misc.2d 575 (Sur. Ct., Westchester Co. 1971), aff’d, 44 A.D.2d 775 (2d

Dep’t 1974) (observing that when a document examiner opined that the decedent was

“only present in body but not mind, that she did not know what she [was] doing and she was not of sound mind,” she had “leaped into the occult, esoteric, pseudo-scientific pursuit known as graphology, venturing far beyond the province of a handwriting expert”). The opinion of a “graphologist” has been held sufficient to defeat summary judgment, however, when confined to the issue of the genuineness of a decedent’s signature. Greengard v. Edelstein, NYLJ, Sept. 26, 1989, at. 22, col. 2 (Sup. Ct., New

York Co.).

Standard of Review on Determination of Expert’s Qualification. The qualification of an expert witness is within the discretion of the trial judge, and “is not

57 91 open to review unless in deciding the question the trial court has made a serious mistake or committed an error of law or has abused his discretion.” Meiselman v. Crown Heights

Hospital, Inc., 285 N.Y. 389, 398-99 (1941); Werner v. Sun Oil Co., 65 N.Y.2d 839, 840

(1985); Oboler v. City of New York, 31 A.D.3d 308 (1st Dep’t 2006), aff’d, 8 N.Y.3d 888,

(2007).

Basis For Expert Opinion. An expert’s opinion “must be based on facts in the record or personally known to the witness.” Cassano v. Hagstrom, 5 N.Y.2d 643, 646

(1959); accord Hambsch v. New York City Transit Authority, 63 N.Y.2d 723, 725 (1984);

Erosa v. Rinaldi, 270 A.D.2d 384 (2d Dep’t 2000). An expert may rely on out-of-court material only if it “is of a kind accepted in the profession as reliable in forming a professional opinion” or “comes from a witness subject to full cross-examination on the trial.” People v. Sugden, 35 N.Y.2d 453, 460-61 (1974); Hambsch v. New York City

Transit Authority, supra.

Before a medical expert may testify as to matters contained in medical records, but not personally known to the expert, such records must be admitted into evidence.

Homsey v. Castellana, 289 A.D.2d 201 (2d Dep’t 2001); Nuzzo v. Castellano, 254

A.D.2d 265 (2d Dep’t 1998); see also Matter of Warsaski, NYLJ, Jan. 22, 2002, at 20, col. 4 (Sur. Ct., New York Co.) (psychiatrist who had not examined decedent or his medical records could not opine as to decedent’s mental state where copies of documents alleged to have been typed by decedent or in his handwriting, on which psychiatrist’s opinion was purportedly based, were not properly authenticated); but see People v.

DiPiazza, 24 N.Y.2d 342 (1969) (psychiatrists could rely on certain hospital records and

58 92 tests and examinations which “played a comparatively small role in the process by which the . . . experts arrived at their opinions”).

Expert witnesses generally may not base their conclusions on the opinions of physicians who did not testify at trial. Erosa v. Rinaldi, supra, 270 A.D.2d at 384;

O’Shea v. Sarro, 106 A.D.2d 435 (2d Dep’t 1984); Borden v. Brady, 92 A.D.2d 983 (3d

Dep’t 1983).

A hypothetical question may be used to elicit the expert’s opinion where it is based on evidence in the record, Matter of Callahan, 155 A.D.2d 454 (2d Dep’t 1989), although the opinion need not take that form. See CPLR 4515.

Expert Need Not Reveal Basis of Opinion on Direct Examination. When an expert’s opinion is offered at trial “the technical or scientific basis for [his] conclusions ordinarily need not be adduced as part of the proponent’s direct case.” Romano v.

Stanley, 90 N.Y.2d 444, 451 (1997). Rather “it falls to the opponent of the testimony to bring out weaknesses in the expert’s qualifications and foundational support on cross- examination . . . .” Adamy v. Ziriakus, 92 N.Y.2d 396, 402 (1998). See also CPLR 4515

(“[u]nless the court orders otherwise . . . the witness may state his opinion and reasons without first specifying the data upon which it is based . . . . [and] [u]pon cross- examination, he may be required to specify the data and other criteria supporting the opinion”).

However, where an expert relies on facts within his personal knowledge that have not previously been admitted into evidence, the common law rule that he must first testify to those facts before rendering his opinion, appears to have survived the enactment of

CPLR 4515. See People v. Jones, 73 N.Y.2d 427, 430 (1989); Mandel v. Geloso, 206

59 93 A.D.2d 699 (3d Dep’t 1994); Richard T. Farrell, Prince, Richardson on Evidence § 7-309

(11th ed. 1995). Medical experts “testifying as to the medical condition of a party” whom they have personally examined are not subject to this rule, however, and “the particular facts upon which [their] opinion is based need not be disclosed in the first instance.”

Weibert v. Hanan, 202 N.Y. 328, 331 (1911); accord Matter of Martin, 82 Misc. 574,

593-594 (Sur. Ct., New York Co. 1913) (“In this state…. physicians who have examined one whose competency is sub judice may state their opinion of his sanity directly, without detailing the facts on which the conclusion is based, leaving such facts to be brought out by the cross-examiner.”); Richard T. Farrell, Prince, Richardson on Evidence

§ 7-309 (11th ed. 1995).

The court is always free to require the expert to disclose the basis of his opinion on direct examination or even before such opinion is given. See, e.g., Super v.

Abdelazim, 139 A.D.2d 863 (3d Dep’t 1988).

Handwriting Experts. The handwriting expert bases his opinion on a comparison of the disputed writing with genuine and undisputed writings. The writing offered as a standard of comparison must be conceded to be genuine or “proved to the satisfaction of the Court” to be the handwriting of the person claimed to have made the disputed writing.

CPLR 4536; People v. Molineux, 168 N.Y. 246 (1901). Such proof may be made:

“(1) by the concession of the person sought to be charged with the disputed writing made at or for the purposes of the trial, or by his testimony; (2) . . . by witnesses who saw the standards written, or to whom, or in whose hearing, the person sought to be charged acknowledged the writing thereof; (3) . . . by witnesses whose familiarity with the handwriting of the person who is claimed to have written the standard enables them to testify to a belief as to its genuineness; (4) or by evidence showing that the reputed writer of the standard has acquiesced in or recognized the same, or that it has been adopted and acted upon by him in his business transactions or other concerns.”

60 94 People v. Molineux, 168 N.Y. at 328. Only an expert can express an opinion as to genuineness of handwriting by comparing the disputed writing to these exemplars.

Heller v. Murray, 112 Misc.2d 745 (N.Y. City Civ. Ct. 1981). A lay witness is not competent to make the comparison. Id.; Richard T. Farrell, Prince Richardson on

Evidence § 7-318 (11th ed. 1995).

Limitations on Effectiveness of Expert Testimony. A considerable body of case law has developed concerning the weight to be accorded an expert’s testimony where testamentary capacity is at issue. The majority of cases hold that an expert’s testimony based solely on his or her review of a decedent’s medical records is insufficient to withstand a motion for summary judgment or directed verdict where the attesting witnesses have testified to the decedent’s capacity. See, e.g., Matter of Tracy, 221

A.D.2d 643 (2d Dep’t 1995), leave denied, 87 N.Y.2d 811 (1996); Matter of Swain, 125

A.D.2d 574 (2d Dep’t 1986), appeal denied, 69 N.Y.2d 611 (1987); Matter of Weisman,

NYLJ, June 14, 2000, at 30, col. 4 (Sur. Ct., New York Co. 2000); see also Matter of

Carver, 2007 WL 3407748 (Sur. Ct., Essex Co. 2007); Matter of Fogel, NYLJ, Sept. 28,

2007, at 41, col. 3 (Sur. Ct., Kings Co.); Matter of Monahan, NYLJ, July 13, 2004, at 32, col. 6 (Sur. Ct., Suffolk Co.). The leading case describes such testimony as “the weakest and most unreliable kind of evidence.” Matter of Van Patten, 215 A.D.2d 947, 949 (3d

Dep’t), leave to app. denied, 87 N.Y.2d 802 (1995). An expert’s opinion is particularly likely to be held insufficient to raise a factual issue when it is also contradicted by the testimony of decedent’s treating physician or other medical personnel attending him.

See, e.g., Matter of Van Patten, supra; Matter of Swain, supra; Matter of Vukich, 53

61 95 A.D.2d 1029 (4th Dep’t 1976), aff’d, 43 N.Y.2d 668 (1977); Matter of Burnham, 201 App.

Div. 621 (2d Dep’t 1922), aff’d, 234 N.Y. 475 (1923).

The question has been raised, however, whether the Court of Appeals’ decision in

Matter of Sylvestri, 44 N.Y.2d 260 (1978), a case involving a handwriting expert, supports such a view. In Sylvestri, the Court upheld a jury’s verdict that the testatrix’s signature on the propounded will was not genuine based solely on the adverse testimony of an expert, notwithstanding contrary testimony by three disinterested, attesting witnesses that she had signed the will in their presence. The Court of Appeals declined to adopt a blanket rule – at least in handwriting cases – that the opinion of an expert, standing alone, is “insufficient to sustain a finding of forgery in the face of direct and credible evidence of disinterested subscribing witnesses who testified that they saw the testator sign his name.” 44 N.Y.2d at 265. Rather, the Court held that an “adverse opinion of a handwriting expert” is “to be weighed by the jury along with other credible evidence and need not necessarily be regarded as inadequate to rebut the testimony of subscribing witnesses . . . .” Id. at 266.

In two subsequent cases – Matter of Warsaski, NYLJ, Jan. 4, 1996, at 27, col. 2

(Sur. Ct., New York Co.), aff’d, 228 A.D.2d 275 (1st Dep’t 1996) and Matter of Lewis,

NYLJ, Jan. 13, 1998, at 26, col. 3 (Sur. Ct., New York Co.) – Surrogate Roth applied the principles set forth in Matter of Sylvestri to the issue of testamentary capacity and held that expert psychiatric opinions in those cases were sufficient to raise fact issues as to the decedent’s testamentary capacity, notwithstanding that neither expert had examined or had any personal knowledge of decedent and, in Warsaski, had not even examined decedent’s medical records. However, the outcomes in Warsaski and Lewis may have

62 96 been driven by facts particularly adverse to the proponents. In Warsaski, objectants’ expert claimed that decedent suffered from a chronic paranoid delusional psychosis that prevented him from knowing the natural objects of his bounty and caused him to project feelings of suspicion and hatred engendered by the psychosis on objectants, his two nephews. According to objectants’ expert, a delusion – unlike dementia or senility – was not a condition that would have been readily apparent to the attesting witnesses. The

Surrogate also found it significant that the psychiatrist based his opinion on a review of a series of letters and an autobiographical manuscript written by decedent, which she characterized as “a rambling, disjointed, stream of consciousness.”

Moreover, although the proponent in Warsaski relied on the affidavits of the attesting witnesses, they “apparently [had] no independent recollection of the [will’s] execution.” Similarly, in Lewis, decedent’s own treating physician, a little over a year after the decedent’s execution of the will at issue, had described her as “crazy as a March hare,” and the surviving attesting witnesses had, at best, a vague recollection as to the execution ceremonies for the will and codicils.

A determination of whether Sylvestri should be given the broad reading accorded it by Surrogate Roth should also take into account the fact there was “other evidence” in

Sylvestri supporting the expert’s conclusion, most notably, the Sylvestri Surrogate’s observation that “even to the untrained eye, marked differences [were] apparent between the questioned signature . . . and the exemplar signatures.”9

Remoteness of Underlying Events is Significant in Weighing Expert Testimony.

The more remote the events on which an expert’s opinion is based, the less weight such

9 In addition, there existed conflicts in the attesting witnesses’ testimony and inconsistencies between the trial and deposition testimony of the attorney-draftsman.

63 97 opinion will carry. See, e.g., Matter of Davis, 29 Misc.2d 60 (Sur. Ct. Westchester Co.

1961) (opinion predicated on records of sanatorium confinement one year before will’s execution, which indicated the decedent “had been frequently disoriented and confused as to dates, places and people,” was insufficient to avoid dismissal of objection); Matter of

Kemble, 149 A.D.2d 899 (3d Dep’t 1989) (audiologist who examined decedent one and one-half years after will was executed properly precluded from giving his opinion as to the degree of any hearing loss at time of execution).

BUSINESS RECORDS

CPLR 4518 contains the business records exception to the hearsay rule, the purpose of which is to eliminate the burden of having to elicit testimony from each employee who participated in the record-making process. Many types of documents can qualify as business records under this hearsay exception, including but not limited to corporate records, telephone records, doctors’ records, hospital records, and police reports.

Foundational Requirements. CPLR 4518(a) allows a business document to be admitted to prove the truth of its contents if certain foundational requirements – guaranteed to establish reliability – are met. First, the record must be made in the regular course of business (i.e., the record must be relied upon in the course of a regularly conducted business activity). Second, it must be the regular course of the business to make such a record (i.e., the business must routinely and systematically make such records). Third, the record must have been made at the time of the transaction or event being recorded or within a reasonable time thereafter. CPLR 4518. And under a fourth

64 98 foundational requirement, added by case law, the person making the record must either possess actual knowledge of the transaction recorded or have obtained the information from someone else within the organization who had a business duty to report it; alternatively, the record maker may obtain the information from a person outside the business whose statement as reflected in the record meets another hearsay exception.

Matter of Leon RR, 48 N.Y.2d 117 (1979); Johnson v. Lutz, 253 N.Y. 124 (1930).

Business Duty Requirement. Under this foundational standard, not only must the person making the business record be under a duty to do so, but if the information contained in the record came from another source within the organization, that source must also be under a business duty to report the transaction or event to the maker of the record. Matter of Leon RR, 48 N.Y.2d 117 (“each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception”). If the informant is not under a business duty to report and no other hearsay exception applies, the document historically has not been admitted as a business record.

Murray v. Donlan, 77 A.D.2d 337 (2d Dep’t 1980), app. dismissed, 52 N.Y.2d 1071;

Matter of Baron, NYLJ, Nov. 4, 2002, at 35, col. 4 (Sur. Ct., Suffolk Co. 2002). But see

Pencom Systems, Inc. v. Shapiro, 237 A.D.2d 144 (1st Dep’t 1997) (statements of job applicants reflected in employer’s records were sufficiently reliable to be admitted under the business record exception); People v. McKissick, 281 A.D.2d 212 (1st Dep’t 2001)

(same). Similarly, private memoranda that are not are made in the regular course of business are inadmissible under CPLR 4518. See, e.g., Matter of Potter, 24 A.D.2d 812

(3d Dep’t 1965).

65 99 Opinions Contained Within Business Records. Even opinions contained within such business records are admissible if they meet the foundational requirements set forth above, despite the fact that the persons offering such opinions are not subject to cross- examination. See People v. Kohlmeyer, 284 N.Y. 366 (1940) (doctors’ opinions admissible). So, for example, diagnoses and other conclusory statements contained in hospital and other medical records would be admissible. Of course, the admissibility of such opinions will depend in part on whether the declarant would have been permitted to give opinion testimony if he or she had testified. Miller v. Alagna, 203 A.D.2d 264 (2d

Dep’t 1994). At any rate, opinions may, under appropriate circumstances, be given more or less weight. Wilson v. Bodian, 130 A.D.2d 221 (2d Dep’t 1987).

