five we are confining our arguments to count three of my clients fishing a contest which is a contest of the purported trust of richard henry  set forth in seven fifty five miles yes five slash eleven eighteen eighty five in that it did not conduct any type of a hearing with respect to mr henry's testamentary wishes now when you say that you're referring to the probate court authority to approve the crowd court's order their proper recourse is to pile will contest upon the death of the test later when their rights if any under mr henry's prior will would have bested now back has to do with the fact that what we were talking about was a guardianship correct for his living trust and that there was no vested interest in the living trust during the lifetime of the testator's that's correct so and so that when the test hayter died then there would be an argument that there would be a vesting of the rights of the beneficiaries on of his estate and only then would they have the right to go forward in contest but i think you fuzz the line between that statement and the purpose for the statement in the opinion because all that he basically says is in till the testing or dies there is no right to contest i v half of somebody who would only take after the death that's correct so that doesn't mean that there necessarily would  allow them to reopen the issues decided in the guardianship oh we're not seeking to reopen any issues we're seeking to have our opportunity to present the guardianship court's finding the it's not the testimony or the evidentiary materials of three different doctors who stated that mr henry lacked any test or actually that testamentary i misspoke he lacked any capacity to produce a subsequent disposition of his property that's not exactly what the court held and i would argue this is our at that apple because we were precluded from participating in in the proceedings that generated that finding we couldn't cross examine any of the three experts that were put out we couldn't present our own experts to rebut their testimony we could present a link witnesses who would testify that he had testamentary capacity at the time he signed a few thousand or well so this isn't a second bite for us this is we're trying to get into court to make our argument and week from today at least have been precluded at every step of the w after a given date he was incompetent to do anything regarding his financial affairs true true however even but even if that is exactly what that what the guardianship court help which i contend it isn't that someone we have attorney who drafted the will will testify that he prepared it according to his instructions he thought he had testamentary capacity he was there when he signed it and confirmed that this that this was his intent that attorney has never testified in any  being appealed at that time we did appeal though and what happened in this court we were found not to have standing to participate in the appeal so and this court stated that our time would come after mr henry died by all the same i mean everyone that's involved here has been involved in these proceedings that you have any case that allows you to contest the will after prostitution basically using the same to your will contest petition going to tank in two thousand and eight when the factual allegations are that no weapons was presented before the guardianship court regarding mr henry's intent and headed in the two thousand and four well would have found to have been his t testamentary capacity as a bolo threshold you need to know the natural objects of your bounty you need to know the nature and extent of your state in a general manner and you need to have a plan for disposing of your state that's different from being able to business which is a much higher standard of capacity someone who has the capacity who lacks the capacity to transact business and still have a lower threshold of capacity to write a will when the court allowed this two thousand and eight will to be created by chase what it decide which we haven't heard the court granted the petition to create that estate plan and what did the court essentially determine at that time how could the court allow factual underpinnings of allowing it in the first instance if the the time that it went into any factual underpinnings was in a proceeding or said patients to recover assets my client was not allowed to participate in those proceedings and put on any evidence with regard to mr henry's capacity in two thousand this bill this is let me ask you this when you had your cross petition to admit the two thousand and four will were you precluded from calling any witnesses that you would have presenting any evidence you would seek to present that would have demonstrated that the two thousand and four with all was the rock reflected hues was that precluded from presenting evidence i don't know the answer to that question did you try to know why not because a petition to admit a well the probate is a very pro forma procedure it's the first step in the process so you know you're saying don't take it from column a that is the two thousand and eight rather give us the two thousand and four and so it's not pro forma where there are competing will somebody has to make a choice about which will to met and so wouldn't why wouldn't you have sought to introduce your evidence at that time because we the factual findings of the court of which court did prompt the this able to guard to disable the status quo we we asked for the opportunity to present those facts well actually in your response you basically made legal but you didn't you didn't ask for that opportunity you just made in your petition he said his voice against public policy that was invalid executed and he trusts against public policy you didn't say anything about him having a l specifically but like i said the attorney who drafted the will would be one of the witnesses to that will would be another we have witnesses in which weren't any of those witnesses present at the time the case he began to try to effect that i want to get back to you is there was another proceeding following backtrack where you were seeking a firmer footing in your cross action to introduce the two thousand for her act and  as part of your opposition to the two thousand and eight will be you're saying this we think it's two thousand and four well reflects the intent but believe that you can contest a finding that has been entered by this by the guardianship board that was affirmed on appeal that health that after two thousand three mr henry did not you're saying it's not but if we were to compare the documents and they essentially lets the same think would you then have the same position that you're taking now absolutely we we have an absolute right as beneficiaries under the  intent was and the statute says that the court must it's mandatory must follow the the wards has the the words intentions as best as they can be ascertained in the hope it didn't hear any evidence when it was considering the two thousand  documents whether or not this was actually mr what a court is set on criteria the same case and had some institutional knowledge of what took place before prior hearings that we weren't allowed to participate in those present any contrary evidence and even in the the say plan document petition proceeding we were not to have standing to even contest what the guardian was doing so we have to have an opportunity at some point and in the entry to the court stated that your opportunity will come when thank you thank  the judge's order what happened was we filed