Summary Judgment Motion Filed Based on Testamentary Capacity

October 14, 2014,

A New York Probate Lawyer said in this Will Contest proceeding, the decedent died in May 2006, survived by his wife and their two children, the proponent and the objectant. The wife suffers from Alzheimer's disease. Her cousin and an attorney, were appointed her guardians pursuant to Article 81 of the Mental Hygiene Law and they have appeared for her in this proceeding. They filed a notice of election on her behalf.

A New York Estate Lawyer said that the proponent filed the petition for probate in June 2006 and jurisdiction was obtained over all necessary parties in August 2006. The propounded will leaves nothing to objectant, allegedly because the decedent believed that she had converted assets worth $3 million from him and from the wife by use of a power of attorney they had given her. In fact, he pressed criminal charges against her which resulted in her plea of guilty to a Class A misdemeanor. The objectant filed objections to probate; however, she never appeared for her deposition in this proceeding, nor did she ever produce any documents demanded by petitioner. Her initial reason for seeking to delay her deposition was that doing so would violate her Fifth Amendment right against self-incrimination. However, she never appeared for deposition even after the conclusion of the criminal matter when she no longer had a claim of constitutional privilege. She then averred that she was suffering from a psychological condition which prevented her from being deposed. Being unconvinced of that contention, the court, by decision and order, granted the summary judgment motion to the extent that objectant’s objections of fraud and undue influence, upon which the objectant bears the burden of proof, were dismissed.
Regarding petitioner's motion for summary judgment, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in contested probate proceedings is appropriate where a contestant fails to raise any issues of fact regarding execution of the Will, testamentary capacity, undue influence or fraud.

The proponent of a Will offered for probate has the burden of proving, by a fair preponderance of the credible evidence, that the instrument was properly executed and that the testatrix was mentally competent. All testators enjoy a presumption of competence and the mental capacity required for Wills is less than that required for any other legal instrument. The supervision of a Will's execution by an attorney will give rise to an inference of due execution. The elements of due execution are that the testator's signature should be at the end of the Will, the attesting witnesses must know that the signature is the testator's, the attesting witnesses must know that it is the testator's Will and the attesting witnesses must sign within a thirty-day period.

The SCPA 1404 testimony of the attesting witnesses and the attorney draftsman unequivocally establish that the execution of the instrument was in conformity with the statutory requirements and there is no evidence to the contrary.

New York City Probate Lawyers said the proponent also has the burden of proving testamentary capacity. It is essential that a testator understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property and his relation to the persons who ordinarily would be the natural objects of his bounty. A testator must understand the plan and effect of the will and, as noted, less mental faculty is required to execute a will than any other instrument. Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and do not preclude a finding thereof as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made.

Here, Manhattan Probate Lawyers said that again the evidence clearly establishes that at the time of the execution of the propounded instrument, the testator was of sound mind and memory and fully competent to execute a will. The testator advised the attorney draftsman that he was disinheriting the objectant in favor of the proponent. He also described his substantial financial assets and how those assets were titled from memory without prompting, notes, or other documentation. Objectant’s affidavit, and the others submitted in support thereof, does not raise a triable issue of fact regarding the testator's capacity on the date the will was executed.

The objectant in a probate proceeding bears the burden of proof on the issues of fraud and undue influence. To prove fraud, the contestants must show by clear and convincing evidence that a false statement was made to the testator that induced him to make a will disposing of his property differently than he would have if he had not heard the fraudulent statement. There is simply no evidence adduced that the will was the product of fraudulent conduct.

In order to prove undue influence, an objectant must show: (1) the existence and exertion of an influence; (2) the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will, that, but for undue influence, would not have been executed. Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient. Mere speculation is an apt characterization of the extent of objectant's evidence that petitioner in any way influenced the decedent to execute the propounded instrument. As petitioner's counsel observes, it was her conduct which most directly influenced the testator to disinherit her branch of the family from his estate plan.

Based on the foregoing, the court finds that the best interests of the decedent's estate and the infant grandchildren will be promoted by approving the settlement negotiated by the petitioner's counsel and the guardian ad litem; the guardian ad litem's request for permission to enter into the settlement on behalf of his wards is granted.

The court has also reviewed the affirmation and supplemental affirmation of legal services submitted by the guardian ad litem. With respect to the issue of attorney fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed.

These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee.

Here, the guardian ad litem was directly responsible for the ultimate resolution of this case. His efforts included review of the probate file and the transcript of the SCPA 1404 examinations of the attesting witnesses and the attorney draftsman. In addition, he interviewed at least eight parties and non-party witnesses before concluding there was no good-faith basis upon which to oppose the will's admission to probate and recommending the resolution he negotiated on behalf of his ward's with the petitioner's counsel. Considering all of the foregoing, the court fixes the fee of the guardian ad litem in the sum of $15,000.00, payable from the general estate within 30 days of entry of the probate decree.

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Respondent Allegedly Fails to Comply with Document Production Request

October 13, 2014,

A New York Probate Lawyer said one of the decedent's sons, the objectant in a probate proceeding and the petitioner in an administration proceeding that was consolidated with the probate proceeding, has now noticed for settlement a decree dismissing the probate petition. He has also moved to have his application for letters of administration restored to the calendar. The decedent's daughter, the proponent in the probate petition, opposes her brother's applications and, in effect, seeks to vacate her prior default in her brother's motion to dismiss her probate petition.

A New York Estate Lawyer said that the decedent died in June 2000 survived by three children. The probate petition was filed in October 2001. The propounded instrument provides for an equal distribution of the estate between the two children other than the objectant. It appears from allegations made in the pending applications that the decedent's other son, the beneficiary of 50% of the estate under the propounded instrument, died in April 2006 and that he was not married and did not have any children.

Suffolk County Probate Lawyers said the objectant made several applications in the probate proceeding for relief based upon the proponent's failure to provide requested discovery. The court's last determination on this issue directed the production of certain documents by the proponent by August 2005. After the August deadline passed without production of the additional documents, the objectant moved to dismiss the probate petition and the proponent's counsel moved to withdraw from representing her, alleging that she had failed to keep appointments necessary to comply with the court's directions.

Westchester County Probate Lawyers said in the absence of any opposition, counsel's application was granted and an order was entered which not only relieved counsel from representing the proponent, but also provided that all proceedings were stayed for 30 days and that "the objectant's application to dismiss the probate petition shall be submitted without opposition at the expiration of the thirty (30) day period unless papers in opposition had been filed or an application had been made for an extension of time within the period of the stay. "In the absence of any opposition or a request by the proponent for an extension of time to oppose the application to dismiss the probate petition, the court rendered a decision in January 2006, granting the application on the grounds that the proponent had failed to produce documents pursuant to the direction of the court and had failed to diligently prosecute the probate proceeding.

The proponent's excuse for failing to respond to the disclosure demand or to oppose the motion to dismiss the probate petition is that she was the only one who could care for her dying brother. She avers that now that he is deceased, she can attend to the probate proceeding. Moreover, she now submits a sworn statement that "the documents requested by the objectant cannot be located as said documents were discarded due to their physical condition.

Although the court has no reason to doubt that the proponent found herself in trying circumstances as a result of her brother's illness, this circumstance does not give the proponent a license to ignore the court's directions with impunity and does not warrant the expenditure of judicial resources to re-examine the applications that were originally ignored by the proponent.
Thus, the objectant will never receive the documents that he requested and, to date, the proponent has not stated exactly when the documents were discarded. Although it appears from portions of the documents submitted by the proponent that someone with legal experience assisted her in opposing the instant applications, she purports to be representing herself. This pro se representation in the will contest, which as a result of the death of one brother now appears to involve only the proponent and the objectant, renders it unlikely that the proponent would be able to expeditiously conclude the probate proceeding should the court excuse her default in opposing the application to dismiss the probate proceeding and, upon reargument, deny that application.

Given the history of this case and notwithstanding the reluctance of the court to deprive any person of the opportunity to have her day in court on the merits, the court is constrained to hold that the conduct of the proponent during the more than four and one half years that this probate proceeding has been pending does not justify reversing the prior dismissal of that the probate proceeding based upon the proponent's failure to diligently prosecute it and to produce documents pursuant to the court's directions.

The decree that was noticed for settlement by the objectant provides that the propounded instrument is a "forgery." Although the objectant made that allegation in his motion, the court did not grant the application on that basis. Consequently, in accordance with the court's January 23, 2006 decision, the decree entered simultaneously with this decision provides that the probate petition is dismissed due to the proponent's failure to diligently prosecute the proceeding and her failure to produce documents pursuant to the court's direction.

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Court Determines Apportionment of Legal Fees in Estate Administration Case

October 13, 2014,

A New York Probate Lawyer said the woman died survived by one sister and thirteen descendants of pre-deceased siblings. The deceased woman’s nephew, the Executor filed a Verified Petition to Probate a Last Will and Testament, dated April 17, 1996 in which he was the nominated Executor and in which he and his two siblings were named as the sole residuary beneficiaries. The Executor was granted Preliminary Letters Testamentary on October 29, 2009. Included in his Petition for Probate was an assertion by the decedent’s Executor that, after a diligent search and inquiry there exists no will, codicil or other testamentary instrument of the decedent later in date. The Petition also listed only the decedent's one surviving sibling, and the Petitioner and his two sisters, omitting ten of the decedent's distributees, all cousins of the Executor.

The decedent's one surviving sister and the ten distributees left out of the Petition for Probate, six nieces and nephews and four great-nieces and nephews of the decedent (Objectants), jointly retained their counsel and conducted an investigation that ultimately determined that the April 17, 1996 will probated by the Executor was not the decedent's Last Will and Testament.

A New York Estate Lawyer said the evidence was adduced that the decedent had executed a Last Will and Testament on July 11, 2000 and subsequently intentionally destroyed it. As the July 11, 2000 will revoked all prior wills of the decedent, its destruction would, in the absence of a subsequent will, result in the decedent's property passing pursuant to the laws of intestacy and the Executor not being named as executor. Accordingly, on December 1, 2009, the Objectants filed a Verified Answer to the Executor's Petition for Probate and Objections to the Probate of the April 17, 1996 Will.

Long Island Probate Lawyers said the Executor did not concede to the validity of the July 11, 2000 will, and estate litigation commenced. The Objectants' counsel secured affidavits from the draftsman of the later will, the attorney who oversaw its later destruction, and witnesses to the will's execution and destruction. These parties were then deposed by the Executor's counsel to ascertain if the decedent was mentally competent, under undue influence, duress, or if her actions were the product of fraud. No evidence of a lack of testamentary capacity was adduced at the five depositions conducted by the Executor's counsel. However, the Executor continued to challenge the validity of the later will and claim that the decedent lacked testamentary capacity at its execution, causing a subpoena duces tecum to be issued seeking the decedent's medical records.

