New York Probate and Estate Administration Lawyer Blog
Laurel G. Ellis died in June 1994. She left a last will and testament dated May, 25 1990. This will contain conditions in the bequest that favored her daughter, Florence. In the will, it gave 50% of the remaining estate after taxes and fees to Mrs. Ellis daughter and the remainder is divided equally between her sons, John and Richard. One would think it is unfair for the mother to do this, but with their history, you would understand why.
The previous will had the children sharing the estate equally, but after Mrs. Ellis’ husband died the sons’ relationship with their mother got worse and with her daughter better. There was even a letter sent by John to her mother that accused Florence of scheming to distance Mrs. Ellis from her sons. This was in March 1980. He even went as far as demand to have the old will reinstated and that Mrs. Ellis should not help Florence financially unless there is proof that she needs it. He stated in his letter that if his demand is granted, then he will not publicize the issue. A New York Probate Lawyer said John threatened to file a court case if what he wants is not done. In an undated letter to his brother Richard, he said the “estate would be in court so long that Florence would never see any of the money.”
In May 1990, she executed the will submitted for probate. Aside from the provision she placed in favor of her daughter, she added that her will is based on the “loving care and attention” her daughter has showed her and her late husband, unlike the behavior their sons showed. She said the will is a product of a long and careful thought and was not because of undue influence from Florence. Furthermore, in June 1993, she approached a new lawyer to draft a new will for her so that she could continue to express her desire to give the majority of her estate to Florence. The information a New York Probate Lawyer gathered said she was afraid her sons will cause trouble for her daughter. This is when the terrorem clause was added wherein if any of the beneficiaries directly or indirectly contest the will or any of its conditions, their right to their share in the estate is revoked, and that share will be divided between the remaining parties who have not contested.
After the testatrix died in June 1994, July 1994 the Preliminary letters were already issued. September of the same year, John and Richard had started proceedings questioning Florence’s appointment as the executrix of the will. They cited reasons like substance abuse, dishonesty and improvidence or extravagance. They gave 30 pages of allegations against Florence suitability. The cases filed and the request for examination of witnesses and documents continued on until March 1996. By March 12, 1996, a Staten Island Probate Lawyers expressed that the Supreme Court had dismissed the case after a motion was filed by Florence and her husband.
It was only by September 1996 that John and Richard withdrew their contest. This is only after they stated that they see no need for them to withdraw the contest because it was never filed in the first place. The will entered probate on October 22, 1996 with the statement “no objection having been filed.”
Florence, by February 1997, filed a petition with the court to instigate the terrorem clause because of the extensive pre-trial litigation. The surrogate court said that it was not violated. The Appellate Court reversed this decision. This is because the reason that showed in the litigations was that the brothers only wanted to attack the will made by Mrs. Ellis. The brothers argued that the contest was never filed so the terrorem clause was not violated. John also sated he is not named as one who is objecting. Normally, the court will see the pre probate examination as not violating the co-contest clause, but in this case, the brother went as far as question people not part of the will. Under the law, he can examine the proponents of the will, attesting witnesses, the people who drafted the will and the nominated executor. They did not even present solid evidence as to the allegations they were making against Florence. Their action also showed they did not care if they win or lose in the litigation. The requisite for good faith was not shown. The underlying intent shown by the brothers was to object to the will, and this is in violation of the no-contest clause put in by Mrs. Ellis to protect her daughter. The court reversed the decision with the cost being charged to the brothers and for the Surrogate Court to start proceedings on revoking their bequest under the terrorem clause.
Emotions are usually high when it comes to dealing with a family member’s last will and testament. Not just because they feel they should have gotten more but sometimes due to spite for the other beneficiary. An Estate Lawyer is a person who can protect you from the actions of people who act because of ill feeling. They will make sure that the desire of the decedent is the one that is adhered to.
If you would need to schedule a consultation with Brooklyn Probate Lawyers regarding any case in New York or Long Island, you can call 1-800 NY – NY- LAW. Stephen Bilkis & Associates have the resources, and their lawyers have the patience and the care, however long the case may take to get you what is rightfully yours. We can schedule you in any of our offices in New York.