the petition to gauge an estate planning on behalf of mr henry after this court actually during her during the period of time that this court was considering the initial appeal that he was precluded from presenting evidence at that time instead what he has say is that the case law allows him to basically stand you at back time and case law different if this was a run of the mill garden variety well interest contest the answer might be yes yes there he might be right but it's not this was a legal issue all along the way this was a legal issue it was a oppose the admission of the two thousand and eight will into probate arguing that their probate just isn't the guardianship judge lacked the discretion under the statute to authorize the two thousand and eight backing so that's what that was the legal issue that was and also tried to get in the two thousand and four document but also haven't you just basically said it may be the case that in normal situation he would be permitted to do just what he tried to do in this case at that that's all i the opportunity of a little time just to challenge it but the fact is that what we're really talking about here in this case is whether his legal position is  testamentary intent that's when he doesn't mention that what he's his whole premise is is that the court failed to consider the two thousand and four well as the last valid expression of order amid in the two thousand and eight will of richard v henry contending that the two thousand and a will is invalid and mr henry's two thousand farewell should have been admitted instead you go around to say we first consider weapons contention that by briefs in opposition of my request to have the court authorize the execution of the stapling that look at the judge's order that's what i was reading from they filed briefs they said you can't do this this isn't right you can't do this he said and he heard says is that of mr what allows the it allows the probate or the guardianship judge to do anything that the ward could do present before the court and not under a disability and what control is the w wishes as best as they can be ascertained what judge riley found after he heard evidence of the citation action that mr henry had been exploded for over four or five years out of one point three million dollars and it was such an egre situation that this court upheld units of damages being entered against the caretaker what judge riley found was that during the period of time that from two thousand and three on he was unable to make any decisions about his finances but what he found was that two thousand and four will that was executed in the midst of the exploitation right in the middle of all the exploitation was going on did not represent what mr henry would do if he was president and before the court and under a disability found he would not want to give his property out the way that is contained in the two thousand and four well so what does the statue say he had to do he had to determine what the words wishes were as best as they could be determined how did he do that he found that the hundred ninety nine will will drafted by mr henry himself a lawyer that the stairs of his property to institutions that he favored during his life time by sloan kettering the mayo institute that represented his true  is it's the words wishes as best as they can be determined control and what what he was presented with was aware that he had written themself look at the context of this case this judge was faced with a situation where he said i am not going to let this out or consider what mr henry's wishes were and that's that's simply not the case well let me ask you this on another issue you have argued alternative that we should dispose of this case under out and you have came up i had submitted a request for a hearing to judge which is in the record for judge copland telling her that i thought that henry the four disposed of the issues i started to argue very briefly she said you know there's no you know and so that's my memory of what occurred was there a large extensive argument no was there attempt to begin that argument that she cuts of the thing you're saying that at that hearing she indicated that she agreed with you that for disposed of this court to present to us a complete record received my and i believe we have presented a complete record of proceedings because there was no argument before the court so there is no bystanders report or court transcript because there was no court  legal right to proceed on the will contest but there's a presumption that when you don't present a transcript or i stand this record or something to indicate the reasons of the court that we presume the court entered the decision in are no there is no record of proceedings to be presented that that's just the fact that she came out she signed the order dismissed her and threw the order just said i'm granting the pick the motion to dismiss site the order and that was it so all right we'll just one other question i want to ask you again now generally speaking there is this principle that you can have two bites at the apple in other words probate hearing to admit the will and then subsequently this will now have you cited any case with a procedural history like this where there was a cross petition asking to thing with respect to that it's a point petition was that my client left standing to challenge the creation of the state of the estate planning documents so even if we tried to present evidence it wouldn't have mattered because we didn't have standing to do that according to  you have the opportunity under a well contest to contest all of those issues that's what we're doing that's all we're doing that's all that we're asking for the opportunity but what we're doing with the ship or allowed the creation of the trust we just did nothing now we plan and then it helped that we didn't have standing to challenge the creation of the state when that was henry to that i'm sure you really understand what the court was doing then when it allowed this the state plan to go forward and what are the issues that the its rulings from the citation perceiving that a gap by client was not allowed to participate and to allow the daring to create these documents and that it said that you don't have standing to challenge the creation of these documents judge ri outset your time will come when it will contest happens this court then agreed that we didn't have standing and again said your time will come when a well contest is right what contest is right we file the time that all we're looking for is the opportunity to litigate those say that you never raise that factual issue you only presented legal defenses and you actually never had contested the finding of the court regarding the capacity of the sea we were found  did you ever file anything in which you didn't need to before standing with challenge before standing with challenge no no i we up we oppose well we oppose the creation of the state of the state plane back in time the same basis that we believe that mr henry will it with respect to the creation of documents yes those issues were decided but with respect to my client's ability to challenge those documents no that was prompted until now and now we've received the pump and we want to start running up the field and what a good way of doing it that proceeding we were challenging the creation of the two thousand and eight back based on what based on that mr henry's testamentary impact being being contained within the two thousand court act so you really already have this issue decided you just said