On August 12, 2010, after over a year of estate litigation regarding the validity of the July 11, 2000 will, when it became apparent that the Objectants were about to file an Estate Administration petition, the Executor suddenly located and filed a third will of the decedent, dated October 20, 2005. This will named the nephew as Executor and divided the residuary into two shares, twenty percent to be divided among various charities, and the remaining eighty percent is to be distributed in various shares to ten family members, excluding only four distributees, great-nieces and great-nephews of the decedent. While the Executor had vehemently doubted the decedent's capacity to execute a will in 2000, he did not raise issues of the decedent's competence at the execution of the 2005 will. The October 20, 2005 will was admitted to Probate on November 24, 2010, and the Executor was issued full Letters Testamentary.

On November 5, 2010, the instant proceeding was commenced when the Objectants’ counsel filed a Petition to Fix and Determine Compensation, requesting fees in the amount of $24,853.61 and disbursements in the amount of $1,721.39 to be paid from the Estate of the decedent, alleging that if not for their efforts, the invalid April 17, 1996 will would have been admitted to probate, unjustly enriching the Executor and his siblings to the detriment of the rightful beneficiaries. The fee requested reflects over 175 hours of attorney and paralegal time incurred since August, 2009.

Queens Probate Lawyers said that on January 7, 2011, Verified Objections to the Petition were filed by the Attorney General of the State of New York on behalf of the ultimate charitable beneficiaries under the October 20, 2005 will. The Attorney General alleges that the Objectants acted primarily in their own interest, that their actions did not enlarge the Estate itself, and that they cannot take credit for finding the will admitted to Probate. The Attorney General also proposes that if the Objectants' legal fees should be borne by anyone, it is the Executor, due to his malfeasance. While the Attorney General does not represent the Objectants, and in any case, they do not object to the Petition for legal fees, the Attorney General also raises the argument that to pay the legal fees out of the Estate would result in the potentially unjust result of only the four non-legatee Objectants, great-nieces and nephews, being made whole, while the legacies of the seven legatee Objectants would be diminished.

In response to both the Petition and the Objections, the Executor and his counsel filed Affidavits on January 18, 2011. In his Affidavit, the Executor does not claim to have lacked knowledge regarding the existence of his ten cousins upon the filing of his petition for probate, but denies any wrongdoing, claiming that he was right to question the July 11, 2000 will, as it was sketchy, contained misspellings, and was allegedly prepared by an attorney whose office was more than fifty miles from the decedent's home. Additionally, the Executor claims that a copy of the October 20, 2005 will was not among the decedent's papers, and it was only after an exhaustive review of her records that he found a checkbook ledger notation for a check paid to another counsel. When contacted, the counsel disclosed that he had drafted and kept the October 20, 2005 will in his files after providing the decedent with a copy for her records. The Executor's Affidavit reiterates these same claims, and argues that if legal fees are to be awarded from the Estate, the fees should be paid at the hourly rate agreed upon by the Executor and his counsel - less than the hourly rate charged by the Objectants’ counsel.

For reasons further detailed below, the Court finds that adequate evidence was presented by the Objectants' counsel to justify the amount of fees sought. Further, due to the circumstances surrounding the delayed discovery of the proper will, these fees shall be paid in equal shares by the Estate and the Executor personally.

After a review of the affirmation of services included within the Petition, and taking note of the discount already granted the Objectants by their counsel, the Court declines to decrease the fees requested.

Surrogate's Court Procedure Act (SCPA) authorizes the Surrogate to, fix and determine the compensation of an attorney for services rendered to a fiduciary or to a devisee, legatee, distributee or any person interested, and to direct payment of the fees, from the estate generally or from the funds in the hands of the fiduciary belonging to any person interested. Further, SCPA places it within the Court's discretion to provide that costs be made payable by any party personally. The Attorney General relies heavily on a similar case to argue that the discretion granted the Court by SCPA to grant the attorneys' fees is limited solely to those instances in which the fees were not incurred primarily for the benefit of a client, and resulted in a greater distribution than might have otherwise been expected. While that is one circumstance under which attorneys' fees may be granted, and importantly, the situation confronted by the court is not exclusive, nor was it contemplated to be so.

The work of the attorneys to whom fees are granted must benefit the estate, but that benefit is not limited solely to a monetary increase in the estate value. For example, establishing the kinship of distributees of the decedent has been considered a benefit to the estate entitling legal fees to be paid from the estate.

Based on the circumstances, the Court has no choice but to find the ninth hour discovery of the decedent's final Will by the Executor to be suspicious. An entire year of estate litigation preceded that discovery, during which the Executor made numerous claims that the decedent lacked testamentary capacity, even attempting to obtain medical records to support that claim.

However, a will drafted more than five years later, when the decedent was 89 years old raised no such issues with the Executor. The Executor's self-serving actions raised justifiable doubt in the eyes of the Objectants, and they acted to the benefit of the Estate as a whole.

As for the portion of interest in the Estate held by the non-objecting beneficiaries’ relative to the objecting beneficiaries; under the final Will, all of the decedent's legatee family members are entitled to between five and sixteen percent of the residuary. The Executor and his siblings, the only non-objecting beneficiaries, are each entitled to approximately five percent of the residuary, the same amount as three of the objecting beneficiaries.

While the Objectants acted in apparent good faith, with justification, and to the benefit of the Estate as a whole, the Estate should not bear the entire burden of the lengthy estate litigation. The courts have, in numerous instances, held a fiduciary liable for the attorney's fees and other expenses incurred by the estate in exposing his misconduct. The Surrogate's Court is empowered to charge an administrator personally for legal expenses incurred in establishing the latter's wrongdoing.

As the Objectants' actions were required due to the Executor's inability to timely produce the proper will of the decedent, and his voracious opposition to a will that entitled him to a lesser share of the Estate, he should be personally responsible for the costs of that estate litigation. It is unascertainable what portion of the accrued legal fees are attributable to the location of the proper will and what portion are attributable to the frivolous estate litigation, so in the interests of equity, the fee shall be split in equal shares among the Estate as a whole and the Executor personally.

Further, the Executor must be removed as Executor and shall forfeit any commissions due him for services rendered to the Estate thus far. Therefore, in accordance with the above decision it is hereby ordered and adjudged and decreed that the attorneys' fees, costs and expenses in the amount of $13,287.50 be paid by the Estate to the Objectants’ counsel within thirty days, said funds to be immediately used to reimburse the legal fees, costs and expenses previously paid to the Objectants’ counsel for representation in this matter. The attorneys' fees, costs and expenses in the amount of $13,287.50 to be paid by the Executor to the Objectants’ counsel within thirty days, said funds to be immediately used to reimburse the legal fees, costs and expenses previously paid to the Objectants’ counsel for representation in this matter. The Letters Testamentary Issued by the Court to the Executor is revoked and he shall forfeit receipt of commissions.

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Second Wife Opposes Preliminary Letters Testamentary

October 12, 2014,

A New York Probate Lawyer said a man died leaving a purported will dated March 20, 2009. He was survived by his wife from a second marriage and by five children, one of whom is under a disability. A guardian ad litem was appointed for the disabled child. The purported will provides that one-third (1/3) of the residuary estate is to be placed in a supplemental needs trust for the decedent's wife. The remainder of the residuary estate is divided into seven equal shares with one share for each of the decedent's children (other than the disabled child) and the decedent's three step-children. The purported will nominates the decedent's daughter and her husband, as executors. The purported will has been offered for probate by the nominated executors. A waiver and consent was signed by the wife from the second marriage on May 12, 2009 and filed on June 16, 2009.

The petitioners have filed an application for preliminary letters testamentary. The petition is opposed by the second wife. She has also moved to revoke her waiver and consent. She has filed an affidavit in support of the motions. According to her, she and the decedent were married in 1977. Each had been married previously, their former spouses having passed away. She had three children from her first marriage, and the decedent had five children from his first marriage. At the time of the marriage, she owned a residence in Sea Cliff, New York. Prior to the marriage, the decedent sold his residence and moved in with her.

A New York Estate Lawyer said the second wife claims that it was always their intention that upon her death, her residence would be given to her children reserving the right for decedent to reside there. In 2007, at the urging of the decedent's daughter and son-in-law, the decedent and the second wife consulted with an attorney at which time she expressed her desire that the residence pass to her children. The attorney prepared a will for each of them and an Irrevocable Trust. The second wife claims she did not understand the intricacies of the trust agreement but was advised and assured that upon her death her children would get her residence.

A Staten Island Probate Lawyer said on December 2008, the second wife became ill from dehydration and was hospitalized. After a two week stay in the hospital, she entered a nursing home. She alleges that during her stay in the nursing home the petitioners began a process to make her eligible for Medicaid. She was not aware of what needed to be done to achieve this, and claims that at no time was she made aware of the fact that her residence would be transferred in a manner to prevent her from ever leaving it to her children. On April 21, 2009, the day before the decedent died, she re-entered the hospital for an emergency operation. She alleges that it was only after her husband was buried and while she was still in the hospital that she learned for the first time from her sons that such arrangements had been made so that her residence would not be going to her children. Instead, the residence could be sold and the proceeds shared by them together with the decedent's children. Upon learning this, the second wife asked the attorney who prepared the will, to come see her to discuss the issue. She told her attorney that it was always her intention to leave the residence only to her children. She claims that it became apparent to her that the attorney was not acting in her interest.

Nassau County Probate Lawyers said as to her signature on the waiver and consent, the second wife claims that, to her knowledge, she never signed such a document, but that she may have signed other documents represented to her for the purpose of qualifying for Medicaid while she was in the nursing home. The second wife said that no one explained the waiver and consent to her or what executing such a document meant. She also alleges that she never saw her husband's will. Accordingly, she asks for permission to revoke her waiver and consent so that she may file objections based, in part, upon her belief that her husband was not competent to sign a new will. She states that her husband suffered a stroke in early 1986. After surgery, he suffered another stroke in December 1986 which left him unable to speak. His speech returned somewhat over time but was never fluent. Thereafter, he suffered a number of mini-strokes. She claims that in March 2009, when the purported will was signed, he suffered from dementia to the extent that he would have been incapable of understanding and appreciating what he was doing or signing. She argues that the decedent would not have purposely and knowingly deprived her of her right to leave her residence to her children or to reside in her home after his death.
The second wife's counsel has also submitted an affirmation in support of the motion. Her counsel stated that, as a result of the consultation with the attorney who prepared the will in 2007, the residence at Ransom Avenue was transferred into a joint irrevocable trust naming her daughter and her son in law as trustees. In early 2009, the couple as trustees transferred the residence out of the trust and into the daughter's individual name. Thereafter, the daughter transferred the residence into the decedent's name. Counsel claims this was done without her mother's consent or awareness. Ten days later, the decedent executed a new will which provided that the home would be divided equally among the decedent's children and the second wife's children.