Hearsay Statements Contained within Business Records. It sometimes happens that a document qualifying as a business record will contain hearsay statements by third parties unrelated to the business that generated the record. Those statements cannot be admitted unless (i) a hearsay exception applies, see e.g., Taft v. New York City Transit,

193 A.D.2d 503 (1st Dep’t 1993), Matter of Baron, NYLJ, Nov. 4, 2002, at 35, col. 4

(Sur. Ct., Westchester Co.); or (ii) they are offered for a non-hearsay purpose, see e.g.,

Splawn v. Lextaj Corp., 197 A.D.2d 479 (1st Dep’t 1993), leave to app. denied, 83

N.Y.2d (1994). If the source of the information contained in the record is unknown, it cannot be admitted. Ginsberg v. North Shore Hosp., 213 A.D.2d 592 (2d Dep’t 1995), leave to app. denied, 86 N.Y.2d 701 (1995); Ward v. Thistleton, 32 A.D.2d 846 (2d Dep’t

1969); Matter of Sullivan, 185 Misc. 2d 39 (Sup. Ct., New York Co. 2000).

Business Record Exception Does Not Overcome Other Exclusory Rules. If statements contained within such business records are otherwise subject to exclusion

66 100 under another evidentiary principle, the fact that the records qualify as business records under CPLR 4518(a) will not overcome an objection to admissibility. So, for example, privileged communications between a doctor and her patient are not admissible simply because they are contained within a business record. See, e.g., Dillenbeck v. Hess, 73

N.Y.2d 278 (1989). See also Bostic v. State, 232 A.D.2d 837 (3d Dep’t 1996).

Establishing the Foundation for Business Records. Typically, the above foundational requirements are established through the testimony of the custodian of the documents or some other person who has personal knowledge of the record-keeping procedures of the business. See, e.g., Faust v. McPherson, 4 Misc. 3d 89 (2d Dept 2004);

West Valley Fire Dist. No. 1 v. Village of Springville, 294 A.D.2d 949 (4th Dep’t 2002).

For the purpose of admissibility, it is not necessary to introduce the testimony of the actual persons who supplied or recorded the information contained in the record. Richard

T. Farrell, Prince, Richardson on Evidence § 8-306 (11th ed. 1995); Randolph Jonakait et al., New York Evidentiary Foundations, at 344 (2d ed.).

With respect to the business records of non-parties obtained pursuant to a subpoena duces tecum, in-court testimony is not required. The custodian or other qualified person can simply make an affidavit stating that he is a custodian of the relevant records or otherwise qualified to make the certification; that to the best of his or her knowledge, the records are an accurate and complete set of the subpoenaed documents; and that the records were made in the ordinary course of the business, it was regular course of the business to make such a record, and the record was made at the time of the transaction or event recorded or within a reasonable time thereafter. See CPLR 3122-

67 101 a(a).10 (It is advisable to provide the non-party with an affidavit to this effect at the time the subpoena is served.)

Computer Records. As of 2002, computer business records are also admissible if the records are a “true and accurate representation” of the electronic record. CPLR

4518(a). In making this determination, the court may consider the method by which the electronic record was stored, maintained, and retrieved. CPLR 4518(a). The underlying electronic record must, of course, satisfy the foundation requirements of CPLR 4518(a).

Notice of Intent to Admit Business Records. Under CPLR 3122-a(b), any party intending to offer business records into evidence at trial must give notice of such intent at least thirty days before trial, and must specify where the business records can be inspected. Any party objecting to admission of the records must do so at least ten days before trial. CPLR 3122-a(c).

HOSPITAL RECORDS

CPLR 4518(c) obviates the need to call a witness to meet foundational requirements for certain kinds of business records, including hospital records relating to the condition and treatment of a patient. See CPLR 4518(c) and CPLR 2306.

Certification Required. Under the statute, hospital records are prima facie evidence of the facts set forth therein, provided the records are certified or authenticated by an appropriate person such as the head of the hospital, a qualified physician, or an employee delegated for that purpose. CPLR 4518(c).

10 By its terms, CPLR 3122-a does not apply to parties. Because it applies only to business records obtained by subpoena, and subpoenas cannot be served without the state, it applies only to non-parties within the State of New York.

68 102 The certification must establish that the records meet all of the foundational requirements enumerated in CPLR 4518(a). See, e.g., People v. Mertz, 68 N.Y.2d 136

(1986) (certification must state that the record was made within a reasonable time of the events recorded).

Foundation for Hospital Records. To qualify as a record made in the regular course of the business of the hospital, a hospital record must relate to diagnosis and treatment of the patient; to the extent any portion of the hospital record does not serve a medical purpose, that portion will be excluded from evidence. Williams v. Alexander,

309 N.Y. 283 (1955); Rodriguez v. Piccone, 5 A.D.3d 757 (2d Dep’t 2004); Schroder v.

Consolidated Edison Co., 249 A.D.2d 69 (1st Dep’t 1998). So, for example, that portion of a hospital record that merely recounts the patient’s history is not admissible unless it assists in the patient’s diagnosis and treatment. Williams v. Alexander, 309 N.Y. 283

(1955). See also, People v. Scott, 294 A.D.2d 661 (3d Dep’t 2002), leave to app. denied,

98 N.Y.2d 731-732.

As with all business records, in the event information contained in the record has been recorded by a person under a business duty but has come from a person with no duty to report it (for example, a family member), the information recorded will be deemed inadmissible unless another hearsay exception applies. See 9 Weinstein, Korn &

Miller, New York Civil Practice ¶ 4518.12 (2d ed. 2008).

Once the foundational requirements have been satisfied, certified hospital records are deemed conclusively admissible, and attacks on the underlying information contained in the record go to the weight of the evidence rather than its admissibility. Rodriguez v.

69 103 Triborough Bridge and Tunnel Authority, 276 A.D.2d 769 (2d Dep’t 2000), app. dismissed, 96 N.Y.2d 814 (2001).

Once admitted, such documents can be used to establish everything from a diagnosis of the patient’s mental condition to daily observations of the patient’s condition. People v. Kohlmeyer, 284 N.Y. 366 (1940); Matter of O’Grady, 254 A.D.

691 (2d Dep’t 1938). This is so even though the doctor who made the entries is never called as a witness. However, the weight to be accorded the documentary record remains in the hands of the trier of fact.

X-Rays and Similar Tests. As for medical or diagnostic records that contain

“graphic, numerical, symbolic or pictorial representations,” such as x-rays and magnetic resonance images, CPLR 4532-a permits their admission into evidence without foundation testimony if the record contains certain identifying information -- including the name of the injured party and the date on which the test was done -- and, in addition, if the record has either been examined by the party against whom it is being offered or notice has been provided to him at least ten days before trial of counsel’s intention to offer the exhibit and such notice is accompanied by a doctor’s affidavit identifying the record, attesting that identifying information inscribed on the record is the same as is customarily inscribed by him or the facility in question, and attesting that he or she would testify if called as a witness. This rule relieves the medical practitioner of the burden of appearing in court to give foundation testimony concerning such medical tests.

70 104 Current Ethics Issues for Trusts & Estates Attorneys

Angelo M. Grasso

Greenfield Stein & Senior, LLP New York City

105 106 Current Ethics Issues for Trusts & Estates Attorneys

by Angelo M. Grasso1 Greenfield Stein & Senior, LLP

Trusts and estates practice frequently involves ethical issues that can flummox even the veteran practitioner. Set forth below is a primer on some of the more common ethical issues and conundrums that the trust and estates attorney should consider in estate planning and administration.

The Rules of Professional Conduct

First, it is critical to understand the lay of the land. The Rules of Professional Conduct (“RPC”) were adopted on April 1, 2009 by former Chief Judge Judith Kaye and the presiding justices of the four appellate divisions. They replaced the former Code of Professional Responsibility, and its attendant Canons, Ethical Considerations and Disciplinary Rules. The RPC is based on the ABA Model Rules of Professional Conduct. While there is no official commentary accompanying the RPC, the New York State Bar Association (“NYSBA”) has issued commentaries to the Rules, which have not been adopted by the courts. The NYSBA Committee on Professional Ethics also issues opinions interpreting the RPC, much as it had done with the Code of Professional Responsibility.

While the adoption of the RPC created a sea change in the New York ethical landscape, NYSBA Ethics Opinion 829 (April 2009) provides that a consent to a conflict of interest (discussed below) that was validly given before April 1, 2009 does not need to be obtained again. Opinion 829 further provides that consent can be made in e-mail - including an e-mail by the attorney confirming the client consent - and need not be signed by the client.

1 Angelo is a partner at Greenfield Stein & Senior, LLP, specializing in trusts and estates litigation. Angelo thanks his partner, Anne Bederka, for her extraordinary assistance with this article.

1 107 Attorney-Drafters as Beneficiaries

Rule 1.8(c) of the RPC states:

A lawyer shall not: (1) Solicit any gift from a client, including a testamentary gift, for the benefit of the lawyer or a person related to the lawyer; or (2) Prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any gift, unless the lawyer or other recipient of the gift is related to the client and a reasonable lawyer would conclude that the transaction is fair and reasonable. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative, or individual with whom the layer or the client maintains a close, familial relationship.

Matter of Putnam, 257 N.Y. 140 (1931) is the leading case concerning testamentary gifts made to attorney-drafters. In Putnam, the Decedent’s prior wills left the residuary estate in trust for his niece’s benefit for life, with the remainder to charity. In the will offered for probate, the remainder was left to the attorney- drafter. The niece contested the will, claiming undue influence. The Court held that the attorney-drafter was required to explain the circumstances of the bequest and show that it was freely and willingly made. In the absence of an adequate explanation, the jury was entitled to draw an inference of undue influence. Here, the attorney-drafter satisfied his burden, and the jury upheld the bequest.

Since this decision, a bequest to an attorney-drafter will be subject to a “Putnam hearing,” where the attorney must present competent evidence to show that the bequest was freely and willingly made. In Matter of Henderson, 80 N.Y.2d 388 (1992), the Court of Appeals went a step further and held that if the facts

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warrant, a “Putnam hearing” can be required if there is a bequest to an attorney and she did not draft the will.2

Attorney-Drafters as Fiduciaries

Rule 1.8(c) is silent as to attorneys being named an executor or a trustee in a client’s will. The commentary states that the general conflict of interest rules apply (Rule 1.7), which require obtaining a client’s informed consent. To obtain informed consent, the attorney “should advise the client concerning the nature and extent of the lawyer’s financial interest in the appointment, as well as the availability of alternative candidates for the position.”

Matter of Weinstock, 40 N.Y.2d 1 (1976) is the seminal case on this issue. In Weinstock, the testator hired a new attorney to update his will. The attorney brought his son to the first meeting with the testator. The testator advised them that to save on commissions, he wanted the bank removed as executor and inquired about having his family members serve instead. A new will was prepared, with three executors named: the attorney, his son, and a third person. At no point did the drafter advise the testator that two executors would receive full commissions. The Surrogate concluded that attorney and his son unduly influenced the testator into appointing them. The Court of Appeals affirmed and invalidated their appointment.

After Weinstock, SCPA §2307-a was promulgated to address the issue of attorney-fiduciary commissions. SCPA §2307-a(1) provides that prior to the execution of a will naming the attorney-drafter, her employee, or a “then affiliated attorney” as executor, a testator must be advised that:

1. Any person may serve as executor; 2. Absent any contrary agreement, any person who serves as executor (including an

2 See also SCPA §1408 [court must be satisfied with the validity and genuineness of a will and may sua sponte order a hearing even if no objections are filed]; Matter of Friedman, N.Y.L.J., Nov. 30, 2015, p. 18, col. 4 (Sur. Ct. New York Co.).

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attorney) is entitled to statutory commissions; 3. If the testator does not sign an acknowledgement under SCPA §2307-a(2), the attorney-executor will only receive one- half of the statutory commissions; and 4. If any attorney serves as executor and also renders legal services to the estate, the attorney can receive commissions and legal fees.

SCPA §2307-a(2) provides that the acknowledgement must be set forth in writing, signed by the testator, and witnessed by at least one person who cannot be the executor-designee.3 The acknowledgement is a separate document from the will, but it can be annexed to the will itself. The acknowledgement can be signed before, concurrently with, or after the execution of the will. The acknowledgement must also be filed in the proceeding to probate the will.

SCPA §2307-a contains model forms to be utilized by the attorney- drafter that can comply with the statute. The practitioner is well-advised to utilize the forms provided in the statute – this is not a case where the attorney will be rewarded for creativity. Failure to have the client sign a proper, compliant acknowledgment may result in the loss of one-half of statutory commissions. See, e.g., Matter of King, N.Y.L.J., Jan. 17, 2014, p. 23, col. 3 (Sur. Ct. Bronx Co.).

A separate question is whether an attorney may offer his services as executor. In N.Y.S.B.A. Opinion 481 (1977), the State Bar opined that an attorney- drafter may offer his services as executor if the client is competent, there has been a longstanding relationship between the attorney and the client, and the client appears to experience difficulty in selecting another qualified or competent person

3 Courts are divided on who may serve as a witness. In Matter of Beybom, N.Y.L.J., Sept. 28, 2011, p. 28 (Sur. Ct. Suffolk Co.), Surrogate Czygier held that an attorney affiliated with the attorney-drafter can act as a witness to a SCPA §2307-a acknowledgement. The opposite was held in Matter of Hess, N.Y.L.J., Sept. 24, 2008, p. 40, col. 3 (Sur. Ct. New York Co.).

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to serve. Under no circumstances may an attorney convince the client that she is best suited to serve as executor.

Matter of Lowenstein, N.Y.L.J., June 30, 1993, p. 25, col. 6 (Sur. Ct. New York Co.) dealt with the question of whether an attorney may enter into a contract with the client requiring that the attorney be appointed fiduciary under a will. Surrogate Roth held that such contracts are unenforceable:

Based upon Matter of Weinstock, supra, and the Code of Professional Responsibility, it is concluded that a contract provision requiring the nomination of the attorney draftsman as fiduciary of the testator’s estate is unenforceable unless it is clearly demonstrated to the satisfaction of the court that special circumstances required the services of the attorney draftsman and that the nomination was not the product of overreaching.

Creatively (though futilely), the attorney-drafter in Lowenstein also asserted a claim for money damages in the amount of lost commissions. This claim was dismissed, as “commissions are compensation for services” and the attorney-drafter was not entitled to commissions for work he never performed. Id.

Attorney-Drafters as Counsel

The fiduciary may hire the attorney-drafter as counsel to probate the will and administer the estate. However, there is no requirement that the fiduciary hire the attorney-drafter. ACTEC Rule 1.7 Commentary provides that if an attorney wishes to include a direction in the will that the fiduciary hire him or his firm as counsel, the attorney should first advise the client that it is neither necessary nor customary to do so, and that such a direction is not binding on the fiduciary under New York law.

Altering an Attorney-Fiduciary’s Commissions

Matter of Patterson, N.Y.L.J., Jan. 8, 2001, p. 2, col. 6 (Sur. Ct. Westchester Co.) addressed the question of whether an attorney-drafter named as

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executor can add a provision to a will that increases his commission base. In Patterson, the attorney-drafter had a long-standing professional and personal relationship with the testator and her husband. The attorney drafted a will with a clause that provided that non-probate assets and specific legacies and devises would be included in the commission base. The will also provided that if three executors served, they would be entitled to three commissions, rather than the standard two. At his deposition, the attorney-drafter testified that he orally explained to decedent and her husband the reasons for increasing the base and the financial impact of the extra executor’s commission.

