Court Rules on Reasonable Attorneys Fees in Probate Case

April 13, 2014,

A New York Probate Lawyer said that, the decedent died on June 4, 1931, a resident of Nassau County. His will dated November 26, 1930 was admitted to probate by decree dated June 15, 1931. The will created a trust for the benefit of the beneficiary under Article ELEVENTH. Letters of trusteeship originally issued to. The beneficiary died on August 30, 1989, a resident of New York County, leaving a will and codicil which was admitted to probate by the Surrogate's Court of New York County by decree dated October 6, 1989. At the time of her death, the trustees of the trust were the beneficiary and the Bank.

A New York Will Lawyer said that, pursuant to Subdivision A of Article ELEVENTH of the decedent's will, the trust is to be administered and disposed of as follows: "A. If my said daughter shall survive me, to invest and from time to time reinvest said share and to collect the income thereof, and during the life of my said daughter apply the net income thereof to the use of my said daughter by payment thereof to her, and IN FURTHER TRUST upon the death of my said daughter to pay and distribute the principal of the trust estate so held to and among the lawful issue of my said daughter who shall survive my said daughter and the lawful issue of my said son, who shall survive my said daughter, in such amounts, equal or unequal, as my said daughter in her uncontrolled discretion may, by last will and testament duly admitted to probate and not otherwise, appoint, expressly granting to my said daughter the right in the exercise of such power of appointment to exclude wholly from participation therein any one or more of her issue and/or any one or more of the issue of my said son; provided, however, that my said daughter, by last will and testament duly admitted to probate and not otherwise, may on such terms and conditions as she may think fit appoint any part or parts of the principal of said trust estate to a trustee or trustees in trust for the use of any of the lawful issue of my said daughter born before my death and her surviving, or of any of the lawful issue of my said son born before my death and her surviving, during the life of the cestui que trust of each trust so created, or for such lesser period as she may think fit."

A Staten Island Probate Lawyer said that, the decedent daughter was survived by her three children,. In accordance with the decedent’s exercise of her power of appointment, Chemical Bank divided the principal of the decedent trust into three equal shares and held one such share in separate further trust for each of her children. This is an accounting with respect to the sub-trust for the benefit of the child. A Nassau Estate Administration Lawyer said that, by decree dated April 6, 1992, was appointed to serve as co-trustee of the fist child sub-trust with Manhattan Bank (successor by merger to Chemical Bank). By order dated February 27, 2008, this court approved the resignation of the Bank, as co-trustee of the sub-trust for the first child and the appointment of the decedent. The presumptive remainder men of the sub-trust for the benefit of the first child/son, the decedent's great-grandchildren, all of whom are adults. Citation issued to all of the presumptive remainder men, as a successor trustee of the sub-trust. None of them have appeared in this proceeding.

Queens Probate Lawyers said the issue in this case is whether attorneys' fees in this probate proceeding should be approved.

With respect to the issue of attorneys' 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 administration. 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; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. 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 a 1924 case decision. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.

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.

With respect to disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter. The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in a 1994 case decision. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