The second wife's counsel also raises an issue with respect to the notary acknowledgment on the waiver and consent purportedly exercised by her. She claims that the notary whose signature and stamp appears on the waiver did not visit her at the nursing home on the date the waiver was purportedly signed or on any other date. According to the second wife's counsel, the nursing home records indicate that the only visitor on that date was her attorney. Moreover, she asserts that the notary is the friend neighbor and/or co-worker of the Respondent son in law.

As to the application for preliminary letters, the second wife argues that she will be prejudiced if letters are issued because then the Ransom Avenue home can be sold.

The petitioners have filed an answer wherein they assert that the second wife had a complete understanding of each and every transfer, document, trusts or other legal matter relating to her and husband's affairs. The Respondents claim that the second wife received verbal and written communications from her attorney and met with her alone on more than one occasion.

Moreover, her attorney never represented the petitioners. The Petitioners also claim that the decedent sold his house and paid for all the bills while they lived as husband and wife. While the decedent was doing this, the second wife made gifts of approximately $150,000.00 to her children. Petitioners allege that they had no input or advice in the estate planning process and that the decedent and the second wife relied upon expert legal advice. In addition, they contend that the decedent always had mental capacity.

The second wife’s allegation that the petitioners are not qualified to act as fiduciaries fails to go beyond conclusory allegations which are clearly insufficient to provide a basis for the denial of preliminary letters testamentary. She has failed to demonstrate good cause or serious wrongdoing which would permit the court to nullify the testator's choice of fiduciaries.

Accordingly, the petitioners' application for preliminary letters testamentary is granted.

Nevertheless, the second wife has raised an issue regarding the petitioners' actions regarding the transfer of the Ransom Avenue house out of the trust and into her daughter's individual name. Accordingly, the preliminary letters testamentary shall restrict the preliminary executors from selling the Ransom Avenue house without prior court approval.

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Sons Battle for Right to Serve as Sole Preliminary Executor

October 11, 2014,

A New York Probate Lawyer said in this probate proceeding, the decedent's eldest son petitions for his appointment as the sole preliminary executor. The decedent's youngest son opposes that application and cross-petitions for his appointment as the sole preliminary executor. The decedent's only other distributee, her middle son, who is disinherited under the propounded instrument, supports his eldest brother’s application.

It appears from papers filed in this proceeding that the battle between the decedent's sons commenced prior to her death. In a petition verified in March of 2010, the eldest and youngest son sought to be appointed as the guardians of the decedent's person and property pursuant to Mental Hygiene Law. At that time, the decedent was living in her Bronx home with her youngest son who was handling her affairs pursuant to a power of attorney. Due to the decedent's death on October 26, 2010, the guardianship proceeding was terminated without the appointment of a guardian.

A New York Estate Lawyer said that after the decedent's death, the will was not produced until the eldest son commenced a proceeding against the youngest son to produce the will and the court entered an order on December 29, 2010 directing its production. Thereafter the eldest and the youngest son filed separate probate petitions, each of them seeking the issuance of letters testamentary solely to himself. In a brief period of harmony, the two brothers stipulated that preliminary letters testamentary would issue jointly to them for a period of 90 days. During that 90-day period, it appears that the two brothers failed to do anything with regard to either the probate proceeding or administering the five parcels of realty owned by the decedent which appear to be the primary assets of her estate. After the preliminary letters expired, the instant applications were presented to the court and the brothers continued trading accusations.

Bronx Probate Lawyers said the propounded instrument provides in pertinent part that the residuary estate is divided equally between the eldest and the youngest son, the youngest son is to be the executor, and the eldest son the successor executor. In support of his application to be appointed as the sole preliminary executor, notwithstanding that he is nominated only as the successor executor, the eldest son contends that his brother is ineligible to be appointed as a fiduciary because he was convicted of felonies in Florida in 1984 and because he is dishonest as demonstrated by his misuse of the power of attorney that he obtained from their deceased mother. Specifically, the eldest son asserts that his brother used the power of attorney to purchase a boat for his son. The youngest son improperly used their deceased mother’s funds and he will neither cooperate in the sale of their mother’s home in the Bronx where the youngest son is residing rent free, nor in the sale of a parcel of realty in Florida where his brother's son resides.

A Brooklyn Probate Lawyer said the youngest son counters that he is in favor of selling all of the parcels of realty and alleges that the eldest son previously abused drugs and alcohol and presently attends meetings for these problems. The youngest son also asserts that his eldest brother went through a bankruptcy proceeding. The youngest son notes that although the decedent was competent when she appointed him as her attorney-in-fact, he needed the power to prevent the middle son from continuing to steal money from the decedent. In support of his cross petition to be appointed as the sole preliminary executor, the youngest son notes that the will nominates him as the sole executor, and as he entered a plea of nolo contendre to the Florida charges, he was never convicted of a felony which would render him ineligible to serve as a fiduciary.

In his effort to disqualify the youngest son, the eldest son submits a certified copy of the youngest son's Florida arrest record from the Florida Department of Law Enforcement indicating that the youngest son was arrested 1984 and charged with three felony level offenses.

The eldest son also submits a certified copy of the handwritten clerk entry of the Broward County Court pertaining to the youngest son’s arrest and conviction. Three charges surfaced and the sentence for one of the charges was two year probation, a psychological examination and a $250 donation to a charity. The sentence for another charge was a $150 fine plus 5% surcharge. The parties dispute the meaning and interpretation of the two records. With respect to the alternative basis to disqualify the youngest son on the ground of dishonesty, the eldest son submits the decedent's Chase checking account monthly statements and canceled checks covering the period July, 2008 through June, 2009, evidencing numerous automatic teller machine cash withdrawals and checks payable to the youngest son and his son in Florida for personal items.

The youngest son opposes his brother’s application arguing that his nolo contendre plea does not constitute a conviction as the plea results in adjudication being withheld, and therefore, he cannot be deemed a convicted felon. In response to the alternative ground for disqualification, the youngest son does not dispute that he made the withdrawals with the power of attorney; rather, he proffers as justification that he "saved his mother from financial ruin by the middle son," as the middle son allegedly defrauded the decedent by forging checks and incurred substantial debts by utilizing credit cards issued to her. He also asserts that he purchased the boat at the decedent's behest because she was planning to move to Florida and she viewed the boat as a vehicle to escape the heat. In support of his cross petition for preliminary letters, the youngest son notes that he is the sole executor under the propounded instrument and he states that he is in favor of selling all of the decedent's realty at the right price, including the parcel in the Bronx where he resides and the parcel in Florida where his son resides.

Here, the eldest son fails to provide the court with the equivalent New York counterparts to the applicable Florida penal law sections when his youngest brother entered his plea in 1984. Nonetheless, it appears that the equivalent penal statutes in New York may be criminal possession of a weapon in the 4th degree and unlawful possession of marijuana. In New York, violations of the aforesaid statutes are punishable as a class A misdemeanor and a violation, respectively. Thus, based upon the record before the court, the convictions under the comparable New York statutes do not constitute felonies, and the youngest son is not ineligible to serve as executor. In light of this determination, it is not necessary to discuss the youngest son's interesting argument that this case is distinguishable from the New York cases discussing the effect of nolo contendre pleas because his probationary period under this Florida plea concluded more than 25 years ago, and under Florida Law upon the conclusion of the probationary period all of his civil rights were restored, including his right to state that he was never convicted of a crime.

In order for the eldest son to prevail on his alternative argument of ineligibility based on dishonesty, the dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor. Thus, generally the dishonesty must rise to the level of a pattern of financial wrongdoing that poses a genuine, serious risk to sound management of the estate.

Although the eldest son submits voluminous bank statements that show his youngest brother personally or through others withdrew funds from his mother's account which are questionable, utilizing either a power of attorney or ATM withdrawals, he defends his conduct by alleging that his brother was depleting his mother's accounts by forging checks and using her credit cards for his personal expenses. The youngest son argues that he needed to control his mother's finances or his brother would have taken everything. He avers that he primarily used the power of attorney to withdraw funds to eliminate the credit card debt and the exorbitant interest rates allegedly incurred by the middle son.

Although the present record is insufficient to establish that, absent a hearing, the youngest son should be disqualified for dishonesty, the record does clearly reveal the acrimonious and hostile relationship that exists among the decedent's sons. There clearly is no point in holding a hearing on the dishonesty issue if both sons may not serve at this time due to their animosity towards each other. The clear thrust of Surrogate's Court Procedure Act (SCPA) is to honor the testator's wishes with regard to the appointment of a fiduciary for the estate, even on a temporary basis, so as to reduce the possibility of spurious pre-probate contests. Although disharmony between a nominated fiduciary and beneficiaries of an estate alone is not a ground for disqualification, a fiduciary may be disqualified on the ground of being otherwise unfit for office where the disharmony rises to the level that it jeopardizes the interests of all the beneficiaries and the proper estate administration.

Here, the brothers' conduct demonstrates that the hostility between them prevents them from cooperating in the sale of any of the realty or in moving the probate proceeding to a conclusion. At present, it is the eldest son and the middle son on one side and the youngest son on the other. For a brief period, the youngest son and the eldest son tried to co-exist as preliminary co-executors; however, nothing was accomplished during that period and they have regressed to hurling the same allegations toward one another that began at the inception of the guardianship proceeding. Although the youngest son professes that he is willing to sell the respective parcels of realty where he and his son reside, his elder brother asserts that this is not so. On the other hand, the youngest son clearly would like to see the parcels of realty sold in which he and his son do not reside and his elder brother did not assist in ensuring those sales when they served together as preliminary co-executors. In short, until at least some of the parcels of realty are sold and the probate proceeding is concluded, the court finds that all of the decedent's sons are unfit to serve as a fiduciary of the estate due to the hostility between them.

Accordingly, this decision constitutes the order of the court denying both the eldest son's petition and the youngest son's cross petition seeking to be appointed as the preliminary executor of the estate, and granting letters of temporary estate administration to the Public Administrator upon her duly qualifying according to law and settling upon the decedent's sons a decree granting letters of temporary estate administration to the Public Administrator.

When family members fight over estate because of a last will, things can go out of control. In some situation, relationships suffer and become permanently broken. In your pursuit for amicable estate distribution settlement, consult the Bronx County Estate Administration Lawyer or the Bronx County Probate Attorney from Stephen Bilkis and Associates.

court Decides if Opposition to Will Should be Barred due to Six Year Statute of Limitations

October 10, 2014,

A New York Probate Lawyer said that, this is a proceeding to vacate a decree of probate and to allow the petitioners to withdraw the waivers of process, consents to probate they executed on May 17, 1999. The petitioners are the decedent's four adult children, the executor of the estate, opposes the requested relief. Respondent is the decedent's surviving spouse; he and the decedent were married in November 1991. The husband is not the father of the petitioners.

