Benihana Founder’s Will Disinheriting Children Upheld

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The Elder Law Minute TM                

Benihana Founder’s Will Disinheriting Children Upheld


By Ronald A. Fatoullah, Esq. and Debby Rosenfeld, Esq.



The recent holding of the Appellate Division, First Department, regarding the legitimacy of the Benihana Restaurant Founder’s last will and testament clearly evinces how Courts are more inclined to respect and uphold an individual’s will provided certain key elements are present.


The case involved the probate of Rocky Aoki’s will. Mr. Aoki was the owner of the Benihana restaurant chain which today is comprised of over 100 restaurants. He had three children from his first marriage which ended in 1981 and another three children from his second marriage which terminated in 1991. Mr. Aoki also had a seventh non marital child. In 1998, Aoki executed a will leaving his entire estate to his six marital children. In 2002, however, Mr. Aoki married for the third time and this marriage created tremendous concern amongst his children that this union would somehow negatively affect their future inheritance. According to the Court’s opinion, this concern amongst Mr. Aoki’s children evolved into a considerable feud between Mr. Aoki and his third wife, Keiko, on one side and his children from both marriages on the other side. Both sides were struggling for the ultimate control of the Benihana empire.


These struggles were reflected in many ways, including Mr. Aoki’s execution, in March of 2006, of a fourth codicil to his 1998 will in which he effectively disinherited four of his children. In addition, he commenced an action in New York State Supreme Court against his children, alleging, among other things, breach of their fiduciary duties as officers and directors of his company. In February of 2007, Mr. Aoki was diagnosed with liver cancer. At that point in time, he attempted to resolve his differences with his children, but was unsuccessful. In September of 2007, Mr. Aoki executed a new will leaving all of his property to Keiko. He died in July of 2008 and his surviving wife moved to probate his will. The probate of the will was objected to by four of Mr. Aoki’s six children who argued that their father lacked testamentary capacity and that Keiko, his wife, had exerted undue influence over him. 


In their objections, the children claimed that Keiko had engineered an outright devise of Mr. Aoki’s estate to herself and that she exercised her strong will over Mr. Aoki as he steadily declined in health and she continually alienated him from his children. The Surrogate overruled the children’s objections and placed extreme importance on the fact that the will was executed properly in the presence of three witnesses who signed a “self-proving affidavit.” As to the argument of undue influence, the court found that there was abundant evidence supplying the required “contrary inference” to what the children were claiming.


The four children appealed the Surrogate’s decision, but it was upheld in its entirety by the Appellate Division. The case demonstrates the extreme importance placed on the proper execution of a will. When the testator signs a will, the supervising attorney, in the presence of witnesses, asks a series of questions that might seem rote or mundane, but ultimately can have significant impact on the validity of the will. Further, the witnesses then sign an affidavit in which they affirm, among other things, that the Testator was of sound mind and not under the influence of any other individual. No beneficiary under the will should be present during the execution, and it is good practice for the supervising attorney to make everyone other than the witnesses leave the room. The Court’s finding in the Benihana case might have been entirely different if some of these requirements were not met.


Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn, and Cedarhurst, NY. Mr. Fatoullah has been named a “fellow” of the National Academy of Elder Law Attorneys and is a former member of its Board of Directors. He also served on the Executive Committee of the Elder Law Section of the New York State Bar Association for over 15 years. Mr. Fatoullah has been Certified as an Elder Law Attorney by the National Elder Law Foundation. Mr. Fatoullah is a co-founder of Senior Umbrella Network of Queens. This article was written with the assistance of Debby Rosenfeld, Esq., a senior staff attorney at the firm. Ronald Fatoullah & Associates can be reached by calling (718) 261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.




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