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Contesting a Will in NY; Estate of Bob Rau

28
Jan

By Jason Stern

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When successful aerospace executive passed away at the age of 82 on February 1, 2019, he left behind his $10 million dollar estate to his third wife of 9 months, Francine Coppola, no relation to Francis Ford, to the exclusion of his five children.  

Bob Rau was born into a working class family of nine children.  In 1954 Rau joined the U.S. Air Force where he discovered his love of mathematics. At 23 years of age Rau received a scholarship to attend Whittier College where he met his first wife Eleanor in 1962. After graduating college in 1963 Rau moved up the corporate ladder as an aerospace executive eventually becoming the Senior Executive Vice President at Parker Hannifin.  In 1979, Bob Rau divorced then wife Eleanor to marry his second wife Mercedes Baker in 1980.  

Throughout his career as an aerospace executive Bob Rau amassed a fortune allegedly estimated to be greater than $10 million dollars.  Rau spent his years living in a sprawling $3.5 million dollar estate in Orange County California and traveling the world with second wife Mercedes.  Unfortunately, in 2017 Rau’s second wife Mercedes passed leaving Rau alone for the first time in six decades.  

Later in 2017 Bob Rau met and allegedly fell in love with 62 year old Francine Coppola, some twenty years Rau’s junior.  According to documents filed on behalf of Rau’s children, the two met at a restaurant often frequented by younger women seeking to exchange intimacy with “sugar daddies”, wealthy older men who will take care of them financially.  It wasn’t long before Coppola moved into Bob Rau’s sprawling estate where she systematically isolated Rau from his daughter Laura and son Mike.  Rau’s children claim Coppola even went so far as to take possession of their father’s cell phone cutting him off from the texts and calls of his children.  On May 1, 2018, Coppola and Bob Rau were married and on May 14, 2018, Rau changed his will leaving the bulk of his entire fortune to his wife of two weeks to the exclusion of his five children.  Nine months later Rau was dead.  Bob Rau’s children are now contesting the instrument disinheriting them as the product of the undue influence wielded over their father by third wife Francine Coppola.  

Can Rau’s children contest his will?

As a NY estate lawyer with more than two decades of experience successfully contesting attorney drafted wills in NY I can tell you that few cases are as challenging or emotionally charged as NY will contests.  The first challenge posed by the contesting of a NY will is the emotional cost involved, similar to a matrimonial dispute these cases are usually steeped in bad blood from the outset.  

The next challenge a NY estate lawyer must face is the public policy surrounding the purported will’s execution.  According to the NY estate law the level of mental capacity required to execute a NY will is lower than any other document or contractual agreement by design.  This is so that even an individual dying on their death bed, may in a moment of partial lucidity, memorialize their wishes by executing a Last Will & Testament.  

So how do you contest a will in NY when the barometer to execute such a document is so low?  Most of the time, absent extreme cases where the decedent is in a complete or close to complete vegetative state, the facts of the purported document’s execution will not support a NY estate lawyer’s argument of capacity in a will contest.  In fact the caselaw even goes so far as to state that even a diagnosis of progressive dementia, standing alone, does not create a triable issue of fact as to mental capacity. Instead, it must be demonstrated that the individual was incompetent at the specific time of the challenged transaction, i.e., he or she was so affected as to render him or her wholly and absolutely incompetent to comprehend and understand the nature of the transaction.  For these reasons a NY will contest lawyer would usually forgo contesting a NY will on the basis of incompetence in favor of undue influence or due execution.  

Due Execution alleged by the NY estate lawyer is that the will’s execution did not comply with the formalities as required by EPTL 3-2.1 of the NY estate law.  Simply stated, the will was improperly executed.  Customarily, this vehicle is utilized in a NY will contest where the instrument in question was not drafted nor its execution supervised by a NY estate lawyer.  To be duly executed, a will must be subscribed by the testator in the presence of at least two attesting witnesses, or the testator must acknowledge his or her signature to the witnesses. The testator must also declare to each witness that the document is the testator’s will EPTL 3-2.1(a).  However, where a NY will is drafted and its execution supervised by a NY estate lawyer, compliance with the requirements of EPTL 3-2.1 will be presumed (see, Matter of Kindberg, 207 NY 220; Matter of Finocchio, 270 AD2d 418).  As such contesting a NY will on the basis of due execution is extremely difficult where the underlying document was drafted and its execution supervised by a NY estate lawyer.

As such, the most often utilized tool of attack in a NY will contest as in Bob Rau’s estate mentioned above is on the basis of undue influence.  In Matter of Burke, 82 A.D.2d 260 (App. Div 2ndDept. 1981) it was stated that “to establish undue influence it must be shown that the influence exercised 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, 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.”

Unfortunately for objectants in these NY will contest cases, they find it hard to prove undue influence as they run up against the question, well how do we know he just really didn’t want his third wife of two weeks whose twenty years his junior to have all of his money?  While common sense dictates Bob Rau’s marriage was less a marriage of affection for his third wife and more of a marriage of opportunity how do you prove that in a court of law?  Since direct proof of undue influence is rarely available, it can be established by demonstrating all the facts and circumstances surrounding the testator at the time the will was prepared and executed. These include the testator’s relationships with the beneficiaries, the nature of the will, family relations, the testator’s mental and physical condition, whether he/she was dependent on or subject to the control of the person alleged to have exercised the influence and the opportunity of such person to exercise the influence.  That is a glimpse of how a NY estate lawyer can successfully contest a NY will on the basis of undue influence and why NY will contest cases remain so challenging.

If you think a loved one or friend was the victim of undue influence or fraud feel free to call us at (718) 261-2444 to speak with an experienced NY estate lawyer for a free consultation.  Our offices have been probating and successfully contesting NYC estates for New Yorkers in the Counties of New York, Queens, Kings, Nassau, Suffolk, Bronx, Richmond, Westchester, Orange, Rockland and Dutchess for years.  

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