A Bronx Estate Litigation Lawyer said that, on February 20, 2008, the court issued a decision and order wherein the court granted the petitioners' counsel's unopposed motion to withdraw as the petitioners' counsel and stayed the proceedings for 30 days after a copy of the order was served by overnight delivery on the petitioners. A copy of the order was served as directed, and the period of the stay has expired. The petition to vacate the decree granting probate and for other relief has now been submitted for decision.

A New York Estate Lawyer said that, the decedent died on December 5, 1998 at the age of 57. Her last will and testament dated March 11, 1995 was admitted to probate by decree dated July 29, 1999, and letters testamentary were issued to the husband. The affidavit of subscribing witnesses annexed to the will states that the will was executed under the supervision of an attorney. The decedent left her entire estate to her husband. In the event that the husband had predeceased the decedent, the decedent bequeathed the estate to the petitioners, per stirpes.
A Bronx Will Contest Lawyer said that, the petitioners have now filed a petition to vacate the decree of probate dated July 29, 1999, permitting the withdrawal of the consents, and allowing petitioners to file objections to probate. In support of the petition, they allege that (1) the husband told them they had to sign the waivers and consents in order to refinance the decedent's real property or it would be lost; (2) the executors were not provided with a copy of the will prior to signing the waivers and consents, and they believed that the decedent had died without a will; (3) they were not represented by an attorney when they executed the waivers and consents; (4) they did not sign the waivers in the presence of the notary, an attorney, whose stamp is affixed to the document; (5) One son did not sign his name on the waiver and consent that is filed with the court, and evidence "suggests" that his signature was forged; (6) he had no notice that the proceeding to probate the will had been commenced; (7) the petitioners did not contest the probate of the will because they were misled by Joseph; (8) Thomas was not given a copy of the will to review until about February 2007, at which time he became certain that he had been misled by the husband to believe the will was genuine when it is actually a forgery; (9) they all have become aware that the will is not genuine and the decedent's signature thereon is forgery; (10) the husband misrepresented the value of the decedent's estate in order to induce the son to sign an agreement dated March 6, 2000, which is discussed below; (11) the witnesses to the will committed fraud when they concealed to the court that the will is not genuine; (12) the notary aided the husband in deceiving the petitioners and the court; (13) as a result of the misrepresentations and concealment of the husband and the witnesses to the will, the petitioners acted to their detriment by reasonably relying on the false information they were given; (14) since the husband, the witnesses to the will and the notary all knew that the will was not genuine and that the decedent's signature on it is a forgery, they intended to deceive the petitioners and the court; and (15) they would not have signed away their right to their inheritance had they known about the existence of a will.

A Bronx Estate Litigation Lawyer said that, the petitioners further allege that in or about 2003 the daughter came to this court, saw the will and assumed it to be that of the decedent. Although they had been estranged for a number of years, in 2007, when the petitioners began to communicate with one another, they came to the realization that the husband "may have" committed a fraud against them. They assert that they then compared the decedent's signature on the will with other documents she had signed and concluded that the signatures on the other documents were significantly dissimilar to the one on the will.

Bronx Probate Lawyers said the petitioners refer to a two-page document entitled, "Agreement in Settlement," dated March 6, 2000. It contains the acknowledged signatures of the husband and the son. The agreement recites the fact that the agreement is between them, in his capacity as executor, that the decedent had died leaving a will dated March 11, 1995 in which she named the husband as executor, that a probate petition had been filed and the petitioners had executed waivers and consents, that letters testamentary had issued to the husband, that the son had indicated that he wished to rescind his waiver and consent and file objections to the probate of the will and that the parties to the agreement wished to resolve any disputes about the validity of the will. The agreement provides that the son reaffirmed the waiver he signed on May 17, 1999 and waived any and all objections to the probate of the will and that the husband would pay the son $12,000.00 in lieu of any distributive share to which the son might have been entitled. The agreement also contains a provision whereby he released and discharged the husband, individually and as executor of the decedent's estate, and also released the estate, as well as any heirs, executors, administrators, successors and assigns from all causes of action, suits and the like.

A Brooklyn Probate Lawyer said the issue in this case is whether the opposition to the probate of the will should be dismissed on the ground that it is barred by a six-year statute of limitations.
The husband asserts that the petition should be dismissed because the claims contained therein are barred by a six-year statute of limitations. However, there is no statute of limitations barring a party from moving to vacate a decree. The Surrogate's Court has the discretion to open decrees at any time in the interest of justice. However, a decree admitting a will to probate will not be disturbed lightly because such a vacatur disrupts the orderly process of administration and creates uncertainty. While SCPA 509 and CPLR 5015 authorize the court to vacate one of its decrees, such vacatur must be based on excusable default, fraud or newly discovered evidence. Further, for the court to vacate a decree, "it must appear that there is a substantial basis for the contest and a reasonable probability of success on the part of the petitioner".

As this court stated in a 2002 case decision, applications to vacate a barred by a six-year statute of limitations waiver and consent are governed the 1971 case decision. In the said case, the Court of Appeals likened a waiver and consent to a stipulation, subject to vacatur upon a showing of good cause, such as fraud, collusion, mistake, accident, or some such similar ground. The Court of Appeals distinguished applications made post-decree from those made pre-decree, presumably because there is a lesser likelihood of prejudice if the will has not yet been admitted to barred by a six-year statute of limitations. The court also noted that a "stricter test" is applied to applications made post-decree.

Although the petitioners allege fraud and forgery, their allegations are conclusory at best and are largely belied by the record. For example, they allege that they were not provided with a copy of the will and did not know of its existence when they signed the waivers and consents, yet the waivers and consents that they signed explicitly state that they consented to the court "admitting to barred by a six-year statute of limitations the decedent's Last Will and Testament dated March 11, 1995, a copy of which testamentary instrument has been received by me. " The petitioners allege that the son signature on the waiver and consent and the decedent's signature on the will are forgeries, yet they have not come forward with a shred of evidence to substantiate these conclusory allegations. As with the rest of their allegations, they have wholly failed to support the allegations that the husabnd, the witnesses to the will and the attorney who notarized the waivers and consents all knew the will was a forgery and deceived the petitioners and the court. Further, many of the son’s factual allegations are belied by the language in the Agreement in Settlement that he executed in 2000. In sum, the court finds that the petitioners have failed to establish a basis for the court to vacate the decree granting probate.

Accordingly, the court held that the petition is dismissed in its entirety.

If you want to contest the will of the decedent because your legitime has been impaired, you will need the expertise of a Bronx Will Contest Attorney and Bronx Estate Administration Attorney at Stephen Bilkis and Associates.

Court Determines Juridiction over Real Property in Estate

October 9, 2014,

A New York Probate Lawyer said this action stems from plaintiff's attempt to purchase certain real property, located at Bronx County ("subject property"), in August 2005, from four members of a family.

One of the members, a lady, died testate in February 1986. Under the terms of her Will, her husband had a life interest in certain properties, but not the subject property, only access to its garage. Article Sixth of the Last Will and Testament provided that their son had a life income interest in the subject property which was to be held in Trust by Trustees. The son’s daughters were allowed to occupy the first floor and second floor, respectively, and, upon the son’s death, the subject property was to be transferred jointly to the daughters, decedent’s granddaughters. The Will also provided that, upon the husband’s death, the son would substitute as Co-Executor and Co-Trustee in his place. The other Co-Executor and Co-Trustee attorney was never a party to the sale of the subject property. Further, the husband and the lawyer never obtained Letters of Co-Trusteeship for the Article Sixth Trust, and only the husband took action as an unauthorized Trustee with regards to the subject property.

A New York Estate Lawyer said that Probate Petition and Notice of Probate were filed with the Surrogate's Court in April 1988, naming the husband and the lawyer as Co-Executors and Co-Trustees. It also requested that Letters of Testamentary be issued to them and that Letters of Trusteeship be issued to them under the Article Third and to the lawyer under the Article Eleventh. Thereafter, the Surrogate's Court issued Letters of Co-Testamentary and Co-Trusteeship to the Petitioners. However, the Letters of Trusteeship were limited to Articles Third and Eleventh Trusts. The Surrogate's Court provided a letter to the GAL stating that no application for Letters of Trusteeship was issued under Article Sixth of the Will.

Although there was no Trust was established and funded in accordance with Article Sixth of the Will with regards to the subject property, a contract for sale of said property was executed, between plaintiff and allegedly the four family members. Although a closing date on the sale of the property was scheduled, and attended by signatories on the contract, the closing did not occur, because it was alleged that one of the daughters did not have proper identification.
Plaintiff filed a Notice of Pendency on the subject property after several failed attempts to close on it. Thereafter, he commenced this lawsuit in November 2005, seeking, among other things, specific performance of the contract for sale of the subject property. The contract provided, in relevant parts, that in the event that the seller was unable to remove any impediment to the conveyance of title, the contract would be cancelled and the downpayment returned to the seller. Therefore, the remedy available under the terms of the contract was the return of the $25,000.00 down payment to plaintiff, and that Sellers shall pay the net cost for the title examination not to exceed $250.00.

New York City Probate Lawyers said the husband died in February 2007, and no successor Letters of Executor and/or Trustee were issued to anyone. Thereafter, the son conveyed the subject property to himself and one of the daughters, by an Executor's Deed, for no consideration. The Deed was filed with New York City Department of Finance, Office of the City Register. Also, the intervener gave the daughters a mortgage on the property for $300,000.00, and, on the same day, filed it with New York City Department of Finance Office of the City Register. Under the terms of the promissory note, which named the intervener as the Nominee, the payments would commence in November 2008, and end on March 2009, with an interest rate of 14% pre annum, and a default rate of 16%. The title insurance company was Stewart Title Insurance Company. A Personal Guarantor for the $300,000.00 loan was co-defendant, whom the daughter claims gave her and the son, $90,000.00 (the total amount then received from both loans), and then demanded that a substantial portion of that loan be wire transferred to him for repairs to the property, which were never done.

Manhattan Probate Lawyers said on April 2010, the intervener had filed a motion seeking to amend the caption to include him as a party defendant, to permit him to intervene and for a declaratory judgment that he has a beneficial ownership interest in the subject premises. At the time of filing his motion to intervene had commenced a foreclosure proceeding against the daughters for defaulting on the mortgages. In an order dated June 28, 2010, Katz's motion to intervene was granted on default.