Contemporaneous with the signing of the will, the decedent signed a separate writing stating her understanding of the financial impact of the clause after the letter was read aloud in the presence of the attesting witnesses. The letter estimated the total commissions and legal fees payable to the attorney-fiduciary’s firm, disclosed that each of the three executors would receive a full commission, and disclosed that commissions would be paid on real property that was deeded to charity during decedent’s life (subject to a life estate).

Despite this evidentiary showing, the Court declined to grant the attorney-fiduciary summary judgment. Surrogate Scarpino found that the documentary record did not establish decedent’s knowledge of the amount of additional commissions attributable to the enhanced base (even though an estimate was provided) and the attorney’s justification for three executors was disputed.

An excess commissions clause was struck down in Matter of Klenk, 151 Misc. 2d 863, 574 N.Y.S.2d 438 (Sur. Ct. Suffolk Co.). The testator in Klenk similarly provided for the attorney-drafter (one of two fiduciaries) to receive extra commissions for specific devises. The evidence adduced showed that the attorney- drafter did not have a close relationship with the testator, and failed to discuss the nomination of the executors or the issues of legal fees or commissions with the testator, claiming this subject matter had been discussed on a prior will. The Court held that the inclusion of the elevated commissions language “was self-serving and

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motivated by sheer greed, and it was, therefore, the product of constructive, if not actual fraud,” and denied the attorney any commissions and his law firm any attorney’s fees for work performed.

Representing Fiduciaries with Potential Conflicts

Two areas that frequently raise ethical issues are representing multiple fiduciaries and representing a person in both their individual and fiduciary capacity. Both scenarios contain pitfalls that must be carefully navigated.

When representing multiple fiduciaries, an issue arises if the fiduciaries disagree as to a course of action. Not all actions by fiduciaries require unanimity. For example, in Matter of Schwarz, 240 A.D.2d 268, 660 N.Y.S.2d 107 (1st Dep’t 1997), the Appellate Division ruled that fiduciaries may unilaterally engage counsel to represent the estate in litigation. This is potentially perilous for fiduciaries acting on their own, as they risk surcharge.4 Fiduciaries may also unilaterally pay administration expenses and settle claims on behalf of the estate. See EPTL §11-1.1(b)(13), (22).

When an attorney represents multiple clients and a conflict develops between them, he may not undertake the representation of either against the other unless he shows there is no actual conflict, or all of the parties consent after complete disclosure. See Matter of Hof, 102 A.D.2d 591, 478 N.Y.S.2d 39 (2d Dep’t 1984).

When there is a conflict, the terms of the retainer agreement are critical and often govern what the attorney’s role may be. An attorney may obtain advance consent that if confidential communications are shared and either client refuses to allow disclosure, the attorney shall withdraw from representing both clients after informing them that a conflict has developed and separate representation should be obtained.

4 A dissenting fiduciary who disagrees with her co-fiduciary’s decision must do so in writing; otherwise, she will be equally liable. See EPTL §10-10.7.

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In the non-estate context, the issue of advance consent arose in GEM Holdco, LLC v. Changing World Technologies, 130 A.D.3d 506, 14 N.Y.S.3d 14 (1st Dep’t 2015). In GEM, a defendant retained an attorney who had represented a co- defendant in the litigation for over month, as their interests appeared to be aligned. The retainer letter stated that “if a conflict or dispute were to arise or if for any other reason joint representation does not continue, we would continue to represent” the original clients, and stated that by signing the retainer, the new clients “are consenting to such an arrangement and waive any conflicts regarding that arrangement.” After a conflict arose, the departing defendants moved to disqualify the attorneys. The trial court denied the motion and the Appellate Division affirmed, holding that the advance conflict waiver was valid. See also St. Barnabas Hosp. v. N.Y.C. Health & Hosp. Corp., 7 A.D.3d 83, 775 N.Y.S.2d 9 (1st Dep’t 2004) [upholding advance conflict waiver].

The common thread in GEM and St. Barnabas is the explicit and specific language in the retainer agreements that expressly advised clients of the advance conflict waiver and the potential consequences of executing the retainer agreement. It is imperative for attorneys to be clear and express in crafting such provisions in their retainer agreements.

For the same reason, it is critical to have a retainer agreement that specifically delineates the scope of retention when representing a beneficiary who is also the fiduciary. Hundreds of cases can be cited to show the conflict of interest that is created when a beneficiary “wears two hats,” engages in self-dealing, or puts his interest as a beneficiary ahead of his fiduciary duty to the estate. A carefully crafted retainer agreement that spells out in what capacity an attorney is representing a beneficiary and the various pitfalls is often worth the hours of headache that may arise later.

Executors Who Plan to or Have Breached Fiduciary Duties

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N.Y.S.B.A. Ethics Opinion 649 (June 1993) concerns an attorney who learns that her client intends to violate her fiduciary duty. The Opinion states that the attorney must call upon the executor to act in accordance with her fiduciary obligations and must decline to assist any conduct that is contrary to the best interests of the estate. The attorney has a further duty not to assist a client with any conduct or communication that misstates any facts.

If the client does not follow the attorney’s advice, the attorney must consider withdrawal. Similarly, if the client has already breached her fiduciary obligations, the attorney has the duty to call upon the executor to rectify the mistake, and to withdraw from representation if the executor declines to do so. However, the attorney may not disclose the client’s confidences or secrets, or any other information that is subject to the attorney-client privilege.

N.Y.S.B.A. Ethics Opinion 797 (April 2006) concerns an attorney who learns that his client has made false representations to a court in an affidavit and what corrective action must be taken. Under the old Disciplinary Rules, the attorney must call upon the client to correct the incorrect information in the affidavit. If the client refuses, the attorney must withdraw any misstatements the attorney made in certifying the client’s statements. The attorney must also consider whether he is required or permitted to withdraw as counsel. Again, however, the attorney may not disclose the client’s confidences and secrets except to the extent implicit in such withdrawal. See also RPC, Rule 1.6.

Suing an Attorney-Drafter

Schneider v. Finmann, 15 N.Y.3d 306 (2010) addressed the question of whether a malpractice claim exists against an attorney-drafter after the testator’s death. In Schneider, the attorney-drafter represented the client for a seven-year span. During this representation, through a series of transactions, the testator purchased a life insurance policy, then transferred the policy first into entities the testator owned, then ultimately back to himself before he died. The end result was

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when the testator died, the life insurance policy was part of the taxable estate, increasing the estate’s tax liability.

The fiduciary commenced an action in Supreme Court against the attorney-drafter for malpractice, alleging that the attorney failed to take the proper steps to keep the $1 million policy outside of the estate. The Supreme Court granted the motion to dismiss, and the Second Department affirmed, holding that no privity exists between the fiduciary and the attorney, thus meaning there was no cause of action, as a third party cannot maintain a claim for malpractice absent fraud, collusion, malicious acts or special circumstances. 60 A.D.3d 892, 876 N.Y.S.2d 121 (2d Dep’t 2009).

The Court of Appeals reversed, holding that privity exists between the estate planning attorney and the estate fiduciary, as the fiduciary stands in the decedent’s shoes:

Privity or a relationship sufficiently approaching privity exists between the personal representative of the estate and the estate planning attorney...The estate essentially stands in the of a decedent and therefore has the capacity to maintain a malpractice claim on decedent’s behalf.

The Court of Appeals did draw a line, holding that strict privity remained a bar against beneficiary and third-party individuals maintaining malpractice claims “absent fraud or other circumstances,” holding that doing otherwise “would produce undesirable results - uncertainty and limitless liability.”

As to the fiduciary in Schneider, the Court noted that minimizing the estate’s tax burden “is one of the central tasks entrusts to the professional.” Inasmuch as the attorney-drafter had failed signally at this task, the Court of Appeals reversed and reinstated the underlying action.

Seven years out, the impact of Schneider has been less seismic than commentators and practitioners originally anticipated. Allmen v. Fox Rothschild, 34 Misc. 3d 1224(A), 946 N.Y.S.2d 65 (Sup. Ct. New York Co. 2012) echoed the

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findings in Schneider, as the Court found that the executor had a malpractice cause of action against the attorney-drafter when the drafter allegedly drafted negligent tax allocation clauses that increased the estate’s tax burden. Ianiro v. Bachman, 131 A.D.3d 925, 16 N.Y.S.3d 85 (2d Dep’t 2015) expanded it ever-so slightly, holding that a trustee (like an executor) has privity with an attorney-drafter to bring a malpractice claim. By contrast, a beneficiary was not permitted to bring a malpractice claim in Rhodes v. Honigman, 131 A.D.3d 1151, 16 N.Y.S.3d 324 (2d Dep’t 2015) because of lack of privity. See also Leff v. Fulbright & Jaworski, 78 A.D.3d 531, 911 N.Y.S.2d 320 (1st Dep’t 2010).

Incapacitated Clients

Rule 1.14(a) concerns dealing with clients with diminished capacity, and pertinently provides:

When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.

The Rule recognizes that a client with diminished capacity often has the ability to understand legal matters and make rational decisions, a critical analysis in drafting and executing wills. If an attorney is unsure of a client’s ability, she may wish to seek a professional opinion on a client’s capacity.

Rule 1.14(b) concerns prophylactic steps an attorney should take when he reasonably believes a client has diminished capacity and is at risk of physical, financial or other harm:

When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer

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may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

Seeking a guardian for a client either without her permission or over her objection is appropriate only when there is no other practical method of protecting the client’s interests. The attorney should always consider less restrictive mechanisms for protecting the client’s interests first. While an attorney is a “person otherwise concerned with the welfare of the person alleged to be incapacitated,”5 the attorney should only act as petitioner in an Article 81 proceeding when no other person is available to do so.

It bears repeating that the attorney-client privilege continues to apply to protected communications between an attorney and an incapacitated client. Unless she is authorized to do so, an attorney cannot disclose privileged communications, or even the client’s diminished capacity. However, if the client is at risk unless the privileged communications are disclosed, the attorney may divulge them over the client’s objections, but only to the extent necessary to protect the client’s interests.

An attorney must be cognizant that third parties that are present during attorney-client communications may destroy the attorney-client privilege. Regardless, the attorney must look to the client (not the third party) to make decisions. The exception is if a legal representative is appointed for the client, then the attorney will look to the representative to make decisions on the client’s behalf.

These principles are critical for an attorney to remember in preparing a client’s estate plan, as frequently, the lines will be blurred between “client” and “advisor.” The attorney must always remember who the client is, and abide by her wishes.

5 New York Mental Hygiene Law, §81.06.

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Professional Responsibility for Trusts and Estates Attorneys:

Select Issues Representing Fiduciaries and Beneficiaries

Ian W. MacLean, Esq.

The MacLean Law Firm, P.C. New York City

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122 Professional Responsibility for Trusts and Estates Attorneys: Select Issues Representing Fiduciaries and Beneficiaries

By Ian W. MacLean*

Scope and Table of Contents

A. Scope 1. Guidance for Conducting Oneself under the Rules of Professional Conduct (RPC) for Attorneys in New York Representing Fiduciaries and Beneficiaries 2. RPCs that Apply to Conflicts and Duties, Confidentiality and Privilege, Engagement Letters and Attorney’s Fee B. Table of Contents I. RPC General Considerations, Select Rules and Where to Find Guidance to Apply and Adhere to Them II. Conflicts and Duties to Clients – current, joint, multiple, prior, prospective III. Confidentiality and Privilege IV. Engagement Letters V. Attorneys’ Fees and Applications for Payment VI. Document Retention VII. Conclusion

I. The Rules A. New York – The New York Rules of Professional Conduct (RPC) 1. Effective April 1, 2009 2. Superseded the Lawyer’s Code of Professional Responsibility (LCPR) a. Cannons; b. Ethical Considerations;

* With much gratitude, the author thanks Eric W. Penzer, Esq. and Corinne M. Avanzino, Esq. for their contributions to this outline.

123 NYSBA – Conducting SCPA 1404 Discovery 1 An Ethics Outline - Fall 2017 c. and Disciplinary Rules 3. Adopted by the Appellate Division of the Supreme Court and Published at Part 1200 of the Joint Rules of the Appellate Division – 22 N.Y.C.R.R. Part 1200. 4. Preamble, Scope and Comments a. Appellate Division has NOT adopted the Preamble to the Rules, the Scope section or the Comments b. These provisions are “published solely by the New York State Bar Association to provide guidance for attorneys in complying with the Rules.” c. Comments are critical in understanding and applying the RPC. 5. Types of Rules a. Absolute Rules – Must, Shall, Shall Not b. Discretionary Rules – May, May Not c. Guidance and Definitional Rules – self-explanatory and critical to applying and adhering to Absolute and Discretionary Rules 6. Applicable Rules: a. Conflict of Interest (i) 22 N.Y.C.R.R. §1200 Rule 1.7(a) - Overview: A lawyer shall not represent a client if, a reasonable lawyer would conclude, that representation will involve representing differing interests or there is a significant risk the lawyer’s professional judgment may be compromised by the lawyer’s own interests. (ii) 22 N.Y.C.R.R. §1200 Rule 1.7(b) - Overview: Notwithstanding a current conflict of interest, a lawyer may represent two clients if the lawyer reasonably believes the representation will be competent and diligent to each affected client, the representation is not illegal, the clients are not adverse parties in the same matter, and each affected client gives written informed consent. b. Informed Consent (i) 22 N.Y.C.R.R. § 1200 Rule 1.0(j) - Overview: An agreement by a person to a proposed course of conduct, after the lawyer has communicated adequate information to make an informed decision, and after adequate explanation by the lawyer of

124 NYSBA – Conducting SCPA 1404 Discovery 2 An Ethics Outline - Fall 2017 material risks of the proposed course of conduct and reasonably available alternatives. c. Differing Interests (i) 22 N.Y.C.R.R. § 1200 Rule 1.0(f) - Overview: Differing interests include every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflict, inconsistent, diverse, or other interest. d. Capacity & Diminished Capacity (i) 22 N.Y.C.R.R. §1200 Rule 1.14(a) - Overview: When representing a client whose capacity to make adequately considered decisions about his representation is diminished, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client. (ii) 22 N.Y.C.R.R. §1200 Rule 1.14(b) - Overview: A lawyer may take reasonably necessary protective action when the lawyer believes the client has diminished capacity. This includes consulting with individuals or entities that have the ability to take action to protect the client, and seeking appointment of a guardian ad litem, conservator or guardian. (iii) 22 N.Y.C.R.R. §1200 Rule 1.14(c) - Overview: When taking protective action for a client with diminished capacity, a lawyer is impliedly authorized, under Rule 1.6(a), to reveal information about the client, to the extent reasonably necessary to protect the client’s interests. e. Confidentiality of Information (i) 22 N.Y.C.R.R. § 1200 Rule 1.6(a) - Overview: A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or (3) the disclosure is permitted by paragraph (b). (ii) “Confidential Information” defined: “consists of information gained during or relating to the representation of a client,