The attorney has submitted an affidavit which shows that as of October 8, 2009, attorneys at his firm rendered a total of approximately 84 hours on this matter and a paralegal at the firm rendered 5.2 hours. Although contemporaneous time records have not been submitted to support the fee, counsel's affidavit recites that the firm performed the following services: (i) the examination of the provisions of the decedent's will and correspondence and telephone conversations with the corporate trustee concerning its proposed resignation and the appointment of successor trustees; (ii) the preparation and filing of an instrument by which Bank, N.A. resigned as a trustee of the trust; (iii) the examination of the instruments prepared by counsel for the decedent, appointing such persons as successor trustees of the trust; (iv) the examination of the instruments prepared by counsel for the nominated successor trustees by which the presumptive remainde rmen of the trust consented to the appointment of the successor trustee; (v) correspondence and telephone conversations with counsel for the successor trustees concerning these instruments, the judicial proceedings and the transfer of assets from the corporate trustee to the successor trustees; (vi) the preparation of the trustees' petition and other papers necessary to institute and prosecute the proceeding on behalf of the trustees; (vii) the preparation of the account, covering the period from December 26, 1989, the date of the initial funding of the trust, through March 31, 2009, and the preparation of the trustees' petition, the citation and other papers necessary to institute this accounting proceeding on behalf of the trustees; (viii) correspondence and telephone conversations with the corporate trustee and counsel for the successor trustees regarding the account and the accounting proceeding; (ix) effecting service of the citation on the interested parties and preparing and filing herein the proofs of such service; (x) appearing on October 7, 2009, the return date of the citation; (xi) the examination of the provisions of the will and correspondence and telephone conversations with the trustees concerning the proposed reformation of the will to allow nominee registration of the securities held in the trust; (xii) the preparation of the trustees' petition, the citation and other papers necessary to commence the reformation proceeding on behalf of the trustees; (xiii) research and preparation of a memorandum of law in support of the trustees' petition; and (xiv) the preparation of an order of reformation, which order was signed by the court on August 10, 1999.

Accordingly, the court held that, considering all of the factors used to determine the reasonableness of fees, the court fixes the attorney's fee in the requested amount of $35,313.99, of which $10,313.99 has been paid. Submit decree.

Legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. If you have an issue concerning legal fees in a probate proceeding, seek the representation of a Nassau Probate Attorney and/or Nassau Estate Administration Attorney at Stephen Bilkis and Associates. Call us.

Court Rules on Action to Vacate Deed

April 12, 2014,

A New York Probate Lawyer this is an action to vacate a deed or, in the alternative, impress a constructive trust, which was originally commenced by RM, as executor of the estate of MM, in the Supreme Court of Nassau County. The proceeding was later on transferred to the court at bar by order dated 21 October 2005.

RM moved for summary judgment and the respondent, CS, cross-moved for summary judgment for a declaration that the transfer was a valid gift.

The particular events that took place are detailed below.

The New York Will Lawyer on 12 July 2004, MM died leaving a will dated 29 May 1987. This will was admitted to probate by decree dated 14 March 2005. Letters testamentary issued to RM, the petitioner herein. In addition to RM and CS, MM was survived by three other children, T, J and W.
MM, before staying in an assisted living facility, used to reside at 18 Marden Avenue, Sea Cliff, New York ("the premises"). Pursuant to the subject 28 October 1998 deed, MM purportedly transferred her interest in the premises to CS and reserved a life estate.

A Westchester County Probate Lawyers the deed provided as follows: “The grantor reserves the power to appoint the premises, or any portion thereof, outright or upon trusts, conditions and limitations, to any one or more of the children of the grantor. This power shall be exercisable only during the grantor's lifetime by a deed making express reference to this power and executed and recorded within two months of execution. No exercise of this power shall be deemed to release any other interest of the grantor, including any reserved life estates, unless a release is explicitly made. The exercise of this power shall not exhaust it and the deed recorded last shall control as to any ambiguities or inconsistencies. If the Office of the County Clerk does not have a recorded deed reflecting an exercise of this special power of appointment on record within three (3) months after the death of the grantor, it shall be conclusively presumed that this power was not exercised by the grantor during his/her lifetime. No exercise of this power of appointment shall be effective against or constitute notice to any bona fide purchaser or mortgagee unless the deed purporting to effect such exercise of this power is executed and recorded as provided for herein. This power shall not be exercisable by the grantor to appoint her remainder interest in the premises, or any portion thereof, to herself, her estate, her creditors or the creditors of her estate, under any circumstances.”

A Suffolk County Probate Lawyer said that RM moved for summary judgment. According to RM, the transfer was revocable due to MM's retention of a limited power of appointment and, thus, an invalid gift as a matter of law; and, the premises should be an asset of MM's estate and divided among MM's five children equally pursuant to the terms of her will.