During the course of his investigation, the daughter was interviewed who told him that she and her father received $90,000.00 from co-defendant, whom she believed was involved with intervener.

The allegations of the various parties with regards to the subject property is infused with misrepresentations, fraud, undue influence, and conflict of interest, between the family and intervener, an attorney.

The Court has general original jurisdiction in law and equity and has concurrent jurisdiction with other courts, such as Surrogate Court, and is only limited in matters of exclusive jurisdiction conferred on the federal courts or in actions for money damages against the state which can only be heard in the Court of Claims.

Since the Estate of the deceased had been probated and an accounting was filed, the Co-Executors and Co-Trustees are deceased, and the only remaining issues stemming from the Estate is the Testamentary Trust of Article Sixth, which involves disputes amongst the living, the beneficiaries of the Trust situs, this Court will extend its jurisdiction over the testamentary Trust and the beneficiaries of the Trust.

Surrogate's Court Procedure Act § 1502(1) ("Appointment of trustee") allows this Court to appoint a trustee or successors, or co-trustees, when no trustee is able to act or one of the trustees is unable to act and a successor trustees is necessary to execute the trust or execute any power created by a will or lifetime trust. Here, both the nominated Co-Trustees are deceased. The nominated successor Trustee never obtained Letters of Trusteeship, and attempted to terminate the Trust without any Court Order or Decree, (based upon his action of executing the Executor's Deed, loan documents placing two mortgages on the property, and executing the Quitclaim Deed) in contravention of the Trust; he is therefore disqualified to serve as a Trustee.

The Court finds that a Trustee is needed, and hereby appoints the GAL as the Trustee; and notes that all interested parties agreed to his appointment, by their Stipulation. The parties agreed to his appointment as long as this Court determined that the mortgages and deeds are null and void, and that the Trustee should be appointed to fulfill the purpose of the Will and the Trust created for the subject property.

Estates, Powers and Trusts Law ("EPTL") § 7-9 provides the general rule that a trust can only be terminated upon the consent of all interested persons only during the grantor's lifetime and with her consent. EPTL 7-1.19 "Application for termination of uneconomical trust", passed in 2004, applies to trusts, whenever created, and provides that any trustee or beneficiary may make an application, upon notice as the court directs, to terminate the trust, before the Surrogate's Court having jurisdiction over the trust. The court may terminate the trust where the continuation of the trust is economically impracticable, the express terms of the disposing instrument do not prohibit its early termination, and such termination would not defeat the specified purpose of the trust and would be in the best interests of the beneficiaries. EPTL 7-1.19 is a narrow exception to general rule pursuant to EPTL § 7-9 that a trust is indestructible.
EPTL § 7-2.4 "Act of trustee in contravention of trust" makes voidable any sale, conveyance, or other action by the trustee that is in contravention of the trust.
Based upon the inspection and appraisal reports obtained by the GAL, it appears that it is not economical to expend money to administer the Trust, since the situs of the Trust, the property, has been abandoned for years, its value has significantly depreciated and no monies exist to do the needed repairs and renovations; and it is encumbered by a tax lien.
Likewise, the contract for the sale of the house to plaintiff cannot be enforced as any such sale is voidable, pursuant to EPTL § 7-2.4, because the purported Sellers did not have the power to sell the property, which was bequeathed pursuant to the testamentary Trust of Article Sixth of the Will. None of the family members were issued Letters of Trusteeship, which would have given them the authority to create, fund, convey title to the property, and terminate the Trust. It is noted that EPTL § 7-3.2 provides relief in certain circumstances to bona fide purchasers who do not have notice of a trust.
EPTL § 7-2.4 provides, in sum and substance, that if a trust is expressed in an instrument, such as a Will, creating the estate of the trustee, then every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by that Article and by any other provision of the law, is void. Herein, the Article Sixth Trust under decedent's Will created a irrevocable Trust, and, although there are limited exceptions to the termination of an irrevocable trust, none of those exceptions apply herein.
Because the Will created a Trust of the subject property, EPTL § 7-1.19 is controlling as to when the Trust can be terminated. None of the requirements of EPTL § 7-1.19 were met by the family in this case: letters of trusteeship were never sought and issued, a trust was never created, and no application to terminate the Trust was made to the Court, and no order or decree terminating the Trust was issued.
Therefore, the Court finds that no authority existed for any of the family to have engaged in the transactions regarding the property. Their attempts to deed, sell, and mortgage the real property are a nullity. Consequently, the lispendens is cancelled; and the mortgage foreclosure action is dismissed.
Accordingly, the branch of plaintiff's Order to Show Cause seeking to renew is granted. The branch seeking specific performance on the contract of sale is denied; and the lispendens is cancelled. However, the relief granted is that the subject mortgages and accompanying promissory notes, the Executor's Deed, and the Quitclaim Deed, are deemed null and void; and that plaintiff is entitled to reasonable attorneys' fees, costs, and sanctions, as set forth more fully herein. Further, this Court grants dismissal of the mortgage foreclosure action. The GAL is appointed as Trustee of the testamentary Trust under Article Sixth of the Will.
Here in Stephen Bilkis and associates, we have Bronx County Probate attorneys who will cater your needs in probate of a will of a testator. We will help you implement and make the provisions thereof effective. For proper distribution of the estate of a deceased, we also have Bronx Estate lawyers, who will inform you the fundamentals of the estate in so far as the properties which can be subject of succession and its proper distribution. For more inquiries, don’t hesitate to contact us now.

court Decides if Will Should be Held Invalid Due to Statute of Limitations

September 18, 2014,

A New York Probate Lawyer said that, this is a proceeding to vacate a decree of probate and to allow the petitioners to withdraw the waivers of process, consents to probate they executed on May 17, 1999. The petitioners are the decedent's four adult children, the executor of the estate, opposes requested relief. Respondent is the decedent's surviving spouse; he and the decedent were married in November 1991. The husband is not the father of the petitioners.

A New York Estate Lawyer said that, on February 20, 2008, the court issued a decision and order wherein the court granted the petitioners' counsel's unopposed motion to withdraw as the petitioners' counsel and stayed the proceedings for 30 days after a copy of the order was served by overnight delivery on the petitioners. A copy of the order was served as directed, and the period of the stay has expired. The petition to vacate the decree granting probate and for other relief has now been submitted for decision.

A Bronx Estate Administration Lawyer said that, the decedent died on December 5, 1998 at the age of 57. Her last will and testament dated March 11, 1995 was admitted to probate by decree dated July 29, 1999, and letters testamentary were issued to the husband. The affidavit of subscribing witnesses annexed to the will states that the will was executed under the supervision of an attorney. The decedent left her entire estate to her husband. In the event that the husband had predeceased the decedent, the decedent bequeathed the estate to the petitioners, per stirpes.

A Queens Probate Lawyer said that, the petitioners have now filed a petition to vacate the decree of probate dated July 29, 1999, permitting the withdrawal of the consents, and allowing petitioners to file objections to probate. In support of the petition, they allege that (1) the husband told them they had to sign the waivers and consents in order to refinance the decedent's real property or it would be lost; (2) the executors were not provided with a copy of the will prior to signing the waivers and consents, and they believed that the decedent had died without a will; (3) they were not represented by an attorney when they executed the waivers and consents; (4) they did not sign the waivers in the presence of the notary, an attorney, whose stamp is affixed to the document; (5) One son did not sign his name on the waiver and consent that is filed with the court, and evidence "suggests" that his signature was forged; (6) he had no notice that the proceeding to probate the will had been commenced; (7) the petitioners did not contest the probate of the will because they were misled by Joseph; (8) Thomas was not given a copy of the will to review until about February 2007, at which time he became certain that he had been misled by the husband to believe the will was genuine when it is actually a forgery; (9) they all have become aware that the will is not genuine and the decedent's signature thereon is forgery; (10) the husband misrepresented the value of the decedent's estate in order to induce the son to sign an agreement dated March 6, 2000, which is discussed below; (11) the witnesses to the will committed fraud when they concealed to the court that the will is not genuine; (12) the notary aided the husband in deceiving the petitioners and the court; (13) as a result of the misrepresentations and concealment of the husband and the witnesses to the will, the petitioners acted to their detriment by reasonably relying on the false information they were given; (14) since the husband, the witnesses to the will and the notary all knew that the will was not genuine and that the decedent's signature on it is a forgery, they intended to deceive the petitioners and the court; and (15) they would not have signed away their right to their inheritance had they known about the existence of a will.

A Long Island Probate Lawyers said that, the petitioners further allege that in or about 2003 the daughter came to this court, saw the will and assumed it to be that of the decedent. Although they had been estranged for a number of years, in 2007, when the petitioners began to communicate with one another, they came to the realization that the husband "may have" committed a fraud against them. They assert that they then compared the decedent's signature on the will with other documents she had signed and concluded that the signatures on the other documents were significantly dissimilar to the one on the will.

The petitioners refer to a two-page document entitled, "Agreement in Settlement," dated March 6, 2000. It contains the acknowledged signatures of the husband and the son. The agreement recites the fact that the agreement is between them, in his capacity as executor, that the decedent had died leaving a will dated March 11, 1995 in which she named the husband as executor, that a probate petition had been filed and the petitioners had executed waivers and consents, that letters testamentary had issued to the husband, that the son had indicated that he wished to rescind his waiver and consent and file objections to the probate of the will and that the parties to the agreement wished to resolve any disputes about the validity of the will. The agreement provides that the son reaffirmed the waiver he signed on May 17, 1999 and waived any and all objections to the probate of the will and that the husband would pay the son $12,000.00 in lieu of any distributive share to which the son might have been entitled. The agreement also contains a provision whereby he released and discharged the husband, individually and as executor of the decedent's estate, and also released the estate, as well as any heirs, executors, administrators, successors and assigns from all causes of action, suits and the like.

The issue in this case is whether the opposition to the probate of the will should be dismissed on the ground that it is barred by a six-year statute of limitations.

The husband asserts that the petition should be dismissed because the claims contained therein are barred by a six-year statute of limitations. However, there is no statute of limitations barring a party from moving to vacate a decree. The Surrogate's Court has the discretion to open decrees at any time in the interest of justice. However, a decree admitting a will to probate will not be disturbed lightly because such a vacatur disrupts the orderly process of administration and creates uncertainty. While SCPA 509 and CPLR 5015 authorize the court to vacate one of its decrees, such vacatur must be based on excusable default, fraud or newly discovered evidence. Further, for the court to vacate a decree, "it must appear that there is a substantial basis for the contest and a reasonable probability of success on the part of the petitioner".