125 NYSBA – Conducting SCPA 1404 Discovery 3 An Ethics Outline - Fall 2017 whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested to keep confidential.” Rule 1.6(a)(3). (iii) 22 N.Y.C.R.R. § 1200 Rule 1.6(b) - Overview: A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes is necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime; (3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime; (4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm; (5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or (6) when permitted or required under these Rules or to comply with other law or court order. f. Document Retention (i) Duty of General Competency (1) 22 N.Y.C.R.R. §1200 Rule 1.1 - Overview: A lawyer should provide competent representation to a client, requiring the legal knowledge, skill, thoroughness and preparation reasonably necessary. A lawyer shall not handle a legal matter the lawyer knows or should know the lawyer is not competent to handle, without associating with a lawyer who is competent. A lawyer shall not intentionally: (1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or (2) prejudice or damage the client during the course of the representation, except as permitted or required by these Rules. (ii) Duty of Retention of Records (1) 22 N.Y.C.R.R. § 1200 Rule 1.15(d) – Overview: (1) A lawyer shall maintain for seven years after the events that they record (i) the records of all deposits in and withdrawals from the accounts specified in Rule 1.15(b) and of any other bank

126 NYSBA – Conducting SCPA 1404 Discovery 4 An Ethics Outline - Fall 2017 account that concerns or affects the lawyer’s practice of law, specifying the date, source and description of each item deposited, the payee and purpose; (ii) a record for special accounts; (iii) copies of all retainer and compensation agreements; (iv) copies of all statements to clients or other persons showing the disbursements of funds to them or on their behalf; (v) copies of all bills rendered to clients; (vi) copies of all records showing payments to outside contracted services rendered or performed; (vii) copies of all retainer and closing statements filed with the Office of Court Administration; and (viii) all checkbooks and check stubs, bank statements, pre- numbered canceled checks and duplicate deposit slips. (2) Lawyers shall make accurate entries of all financial transactions in their records of receipts and disbursements, special accounts, ledger books or similar records and in any other books of account kept in the regular course of business. (3) “Copies” may be maintained of original records, photocopies, microfilm, optical imaging and any other medium that preserves an image of the document that cannot be altered without detection. (iii) Duty of Delivering the File upon Termination (1) 22 N.Y.C.R.R. § 1200 Rule 1.16(e) – Overview: Even when withdrawal is otherwise permitted or required, upon termination of representation, a lawyer shall take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client (giving reasonable notice, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly refunding any part of a fee paid in advance that has not been earned and complying with applicable law and rules). B. Sources – Committees, Sections and Reporters on Ethics 1. NYSBA a. NYSBA Committee on Professional Ethics Opinions (i) One Elk Street, Albany, New York 12207, or faxed to (518) 487- 5694, or emailed to [email protected] (ii) http://www.nysba.org/Ethics/ b. Ethics Hotline – (518) 487-5679

127 NYSBA – Conducting SCPA 1404 Discovery 5 An Ethics Outline - Fall 2017 c. Ethics Opinions of Other Specific Law Topic Committees 2. NYCBA – NYCBA.ORG a. NYCBA Committee on Professional Ethics Opinions b. http://www.nycbar.org/ethics/informal-ethics-opinions/ c. Call the NYCBA – there is an ethics hotline at (212) 382-6663 3. Richmond County Bar Association Professional Ethics Committee a. RCBA Ethics Opinions on line (i) www.thercba.org 4. New York County Lawyers Association a. NYC Lawyers Association Professional Ethics Committee (i) The oldest bar association ethics committee in the country, according to its website (ii) http://www.nycla.org/index.cfm?page=Ethics b. Ethics Hotline – assignment changes monthly: https://www.nycla.org/NYCLA/Lawyers/Ethics- Hotline/NYCLA/Lawyers/Ethics_Hotline.aspx?hkey=72c0c6a0-bab2- 4912-a828-b725e6edb37f (i) http://www.nycla.org/index.cfm?section=Ethics&page=Ethics_Hot line 5. Other County Bar Associations 6. ABA Ethics Opinions a. ABA Standing Committee on Ethics & Professional Responsibility b. http://www.americanbar.org/groups/professional_responsibility/comm ittees_commissions/ethicsandprofessionalresponsibility.html 7. New York Legal Ethics Reporter (www.newyorklegalethics.com) 8. New York Law Journal 9. Lexis and Westlaw C. New York – Statutes 1. 22 N.Y.C.R.R. § 1200 – Rules of Professional Conduct 2. 22 N.Y.C.R.R. § 1215 – Letters of Engagement Rules D. New York – Case Law

128 NYSBA – Conducting SCPA 1404 Discovery 6 An Ethics Outline - Fall 2017 E. New York – Disciplinary Hearings F. ABA Model Rules G. Federal Rules of Evidence

II. Conflicts and Duties A. Who is your client? 1. 22 N.Y.C.R.R. §1200 Rule 1.13(a), Organization as Client a. The lawyer, employed or retained by an organization, shall explain to constituents of the organization that the lawyer represents the organization, not the constituents. 2. 22 N.Y.C.R.R. §1200 Rule 1.13(c), Confidentiality with Organization as Client a. If the highest authority that can act on behalf of the organization insists upon action, or refusal or action, that is in violation of law and will result in substantial injury to the organization, the lawyer may reveal confidential information only if permitted by Rule 1.6. 3. 22 N.Y.C.R.R. §1200 Rule 4.1, Truthfulness in Statements to Others a. In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person. 4. 22 N.Y.C.R.R. §1200 Rule 4.4(a), Respect for Rights of Third Persons a. In representing a client, a lawyer shall not use means that have no substantial purpose other than to…harm a third person or…violate the legal rights of such a person. b. Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. Rule 4.4 cmt. [1]. B. Conflicts of Interest – Multiple Clients 1. Current Clients – Rule 1.7 a. Representation of multiple clients is an issue that is more frequently encountered in estate proceedings than other types of actions and proceedings due to the fact that there are usually more parties involved

129 NYSBA – Conducting SCPA 1404 Discovery 7 An Ethics Outline - Fall 2017 b. Fiduciaries (i) Executors/Administrators (ii) Trustees (iii) Guardians of the Person or the Property – SCPA 17A or MHL 81 (iv) Attorneys-in-fact (Agents) c. Beneficiaries d. Creditors 2. Three-Part Inquiry a. First inquiry is whether a conflict exists; a conflict exists if either (i) the attorney’s exercise of independent professional judgment on behalf of one client will be or is likely to be adversely affected by representing the other client, or (ii) the simultaneous representation of both clients would be likely to involve the lawyer in representing differing interests Those “differing interests” can be both legal or factual interests b. If a conflict exists, next inquiry is whether it is a conflict that can be waived (i) A conflict can be waived if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; and (2) the representation is not prohibited by law (comments to the Rules note that, for example, federal criminal statutes prohibit certain representations by a former government lawyer despite the informed consent of the former governmental client; in addition, there are some instances where conflicts are non- consentable under decisional law); and (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal c. If conflict can be waived, it can only be waived by each affected client, giving informed consent, confirmed in writing

130 NYSBA – Conducting SCPA 1404 Discovery 8 An Ethics Outline - Fall 2017 (1) Informed consent requires that each affected client be aware of the relevant circumstances, including the material and reasonably foreseeable ways that the conflict could adversely affect the interests of that client (2) Informed consent also requires that the client be given the opportunity to obtain other counsel if the client so desires (3) Such a writing may consist of: (a) A document from the client, (b) A document that the lawyer promptly transmitted to the client confirming an oral informed consent, or (c) A statement by the client made on the record of any proceeding before a tribunal, whether before, during or after a trial or hearing. CAVEAT – a client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer’s representation at any time. Whether revoking consent to the client’s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances (ii) What if a conflict arises after representation has been undertaken? (1) The lawyer ordinarily must withdraw from the representation unless the lawyer is able to, and has, obtained the informed consent of the client (2) Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer’s ability to comply with duties owed to the former client and by the lawyer’s ability to represent adequately the remaining client or clients, given the lawyer’s duties to the former client 3. Some Possible Situations a. Joint Representation of Fiduciaries and Beneficiaries (i) It would seem clear that a conflict exists because the lawyer is being asked to represent “differing interests”

131 NYSBA – Conducting SCPA 1404 Discovery 9 An Ethics Outline - Fall 2017 (ii) So, the next inquiry is whether the conflict is waivable, i.e., does the lawyer reasonably believe that the lawyer will be able to provide competent and diligent representation to each affected client (1) One could think of an amicable estate administration where there is little in dispute and there is little potential for conflict between the executor/administrator and the beneficiary (2) However, what starts as a friendly estate administration can turn ugly; clients can revoke consent and then the question might be appropriately posed, was it appropriate for the attorney to represent both clients to begin with (3) Imagine the situation, for example, where a fiduciary, in marshaling estate assets, learns of questionable lifetime transfers in favor of a beneficiary, or other potential claims that could be asserted on behalf of the estate against a beneficiary, or a claim by the beneficiary against the estate b. Joint Representation of Multiple Fiduciaries (i) Absent a conflict, there is no reason an attorney cannot represent multiple fiduciaries (1) After all, they owe a common fiduciary duty to the Estate (2) And, regardless of who among the fiduciaries is the more sophisticated or who is the “laboring oar”, co-fiduciaries will generally be held jointly and severally liable to the beneficiaries of the estate for any malfeasance (3) There is a financial incentive for representation of multiple fiduciaries (a) Although each fiduciary is permitted to hire and pay his or her own attorney, the court will generally award the payment of only one reasonable legal fee from the estate (4) However, notwithstanding that the fiduciaries are similarly situated as a matter of law, there may be “differing interests” among the fiduciaries that could prohibit multiple representation

132 NYSBA – Conducting SCPA 1404 Discovery 10 An Ethics Outline - Fall 2017 (5) Imagine the situation where a fiduciary is also an officer or director of a corporation in which the estate has an interest, or that is an asset of the estate? (a) Surely there could be disagreements among the fiduciaries as to the operation of the corporation, or the distributions to be made therefrom (b) Fiduciaries can also disagree as to investment decisions that might come up during a lengthy estate administration (c) Where one or more of the fiduciaries are also beneficiaries, may be disputes as to how to satisfy bequests (d) And, notwithstanding the fact that co-fiduciaries are generally jointly and severally liable to beneficiaries for malfeasance, there may be fights among the fiduciaries as to who was “more at fault” in connection with claims among them for contribution (e) For example, where “one of two trustees is substantially more at fault than the other . . . the other is entitled to full indemnity from him.” See 3A Frachter, Scott on Trusts § 258.1, at 401. (f) This may be true, for example, where one co-trustee is an attorney and the others are laypersons. Matter of Rosenfeld’s Estate, 180 Misc. 452 (Surr. Ct. N.Y. Co. 1943). (g) In Scalp & Blade, Inc. v Advest, Inc., 300 A.D.2d 1068 (4th Dep’t 2002), one trustee was found liable to the beneficiaries and was surcharged for investment losses. He sought contribution from his co-trustees. The court concluded that he could not recover in contribution from his co-trustees because he “was substantially more at fault for the investment losses sustained by plaintiffs, and further, he benefited from the investment activity. (6) Bottom line - it may well be necessary for co-fiduciaries to take adversarial positions against each other, so…

133 NYSBA – Conducting SCPA 1404 Discovery 11 An Ethics Outline - Fall 2017 (7) Proceed with great caution when asked to undertake representation of multiple fiduciaries. (8) Further Reading: (a) John R. Morken and Gary B. Freidman, Estates with Multiple Fiduciaries pose Ethical and Practical Issues for Attorneys and Clients Alike, NYSBA Journal, November /December 2001, at. 22. (b) John R. Morken and Gary B. Freidman, Early Detection of Possible Pitfalls In Fiduciary Obligations Can Prevent Later Problems, NYSBA Journal, January 2002, at 22. c. Multiple Beneficiaries (i) Can you represent multiple estate beneficiaries? (1) It depends - are their interests the same? (What are “differing interests”?) (a) In estate or probate proceedings, even where the will provides for an equal split between beneficiaries, there can be conflicts (b) One beneficiary might like you to take a position in an accounting proceeding that places him or her at odds with another beneficiary (c) For example, is there a disagreement among them as to the value of estate assets to be distributed “in kind” (d) Were there lifetime transfers to one beneficiary that might place him or her at odds with the other beneficiaries, or claims that one beneficiary is in possession of estate assets? (e) Does the beneficiary have potential claims that could be asserted against the estate – if you also represent the fiduciary, how can you advise your beneficiary client as to the viability of such a claim? (ii) The “take away” here is that as a lawyer you must be very careful in deciding whether to represent multiple parties in an estate matter - when in doubt, do not undertake multiple representation. You could potentially violate an ethical rule; you’re also placing your fee in jeopardy.

134 NYSBA – Conducting SCPA 1404 Discovery 12 An Ethics Outline - Fall 2017 4. Former Clients - 22 N.Y.C.R.R. §1200 Rule 1.9 a. A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (i) Comment 3: “Matters are ‘substantially related’ for purposes of this Rule if they involve the same transaction or legal dispute or, if, under the circumstances, a reasonable lawyer would conclude that there is otherwise a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” (ii) Three key phrases: (1) The same or a substantially related matter (2) “reasonable lawyer” - over and over the analysis is that the REASONABLE LAWYER TEST REQUIRES A FACTUALLY INTENSIVE ANALYSIS (3) Materially adverse interests b. Unless the former client gives informed consent, confirmed in writing, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (i) whose interests are materially adverse to that person; and (ii) about whom the lawyer had acquired information protected by Rules 1.6 or paragraph (c) of this Rule that is material to the matter. (iii) Three issues: (1) The same or a substantially related matter (2) Materially adverse interests (3) About whom the lawyer had acquired confidential information c. Waiver – informed consent confirmed in writing - Rule 1.0 (j) 5. Prospective Clients – 22 N.Y.C.R.R. §1200 Rule 1.18

135 NYSBA – Conducting SCPA 1404 Discovery 13 An Ethics Outline - Fall 2017 a. The New York Code of Professional Responsibility (the predecessor to the New York Rules of Professional Conduct) had no rule addressing the duties that lawyers owed to prospective clients b. The Rule balances the need for protection of those who consult lawyers about a possible representation with the need for freedom of the parties to decide not to pursue the representation c. It subjects lawyers to duties regarding confidential information and adverse representations that are significant, but that are more limited in scope than those owed to current clients or former clients d. Rule 1.18 imposes two main duties on a lawyer who has had discussions with a prospective client about a matter: (i) First, the lawyer is restricted from using or revealing information learned in the consultation to the same extent that a lawyer would be restricted with regard to information of a former client (ii) Second, the lawyer may not represent a client with materially adverse interests in the same or a substantially related matter if the information received from the prospective client could be significantly harmful to the prospective client in that matter (1) Both duties are determined by the nature of the information obtained from the prospective client (2) The Rule defines who is a prospective client and provides several important exceptions to the duties owed, including exceptions for informed consent and the use of ethical screens (iii) Three issues: (1) Materially adverse interests (2) The same or a substantially related matter (3) Information received from the prospective client could be significantly harmful to the prospective client e. Not all persons who communicate information to a lawyer are entitled to protection under Rule 1.18 (i) The Rule defines “prospective client” as a person who discusses with a lawyer “the possibility of forming a lawyer-client relationship with respect to a matter.” (1) So not just casual conversation on the golf course or at a cocktail party

136 NYSBA – Conducting SCPA 1404 Discovery 14 An Ethics Outline - Fall 2017 (ii) Paragraph (e) of the Rule excludes from the definition of a “prospective client” a person who communicates unilaterally to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of a representation, or communicates with a lawyer for the purpose of disqualifying the lawyer from handling certain material adverse representations (1) The “Tony Soprano” exception – a litigant or potential litigant may not have consultation meetings with every reputable trusts and estates attorney in a greater geographic area with the purpose of having them all disqualified from representing a possible adverse party. f. Paragraph (d) of the Rule provides two important exceptions to the restriction on representation in paragraph (c) (i) The first exception applies both to the individual lawyer and the lawyer’s firm – both the lawyer and the firm may take on an otherwise prohibited representation if both the prospective client and the affected client have given informed consent, confirmed in writing (ii) The second exception applies only to the disqualified lawyer’s firm (but not the disqualified lawyer). The firm may take on the representation if the disqualified lawyer took reasonable steps to avoid exposure to more disqualifying information than was necessary to determine whether to represent the prospective client; and (1) the firm acts promptly and reasonably to notify its personnel that the disqualified lawyer is prohibited from participating in the representation of the current client; (2) the firm implements effective screening procedures with respect to the disqualified lawyer; (3) the disqualified lawyer is apportioned no part of the fee; and (4) written notice is promptly given to the prospective client. (iii) However, neither exception is available unless a reasonable lawyer would conclude that the firm would be able to provide competent and diligent representation in the matter 6. A word about Schneider v. Finmann, 15 N.Y.3d 308 (2010): In Schneider, the Court of Appeals overruled a long line of cases that held the doctrine of privity barred estates of deceased from suing the estate

137 NYSBA – Conducting SCPA 1404 Discovery 15 An Ethics Outline - Fall 2017 planning attorney for malpractice. In Schneider, the Court of Appeals held that the executor “stands in the shoes” of the decedent and has standing to state a cause of action in malpractice for the estate – so in 2011, the NYSBA Ethics Committee issued an opinion on whether and when an attorney who was the EP may represent the estate. EO 865.