CS cross-moved for summary judgment for an order: denying the motion for summary judgment and declaring that the transfer was a valid inter vivos gift. According to CS, MM intended to make a gift of the premises to her to compensate her for the losses she suffered in connection with a failed business venture by her brothers; she and her brothers entered into a business venture in 1991; the start-up funds for that venture were obtained from mortgages taken on two properties owned by MM; one of the properties was the premises and the other was a commercial property located in Locust Valley; sometime in March of 1993, MM transferred title to the Locust Valley property to herself and her five children; at some point in 1995, the business venture failed and the business was closed; the mortgages on the two properties were still outstanding, and in 1997, foreclosure proceedings were commenced against MM and the five children as the owners of the Locust Valley property; in April 1997, RM and W petitioned for the appointment of a guardian for MM but was later discontinued; thereafter, the Locust Valley property was sold to avoid a foreclosure sale; together with JM and T, they used the proceeds from that sale to pay down the mortgage on the premises; sometime in September 1998, when MM was living in an assisted living facility in Glen Cove, she and MM met with PV, a lawyer, to discuss estate planning issues; PV then met with MM alone at the assisted living facility; and, on 12 October 1998, PV returned to see MM at which time she executed the deed.

According to PV, in his affidavit, the first time he visited MM was in September 1998; although CS was also present, he met with MM privately; MM expressed to him concerns about the costs of her ongoing medical care and protecting her assets, particularly, the premises; he then explained that one option was to make a gift of the premises while retaining a life estate; MM then advised him that she wanted to gift the premises to CS; MM understood that, by signing the deed, title and sole ownership of the premises would be vested in CS to the exclusion of her other children; and, when the deed was executed, he again explained the consequences of the transaction and MM acknowledged that she understood.

Clearly, the special power of appointment language was used by PV as a means of avoiding the payment of a gift tax when the deed was recorded.

According to J, in his affidavit, it was his understanding that MM wanted CS to have the premises to compensate for the financial losses she suffered because of her brothers' failed business venture.
T also submitted an affidavit adopting that of J's.

The court ruled on the issues as follows:

The court first resolved the summary judgment.

Often termed as a drastic remedy, summary judgment is used sparingly as it is the procedural equivalent of a trial, and should not be granted if there is any doubt as to the existence of a triable issue of fact. As a rule, the moving party must make a prima facie showing of entitlement to summary relief as a matter of law, producing sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. When the moving party makes out a prima facie case, the burden then shifts to the opposing party to produce evidence, in admissible form, demonstrating that material issues of fact exist. Regardless of the possible insufficiency of the opposing paper, failure of the moving party to make out a prima facie case requires denial of the motion.

With respect to establishing a gift, the donee must prove donative intent, delivery and acceptance by clear and convincing evidence. As a rule, a donor may make a valid gift of property with the right of enjoyment postponed until after death, as long as her intention is to presently transfer an enforceable interest in that property to the donee.

Here, by the terms of the deed, the premises were conveyed to CS retaining a life estate with a limited power of appointment of the remainder in MM in favor of her children.
First, RM incorrectly argued that since the transfer was revocable by virtue of the limited power of appointment, the transfer did not constitute as a valid gift.

As held in Matter of Bassin, a life estate and power of appointment are commonly used Medicaid planning devices to avoid gift taxes by making an incomplete gift but still maintaining Medicaid eligibility. In that case, the court held that the transfer by deed of a remainder interest in real property subject to divestment under a limited power of appointment could constitute a valid gift so long as the donor had the requisite donative intent and capacity to make a gift. Similarly, in Matter of Levitt, 13 March 1998, Sur Ct, Nassau County, the court held that a valid remainder may be created subject to being divested by a reserved power of appointment.

Second, RM incorrectly argued that if a transfer is an incomplete gift for gift tax purposes, it does not constitute a valid gift.

Under the law, the primary element of a completed gift for gift tax purpose is the abandonment of dominion and control over the property. A completed gift does not occur if the grantor retains a power of appointment because he has the right to change beneficial enjoyment.