As this court stated in a 2002 case decision, applications to vacate a barred by a six-year statute of limitations waiver and consent are governed the 1971 case decision. In the said case, the Court of Appeals likened a waiver and consent to a stipulation, subject to vacatur upon a showing of good cause, such as fraud, collusion, mistake, accident, or some such similar ground. The Court of Appeals distinguished applications made post-decree from those made pre-decree, presumably because there is a lesser likelihood of prejudice if the will has not yet been admitted to barred by a six-year statute of limitations. The court also noted that a "stricter test" is applied to applications made post-decree.

Although the petitioners allege fraud and forgery, their allegations are conclusory at best and are largely belied by the record. For example, they allege that they were not provided with a copy of the will and did not know of its existence when they signed the waivers and consents, yet the waivers and consents that they signed explicitly state that they consented to the court "admitting to barred by a six-year statute of limitations the decedent's Last Will and Testament dated March 11, 1995, a copy of which testamentary instrument has been received by me. " The petitioners allege that the son signature on the waiver and consent and the decedent's signature on the will are forgeries, yet they have not come forward with a shred of evidence to substantiate these conclusory allegations. As with the rest of their allegations, they have wholly failed to support the allegations that the husabnd, the witnesses to the will and the attorney who notarized the waivers and consents all knew the will was a forgery and deceived the petitioners and the court. Further, many of the son’s factual allegations are belied by the language in the Agreement in Settlement that he executed in 2000. In sum, the court finds that the petitioners have failed to establish a basis for the court to vacate the decree granting probate.

Accordingly, the court held that the petition is dismissed in its entirety.

If you want to contest the will of the decedent because your legitime has been impaired, you will need the expertise of a Bronx Will Contest Attorney and Bronx Estate Administration Attorney at Stephen Bilkis and Associates.

Court Finds Issues with Preprinted Trust

September 17, 2014,

A New York Probate Lawyer said that, this case, and an analogous matter decided on the same day, raise troubling questions about the use of pre-printed or form living trusts, which are now being heavily marketed in New York State. The instant case is especially disturbing, because its trust takes the form of loose pages contained in a three ring binder. The proceeding was initiated by the petitioner" for the probate of the Will of the decedent who died on September 9, 1996. The decedent's Will, executed April 30, 1996, leaves his entire estate to the " Revocable Living Trust dated April 30, 1996 and any amendments thereto." The trust agreement provides for lifetime income and principal payments to the decedent as he directs. Upon the decedent's death the principal remaining is to be distributed to the petitioner, a friend. An alleged amendment leaves 99.75% of the principal balance to the petitioner and .25% to another friend. The decedent is the sole lifetime trustee. The petitioner is either sole personal representative under the Will and sole successor trustee under the trust, or a co-fiduciary in each. A prior Will, dated October 24, 1990, which bequeathed one tenth of one percent of the estate outright to the other friend and the balance to the petitioner, was also filed with the court. The decedent left assets of about $1 million, of which approximately $950,000 had been transferred into the trust and passes according to its terms and $60,000 remained in his name at death and passes according to the provisions of the Will.

A New York Estate Lawyer said that, in reviewing the probate submissions, the court discovered that both the Will and the trust were so ambiguously worded that it was impossible to determine the decedent's wishes regarding one of the most fundamental elements of his estate plan--the nomination of the fiduciary. Further examination of the documents revealed a staggering number of additional ambiguities, inconsistencies, apparent irrelevancies, and outright errors, many of which pose major problems in ascertaining or effectuating the decedent's dispositive intent.

A Nassau County Probate Lawyers said that, at this same time, another construction proceeding involving a form living trust, which contained provisions analogous to those in the document already under review, was brought before the court. The executor of the Will of concerned that the merger of legal and equitable interests in her father's trust might render it ineffective and hence not a proper receptacle for the pour-over of his estate assets, sought a construction permitting all of the property to be disposed of according to the trust's terms. Faced with the Howard request for construction of similar provisions, as well as with the immediate need in the instant case to identify the fiduciary and to ascertain the decedent's intentions regarding other significant provisions of both instruments, this court determined that a construction of the instant Will and trust was necessary at the present time. The Surrogate's Court has the power to construe a Will when construction is necessary to determine questions in a proceeding before it or to make a complete disposition of a matter. Because one major obscurity concerning the ultimate disposition of the probate estate in the instant matter involved minors or unborn as possible takers, a guardian ad litem was appointed.

A Staten Island Probate Lawyer said that, on the return date of the citation for probate and construction of the Will and trust, the decedent's intestate distributees, five nieces and nephews (hereinafter "the respondents"), appeared by counsel. The respondents maintained that the merger of legal and equitable interests rendered the trust ineffective, but they did not challenge the validity of the Will. Additionally, they argued against any construction upholding the pour-over of the estate into the trust or, alternatively, incorporating the trust into the Will by reference. They sought an interpretation of both instruments that would distribute all of the decedent's property to them under the Will but by intestacy. The other friend also appeared but raised no objections. After hearing the oral arguments of the parties and requesting written memoranda, this court reserved decision.

The issue in this case is whether the decedent meant to name the petitioner sole fiduciary under both instruments or to designate him and the co-executors and co-successor trustees has been rendered moot by his renunciation of any right to act as primary fiduciary during the pendency of this proceeding. Because many other such form documents are extant, however, this ambiguous language may be expected to give rise to future proceedings.

The trust agreement in question consists of 42 pages, each page having 3 holes in the left margin, contained in a three-ring looseleaf binder, entitled "Estate Planning Portfolio." The two inch thick binder contains numerous other documents, including a "Certificate of Trust;" various informational pages describing the trust; a copy of the pour-over Will; an "Affidavit of Trust;" a duplicate trust, also signed, but lacking the dispositive sections; a Living Will; a 20-page property power of attorney; a health care power of attorney; and, in a pocket of the binder, an audio tape describing a husband-wife estate plan (although the decedent was unmarried). All pages are easily removable by opening the binder's rings. The April 30 Will is printed on the same orange paper stock as the trust, but its pages are stapled together at the top. All documents prominently bear the copyright of the attorney-draftsman.

The estate planning package containing the living trust and pour-over Will is an example of a product being heavily promoted throughout New York State, in newspaper advertisements and free seminar programs. In many cases, those marketing the documents, attorneys and enterprising laymen alike, have themselves purchased the forms (or a computer program containing them) from an "estate planning institute" headquartered out of state, through a franchise or other arrangement. In some instances, such franchise agreements also afford the marketer "technical assistance" in the use of the various forms. One of the dangers of such a system, which the instant case points up, is that it leads participant franchisees, who may have little if any experience in sophisticated estate and tax planning, to consider themselves competent to "draft" complex instruments and purvey them on a large scale. In the matter before us, as the guardian ad litem reports to the court, such "drafting" appears no more than piecing together various sections from the forms, often in a seemingly feckless, haphazard manner.
Indeed, this Will and trust agreement collectively represent the most egregious example of maladroit "drafting" this court has encountered. More than a dozen problems involving inconsistencies, obscurities, and outright errors have been brought to the court's attention. In her preliminary report, the guardian ad litem has identified and enumerated the most serious of these, which include the difficulty of determining the fiduciary under both instruments; the merger of the trust's legal and beneficial interests and the possible inefficacy of the trust itself; the invalidity of an amendment to the trust, which involved the removal from, and insertion into, the loose-leaf binder of unsigned and unacknowledged pages; the possible failure of the pour-over from the Will to the trust and, concomitantly, of the attempt to incorporate the trust by reference into the Will; and the questionable effect of the attempted exclusion of the respondents from a share in both the estate and trust.

In addition, as the guardian notes, the trust sections describing the disposition of assets upon the settlor's death seem to direct, on the one hand, a further trust and, on the other, outright distribution. Finally, she points out that both instruments are replete with inconsistencies (for instance, Article One, Section 6 of the Will directly follows Section 2, the Will's page numbers do not conform to its table of contents, Article Four of the trust provides for distributions to lineal descendants, of which the Will declares the decedent has none), irrelevancies (Articles Six and Seven of the trust are entirely unnecessary), and outright errors (Article One, Section 6 of the Will references this trust agreement and an Article Twelve not even found in the Will, which contains only five articles; several consecutive pages of the trust have the same page numbers) that cumulatively create confusion and doubt about the decedent's intent and raise concern about possible tampering.

The guardian argues that because the many problematic provisions of both instruments obfuscate the decedent's meaning and frustrate his purpose, assistance from the court is required to ascertain his intention. We agree. We also determine that, for reasons of judicial economy, the construction of questionable sections of both instruments essential to the administration and disposition of the decedent's assets should be undertaken now, at the time of the admission of the Will to probate.

It is well established that in a construction proceeding, a court must ascertain the intent of the testator and that it must glean such intent, "not from a single word or phrase, but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed". We must first attempt to discern testamentary intent from the four corners of the Will itself, searching for a dominant purpose or plan of distribution and reading and giving effect to individual parts in relation to that purpose. We adhere to the same settled principles in interpreting the trust agreement. And, because of the interrelation of the two documents created by the pour-over, we will view each in conjunction with the other in determining the decedent's dispositive purposes.

The petitioner, respondents, and guardian all urge, however, that, so confused is the articulation of the testator's intention in the two instruments, the court consider extrinsic evidence in the form of the testimony of the attorney-draftsman. We do not agree. In a number of decisions involving draftsmen's errors, we and other courts have warned that to permit a draftsman, perhaps years after the event, to recount a testator's oral expressions of intent is to risk allowing him to rewrite the Will. Moreover, many factors, including the draftsman's imperfect memory, his concern for his professional reputation, or his fear of legal action over perceived errors, may influence his testimony, rendering it of little utility.

The potential dangers are, we feel, particularly acute under the circumstances of the instant case. As the copyrights indicate, the documents before us, but especially the trust agreement, represent standard or generic forms. The provisions of this trust are therefore substantially similar to those of thousands of other such agreements sold to consumers by this and other "draftsmen." As many sections of the instant trust reveal, this draftsman has made little attempt to tailor the form to the particular circumstances of the individual settlor (witness the numerous references to lineal descendants, which this unmarried, childless decedent does not have, as well as the audio tape depicting this as a husband-wife estate plan). A marketer of living trusts, who sells thousands of such "one size fits all" documents annually, may be expected to have only a limited recollection of the circumstances and intentions of each of his customers. And the careless, even reckless, manner with which the provisions of these instruments are pieced together casts serious doubt on the value of any explanation that might be proffered.
Accordingly, we will not entertain any testimony of the draftsman as to the decedent's stated intentions.

The instant case points up numerous problems involving living trusts (in particular, the different standards by which the validity of a pour-over Will and its receptacle trust are evaluated and the widespread use of loose-leaf trusts). Enactment of legislation such as that recently passed in Florida, requiring that trusts be executed with all the formalities of Wills, or the extension to receptacle trusts of the SCPA 1408 provision for independent court scrutiny of the instrument's genuineness would provide essential safeguards for the citizens of this state.