III. Confidentiality and Privilege A. Confidentiality – 22 N.Y.C.R.R. § 1200 Rule 1.6 B. Common Law Privilege 1. The Attorney Client Privilege is the oldest evidentiary privilege at common law and is essential to our legal system. Upjohn Co. v. U.S., 448 U.S. 383, 389 (1981) (stating that it is necessary to “promote border public interests in the observance of law and administration of justice.”). 2. Nevertheless, because it necessarily impedes the administration of justice, it is strictly construed. Fisher v. U.S., 425 U.S. 391, 403 (1976) (“Since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose.”) C. CPLR § 4503(a)(1)&(2) – Confidential Communication Privileged 1. “Unless the client waives the privilege,” an attorney or any person who works for or with that attorney, or any person who gets knowledge without the client’s knowledge of a confidential communication, shall not disclose a confidential communication made between the attorney and the client in the course of professional representation, except for very specific exceptions/ CPLR 4503(a)(1). 2. Personal Representatives: if the client is a personal representative, then, in the absence of an agreement to the contrary, the beneficiaries of the estate or trust are not the client and the existence of the fiduciary relationship between the personal representative and the beneficiary does not constitute a waiver of the confidential communication privilege between the attorney and the personal representative. CPLR 4503(a)(2)(A)(2002); see Matter of Levine, 2017 N.Y. Misc. Lexis 1299 (Surr. Ct. Nassau Co., Apr. 7, 2017). D. General Exceptions:

138 NYSBA – Conducting SCPA 1404 Discovery 16 An Ethics Outline - Fall 2017 1. communications made in the presence of third parties (except for third parties for whom there is a reasonable expectation that the communication will remain confidential); 2. communications not pertinent to legal representation; 3. communication about the underlying facts; 4. the existence of a retainer agreement; 5. communication about which the privilege has been waived; and 6. the crime-fraud exception. E.g., Stevens v. Cahill, 2015 N.Y.L.J. Lexis 5838 (Surr. Ct. N.Y. Co., Oct. 13, 2015 (Mella, S.)). E. The Probate Exception to the Attorney Client Privilege – CPLR § 4503(b) a. In any action involving the probate, validity or construction of a will or, after the grantor’s death, a revocable trust, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will, revocable trust, or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent. (On August 19, 2016, Governor Cuomo signed into law an amendment to CPLR §4503(b), which extends the exception to the attorney-client privilege in the case of revocable trusts.) b. Pending legislation would expand the exception applicable to revocable trusts even further to include documents and communication regarding revisions, amendments and revocations of all lifetime trusts. For those of you interested to look at this further the OCA Report is 2017-64. F. Whose Privilege 1. It’s the client’s privilege, not the attorney’s 2. The confidential communication privilege survives our clients 3. If you represented the decedent before he or she died, or you’re representing the personal representative, the personal representative cannot waive the decedent’s privilege rights, unless it is to effectuate the intentions of the decedent. G. Further Reading:

139 NYSBA – Conducting SCPA 1404 Discovery 17 An Ethics Outline - Fall 2017 1. Robert M. Harper, The Application of the Attorney-Client Privilege in Revocable Trust Contests, NYSBA Trusts and Estates Law Section Newsletter, Spring 2015, Vol. 48, No. 1, at p.7.

IV. Engagement Letters and Conflict of Interest Strategies A. Court Rules 1. 22 N.Y.C.R.R. §1215.1 Written Letter of Engagement Requirements a. The letter of engagement should explain the scope of the legal services to be provided, explain attorney’s fees to be charged, as well as expenses and billing practices, and provide that the client may have the right to arbitrate fee disputes. b. Exceptions: Engagement letters are not required if: (i) The fee to be charged is expected to be less than $3,000; (ii) The attorney’s services are the same as those previously rendered to and paid for by the client;

(iii) The client is in a domestic relations matter subject to Part 1400; or (iv) The attorney is not admitted in New York and no material portions of the services are to be rendered in New York.

2. Permissible (with conditions of reasonableness, disclosure and industry standards for the geographic and substantive law practice area)

a. Hourly Fees b. Flat Fees c. Contingency Fees d. Percentage Fees 3. Not Permissible a. Guaranteed Fees B. Further Reading

140 NYSBA – Conducting SCPA 1404 Discovery 18 An Ethics Outline - Fall 2017 1. Marian C. Rice, Start Out Right: Engagement Letters, NYSBA Journal, June 2015, p. 34. 2. Practice and Ethics Committee, Arbitration and Engagement Letters, NYSBA Trust and Estates Law Section Newsletter, Fall 2002, Vol. 35, No. 3. 3. Anthony E. Davis, Professional Responsibility; The Importance of Engagement Letters; News, N.Y.L.J., May 2, 2005 at 10, col. 4. 4. David G. Keyko, Practicing Ethics; Engagement Letters, N.Y.L.J., Nov. 25, 2005 at 17, col. 3.

C. Joint Representation and Waiver – Court Trend: Enforcing Provisions in Retainer Agreements Where Parties Consent to Joint Representation and Waive Conflicts of Interest

1. Consider GEM Holdco LLC v. Changing World Technologies, L.P., 130 A.D.3d 50614 (1st Dep’t 2015) (motion court properly denied motion to disqualify firm from representing defendant where, in retainer agreement, the moving defendants specifically waived any conflict of interest that might arise from the firm's representation of both them and the other defendants). a. There, a law firm appeared for three originally named defendants. Thereafter, the plaintiff amended the complaint to include an additional defendant. Pursuant to an agreement among the parties, one of the original defendants had to pay the defense costs of the additionally named defendant, and thus sought to have the same law firm represent it. b. Law firm’s retainer letter provided that, although the law firm did not perceive any actual conflict of interest among the defendants, it was possible that one could arise, in which case the firm would cease to represent the additionally named defendant and continue representing the original three defendants. In the letter, the additional defendant consented to the firm’s continued and future representation of the original defendants agreed not to assert any such conflict of interest or seek to disqualify the firm from representing them, notwithstanding any adversity or litigation that may exist or develop. c. After a conflict arose between the original defendants and the new defendant, new counsel appeared for the additional defendant and

141 NYSBA – Conducting SCPA 1404 Discovery 19 An Ethics Outline - Fall 2017 sought the disqualification of the original firm – court denied motion on the basis of the waiver, and 1st Department affirmed. d. Notably, given the waiver, the court found it irrelevant whether the firm obtained confidential information from the additional defendant, and whether there was an actual, undisclosed conflict of interest at the inception of the joint representation.

V. Attorney’s Fees/Applications for Attorney Fees A. Introduction 1. Review of Attorney’s fees are a “big deal” in the Surrogate’s Courts -- much more so than in other courts a. In other courts, when called upon to address attorney’s fees, the court may be limited to deciding whether the fee agreement reached between attorney and client is enforceable -- whether it is unconscionable, and whether the attorney earned his or her fee b. But in Surrogate’s Court, it is up to the Surrogate to decide the professional fees payable from an estate, and the Surrogate is not bound by the fee agreement reached between the attorney and client 2. Let’s start with the proposition that generally speaking, a fiduciary is entitled to retain counsel a. Make clear -- who is the client? (i) Attorney cannot represent “an estate” -- only a fiduciary (ii) Court: “Who do you represent?” Correct answer -- “X, as fiduciary of the Estate” b. Where there are multiple fiduciaries, each fiduciary may retain separate counsel. (i) Matter of Schwartz, 240 A.D.2d 268 (1st Dep’t 1997), where the court made clear that where there are two or more fiduciaries, each possesses an “equal right” to pay attorney’s fees (ii) Notwithstanding the Court’s power to ultimately fix attorney’s fees, a fiduciary can generally advance fees to his or her counsel without a court order

142 NYSBA – Conducting SCPA 1404 Discovery 20 An Ethics Outline - Fall 2017 (iii) EPTL § 11-1.1(b)(22) authorizes every fiduciary, in the absence of contrary language in the underlying instrument, to pay “any reasonable counsel fees he may necessarily incur” c. What if the co-fiduciaries are not in agreement regarding the advance payment of counsel fees? (i) Question turns on how the fiduciaries are empowered to act. (ii) Does the Will require them to act by majority only? (iii) Unless the Court order of appointment or the governing instrument provide otherwise, the payment of attorney’s fees is a “several” power that co-fiduciaries can exercise unilaterally. (EPTL 11-1.1(b)(22)). (iv) It shouldn’t matter which fiduciary is in possession of the estate checkbook. The First Department made clear in Matter Schwarz, 240 A.D.2d 268 (1st Dep’t 1997), that “every estate fiduciary, by virtue of his office, is entitled to the custody of the assets of the estate or fund. When there are two or more fiduciaries, each possesses an equal right in this regard...”. d. So generally, a fiduciary may advance legal fees to his or her counsel.

(i) However (big however) at the end of the day (on a fee application or in an accounting proceeding) it is up to the court to fix the fee to be paid from the estate.

(1) Can be less than the amount agreed to by the attorney and fiduciary

(2) And if attorney has already been paid an amount in excess of amount fixed by the Court, the Court can require attorney to refund the excess. SCPA 2110(3).

(3) Generally speaking, however, it is permissible for the fiduciary to agree to cover the shortfall -- if the court awards something less than the full “agreed to” fee, the fiduciary can agree to be individually liable for the same.

(a) Need to spell this out clearly in the retainer agreement

(b) Risk of losing client

143 NYSBA – Conducting SCPA 1404 Discovery 21 An Ethics Outline - Fall 2017 (ii) Read Uniform Rules of the Surrogate’s Courts 22 NYCRR § 207.45

(iii) Read Uniform Rules of the Surrogate’s Courts 22 NYCRR § 207.52

B. Legal fees of an attorney/executor

1. Generally, an attorney can serve both as executor and as attorney for the estate

a. SCPA § 2307 provides that when an attorney acts as an executor, “the court must allow to him such compensation for his legal services as appear to the court to be just and reasonable and in addition thereto it must allow [statutory] commissions.”

b. Caveat - SCAP § 2111 provides that an attorney acting as sole executor may not take an advance payment of legal fees without prior court approval.

(i) Exceptions:

(1) there is a non-attorney co-fiduciary and if all co-fiduciaries consent; or

(2) the instrument (the will or trust) so permits.

C. Regardless of the agreement between the fiduciary (the client) and the attorney, a court has the authority to fix attorney’s fees payable from the estate

1. SCPA § 2110 gives the Court authority to fix and determine the compensation of attorneys for services rendered to a fiduciary or to a beneficiary, legatee, distributee, etc.

2. It is up to the Court to determine the propriety of and amount of legal fees to be paid by an estate of trust.

3. True regardless of whether the attorney has an agreement with the fiduciary -- his client -- regarding the amount of the fee and regardless of whether anyone objects to the fee.

144 NYSBA – Conducting SCPA 1404 Discovery 22 An Ethics Outline - Fall 2017 a. This is especially true where, as here, those who are, in effect, paying most of the legal fee are beneficiaries who did not enter into a retainer agreement with counsel.

b. The leading case on this subject is Stortecky v. Mazzone, 85 N.Y.2d 518, 526 (1995).

(i) There, the Court of Appeals held that a Surrogate has the “inherent power” to inquire into the reasonableness of counsel fees even though agreed upon by the executor and assented to by the beneficiaries.

(ii) The Court cautioned Surrogates to exercise their power sparingly, cognizant of the dangers of sua sponte reviews (e.g., causing the estate and its beneficiaries unnecessary expense and delay; seriously damaging the reputation of the attorney or executor involved by creating unwarranted suspicions of overreaching or misconduct; and “the appearance of meddling may diminish the dignity of the court itself”).

4. The Court decides what legal fees are to be paid by an estate or trust

a. Proceeding to fix attorney’s fees may be commenced by the attorney or any “person interested” (i.e., person with a monetary interest in the estate or trust).

b. Procedure governed by section 207.45 of the Uniform Rules for the Surrogate’s Courts (22 NYCRR § 207.45).

c. That rule requires the filing of an affidavit (or affirmation) of legal services which must provide various information.

(i) Including among this information is whether the attorney waives a formal hearing as to compensation.

(ii) Where the fee request is disputed, there can be discovery and, ultimately, a hearing on the issue

D. Factors the court look at in determining an appropriate fee

145 NYSBA – Conducting SCPA 1404 Discovery 23 An Ethics Outline - Fall 2017 1. The guideposts for making a fee determination have been set forth by Matter of Potts, 213 A.D. 59 (4th Dep’t 1925) and Matter of Freeman, 34 N.Y.2d 1 (1974) as follows:

a. the results obtained;

b. the difficulties involved in the matters in which the services were rendered;

c. the nature of the services rendered;

d. the amount involved or the size of the estate;

e. the professional standing of the counsel; and

f. the time spent.

2. Many early cases hold that of the foregoing factors, time is the least important factor.

a. a percentage fee, particularly in large estates, is not appropriate, as it often results in a fee which bears no relation to the actual work done.

3. Attorney/Executor - where an attorney is the executor and also renders legal services to the estate, the Court will review the fee and commission to make sure there is no overlap.

a. An attorney cannot seek to charge an estate legal fees for services that are executorial in nature.

(i) Services “executorial in nature” has been defined to mean those services performable by a layperson.

b. It is also within the court’s discretion to determine whether an executor properly hired an accountant to perform accounting services; if the court determines that an accountant was not necessary, it will not approve the payment of accounting fees from the estate.

c. Absent unusual complexity, the preparation and filing of fiduciary and estate tax returns are among the duties expected of the attorney for the fiduciary and no additional compensation for an accountant will be permitted without a corresponding reduction in attorney’s fees. Estate of Schoonheim, 158 A.D.2d 183 (1st Dep’t 1990).

