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Contesting a NY will? Estate of Rosenstiel

21
Oct

By Jason Stern

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On the evening of December 5, 1975, celebrity NY estate lawyer Roy Cohn walked into the hospital room of his longtime friend, Lewis S. Rosenstiel.  Rosenstiel was the founding owner of Schenley Distillers, a hugely successful liquor company behind many world renowned liquor labels including but not limited to Jagermeister and Dewars.  After Rosenstiel’s passing Schenley Distillers would eventually be sold to Guinness in 1987 for the sum of $500 million dollars, more than $1.5 billion dollars by today’s valuations making the Rosenstiel estate one of the largest in America at the time.  Cohn who had been one of the biggest, if not the biggest power brokers in America, had the ear of many of the most powerful, wealthy and influential people in history. As a young prosecutor he sat on the infamous McCarthy Commission bringing many innocent Americans before Congress in an effort to root out communism in 1954.  But as evidence showed on December 5, 1975 Roy Cohn acted in the capacity of a NY estate lawyer.

Cohn’s good friend Rosenstiel was in the hospital dying from complications derived from a massive stroke suffered years earlier.  Rosenstiel’s stroke left him mostly paralyzed, blind, unable to speak, depressed, partially deaf and in a near vegetative state.  But Rosenstiel’s state did not prevent celebrity NY estate lawyer Roy Cohn from walking into his hospital room in an effort to have his old friend change his entire will.  NY estate lawyer decided to insert himself and Rosenstiel’s estranged granddaughter Cathy Frank into the purported document.  Granddaughter Cathy Frank had been entirely excluded from the Rosenstiel estate up until the point Cohn walked into the hospital room on the night of December 5, 1975.  

1404 proceedings would ensue where NY estate lawyer Roy Cohn would have to explain his actions regarding the dubious will.  Anytime a NY will is contested the NY estate lawyer who drafted the purported instrument and its witnesses must come forward to be examined.  In the examinations held within the Rosenstiel Estate, it was established that an orderly on call the night of December 5, 1975, observed Cohn arrive at the hospital room alone, carrying a bag.  The orderly, Richard Zaccaro testified that he witnessed NY estate lawyer Roy Cohn tell Rosenstiel that he needed him to sign some papers regarding his divorce, Rosenstiel’s wife happened to be in the process of divorcing him at the moment.  However, Zaccaro also testified that Rosenstiel was entirely unresponsive bordering on complete comatose.  At this point Zaccaro testifies, NY estate lawyer Roy Cohn puts the paperwork on the hospital tray table in front of the comatose decedent, placed a pen in the decedent’s hand and guides Rosenstiel’s limp hand onto the purported instrument in a feeble effort to execute the purported will albeit fraudulently.  

Of course NY estate lawyer Roy Cohn gave a very different account of the events that transpired.  In his testimony, Cohn claimed that he was not alone and in fact brought a friend, one David Tackett, along to witness the purported document’s execution on the morning of December 6th, not the evening of the 5th as the orderly had stated.  When asked why the documents were drawn up by Rosenstiel’s friend Roy Cohn and not Rosenstiel’s longtime NY estate lawyer Mr. Greenbaum who had drafted all previous testamentary estate plans for the decedent, Cohn testified incredibly that the comatose Rosenstiel meant to draft his last wishes in secrecy. When asked about Rosenstiel’s condition on the date of the execution NY estate lawyer Roy Cohn contended that he was verbal and lucid.  

Unfortunately for NY estate lawyer Roy Cohn, two additional nurses were also on call the night of December 5th, 1975, who further contradicted his fantastic account of the events and circumstances surrounding this purported will’s execution.  Both nurses testified that Rosenstiel was incoherent, inaudible, unresponsive and in almost all manners comatose at the time of its alleged execution. In fact upon arrival at the hospital on the night of December 5th, 1975, both nurses testified at the hearing held during the will contest that they each told NY estate lawyer Roy Cohn that not only was Rosenstiel unable to sign papers but on orders from Rosenstiel’s doctor prohibited from executing any paperwork whatsoever due to the soon to be decedent’s diminished capacity.  

