Most estate litigators in New York are well aware of the proceeding to compel production of a will pursuant to Surrogate’s Court Procedure Act (“SCPA”)  § 1401. However, there are other remedies available against a person withholding a last will and testament from a petitioner without good cause.

New York’s Penal Law § 190.30 makes unlawfully concealing a will a class E felony, which can land the concealer in prison for up to four years. Per Penal Law § 190.30: “A person is guilty of unlawfully concealing a will when, with intent to defraud, he conceals, secretes, suppresses, mutilates or destroys a will, codicil or other testamentary instrument.”

Many estate litigators, including myself, generally choose to remit a demand letter before commencing any formal litigation or court proceedings. Depending on the facts and circumstances of the case, a demand letter to a concealer of a will may attempt to persuade the person to produce the will by threatening commencement of a proceeding to compel production as the consequence of non-compliance.

Naturally, counsel could also attempt to induce the concealer to produce the will by threatening to cause criminal charges against them pursuant to Penal Law § 190.30. However, resorting to threats of criminal charges or accusations of criminal conduct can result in counsel facing its own potential criminal liability if they are not careful. 

Pursuant to Penal Law § 135.60(4): 

A person is guilty of coercion in the third degree when he or she compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he or she has a legal right to engage … by means of instilling in him or her a fear that, if the demand is not complied with, the actor or another will …  [a]ccuse some person of a crime or cause criminal charges to be instituted against him or her[.]

Coercion in the third degree is a class A misdemeanor, which can lead to up to one year of imprisonment.

Penal Law § 135.60(4) would only make it illegal for the proponent’s attorney to threaten criminal charges against the person concealing the will if the concealer had a legal right to possess the will. Still, I personally find the threat of criminal charges against another to be an unsettling and risky endeavor, no matter what the facts are, because you can never say with absolute certainty that the concealer does not have a right to possess the will.

But that doesn’t mean Penal Law § 190.30 has no place in the demand letter at all. For example, threats of using Penal Law § 190.30 in a civil context could prove both ethical and persuasive if the concealer is a beneficiary under the will. In such a case, the demand letter could threaten use of the Penal Law in a Surrogate’s Court proceeding by moving to defeat their inheritance due to their own wrongful conduct. In re the Estate of Katz, the Surrogate’s Court of Schoharie County forbade a beneficiary from enforcing her legal rights under a will because she destroyed a purported later will in order to prevent the decedent’s son from inheriting under the will. In that case, the Court reasoned:

Under section 190.30 of the Penal Law, it is a felony to destroy a will, codicil or other testamentary instrument.

It is well-settled law that “no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.” (Riggs v. Palmer, 115 N. Y. 506, 511-512.)

Have you ever used Penal Law § 190.30 to your advantage in a Surrogate’s Court proceeding? Let me know.