146 NYSBA – Conducting SCPA 1404 Discovery 24 An Ethics Outline - Fall 2017 (i) Purpose of this rule is to avoid duplication. But courts have held that where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee. Matter of Tortora, N.Y.L.J., July 19, 1995, at 26.

E. Contingency fees

1. Just as retainer agreements providing for a specific hourly fee or fixed fee are not binding on the courts, the same is true of contingency fee agreements; the court is still required to apply the Potts/Freeman factors to determine the reasonableness of the contingency fee before permitting it to be paid from an estate.

a. Relatively new case, Matter of Talbot, 84 A.D.3d 967 (2d Dep’t 2011).

(i) Objectant in a probate contest agreed to pay her lawyer a contingency fee capped at a specified amount, but after settlement sought to have the Surrogate reduce the fee.

(ii) Surrogate granted summary judgment in favor of the attorney, awarding the total fee sought, approximately $590,000, finding no indication that the contingency fee agreement was fraudulently procured and that the petitioner apparently was competent to enter into the agreement.

(iii) The Second Department reversed finding that in addition to analyzing whether the contingency fee agreement was fraudulently procured, and whether the petitioner apparently was competent to enter into the agreement, the Surrogate should have determined the reasonableness of the fee, notwithstanding the contingency fee agreement, applying the Freeman/Potts factors.

(iv) On remand, the Surrogate did so, and in a decision published in the NYLJ a few weeks ago, analyzed all the relevant factors and awarded what the court considered to be a reasonable fee -- $590,000.

F. Another word on Appellate Review

1. Orders fixing attorneys’ fees are reviewed for an abuse of discretion.

147 NYSBA – Conducting SCPA 1404 Discovery 25 An Ethics Outline - Fall 2017 2. As with any discretionary determination, it might be said that reversals are the exception, not the norm.

a. It has been said to be an abuse of discretion for a surrogate to ignore any of the Potts factors or to improperly apply them.

b. It has also been said to be an abuse of discretion where the surrogate fails to articulate a rationale or offer a basis of calculation for a reduction of a fee award or fails to consider the customary fees charged for services similar to those rendered by the lawyers seeking fees from the Estate.

VI. Document Retention A. Rule 1.1 – Duty of General Competency B. Rule 1.15(d) – Duty of Retention of Records C. Rule 1.16(e) – Duty of Delivering the File upon Termination D. Review and Follow Local Court Rules E. Further Reading 1. Vincent J. Syracuse, Maryann C. Stallone, Carl F. Regelmann, Attorney Professionalism Forum, NYSBA Journal Feb. 2017, Vol. 89, No. 2, at p. 54. 2. Jeremy Panzella, Esq., Attorney Obligations with File Retention, Richmond Co. B. Assoc., Ethical Considerations 3. Richmond Co. B. Assoc., Ethics Opinion 35 – Whether a law firm’s obligation to retain records for seven years may be satisfied by scanning the documents and destroying the originals.

VII. Conclusion A. Read the Rules and Comments Applicable to Representing Fiduciaries and Beneficiaries B. Read the Law Journal, subscribe to the Ethics Opinions of the State, City and County Bar Associations C. Go Beyond the CLE and good standing requirements of 4 Ethics Credits Every Two Years

148 NYSBA – Conducting SCPA 1404 Discovery 26 An Ethics Outline - Fall 2017

Conducting SCPA 1404 Discovery

Updated Case Citations

(To be read in conjunction with cases referenced/cited in 2008 Course materials)

submitted by

Andrew R. Frisenda, Esq.

Bashian & Farber White Plains

149

150 SCPA § 1404 Discovery 2017 NYSBA CLE Updated Case Citations (To be read in conjunction with cases referenced/cited in 2008 Course materials)

1. Who May be Examined (SCPA § 1404 [4])

i. Pre-Objection Depositions are limited in scope to the Attesting Witnesses and the Attorney Draftsperson; unless

ii. The Will includes an in Terrorem, or “No Contest,” clause, and then the Proponent(s) – or, in the presence of special circumstances, any other party the Court deems necessary to determine the validity of the Will - may be examined as well (SCPA § 1404[4]; see also EPTL § 3-3.5).

a. Matter of Singer, 2009 NY Slip Op 9265, 13 N.Y.3d 447; 892 N.Y.S.2d 836; 920 N.E.2d 943

“The Court of Appeals found, inter alia, that the conduct of the deposition did not amount to an attempt to contest, object to, or oppose the validity of the testator's estate plan. Rather, the son conducted the examination in order to make an informed decision as to how to proceed. Therefore, because the deposition of the attorney fell within the safe harbor provisions of EPTL 3-3.5 and SCPA § 1404, the son's bequest should not have been revoked” Matter of Singer, 2009 NY Slip Op 9265, ¶ 1, 13 N.Y.3d 447, 449, 892 N.Y.S.2d 836, 837, 920 N.E.2d 943, 944

b. Matter of Baugher, 2010 NY Slip Op 20359; 29 Misc. 3d 70; 906 N.Y.S.2d 856, 857 (Nassau Surr Ct). The court found, inter alia, that although neither the nominated successor executor nor the drafter of a prior instrument were included in EPTL 3-3.5(b)(3)(D) and SCPA 1404, they could be deposed without fear of triggering the will's in terrorem clause. However, because the court had no authority under SCPA 1420(3) to construe the will before its admission to probate, it could not determine whether conducting the examinations would actually violate the in terrorem clause. Matter of Baugher, 2010 NY Slip Op 20359, ¶ 1, 29 Misc. 3d 700, 701, 906 N.Y.S.2d 856, 857 (Sur. Ct.) i. Note: “The safe harbor [provision is] not exclusive, but whether or not the examination of someone not listed in the statute violate[d] a no contest clause apparently [could] only

151 be determined after the will [was] admitted to probate.” (see also New York State Assembly, Memorandum in Support of A6838A, in the Governor's Bill Jacket).

c. In re Will of Weintraub, 40 Misc. 3d 1207(A); 975 N.Y.S.2d 370 (Nassau Surr Ct 2013). “[Upon application based upon] … special circumstances, the examination of "any [other] person whose examination the court determines may provide information with respect to the validity of the will that is of substantial importance or relevance to a decision to file objections to the will" (EPTL 3-3.5[b][3][D]; [***3] SCPA 1404[4]). Matter of Weintraub, 2013 NY Slip Op 51071(U), ¶ 2, 40 Misc. 3d 1207(A), 1207A, 975 N.Y.S.2d 370, 370 (Sur. Ct.)

d. Estate of James Pridgen, 2015 NYLJ LEXIS 816 (N.Y. Sur. Ct. June 4, 2015)

Pursuant to SCPA 1404 (4), no person who has been examined as a witness under that section shall be examined in the same proceeding under any other provision of law except by direction of the court. It is incumbent upon the party seeking re-examination to demonstrate that the information sought to be elicited was either unavailable at the time of the prior examination or that new facts have come to light which necessitate further examination (see Matter of Hodges, NYLJ, Feb. 2, 2009, at 46, col 6 [Sur Ct, Suffolk County 2009]). Estate of James Pridgen, 2015 NYLJ LEXIS 816, *6 (N.Y. Sur. Ct. June 4, 2015)

2. Who May Request the Examination

i. A party’s standing to request Pre-Objection 1404 Discovery are not only limited their status as an interested party, but also by the nature and scope of their interest in the Estate, as well as any pre-death – and legally enforceable – agreements entered into with the Decedent (see also SCPA § 1410).

b. Estate of Robert Wallis, 2008 N.Y. Misc. LEXIS 4645 (Sur. Ct. July 9, 2008)

Waiver of a surviving spouse’s right to conduct SCPA 1404 Discovery pursuant to a Stipulation of Settlement reached in a pre-death Spousal Support proceeding. “[The spouse] entered into the … stipulation voluntarily, without fraud or duress, and that there was no repudiation by decedent which would justify withdrawal of her waiver of her rights in decedent's estate, [the spouse] effectively waived her rights in the estate. She therefore is not an interested party in the probate proceeding and, a fortiori, has no standing to conduct discovery or to file objections to the propounded instrument (Matter of Sheeler, 190 Misc 894; Matter of

152 Greenstein, NYLJ June 2, 1994, at 31 col 1). Estate of Robert Wallis, 2008 N.Y. Misc. LEXIS 4645, at *11 (Sur. Ct. July 9, 2008)

c. Matter of Elyachar, 2015 NY Slip Op 25189, 48 Misc. 3d 852, 14 N.Y.S.3d 869 (Sur. Ct.)

An interested party that has Standing to Object to Probate of the Will pursuant to SCPA § 1410 has Standing to seek SCPA § 1404 Pre-Objection Discovery – this necessarily incudes interested parties that have a (contingent or present) pecuniary interest in the Estate, and would be adversely effected by the admission of a later in time instrument to Probate. Here, in a probate proceeding, decedent's wife and daughter had standing to pursue SCPA 1404 objections to decedent's will, based on the existence of a trust preventing them from receiving their inheritances 100% outright. The wife and daughter would have been adversely affected by the will's admission to probate because they would have done better in intestacy. Matter of Elyachar, 2015 NY Slip Op 25189, ¶ 1, 48 Misc. 3d 852, 853, 14 N.Y.S.3d 869, 870 (Sur. Ct.)

d. Estate of Sophie Dziubkowski, 2016 NYLJ LEXIS 4250 (N.Y. Sur. Ct. Dec. 20, 2016) (Post-Objection, but instructive)

Pre-Objection Discovery Demands for documents and testimony may be subject to enforcement Post-Objection, especially where the demands are for documents and testimony that are not only Material and Necessary, but are not subject to the attorney-client privilege pursuant to CPLR § 4503 (b).

3. Scope of the Examination (22 NYCRR 207.27)

i. “The examination may cover all relevant matters that would be the basis for objections to probate, namely the genuineness of the will, its valid execution, the testator's mental competence and his freedom from restraint and fraud.” (McKinney’s Practice Commentaries SCPA § 1404).

ii. However, “[i]n any contested probate proceeding in which objections to probate are made and the proponent or the objectant seeks an examination before trial, the items upon which the examination will be held shall be determined by the application of article 31 of CPLR. Except upon the showing of special circumstances, the examination will be confined to a three year period prior to the date of the propounded instrument and two years thereafter, or to the date of decedent's death, whichever is the shorter period” (22 NYCRR 207.27).

153 iii. Nevertheless, “[t]he [3 year/2 year] rule is not inflexible, since it is subject to exception in a case of special circumstances” (see Matter of Kaufmann, 11 AD2d 759, 202 N.Y.S.2d 423 [1st Dept. 1960]).

a. Fiddle v Fiddle, 13 Misc. 3d 827; 823 N.Y.S.2d 859 (Sullivan Surr Ct 2006)

“3 year/2 year” rule only applicable Post-Objection.

b. Matter of Bogen, 2014 N.Y. Misc. LEXIS 4826; 2014 NY Slip Op 32844(U) (New York Surr Ct 2014)

Enlargement of the “3 year/2 year” rule was warranted where persons substantially benefited under the propounded instrument were "stranger[s] to the blood,” and where there is “some evidence of a design upon decedent's property.”

c. Estate of Shirley W. Liebowitz, NYLJ, Feb. 18, 2016 at p.22, col.3 (New York Surr Ct 2016)

Special Circumstances warranting the expansion of the “3 year/2 year” rule are found where “[t]he propounded instrument contains significant bequests for the drafter and [a] business manager;” the propounded instrument presented a deviation from prior Testamentary Plan; and a fiduciary and/or confidential relationship existed.

d. Estate of Po Jun Chin, 2017 NYLJ LEXIS 900 (Queens Surr Ct 2017)

“Minor” enlargement of the “3 year/2 year” warranted where there not only a change in the Testamentary Plan, but factual evidence is offered supporting allegations of fraud and/or undue influence.

4. Party and Non Party Discovery (CPLR Article 31 Discovery)

i. “[T]he party conducting the [SCPA § 1404] examination is expressly entitled to document discovery under CPLR Article 31,” which includes full party, and non-party Discovery (McKinney’s Practice Commentaries SCPA § 1404; SCPA § 1404[4]).

a. Estate of Irene E. Powers, 2001 NYLJ LEXIS 3842 (Westchester Surr Ct 2001)

154

Broad Pre-Objection SCPA § 1404 Discovery is warranted so long as the documentation sought is Material and Necessary to determining the validity of the propounded instrument.

b. Estate of Carmine Rocco Lombardi, NYLJ, Mar. 1, 2013 at p.26, col.2; 2013 NYLJ LEXIS 5984 (Bronx Surr Ct 2013)

“[D]ocuments such as trust accountings are discoverable in probate proceedings if material and relevant…Issues as to whether the trust, executed one month after the will, was ever funded, how and when it was funded, and the source and amount of those funds, are relevant to testamentary capacity and the decedent's overall testamentary plan, if any, and whether or not the funds constitute assets of the estate.” Accordingly, “…information about the insurance policies used to fund [an] irrevocable trust and the amount thereof…” is discoverable.

c. Matter of Demetrious, 2013 NY Slip Op 32128(U) (Nassau Surr Ct 2013)

The scope of allowable Discovery, and the definition of “Material and Necessary” is case specific. Where the “…propounded Will represents a dramatic deviation from Decedent's earlier pattern of advancements and testamentary dispositions made in prior wills, spurning respondents and giving rise to reasonable suspicion [of the validity of the proffered instrument]" the scope of allowable Discovery will be broader than where no such evidence of facts exist.

d. Estate of Bert Stern, 2014 NYLJ LEXIS 4253; NYLJ, Nov. 18, 2014 at Pg. p.22, col.4. (New York Surr Ct 2014)

As with all Discovery, the scope of party and non-party document production pursuant to SCPA § 1404 will be subject to the test Materiality and Necessity. In determining if demanded documents are material and necessary, the Court looks to the totality of the circumstances, including whether or not the production of documentation that is sought will “disgrace decedent's memory” (see CPLR § 4504[c]). Where documents may be Material and Necessary, but also may “disgrace decedent's memory,” an in camera review may be warranted before production is Ordered.

5. Subject Matter of the Examination

155 The Subject matter of SCPA § 1404 examinations can best be understood in the context of the allowable Objections to Probate and Summary Judgment, i.e.: while it is limited to the collection of evidence that will establish the validity – or as the case may be, the invalidity of the Will - this is a necessarily broad investigation. a. Matter of Templeton, 116 A.D.3d 781 (2nd Dept, 2014); b. Matter of Engstron (Leaonard B. Harmon 2003 Trust), 47 Misc. 3d 1212(A) (Suffolk Surr Ct 2014); c. Estate of Carmine Chiuchiolo, NYLJ, Jan. 22, 2015 at Pg. p.28, col.2 2015 NYLJ, LEXIS 5847 (Suffolk Surr Ct 2015); d. Matter of Mallin, 2016 NY Slip Op 32032(U) (Nassau Surr 2016).