Section 25.2511-2(b) of the Gift Tax Regulations (26 CFR 25.2511-2) provides as follows: “As to any property, or part thereof or interest therein, of which the donor has so parted with dominion and control as to leave in him no power to change its disposition, whether for his own benefit or for the benefit of another, the gift is complete. But if upon a transfer of property (whether in trust or otherwise) the donor reserves any power over its disposition, the gift may be wholly incomplete, or may be partially complete and partially incomplete, depending upon all the facts in the particular case. Accordingly, in every case of a transfer of property subject to a reserved power, the terms of the power must be examined and its scope determined. For example, if a donor transfers property to another in trust to pay the income to the donor or accumulate it in the discretion of the trustee, and the donor retains a testamentary power to appoint the remainder among his descendants, no portion of the transfer is a completed gift.”
Third, RM confused the issue of whether a transfer is a valid gift under state law (i.e. whether the elements of a gift are established) with the issue of whether a transfer is a complete gift for federal gift tax purposes.

Accordingly, the motion for summary judgment was denied. The transfer did not constitute an invalid gift as a matter of law.

The court next resolved the cross-judgment.

Here, CS's testimony, although admissible to defeat the motion for summary judgment where it would be otherwise barred by CPLR 4519, was inadmissible in support of her cross-motion. Nonetheless, RM incorrectly argued that: CS had a confidential relationship with MM as her attorney-in-fact under a durable power of attorney which required her to establish by clear and convincing evidence that the transfer was free of coercion or undue influence and CS failed to meet this heightened burden of proof.

As held in Matter of Bassin, where the parties to a gift transaction are close family members, the existence of a confidential relationship is a question of fact. Moreover, pursuant to the ruling in Matter of Puckett, Sur Ct, Nassau County 2005, even assuming that a confidential relationship between MM and CS existed, CS met her heightened burden that the transfer was free from any undue influence. Based on the affidavit of the attorney, the execution of the deed was clearly not subject to the exertion of any undue influence; and, based on the testimony of the attorney, MM indeed intended to transfer the premises to CS. With the attorney's affidavit coupled with the recording of the deed and the presumption of delivery arising therefrom, as held in Matter of Romano, Sur Ct, Nassau County 2005, the respondent established her entitlement to summary judgment.

Accordingly, since RM failed to raise any issue of fact as to MM's capacity, the cross-motion was granted.

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Respondent Contends Court Lacks Subject Matter Jurisdiction

April 10, 2014,

In this Will Contest case, a motion by the executor for an order consenting to a transfer to this court of an action currently is pending in Supreme Court, New York County. Respondent argues that this court lacks subject matter jurisdiction of the dispute and that Nassau County is not the proper venue for the case.

A New York Probate Lawyer said that the decedent died in December 1993. The court admitted his Last Will and Testament to probate and issued letters testamentary to petitioner thereafter. Petitioner subsequently filed an accounting and a supplemental accounting, respectively, with this court. At the closing date of the latter, the estate held interests in real estate partnerships, all controlled by general partner. At a special meeting of the shareholders, decedent issued sixty shares of stock each to petitioner and respondent, with petitioner holding her shares in trust for respondent, and with respondent holding his stocks in trust for decedent, an arrangement referred to as a "tontine" trust. Evidenced in the meeting's minutes is "the intention that the sole possession and ownership of the stock remain within the three parties and that the survivor of the three have sole possession of all the outstanding and issued stock of the corporation." Also, new stock certificates would be issued when one of the parties died, and these would be evenly split and distributed to the remaining parties, with each holding his share in trust for the other. Petitioner disputes the existence of this arrangement, and respondent's pending Supreme Court case pertains to petitioner's actions as executrix relating to decedent's sixty shares.