Accordingly, the court held that the merger of the trust's legal and equitable interests in the decedent during his lifetime does not render the petitioner's remainder interest invalid and that assets held in the trust as of date of death pass outright to the petitioner, after the payment of taxes and other expenses; that the disposition of estate assets to the trust pursuant to Article Three, Section 1 of the Will cannot be given effect, since the trust is not a valid receptacle for the pour-over; that the provision under Article Three, Section 2 of the Will for incorporation of the trust's terms by reference into the Will cannot be given effect and that accordingly the estate assets pass under the Will, in the absence of objections to its probate, to the respondents as the decedent's intestate distributees.

Are facing similar scenario? Then call us at Stephen Bilkis and Associates so that our Bronx Probate Attorney and Bronx Estate Attorney can handle your case.

Court Decides if Decedent Meant to Name Petitioner as Sole Fiduciary

September 17, 2014,

A New York Probate Lawyer said that, this case, and an analogous matter decided on the same day, raise troubling questions about the use of pre-printed or form living trusts, which are now being heavily marketed in New York State. The instant case is especially disturbing, because its trust takes the form of loose pages contained in a three ring binder. The proceeding was initiated by the petitioner" for the probate of the Will of the decedent who died on September 9, 1996. The decedent's Will, executed April 30, 1996, leaves his entire estate to the " Revocable Living Trust dated April 30, 1996 and any amendments thereto." The trust agreement provides for lifetime income and principal payments to the decedent as he directs. Upon the decedent's death the principal remaining is to be distributed to the petitioner, a friend. An alleged amendment leaves 99.75% of the principal balance to the petitioner and .25% to another friend. The decedent is the sole lifetime trustee. The petitioner is either sole personal representative under the Will and sole successor trustee under the trust, or a co-fiduciary in each. A prior Will, dated October 24, 1990, which bequeathed one tenth of one percent of the estate outright to the other friend and the balance to the petitioner, was also filed with the court. The decedent left assets of about $1 million, of which approximately $950,000 had been transferred into the trust and passes according to its terms and $60,000 remained in his name at death and passes according to the provisions of the Will.

A New York Estate Lawyer said that, in reviewing the probate submissions, the court discovered that both the Will and the trust were so ambiguously worded that it was impossible to determine the decedent's wishes regarding one of the most fundamental elements of his estate plan--the nomination of the fiduciary. Further examination of the documents revealed a staggering number of additional ambiguities, inconsistencies, apparent irrelevancies, and outright errors, many of which pose major problems in ascertaining or effectuating the decedent's dispositive intent.

A Queens Probate Lawyers said that, at this same time, another construction proceeding involving a form living trust, which contained provisions analogous to those in the document already under review, was brought before the court. The executor of the Will of concerned that the merger of legal and equitable interests in her father's trust might render it ineffective and hence not a proper receptacle for the pour-over of his estate assets, sought a construction permitting all of the property to be disposed of according to the trust's terms. Faced with the Howard request for construction of similar provisions, as well as with the immediate need in the instant case to identify the fiduciary and to ascertain the decedent's intentions regarding other significant provisions of both instruments, this court determined that a construction of the instant Will and trust was necessary at the present time. The Surrogate's Court has the power to construe a Will when construction is necessary to determine questions in a proceeding before it or to make a complete disposition of a matter. Because one major obscurity concerning the ultimate disposition of the probate estate in the instant matter involved minors or unborn as possible takers, a guardian ad litem was appointed.

A Long Island Probate Lawyers said that, on the return date of the citation for probate and construction of the Will and trust, the decedent's intestate distributees, five nieces and nephews (hereinafter "the respondents"), appeared by counsel. The respondents maintained that the merger of legal and equitable interests rendered the trust ineffective, but they did not challenge the validity of the Will. Additionally, they argued against any construction upholding the pour-over of the estate into the trust or, alternatively, incorporating the trust into the Will by reference. They sought an interpretation of both instruments that would distribute all of the decedent's property to them under the Will but by intestacy. The other friend also appeared but raised no objections. After hearing the oral arguments of the parties and requesting written memoranda, this court reserved decision.

The issue in this case is whether the decedent meant to name the petitioner sole fiduciary under both instruments or to designate him and the co-executors and co-successor trustees has been rendered moot by his renunciation of any right to act as primary fiduciary during the pendency of this proceeding. Because many other such form documents are extant, however, this ambiguous language may be expected to give rise to future proceedings.

The trust agreement in question consists of 42 pages, each page having 3 holes in the left margin, contained in a three-ring looseleaf binder, entitled "Estate Planning Portfolio." The two inch thick binder contains numerous other documents, including a "Certificate of Trust;" various informational pages describing the trust; a copy of the pour-over Will; an "Affidavit of Trust;" a duplicate trust, also signed, but lacking the dispositive sections; a Living Will; a 20-page property power of attorney; a health care power of attorney; and, in a pocket of the binder, an audio tape describing a husband-wife estate plan (although the decedent was unmarried). All pages are easily removable by opening the binder's rings. The April 30 Will is printed on the same orange paper stock as the trust, but its pages are stapled together at the top. All documents prominently bear the copyright of the attorney-draftsman.

The estate planning package containing the living trust and pour-over Will is an example of a product being heavily promoted throughout New York State, in newspaper advertisements and free seminar programs. In many cases, those marketing the documents, attorneys and enterprising laymen alike, have themselves purchased the forms (or a computer program containing them) from an "estate planning institute" headquartered out of state, through a franchise or other arrangement. In some instances, such franchise agreements also afford the marketer "technical assistance" in the use of the various forms. One of the dangers of such a system, which the instant case points up, is that it leads participant franchisees, who may have little if any experience in sophisticated estate and tax planning, to consider themselves competent to "draft" complex instruments and purvey them on a large scale. In the matter before us, as the guardian ad litem reports to the court, such "drafting" appears no more than piecing together various sections from the forms, often in a seemingly feckless, haphazard manner.
Indeed, this Will and trust agreement collectively represent the most egregious example of maladroit "drafting" this court has encountered. More than a dozen problems involving inconsistencies, obscurities, and outright errors have been brought to the court's attention. In her preliminary report, the guardian ad litem has identified and enumerated the most serious of these, which include the difficulty of determining the fiduciary under both instruments; the merger of the trust's legal and beneficial interests and the possible inefficacy of the trust itself; the invalidity of an amendment to the trust, which involved the removal from, and insertion into, the loose-leaf binder of unsigned and unacknowledged pages; the possible failure of the pour-over from the Will to the trust and, concomitantly, of the attempt to incorporate the trust by reference into the Will; and the questionable effect of the attempted exclusion of the respondents from a share in both the estate and trust.

In addition, as the guardian notes, the trust sections describing the disposition of assets upon the settlor's death seem to direct, on the one hand, a further trust and, on the other, outright distribution. Finally, she points out that both instruments are replete with inconsistencies (for instance, Article One, Section 6 of the Will directly follows Section 2, the Will's page numbers do not conform to its table of contents, Article Four of the trust provides for distributions to lineal descendants, of which the Will declares the decedent has none), irrelevancies (Articles Six and Seven of the trust are entirely unnecessary), and outright errors (Article One, Section 6 of the Will references this trust agreement and an Article Twelve not even found in the Will, which contains only five articles; several consecutive pages of the trust have the same page numbers) that cumulatively create confusion and doubt about the decedent's intent and raise concern about possible tampering.

The guardian argues that because the many problematic provisions of both instruments obfuscate the decedent's meaning and frustrate his purpose, assistance from the court is required to ascertain his intention. We agree. We also determine that, for reasons of judicial economy, the construction of questionable sections of both instruments essential to the administration and disposition of the decedent's assets should be undertaken now, at the time of the admission of the Will to probate.

It is well established that in a construction proceeding, a court must ascertain the intent of the testator and that it must glean such intent, "not from a single word or phrase, but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed". We must first attempt to discern testamentary intent from the four corners of the Will itself, searching for a dominant purpose or plan of distribution and reading and giving effect to individual parts in relation to that purpose. We adhere to the same settled principles in interpreting the trust agreement. And, because of the interrelation of the two documents created by the pour-over, we will view each in conjunction with the other in determining the decedent's dispositive purposes.

The petitioner, respondents, and guardian all urge, however, that, so confused is the articulation of the testator's intention in the two instruments, the court consider extrinsic evidence in the form of the testimony of the attorney-draftsman. We do not agree. In a number of decisions involving draftsmen's errors, we and other courts have warned that to permit a draftsman, perhaps years after the event, to recount a testator's oral expressions of intent is to risk allowing him to rewrite the Will. Moreover, many factors, including the draftsman's imperfect memory, his concern for his professional reputation, or his fear of legal action over perceived errors, may influence his testimony, rendering it of little utility.

The potential dangers are, we feel, particularly acute under the circumstances of the instant case. As the copyrights indicate, the documents before us, but especially the trust agreement, represent standard or generic forms. The provisions of this trust are therefore substantially similar to those of thousands of other such agreements sold to consumers by this and other "draftsmen." As many sections of the instant trust reveal, this draftsman has made little attempt to tailor the form to the particular circumstances of the individual settlor (witness the numerous references to lineal descendants, which this unmarried, childless decedent does not have, as well as the audio tape depicting this as a husband-wife estate plan). A marketer of living trusts, who sells thousands of such "one size fits all" documents annually, may be expected to have only a limited recollection of the circumstances and intentions of each of his customers. And the careless, even reckless, manner with which the provisions of these instruments are pieced together casts serious doubt on the value of any explanation that might be proffered.

Accordingly, we will not entertain any testimony of the draftsman as to the decedent's stated intentions.

The instant case points up numerous problems involving living trusts (in particular, the different standards by which the validity of a pour-over Will and its receptacle trust are evaluated and the widespread use of loose-leaf trusts). Enactment of legislation such as that recently passed in Florida, requiring that trusts be executed with all the formalities of Wills, or the extension to receptacle trusts of the SCPA 1408 provision for independent court scrutiny of the instrument's genuineness would provide essential safeguards for the citizens of this state.

Accordingly, the court held that the merger of the trust's legal and equitable interests in the decedent during his lifetime does not render the petitioner's remainder interest invalid and that assets held in the trust as of date of death pass outright to the petitioner, after the payment of taxes and other expenses; that the disposition of estate assets to the trust pursuant to Article Three, Section 1 of the Will cannot be given effect, since the trust is not a valid receptacle for the pour-over; that the provision under Article Three, Section 2 of the Will for incorporation of the trust's terms by reference into the Will cannot be given effect and that accordingly the estate assets pass under the Will, in the absence of objections to its probate, to the respondents as the decedent's intestate distributees.