6. Costs of the Examination (SCPA § 1404[5])

i. Pre-Objection: the Estate shall bear the costs for the:

1. The initial production or commission and the examination of (A) the first two attesting witnesses within the state who are competent and able to testify who are produced by the proponent, or (B) if no witness is within the State and competent and able to testify, the witness without the state who resides closest to the county in which the probate proceedings are pending and who is competent and able to testify (SCPA § 1404 [a][1]); and

2. The stenographer and one copy of the transcripts of such examinations for the court and any guardians ad litem.

The costs of all other examinations, including subsequent examinations of the witnesses are borne by the party seeking such further examinations (SCPA § 1404 [a][2]).

ii. Post-Objection:

1. The costs of all Post-Objection Discovery, inclusive of Documents Discovery and Examinations Before Trial, shall be governed by CPLR Article 31 (SCPA § 1404 [a][2][b],[c]).

a. In the Matter of the Estate of Johanna Smith, 29 Misc3d 832 (Bronx Surr Ct 2010)

156

Pursuant to statute, absent “good cause,” where the Deposition of “one competent witness who resides in the state” has been conducted at the expense of the Estate, the Estate will not pay expenses associated with taking the Deposition of a witness residing outside the State.

b. Estate of James Pridgen, 2015 NYLJ LEXIS 816, (Bronx Surr Ct 2015)

Where the Estate has satisfied the expenses for Depositions of the first two (2) attesting witnesses that reside within the State, all expenses for subsequent Pre-Objection examinations before trial shall be paid pursuant to the rules set forth in CPLR Article 31.

7. Timing of Objections (SCPA § 1410)

i. “The objections must be filed on or before the return day of the process or on such subsequent day as directed by the court; provided however that if an examination is requested pursuant to 1404, objections must be filed within 10 days after the completion of such examinations, or within such other time as is fixed by stipulation of the parties or by the court” (SCPA § 1410).

a. Matter of Scianni, 87AD3d 783 (3rd Dept, 2011)

Failure to file Objections to Probate for more than six (6) months after Pre- Objection Depositions were completed, coupled with the conclusory nature of the Objections themselves, constituted sufficient grounds for the Surrogate to reject the submission of Respondent’s Objections to Probate.

b. In re Pascal - 102 A.D.3d 796 (2nd Dept, 2013)

The Surrogate has the power and authority to extend the deadline to file Objections to Probate at the Court’s discretion.

8. Proving the Elements of Probate Objections

a. Matter of Falk, 2007 NY Slip Op 8774, 47 A.D.3d 21, 845 N.Y.S.2d 287 (App. Div.)

157 “The best practice is to discourage clients from executing a will outside the attorney’s office or, at the least, without the supervision of an attorney. However, if the client insists and/or the circumstances demand, the attorney should deliver a written memorandum to the client explaining the fairly straightforward formalities, in clear and simple terms, which must be observed. The client should be requested to sign and return the memorandum after the execution ceremony, acknowledging with some detail that the instructions were followed. This simple procedure will, to a large extent, negate the need for a proceeding such as this and abrogate the possibility that a decedent’s testamentary intent will be frustrated.” b. In re Estate of Scalone, 170 A.D.2d 507, 566 N.Y.S.2d 75 (App. Div. 1991)

Testatrix should be aware of the natural objects of her bounty and the nature and extent of her property. Further, the use of testimony of two subscribing witnesses more than adequately justifies the conclusion that the will was duly executed. c. In re Estate of Pirozzi, 238 A.D.2d 833, 657 N.Y.S.2d 112 (App. Div. 1997)

Before admitting a will to probate, the trial court needs to be satisfied that the will was duly executed, even if no interested party filed any objections to the validity of the will. Among the requirements for due execution is that the testator must publish to the attesting witnesses that the document was his or her will. “Publication can be through words or actions, but something must occur to show that there had been a “meeting of the minds” between the testator and the attesting witnesses that the instrument they were being asked to sign as a witness was testamentary in character.” Citing matter of Roberts, 215 AD2d 666. d. Matter of Dane, 2006 NY Slip Op 6721, 32 A.D.3d 1233, 821 N.Y.S.2d 699 (App. Div.)

During the nonjury trial, the respondent’s expert testified that his handwriting analysis was “inconclusive” meaning that he could not testify either that the signature on the 1992 will was genuine or that it was forged. However, the decedent’s daughter and petitioner’s handwriting expert testified that the signature on the 1992 will was in fact that of the decedent. Also, the attorney who witnessed the will signing testified that the decedent signed the will and there were two contemporaneous checks drawn on decedent’s account and made payable to an attorney for will preparation.

158 The court concluded that the respondent failed to overcome the presumption of regularity and due execution arising from the fact that the will’s execution was supervised by the attorney-draftsperson. e. Matter of Taylor, 2011 NY Slip Op 51440(U), 32 Misc. 3d 1227(A), 936 N.Y.S.2d 61 (Sur. Ct.)

“Considering that all parties agree that the testator’s signature changed after suffering injuries to the wrist of her writing hand, and considering that a person’s signature is not always identical, it was incumbent upon the objectant to produce independent proof a forgery in addition to the conclusory, self-serving statement of herself and another disinherited distribute that the signature on the will is a forgery.” Where the attorney- draftsman supervised the will’s execution, there is a presumption of regularity that the will was properly executed in all respects.

Where the objectant intends to offer proof that the instrument has been forged by another, the proponent is entitled to particulars of the forgery, and where known, the name and addresses of the persons who forged the instrument. f. Estate of Sozzi, 2002 NYLJ LEXIS 2863 (N.Y. Sur. Ct. July 1, 2002)

In a forgery allegation, the objectants have the burden of proof. To oppose a motion objectants should produce affidavits in opposition to a motion that alleges that the signature on the will is a forgery or competent evidence from an expert or other person familiar with decedent’s handwriting which would indicate the signature is a forgery. g. In re Estate of Kumstar, 66 N.Y.2d 691, 496 N.Y.S.2d 414, 487 N.E.2d 271 (1985)

When there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, the issue of capacity is one for the jury. h. Matter of Schlaeger, 2010 NY Slip Op 4631, 74 A.D.3d 405, 903 N.Y.S.2d 12 (App. Div.)

159

Proponent established prima facie due execution of the will with the affidavits and testimony of the attesting witnesses and attorney-drafter. Where, as here, the attorney-drafter supervises the execution of the will, there is a presumption of regularity that the will was properly executed in all respects. The attestation clause and self-proving affidavit give rise to a presumption of compliance with all statutory provisions and constitutes prima facie evidence of the facts attested to therein by the witnesses. There was no inconsistency in the evidence regarding which of the two attorneys present supervised the execution of the will and, in any event, such a discrepancy would be insufficient to overcome the presumption of due execution raised by the self-proving affidavit. i. Matter of Estate of Paigo, 2008 NY Slip Op 6250, 53 A.D.3d 836, 863 N.Y.S.2d 508 (App. Div.)

"To establish fraud, it must be shown that . . . petitioner knowingly made a false statement which altered the testamentary disposition that would have been made in the absence of such a statement"

With regard to testamentary capacity, " 'the appropriate inquiry is whether the decedent was lucid and rational at the time the will was made' " Once a decedent's testamentary capacity is challenged, the proponent of the will must demonstrate that the decedent understood (1) the nature and consequences of executing a will, (2) the nature and extent of his [or her] property, and (3) the natural objects of his [or her] bounty and [the] relationship to them".

In a claim of undue influence, the burden is on the respondents to show that the decedent was actually constrained to act against his own free will and desire. Because direct proof of undue influence is rare, it may be demonstrated by circumstantial evidence of motive, opportunity and the actual exercise of such influence. Here, petitioner was not an attorney but drafted decedent’s will, named herself as executor of the estate, she is also a beneficiary of the will. She was the only person present when the decedent allegedly communicated his wishes as to how to dispose of his estate, she arranged the will execution ceremony. There were facts that needed to be assessed.

160 j. Matter of Nofal v. Nofal, 2006 NY Slip Op 9988, 35 A.D.3d 1132, 1133, 826 N.Y.S.2d 828, 829 (App. Div.)

To establish testamentary capacity, the evidence must demonstrate that the testator understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of his or her bounty and his or her relationship to them. A presumption of testamentary capacity is created when an attorney drafts a will and supervises its execution, particularly if the evidence submitted includes an affidavit by one of the subscribing witnesses stating that the testator was mentally acute. k. In re Will of Slade, 106 A.D.2d 914, 483 N.Y.S.2d 513, 514 (App. Div. 1984)

The proponent has the burden of proving that the testator possessed testamentary capacity and the court must look to the following factors: (1) whether she understood the nature and consequences of executing a will; (2) whether she knew the nature and extent of the property that she was disposing of; and (3) whether she knew those who would be considered the natural objects of her bounty and her relations with them.

Where opinion testimony is contradicted by the facts, the facts must prevail. l. In re Hedges, 100 A.D.2d 586, 586, 473 N.Y.S.2d 529, 530 (App. Div. 1984)

It has long been recognized that old age, physical weakness and senile dementia are not necessarily inconsistent with testamentary capacity as long as the testatrix was acting rationally and intelligently at the time the codicil was prepared and executed

Furthermore, evidence relating to the condition of the testatrix before or after the execution is only significant insofar as it bears upon the strength or weakness of mind at the exact hour of the day of execution m. In re Will of Walther, 6 N.Y.2d 49, 188 N.Y.S.2d 168, 169, 159 N.E.2d 665, 666 (1959)

To show undue influence, it must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and

161 destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear.

Lawful influences which arise from the claims of kindred and family or other intimate personal relations are proper subjects for consideration in the disposition of estates, and if allowed to influence a testator in his last will, cannot be regarded as illegitimate or as furnishing cause for legal condemnation.

Undue influence may also be proved by circumstantial evidence, but this evidence must be of a substantial nature. Evidence must be adduced from which inferences of undue influence can be reasonably drawn before a will should be denied probate. An inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary inference. The mere fact that one is the sole legatee or sole distributee is not in itself evidence of the exercise of undue influence.

A mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized.

Intervention and undue influence can only be established by evidence that is not inconsistent with a contrary hypothesis. n. Estate of Freilich, 2002 NYLJ LEXIS 1521, *4-5 (N.Y. Sur. Ct. Mar. 27, 2002)

With respect to undue influence, the party who alleges that undue influence was exerted upon the decedent, has the burden of establishing not only motive and opportunity but also that it was in fact exercised by a moral coercion which the testator was unable to resist and which constrained him to act against his free will (Matter of Kumstar, supra; Matter of Fiumara, 47 NY2d 845; Matter of Walther, 6 NY2d 49; Children's Aid Society v. Loveridge,

162 70 N.Y. 387). However, it is also recognized that undue influence is rarely practiced in front of others and usually must be established by circumstantial evidence. Some of the circumstances that have been considered are whether the provisions of the will are consistent with the testator's family relations, the condition of the testator's physical and mental health, whether the testator's attitude and testamentary disposition changed after the person who allegedly exerted the undue influence became involved in the testator's affairs, the degree to which others were excluded from dealing with the testator, whether the testator was subject to the control of the person who allegedly practiced the undue influence, and the acts and declarations of such person (Matter of Anna, 248 N.Y. 421, 424; Rollwagen v. Rollwagen, 63 N.Y. 504; Matter of Antoinette, 238 AD2d 762). o. In re Henderson, 80 N.Y.2d 388, 390, 590 N.Y.S.2d 836, 837, 605 N.E.2d 323, 324 (1992)

A person of sound mind, acting with full knowledge of her affairs, competent to understand her relations to those whom she wished to benefit, may bestow her bounty as she likes. A testator's freedom to bequeath property in accordance with his or her wishes should not be diminished merely because the object of the testator's generosity happens to be an attorney with whom the testator has enjoyed a beneficial professional relationship. Attorneys often extend themselves on behalf of their long-time clients, and such acts of kindness and consideration do not, by themselves, constitute undue influence when they evoke reciprocal sentiments of gratitude and affection by the client. Accordingly, the Putnam inference of undue influence should not automatically be applied where an attorney-legatee has had a professional relationship with the testator but was not the attorney who drafted the testamentary instrument.

A question of undue influence often arises when a person in a position of trust and confidence becomes the object of the other party's generosity. Where a fiduciary relationship exists between parties, transactions between them are scrutinized with extreme vigilance. Such scrutiny is especially important when attorney-beneficiaries are involved, because the intensely personal nature of the attorney-client relationship, coupled with the specialized training and knowledge that attorneys have, places attorneys in positions that are uniquely suited to exercising a powerful influence over their clients' decision. While most attorneys exercise that power with scrupulous honesty, the risk of undue persuasion is sufficiently substantial as

163 to justify judicial inquiry, at least where there may have been no meaningful consultation or intervention by independent counsel. p. Matter of Neenan, 2006 NY Slip Op 9250, 35 A.D.3d 475, 475, 827 N.Y.S.2d 164, 165 (App. Div.)

An inference of undue influence, requiring the beneficiary to explain the circumstances of the bequest, arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in the drafting of the will. Although the inference does not shift the burden of proof on the issue of undue influence, it places the burden on the beneficiary to explain the circumstances of the bequest. The adequacy of the explanation presents a question of fact for the jury. q. Matter of Rosasco, 2011 NY Slip Op 50673(U), 31 Misc. 3d 1214(A), 1214A, 927 N.Y.S.2d 819, 819 (Sur. Ct.)

The Restatement of Contracts fleshes out the elements of duress. First, "the doing of an act often involves, without more, a threat that the act will be repeated" (Restatement [First] of Contracts § 492 Comment d). As stated in the Restatement (Second) of Contracts: "Past events often import a threat" (id. § 175 Comment b). Second, the standard for evaluating whether an "act or threat produces the required degree of fear is not objective," but subjective, that is, the issue is whether the threat of a wrongful act induced such fear in the testator "as to preclude the exercise by [her] of free will and judgment" (Restatement [First] of Contracts § 492 Comment a]). As explained in the Restatement (Second) of Contracts: "The test is subjective and the question is, did the threat actually induce assent on the part of the person claiming to be the victim of duress" (id. § 175 Comment c). Finally, the motivation or intent of the person charged with duress is irrelevant: "duress does not depend on the intent of the person exercising it" (Restatement [First] of Contracts § 492 Comment a]). r. In re Estate of Evanchuk, 145 A.D.2d 559, 536 N.Y.S.2d 110, 111 (App. Div. 1988)

In order to state a claim for fraud, the objectant is required to demonstrate that a person knowingly made a false statement to the testator which caused

164 him to execute a will that disposed of his property in a manner differently than he would have in the absence of that statement.

9. Relying on – and Rebutting – Presumptions in the Absence of Relevant Testimony

a. Matter of Selvaggio, 146 A.D.3d 891

The petitioners made a prima facie showing that the propounded will was duly executed pursuant to EPTL 3-2.1 by submitting the deposition testimony of the attorney-drafter and the witness to the will, neither of whom was a beneficiary thereunder, regarding the circumstances surrounding the signing of the will and the ceremony as supervised by the attorney-drafter. The attestation clause and self-proving affidavits accompanying the propounded will also gave rise to a presumption of compliance with the statutory requirements. The petitioners also established, prima facie, that the decedent understood the nature and consequences of making a will, the nature and extent of his property, and the nature and objects of his bounty.

b. Matter of Shapiro, 2014 NY Slip Op 07395, 121 A.D.3d 1454, 1454, 995 N.Y.S.2d 805, 806 (App. Div.)

"[I]f the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution or what took place at the time"

Absence of a self-executing affidavit does not prevent the presumption from arising, where, as here, the attestation clause is complete and the circumstances corroborate due execution.

c. Matter of Falk, 2007 NY Slip Op 8774, 47 A.D.3d 21, 22, 845 N.Y.S.2d 287, 287 (App. Div.)