Naturally at the subsequent will contest and NYS disbarment hearings, NY estate lawyer Roy Cohn contradicted all the credible evidence of each witness with his own farfetched accounts. However NY estate lawyer Roy Cohn could not dig out of the hole which he had created for himself at either the will contest or his NYS disbarment hearing.  To make matters worse for the NY estate lawyer written into Rosenstiel’s medical chart by Dr. Ronald Scherr, M.D., a note “Please do not permit business discussions between patient and visitors” as the patient was unaware of his surroundings and suffered greatly diminished capacity.  Bolstered by Dr. Harold Reed’s urological examination of Rosenstiel on the morning of December 6, 1975 which stated, “patient was in a primitive state lacking sufficient capacity”, things did not go well for celebrity NY estate lawyer Roy Cohn at either the will contest or for his subsequent disbarment inquiry.   

After extensive will contest proceedings in the Rosenstiel Estate, the surrogate’s court denied probate of the purported will meaning the document was thrown out.   The court denied probate of the will citing the facts that decedent Rosenstiel did not possess testamentary capacity at the time of the alleged execution, on December 6, 1975 as NYS estate lawyer Roy Cohn had claimed.  Additionally the Surrogate’s Court found that NY estate lawyer Roy Cohn had misrepresented the nature, content and purpose of the documents with which he presented to decedent Rosenstiel and that had Rosenstiel possessed the requisite mental capacity to execute his will on December 6, 1975, its execution would have been procured by undue influence, fraud and undoubtedly would have failed to properly execute said document with all the formalities as required by law. As such the Rosenstiel will would therefore also be denied probate on the basis of due execution. 

Roy Cohn’s actions as a NY estate lawyer on December 5, 1975 provided the disciplinary committee with no choice but to effectuate his disbarment.  The disciplinary committee stated in their decision that Roy Cohn’s actions in effectuating the execution of a fraudulent will on December 5, 1975 were untruthful, misleading and evidence of highly professional misconduct on the part of a NY estate lawyer.  

How to contest a NY will?

As a Queens estate lawyer with two decades of experience successfully contesting NY wills, I can tell you there are three main avenues to attack a NY will.  In the case above involving NY estate lawyer Roy Cohn we have a rare trifecta of sorts where the facts give rise to all three different grounds for denying probate.  Most of the time a Queens estate lawyer is hard pressed to establish one.

 The first and most widely enlisted precept for a Queens estate lawyer to challenge a NY will is that of undue influence.  So what is undue influence?  According to the NY estate law undue influence requires a showing that the propounded instrument, the NY will,  resulted from influence that “amounted to a moral coercion, which restrained independent action and 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.”  In other words, someone brought the decedent to a Queens estate lawyer and made the testator sign a NY will in a manner they would not have otherwise executed.  The main issue with proving undue influence for a Queens estate lawyer however is the fact undue influence is seldom practiced ostensibly, in the open.  Therefore courts will accept substantial circumstantial evidence of undue influence from a Queens estate lawyer as evidence in place of direct proof.

Whereas,  to challenge a NY will for capacity requires something a little different.  In order to admit a NY will to probate the proponent, one offering the will to probate, must demonstrate “that (1) [decedent] understood the nature and consequences of executing a will, (2) he or she knew the nature and extent of the property they were disposing of, and (3) he or she knew those who are the natural objects of his bounty and his relationship to them” as stated in Matter of Clapper,  279 A.D.2d  730 (2001). Obviously someone in a severely diminished capacity such as in the Rosenstiel Estate, cannot possess faculties to comprehend and acknowledge any of the required precepts for making a NY will.  

Finally, the third grounds most often utilized by Queens estate lawyers in which to challenge a NY will is that of due execution.  Simply stated due execution is the ceremony required to execute a NY will.  To show due execution, petitioner must show that: (1) the testator signed at the end of the instrument; (2) that the testator either signed in the presence of at least two attesting witnesses or acknowledged his or her signature to them; (3) that the testator declared to each of the attesting witnesses that the instrument was his or her will; and (4) that the witnesses signed at the request of the testator (EPTL 3-2.1; Matter of Kellum, 52 NY 517).  Obviously if the Queens estate lawyer offering the NY will for probate cannot locate the witnesses, or worse the witnesses renounce the execution ceremony of the NY will the NY will can be invalidated.  

If you or a loved one were excluded from a NY will and have questions regarding the document and the circumstances surrounding its execution it never hurts to ask the opinion of an experienced Queens estate lawyer to see what NY inheritance rights you may have under the NY will.  Feel free to call the NY will contest lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444.  Our Queens estate lawyers have more than 60 years of combined NY estate law experience in the drafting and probating of NY wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.

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