A New York Will Lawyer said the Surrogate Court's subject matter jurisdiction has steadily expanded throughout the twentieth century. The Court of Appeals held in a case involving two living parties (one being a fiduciary of a decedent's estate) and an eviction proceeding, that, "for the Surrogate's Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate".
It is readily conceded by the parties that decedent's sixty shares are a major asset of the estate. In the accounting proceeding, petitioner moved this court for an order confirming majority shareholder's corporate actions, compelling respondent, as vice president, to comply with a demand to call a special meeting and, as director, to consent to that meeting, imposing sanctions upon respondent, as vice president, for failure to call that meeting, and ordering respondent to pay attorney's fees. Petitioner's status as the controller of a majority of shares was vigorously disputed. This court ruled that these allegations did not pertain to either decedent's affairs or the administration of his estate, but instead involved matters of corporate governance. In this motion, respondent asserts that because petitioner's pending case would force this court to analyze the corporate minutes, it would ultimately be deciding matters of corporate governance and therefore be outside this court's subject matter jurisdiction. However, respondent also alleges in his pending case in the Supreme Court that petitioner withheld forty of decedent's sixty shares and gave ten shares to both him and his sister in violation of a disputed tontine trust. As this court described decedent's shares as a "major asset" of the estate and respondent's case involves those shares, it is not "abundantly clear that the matter in controversy in no way affects the administration of his estate." In fact, a court decision regarding ownership of decedent's sixty shares would undoubtedly affect the administration of his estate and is well within the court's purview. Accordingly, the Surrogate's Court has subject matter jurisdiction to hear respondent's pending case insofar as the issue concerns ownership of the shares.

Manhattan Probate Lawyers said the next objection to transfer concerns an issue of venue. Under SCPA 207[1], proceedings involving lifetime trusts can be properly heard where "(a) assets of the trust estate are located, or (b) the grantor was domiciled at the time of the commencement of a proceeding concerning the trust, or (c) a trustee then acting sides." Under SCPA 205[1], "the proper venue for proceeding relating to estates is the county of the decedent's domicile at the time of his death " If it is disputed whether the case involves a lifetime trust or an estate asset, SCPA 209[4] gives the Surrogate's Court the power "to determine property available for distribution under his [the decedent's] will and to determine the rights of any persons claiming an interest therein as between themselves, and to construe any instrument made by him affecting such property."

New York City Probate Lawyers said that while Respondent asserts that a tontine trust between decedent, petitioner, and respondent governs the decedent's sixty shares, petitioner claims otherwise, arguing that the shares pass under the decedent's will addresses the shares. Because it is disputed whether a lifetime trust governs decedent's shares, the Surrogate's Court can make a determination as to whether the sixty shares are available for distribution. Further, not only was decedent's will admitted to probate by this court, but this court was subsequently involved in two accounting proceedings regarding the decedent's estate. While the court in a case enforced SCPA § 207[1] after probate, there was no controversy over the existence of the inter vivos trust, and the Surrogate's Court was not involved in post-probate action between parties. There is a controversy over the existence of a tontine trust, and this Court has been involved with numerous matters regarding the decedent's estate. Therefore, Nassau County is the proper venue for respondent's pending case to be heard.

Because both subject matter jurisdiction and venue are proper, this Court consents to the transfer of pending case as Executrix of the Estate of the decedent from Supreme Court in New York County to the Surrogate's Court in Nassau County, if the Supreme Court be inclined to order its transfer.

Court should be guided by diligent and fair advocates in settling an estate of a decedent. Here in Stephen Bilkis and Associates, our Nassau County Probate lawyers makes it a point that every angle of the case were studied carefully in order to prevent miscarriage of justice and sees to it that the provisions embodied in the will were enforced. For other cases, contact our Nassau County Estate attorneys for a proper advice.

Disinherited Daughter Challenges Will

April 9, 2014,

The decedent died leaving a will. The will nominates 2 s executors but one of them renounced his appointment. The decedent was survived by his two adult children.

A New York Probate Lawyer said that the will provides that the decedent's entire residuary estate shall be distributed to decedent's companion. The will specifically disinherits the decedent's children. The executor has petitioned for preliminary letters testamentary.