When an attorney-draftsperson supervises the execution of a will, there is a presumption of regularity that the will was properly executed in all respects, but that presumption was not applicable here. One of the witnesses did sign an affidavit of attesting witness, but the affidavit falsely stated that the witness had witnessed decedent subscribe the will. Although the will contained an attestation clause, which normally raises a presumption of validity, the evidence presented varying accounts of what allegedly transpired with regard to whether decedent signed in the presence of any witnesses or acknowledged her signature, whether she declared that the instrument was her will, and whether

165 she requested that they sign the will. Accordingly, there was no meeting of the minds between decedent and the witnesses, and the petition for probate was properly denied. d. Matter of Grancaric, 2009 NY Slip Op 9108, 68 A.D.3d 1279, 1279, 890 N.Y.S.2d 685, 686 (App. Div.)

Finding that will was not executed according to statutory requirements (see EPTL 3-2.1) was supported by evidence--jury was free to accept testimony of forensic handwriting expert, who explained his comparison of signature on will to other original documents known to have been signed by decedent and opined that signature on will was not genuine signature of decedent, and to reject testimony of attorney who supervised will execution, three witnesses to execution and petitioner's handwriting expert, who merely opined that there were "indications" that decedent was individual who signed will but could not state with degree of professional certainty that signature was "probably" decedent's writing. e. Matter of Moskoff, 2007 NY Slip Op 4833, 41 A.D.3d 481, 481, 836 N.Y.S.2d 708, 709 (App. Div.)

When an attorney draftsman supervises the will's execution, there is a presumption of regularity that the will was properly executed in all respects. Furthermore, an attestation clause and self-proving affidavit give rise to a presumption of compliance with all statutory provisions. f. In re Clapper, 279 A.D.2d 730, 718 N.Y.S.2d 468, 470 (App. Div. 2001)

The will contained a self-executing affidavit signed by the two attesting witnesses containing their opinion that decedent "was of sound mind, memory and understanding and not under any restraint or in any respect incompetent to make a Will." This type of attestation clause creates a presumption that the will was duly executed and constitutes prima facie evidence of the facts therein attested to by the witnesses (see, Matter of Ruso, 212 AD2d 846, 846- 847; Matter of Yenei, 132 AD2d 870). Additionally, the surviving witness testified to compliance with the due execution requirements of the statute. No probative evidence was offered which would tend to rebut the presumption created by the attestation clause or dispute the corroborative [***3] testimony of the surviving attesting witness. Thus, Surrogate's Court correctly concluded that the requirements for the proper execution of a will were met. g. Matter of Friedman, 2006 NY Slip Op 1354, 26 A.D.3d 723, 724, 809 N.Y.S.2d 667, 668 (App. Div.)

166 Objections to decedent's will were dismissed--fact that decedent was diagnosed with progressive dementia did not create triable issue of fact as to his mental capacity since two professionals opined that decedent was competent to sign his will, and attesting witnesses swore that decedent appeared competent at time he executed will--no question of fact existed as to issue of undue influence; respondents asserted that very magnitude of will, coupled with decedent's declining mental health, evinced fraud in securing his signature and that, based upon his declining mental health, he may have been unaware of his potentially disinheriting his older children; such contentions were speculative and did not rise to specificity required to demonstrate undue influence. h. In re Estate of Leach, 3 A.D.3d 763, 772 N.Y.S.2d 100, 102 (App. Div. 2004)

When an attorney drafts a will and supervises its execution, a presumption of regularity is raised that the will was properly executed. A self-executing affidavit also creates a presumption that the will was duly executed and constitutes prima facie evidence of the facts therein attested to by the witnesses. Notably, this presumption cannot be overcome merely because the attesting witnesses are not able to specifically recall the will execution. Not being able to remember the details of the execution ceremony is not the same as testifying that the formalities described in the attestation clause did not occur. i. In re Finocchio, 270 A.D.2d 418, 704 N.Y.S.2d 634, 635 (App. Div. 2000)

The presumption of proper execution of a will is not overcome by the mere failure of attesting witnesses to recall the will execution. j. Estate of Anna Gallagher, 2009 NYLJ LEXIS 1086, (N.Y. Sur. Ct. May 22, 2009)

A will may be admitted to probate as an ancient document where it is more than 30 years old, taken from a natural place of custody and is unsuspicious in nature (Matter of Brittain, 54 Misc 2d 965 [1967]). Moreover, the attestation cause is entitled to weight in determining due execution (Matter of Cottrell, 95 NY 329, 335 [1884]).

The admission of a will to probate pursuant to the ancient document rule based upon the age of the instrument when probate is sought falls within the ancient document evidentiary rule under which a variety of documents that are at least 30 years old at the time of trial are received in evidence upon "their production from proper custody without proof of handwriting or of the death of the parties to their execution" (Matter of Barney, 185 App Div 782, 798 [1919] [citations omitted]).

167 Of course, where there is a prolonged unexplained delay between the decedent's death and the proferring of the will, that is a factor that the court may consider on the issues of whether the document is unsuspicious in nature or taken from a natural place of custody.

10. Ethical Considerations

a. In re Estate of Weinstock, 40 N.Y.2d 1, 386 N.Y.S.2d 1, 1, 351 N.E.2d 647, 647 (1976)

A lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety. Model Code of Prof'l Responsibility EC 5-6.

b. In re Estate of Lowenstein, 158 Misc. 2d 320, 600 N.Y.S.2d 997, 998 (Sur. Ct. 1993)

N.Y. Est. Powers & Trusts Law § 13-2.1 requires that a contract to make a "testamentary provision" must be in writing and subscribed by the party to be charged therewith. However, the mere existence of a writing does not automatically render such an agreement enforceable. When the nominated executor is also the draftsman, even a writing to such effect is of doubtful value. Model Code of Professional Responsibility Canon 5-6 provides in part that a lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where the client wishes to name a lawyer as such, care should be taken to avoid even the appearance of impropriety.

c. SCPA 2307-a: Commissions of attorney executor 6-23 New York Civil Practice: SCPA § 2307-a (2017)

d. In re Estate of Putnam, 135 Misc. 311, 238 N.Y.S. 112, 113 (Sur. Ct. 1929)

Where an attorney draws a will for a client and is also named as a beneficiary in that will, the burden is cast upon the attorney to explain that the will represents the free, untrammeled and intelligent wishes of the testatrix.

e. In re Henderson, 80 N.Y.2d 388, 590 N.Y.S.2d 836, 605 N.E.2d 323 (1992)

168 "[W]here a fiduciary relationship exists between parties, 'transactions between them are scrutinized with extreme vigilance' " (Matter of Gordon v Bialystoker Ctr., 45 NY2d 692, 698, quoting Ten Eyck v Whitbeck, supra, at 353). Such scrutiny is especially important when attorney-beneficiaries are involved, since the intensely personal nature of the attorney-client relationship, coupled with the specialized training and knowledge that attorneys have, places attorneys in positions that are uniquely suited to exercising a powerful influence over their clients' decision. While most attorneys exercise that power with scrupulous honesty, the risk of undue persuasion is sufficiently substantial as to justify judicial inquiry, at least where, as here, there may have been no meaningful consultation or intervention by independent counsel. f. In re Patterson, 2001 NYLJ LEXIS 161, (N.Y. Sur. Ct. Jan. 8, 2001)

It cannot be said with the requisite degree of certainty that the circumstances attendant to the making of decedent's 1994 will are purely issues of law without factual implications. More particularly, considering that, inter alia: (i) the documentary record is inconclusive regarding the decedent's knowledge and understanding of the amount of additional commissions attributable to both Merestead and the tangible personal property; (ii) the factual argument advanced by Wyckoff and accepted by the decedent as justification for awarding enhanced compensation to three executors is disputed; (iii) the direct and unambiguous provisions of Article THIRTEENTH which entitle the decedent's three co-executors, absolutely, to enhanced compensation are inconsistent with Wyckoff's own interpretation and application thereof; and (iv) Patterson has not been given the opportunity to test the credibility of Wyckoff, the witness to the will signing, and the statements each has made in their respective affidavits, all of which include alleged conversations and observations with and of the decedent, the court concludes that, at this juncture, Wyckoff's motion to dismiss the objections is premature.

Accordingly, pursuant to its authority under CPLR 3212(f), the court hereby denies the motion, without prejudice to renew upon completion of appropriate disclosure (see, e.q., Colicchio v. Port Auth. of N.Y. and N.J., 246 AD2d 464, supra; Seidman v. Booth Mem. Med. Ctr., 167 AD2d 530, supra). g. St. Barnabas Hosp. v. N.Y.C. Health & Hosps. Corp., 7 A.D.3d 83, 775 N.Y.S.2d 9 (App. Div. 2004) The law firm representing defendant New York City Health and Hospitals Corporation (HHC) in an action involving plaintiff hospital's former affiliation with

169 a HHC facility was improperly disqualified from continuing its representation of defendant solely because of its brief representation of plaintiff in a dispute with a billing vendor, especially where the attorneys who personally handled the prior representation were no longer with the firm. Plaintiff waived the firm's alleged conflict of interest both by its express written consent to such representation in a March 1998 retention letter concerning the firm's representation of plaintiff in certain employment litigation matters while negotiations involving a new affiliation agreement were ongoing, and by its unexplained delay of more than one year in making the disqualification motion. Consequently, although plaintiff set forth a colorable claim that the matters involved in the billing dispute were substantially related to the affiliation dispute, plaintiff's knowing waiver obviated the need for defendant to make a detailed showing to rebut the presumption of disqualification (see Code of Professional Responsibility DR 5-108 (a) (1) [22 NYCRR 1200.27 (a) (1)]). The firm had been HHC's outside counsel since 1976, and, under the circumstances, could not be deemed to have improperly "switched sides" in the dispute between HHC and plaintiff. St. Barnabas Hosp. v. N.Y.C. Health & Hosps. Corp., 7 A.D.3d 83, 84, 775 N.Y.S.2d 9, 10 (App. Div. 2004) h. In re Hof, 102 A.D.2d 591, 478 N.Y.S.2d 39 (App. Div. 1984) An application by the administratrix of an estate to disqualify the attorney for her co-administrator is granted, the attorney, who had previously represented both parties, having been dismissed by petitioner when he allegedly participated in the prosecution of a compulsory accounting proceeding seeking to surcharge her; as a result of the prior dual representation, confidences have developed leading inevitably to the possibility of conflict, and since there is an allegation that petitioner breached her fiduciary duties, it is manifest that the attorney's prior representation [***2] of her may well have been the source of information substantiating this claimed breach. The disqualification motion is not being made for tactical purposes, but involved is the obtaining of confidential information from a former client which will be used against that former client, and in such circumstances all that is required for disqualification is the adduction of facts which would make it reasonable to infer that the attorney gained some information about his former client of some value to his present client. In re Hof, 102 A.D.2d 591, 591, 478 N.Y.S.2d 39, 40 (App. Div. 1984)

Rule of Professional Conduct 1.7

NYSBA Ethics Opinions 649 and 797

170

Rule of Professional Conduct 1.6 i. Schneider v. Finmann, 2010 NY Slip Op 5281, 15 N.Y.3d 306, 907 N.Y.S.2d 119, 933 N.E.2d 718 The personal representative of an estate should not be prevented from raising a negligent estate planning claim against the attorney who caused harm to the estate. Despite the holding in this case, strict privity remains a bar against beneficiaries' and other third-party individuals' estate planning malpractice claims absent fraud or other circumstances. Relaxing privity to permit third parties to commence professional negligence actions against estate planning attorneys would produce undesirable results—uncertainty and limitless liability. These concerns, however, are not present in the case of an estate planning malpractice action commenced by the estate's personal representative.

Rule of Professional Conduct 1.14 Rule 1.14 creates a comprehensive framework for lawyers to use their professional judgment in order to help their clients with diminished capacities effectively without risking professional discipline. j. Estate of Rothko, 84 Misc. 2d 830, 379 N.Y.S.2d 923 (Sur. Ct. 1975)

It is clear that where a fiduciary breaches his duty to the beneficiaries any loss to the estate must fall upon his shoulders and any profit derived from the breach, or profit which would have accrued to the estate if there had been no breach, will inure to the benefit of the estate. The beneficiaries, therefore, have various options or remedies available to them where there has been a breach of duty by an estate or trust fiduciary. The beneficiaries may have the option of not only charging the fiduciary with a loss or making him account for a gain but also of charging him with a gain which was not made but would have been made if the fiduciary had not violated his duty.

If the fiduciary in breach of his duty had transferred property, by sale or otherwise, to any third person, the beneficiary has a full right to follow such property into the hands of such person, unless that third person is a bona fide purchaser, for a valuable consideration, without notice. If the fiduciary has invested the property or its proceeds into any other property into which it can be distinctly traced, the beneficiary also has an election, either to follow the

171 same into the new investment, or to hold the fiduciary personally liable for the breach. All of these options or remedies are not always available to the beneficiaries but depend upon the facts of the particular case.

k. Wechsler v. Bowman, 285 N.Y. 284, 34 N.E.2d 322 (1941)

The law is well settled that it is the duty of an agent to act honestly towards his principal, and to use his utmost efforts to obtain for his principal the highest price possible for the property. In consequence the principal is entitled to recover from his unfaithful agent any commission paid by the principal and all moneys paid by a purchaser whether as a bribe to the agent of the seller or otherwise, on the theory that the purchaser was willing to pay that much more than the stated purchase price.

l. Matter of Clarke, 2009 NY Slip Op 9170, 71 A.D.3d 33, 891 N.Y.S.2d 342 (App. Div.)

In 2006, the attorney was indefinitely suspended from the practice of law for failing to register with the Office of Court Administration (OCA). According to OCA's records, the attorney had been delinquent in his attorney's registration since 1999. The committee's motion was predicated on findings that the attorney had previously engaged in a pervasive pattern of misconduct by deceiving his employer and four of its clients with respect to work that he completely failed to perform in five separate matters and by neglecting a total of six matters involving five separate clients. Although his treating psychologist was able to state with a reasonable degree of psychological certainty that the attorney's depression was a major contributing factor to his neglect of legal matters, she could not conclude that his depression and self-destructive behavior were causally linked to his repeated acts of intentional deceit. The court found, inter alia, that the attorney should be prospectively suspended for five years based on his violation of Judiciary Law § 468-a and former DR 1- 102(A)(4) and DR 6-101(A)(3). Matter of Clarke, 2009 NY Slip Op 9170, ¶ 1, 71 A.D.3d 33, 34, 891 N.Y.S.2d 342, 343 (App. Div.)

11. Statutes & Rules

SCPA § 1404 - Witnesses to be examined; proof required SCPA § 1406 - Proof of will by affidavit of attesting witness out of court SCPA § 1410 - Who may file objections to probate of an alleged will CPLR § 4503 – Attorney-Client Privilege 22 NYCRR 207.19 - Examinations before trial in contested probate proceedings 22 NYCRR 207.27 - Examinations before trial in contested probate proceedings 22 NYCRR 207.28 - Probate; filing of will; depositions; proof by affidavit N.Y.Ct.Rules § 221.2 - Objections at depositions

172 22 NYCRR 221.3 - Communication with the deponent EPTL § 3-2.1 - Execution and attestation of wills; formal requirements SCPA § 302 – Pleadings RPC – 1.2 RPC – 1.6 RPC – 1.7 RPC - 1.8 RPC – 1.14

173 174 NOTES

175

176 NOTES

177

178