CASE STUDY

Spouse of deceased artist Barry Le Va (“Decedent”) was concerned about the will being offered for probate by nominated executor, who was also the Decedent’s representative/gallerist. Spouse had concerns about possible undue influence and will signing irregularities as will was executed when Decedent was in the hospital, and during covid, so zoom was utilized by witnessing attorney. Additionally, will provided less to spouse than she would be entitled to under the elective share.

This case was unique for several reasons:

1. Decedent created installation art which requires labor to recreate, therefore is not easily sold or stored making valuation difficult, though there is a track record of sales of his work.
2. Decedent had little property besides his catalog of works, not a liquid estate
3. Spouse and Decedent were married but chose to live fairly separate lives, residing apart and maintaining a degree of separation between assets, which is why spouse was uncertain as to the contents of the estate
4. Decedent did not keep a record of his artwork and personal holdings of artwork, works were stored in a site which was not frequently visited and which Spouse had no access to.

After engaging in pre-objection document discovery the spouse felt that she had answers to some of her questions about how the will came into being and what the intention of the executor was. While she did not necessarily agree with everything that had been done, and certainly we all had a lot of questions about the possible undue influence and signing irregularities, when considering the costs to contest the will she did not feel that she could expend the resources to proceed with a will contest. After much consultation we all determined that her best option would be to file for her elective share and expend her assets/energy in ensuring that she received her full legal entitlement. This was also a reflection of the fact that the spouse did not really want to take on the responsibilities to administer the estate.

While we did not represent the nominated executor, after working on the case it became clear that his attorney provided poor strategic advice. The biggest benefit to the executor of the will as drafted is that it allows the executor to appoint the gallerist/sales representative for all of Decedent’s artwork, including appointing himself. This is a lucrative position as the industry standard commission for a gallerist is 50% of the sales price. As stated above the only asset of the estate beyond de minimis value personal belongings is the Decedent’s artwork.

If, as it seems from the will, the executors goal was to be the gallerist for the Decedent’s artwork, and to protect and promote the Decedent’s legacy (a goal cited frequently by executor’s counsel) then there was simpler solution that could have accomplished virtually all the same things as under the will. Rather than draft the will, the executor and Decedent could have entered into a contractual agreement whereby Decedent made executor his exclusive gallerist for a set period of time (which could be a lengthy term) and could also set the commission rate.

This contract would not be subject to challenge in Surrogate’s court, only in a civil action, and in fact in this case the spouse indicates that she would have wanted to work with the executor due to his existing relationship with Decedent.