Are facing similar scenario? Then call us at Stephen Bilkis and Associates so that our Bronx Probate Attorney and Bronx Estate Attorney can handle your case.

Issue in this Case is Whether Deceased had Testamentary Capacity

September 16, 2014,

A New York Probate Lawyers said that, this is an appeal from a decree of the Surrogate of Bronx County, based on a jury verdict, denying probate. Proponent was the attorney for the deceased more than 20 years. The propounded will, dated December 29, 1963, and a prior will, dated November 13, 1950, had been drawn by proponent. The witnesses to the propounded will subscribed the testimonial clause. They were the proponent, his wife, and a neighbor of decedent, presently incapacitated. At the time of the execution of the propounded will, decedent was 81. Prior to December 26, 1963, although with symptoms of rheumatoid arthritis, decedent enjoyed good physical and mental health, had full possession of all his faculties, and was in full and personal charge of all his financial and personal affairs. The family physician, on December 26, 1963, examined decedent, observed symptoms of an upper respiratory infection with low grade temperature, and prescribed an antibiotic and rest. He thereafter treated the deceased daily at his home. On January 1, 1964, there appeared positive symptoms of pneumonia, and he was hospitalized. He died January 2, 1964.

A New York Estate Administration Lawyer said that, the sole beneficiary and named executrix under the propounded will is his widow, now deceased. They had been married 29 years. There are no issue. Decedent's other distributees are two brothers in New York, and a brother, four nieces and a nephew in Italy. Decedent was estranged from one of his New York brothers. Decedent's attorney testified he had several talks with decedent and his wife prior to December, 1963, regarding a new will. The 1950 will passed the residue of the estate to the wife after providing for legacies to a brother in New York and his two children, and a brother in Italy. Decedent instructed the attorney to prepare a will bequeathing his entire estate to his wife. The attorney complied by preparing the propounded will. On December 26, 1963, an appointment was made for the execution of the will at decedent's home on December 29, 1963. It was executed and witnessed at about 4 P.M. on said date.

A Bronx Estate Administration Lawyer said that, the family doctor testified he treated the deceased on December 29, 1963, at 9 A.M., conversed with him, and found him perfectly normal mentally and physically, except for his cold symptoms. The attorney and his wife were with the deceased on said date between 2:30 P.M. and 5 P.M., and conversed with him at length on the contents of the will and their respective families. Their testimony is the decedent was mentally alert, rational and sociable. A neighbor, visited with decedent and his wife on said date between 5:30 P.M. and 8:30 P.M. Contestants' witnesses, were present when she arrived, but departed before her. There was conversation in which decedent participated, and he enjoyed cookies which had been baked and brought by Vera.

Westchester County Probate Lawyers said the issue in this case is whether the deceased had testamentary capacity.

There have been two trials. On the prior appeal, we held there was no evidence of fraud or undue influence, and 'the testamentary dispositions were in no way remarkable as contrary to the normal disposition to the natural objects of the testator's bounty. On the question raised as to the testator's capacity, there was sufficient evidence to present an issue for the jury to pass upon.' The matter was remanded for a new trial on the issue of testamentary capacity.

Suffolk County Probate Lawyers said he learned Surrogate aptly observed on proponent's motion for a direction of a verdict at the close of the second trial: 'There has been a great deal more testimony submitted by the proponent in this case than there was in the previous case: We have had the testimony of the Polish woman, and her husband, the testimony of another neighbor, and the testimony of a doctor. This is an entirely different record.' Proponent's said motion was ultimately denied. However, the Surrogate had been inclined to set aside the verdict that the deceased was not of sound mind at the time of execution of the propounded document, and said so in the following language: 'All right, I will reserve decision. I am inclined to grant the motion.' And again, in response to an inquiry of counsel, the Court stated: 'No, I will set it aside. You won't have to come back.'

In determining whether there is any evidence to sustain the finding of testamentary incapacity, we are limited solely to the consideration of the competent and relevant evidence. In determining whether or not there was any evidence to sustain a finding of fact we may consider only that which is competent and probative.' The ultimate probate determination is the Surrogate's. 'If it appears to the surrogate that the will was duly executed; and that the testator, at the time of executing it, was in all respects competent to make a will and not under restraint; it must be admitted to probate.

Despite our limitation of the retrial to the issue of testamentary capacity, evidence was adduced, as at the first trial, relevant on but insufficient to establish fraud and undue influence, and wholly incompetent and irrelevant on testamentary capacity. It is indisputable that decedent on and prior to December 26, 1963, was possessed of testamentary capacity. Nevertheless, there was introduced the prior will dated November 13, 1950, more than 13 years before the execution of the propounded will. Also adduced was considerable evidence of decedent's financial assistance to various members of his family. This evidence, wholly irrelevant, with the fact of the death of decedent's widow, was placed before the jury in contestants' summation. Contestants' jury argument thereon seduced them to exercise their preference for the testamentary scheme of the 1950 will and ignore the issue of decedent's testamentary capacity on December 29, 1963, at the time of the execution of the propounded will. We are required, in passing on the legal sufficiency of the evidence on testamentary capacity, to disregard the incompetent and irrelevant evidence.

The sole basis for contestants' claim of testamentary incapacity is the testimony of the witnesses as to decedent's physical condition on December 29, 1963, sometime after he had executed the propounded will. The inference most favorable to contestants is that decedent was either indisposed or physically exhausted during the time said witnesses visited with decedent.
The evidence of lack of testamentary capacity is too trifling 'reasonably to satisfy a jury.' The medical testimony of contestants is hypothetical and unfounded in fact.

For the foregoing reasons, we reverse the decree and direct probate. In any event, if we did not direct probate, we would set the verdict aside and direct a new trial, on the ground that the verdict of the jury is against the weight of the evidence.

The decree denying probate is reversed, on the law, with costs to all parties filing briefs, payable out of the estate, and the matter remitted to the Surrogate's Court, Bronx County, to enter a decree admitting the propounded instrument to probate as the last will and testament of the decedent.

Accordingly, the court held that the decree is reversed, on the law, with $50 costs and disbursements to all parties filing briefs, payable out of the estate, and the matter remitted to the Surrogate's Court, Bronx County, to enter a decree admitting the propounded instrument to probate as the last will and testament of the decedent.

In determining whether there is any evidence to sustain the finding of testamentary incapacity, the court is limited solely to the consideration of the competent and relevant evidence. If the testator lacks his testamentary capacity at the time he drafted the will, you may file an opposition on the probate of the will, call us at Stephen Bilkis and Associates. Our Bronx Estate Attorney and Bronx Probate Attorney can help you.

Issue in this Case is the Source of Payment for the Guardian ad Liten

September 14, 2014,

New York Probate Lawyers said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will "pours over" into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).
The court finds that the fee may be paid from trust assets.

On 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the "F Revocable Trust U/A dated 24 October 2003." At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent's long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent's assets were transferred to the trust while he was alive. As a result, the will was designed to be a "catch all" so that any stray assets left in the decedent's estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

A New York Estate Lawyer said the guardian ad litem, who was appointed to represent the interests of the decedent's daughter, examined the circumstances surrounding the execution of both the trust and the will. In her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

It should be noted that SCPA 405(1) governs the compensation of a guardian ad litem. It provides that said fee may be "payable from any or all of the following, in such proportion as directed by the court: a) the estate; b) the interest of the person under disability; or, c) for good cause shown, any other party."

A Bronx Probate Lawyer said that while SCPA 405 generally contemplates the fee of the guardian ad litem in a probate proceeding will be paid out of estate assets or the ward's share of the probate estate, the circumstances before the court justify a different result.

Brooklyn Probate Lawyers said that in a probate proceeding that involves a will that pours over into a pre-existing inter vivos trust, that trust is a party to the probate proceeding either via its trustees or its beneficiaries and either as a cited or noticed party. The responsibilities of the guardian ad litem included a review and investigation of both the will and the trust. In Matter of Stralem,it was held that while the following is extremely unlikely to ever occur, it does present a scenario where a legal fee adjustment would be mandated. For example, if A died leaving a testamentary estate of $100,000 and bequeathed $75,000 to B but also exercised a power of appointment over the remainder of a trust of over $100 million in favor of C where the default beneficiary was D, one can imagine a very costly probate contest brought by D and defended by C, the nominated executor. It is also not hard to imagine legal expenses far exceeding $100,000. The question is where the will contest to be settled between C and D, would it be appropriate to wipe out the estate in legal fees and thus extinguish B's bequest of $75,000? The court finds that the answer would clearly be that it would be inappropriate.
Based on the foregoing, the court holds that the assets of the F Revocable Trust U/A dated 24 October 2003 may be used as a source of funds to pay the fee of the guardian ad litem.

In Matter of Stortecky v Mazzone and Matter of Vitole, Matter of Phelan, it was held that the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. This remains true even in the event that the parties have consented to the requested fee akin to Matter of Stortecky v Mazzone and Matter of Phelan.
In Matter Of Brehm and Matter of Wilhelm, the court notes that while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent akin to Matter of Kelly; the complexity of the questions involved akin to Matter of Coughlin; the nature of the services provided akin to Matter of Von Hofe; the amount and complexity of litigation required akin to Matter of Sabatino; the amounts involved and the benefit resulting from the execution of such services aki to Matter of Shalman; the lawyer's experience and reputation akin to Matter of Brehm; and, the customary fee charged by the Bar for similar services akin to Matter of Freeman and Matter of Potts.

In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, Matter of Freeman and Matter of Berkman.

Morerover, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem as in Matter of McCranor, Matter of Kauffman, Matter of Phipps and Matter of Ault. Further, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation akin to Matter of Snell, Matter of Potts, and Matter of Kentana.

Under SCPA 405, the guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem as was also held in Matter of Graham, Matter of Burk, Matter of Ault, Matter of Berkman, Matter of Burnett and Matter of Reisman. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee as held in Matter of Ziegler.

Generally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets but Matter of Stralem is an exception. However, a party may be charged with payment of the compensation of a guardian ad litem where the actions of such party generated unnecessary, unfounded, or purely self-serving litigation that resulted in the appointment of a guardian in accordance with SCPA 405 and based on the ruling in Matter of Ault.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services similar to the rulings in Matter of Potts and Matter of Spatt. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed as was also held in Matter of Phelan, Matter of Von Hofe. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed as ruled in Matter of Phelan. This applies to the fee of a guardian ad litem as was held in Matter of Carbone.
Therefore, the court approves the fee of the guardian ad litem in the amount requested, $2,828.00 and orders that it will be paid from the trust assets within (30) days of the date of this decision.

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