Jay Adkisson’s Asset Protection Website
October 31, 2007 by RickBryan
Asset Protection Plans, Offshore Asset Protection Services
Here’s an excellent website with all sorts of interesting and informative articles and resources for financial and estate planning professionals. Most particularly check out the discussion forum and the related website www.quatloos.com, a “cyber-museum of scams & frauds.”
SCPA 1404 Hearing turns acrimonious
October 31, 2007 by RickBryan
A “1404 hearing” is conducted along the lines of a deposition; an “examination before trial,” or EBT. Usually mundane, often interesting and lively, but rarely do counsel nearly come to blows over disagreements. A 1404 hearing is conducted where a party files objections to a will being admitted to probate; the 1404 hearing gives the part time to question witnesses under oath to discover improprieties of execution or other flaws which cause the will to not be admitted to probate.
At a 1404 hearing I attended the other day (representing the proponent of the will) in Queens, the objecting party, Guardian for a legatee under a disability (minor child), was questioning the attorney-draftsman on issues concerning testamentary intent; the will execution ceremony; capacity, etc. All valid questions. However the attorney-draftsman came with counsel, another member of the firm, who vigorously objected (“is there any other kind?”) when the questioning turned to apparent inconsistencies and technical language in the will. The reason for the objection didn’t turn out to be what caused the nastiness; that was caused by the Surrogate ruling in Chambers that not only was the question proper, but that a non-party fact witness at a 1404 deposition was not entitled to be represented by counsel! The attorney erupted in flames, and demanded that the ruling be made on the record, and so we all dutifully went into the courtroom for the same discussion. The Surrogate repeated his ruling, and the witness’ counsel could barely hold in his anger. So the rest of the day didn’t go so well, although all questions were answered without interruption.
Although counsel was not pleased to speak with me since I didn’t back him on the point, we agreed it was an interesting question: Is a non-party witness at a deposition entitled to have counsel who can object and participate in the deposition? The attorney’s point was that the witness has to be protected (and the firm too) from saying something on the record which may at some point prove useful in a malpractice claim. It was an estate tax savings will which was at issue; some of the clauses were worded inconsistently, and if the will is not admitted to probate, an heir may lose a significant bequest, and may go after the law firm. So, it’s a good question to hammer down an answer to. Anyone?