By order to show cause, the decedent's daughter seeks an order (i) denying the issuance of preliminary letters testamentary to the executor; (ii) disqualifying him from serving as executor of the estate; (iii) removing him as the attorney for the estate; (iv) compelling the executor to comply with discovery demands previously served; (v) compelling him to produce and file with the court an alleged 2004 will of the decedent; (vi) appointing a guardian ad litem to represent the interests of the decedent's two infant grandchildren named as beneficiaries in the prior will; (vii) appointing the daughter as executor since she was alleged named as executor in the 2004 will; (viii) staying the issuance of preliminary letters to the executor pending a hearing on the order to show cause; and (ix)adjourning the SCPA 1404 examinations.

A New York Will Lawyer said the issue to be resolved in this case is whether preliminary letters should issue to the executor.

Brooklyn Probate Lawyers said SCPA 1412, which governs the issuance of preliminary letters testamentary, was enacted to provide a form of letters to the named executor which would allow for the immediate administration of the estate when there may be a delay in probate. The purpose of SCPA 1412 was to honor the testator's preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest.

Bronx Probate Lawyers said that although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator's will. A person not named as an executor has no standing to seek preliminary letters. Moreover, SCPA 1412 provides that where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters.

Under 1412 is mandatory "upon due qualification". If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.

A testator's wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Preliminary letters may be denied, however, where the nominated executor's eligibility is at issue. Where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that the dishonesty makes him ineligible under SCPA 707. Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters. Further, if it is in the best interest and protection of the estate and its beneficiaries to appoint a fiduciary other than the nominated executor, temporary letters may issue to the Public Administrator.
SCPA 1412 [2][a] affords an executor named in a later will a priority over an executor named in an earlier will. Where competing wills are offered, the court may, however, issue preliminary letters to the executor of the earlier will for "good cause shown". Good cause shown has been found to exist where the circumstances surrounding the execution of the later will are so suspect that issuance of letters to the executor of the earlier will better protect the parties.

Here, daughter has requested that preliminary letters issue to her as executor under the alleged 2004 will. The petitioner's counsel states that the petitioner did not draw a will for the decedent in 2004 and has no knowledge of a 2004 will. Even if there is an earlier will naming the daughter as executor, the executor, as an executor named in the purported later will, has a prior right to letters pursuant to the provisions of SCPA 1412(2)(a). Under SCPA 1412, preliminary letters must issue to the executor in the absence of good cause shown or serious misconduct which renders him unqualified.

The daughter argues that preliminary letters should not issue to the executor for the following reasons. First, she claims the executor has failed to produce the 2004 will. Second, she claims that the executor has failed to comply with discovery demands. Third, she claims that he is unfit to serve because of alleged misstatements by the process server upon which the order for substituted service was based and the fact that the letter enclosing the waiver and consent were sent to the wrong address. Fourth, she questions the valuation of the assets set forth by executor in the application for preliminary letters. Lastly, she claims that the executor acted in collusion with the residuary legatee. All of these allegations fail to demonstrate "good cause" or serious wrongdoing which would permit the court to nullify the decedent's choice of a fiduciary.
The 2006 will dispenses with the filing of a bond. Pursuant to SCPA 1412(5), even if the will dispenses with the filing of a bond, the court may require a bond if "extraordinary circumstances" exist. There are no such extraordinary circumstances here. Preliminary letters testamentary shall issue upon his duly qualifying under the law, to serve without bond.

Here in Stephen Bilkis and Associates, our Nassau County Probate lawyers will assist you in pursuing an action for the implementation of the provisions provided in a last will and testament. Our Nassau County Estate lawyers are always ready to render their advice on how ones property be divided in order to ensure that the division will be in accordance with law.

Court Rules on an Application for Letters Testamentary

April 8, 2014,

A New York Probate Lawyer said this is an application for preliminary letters testamentary. The decedent died in December 2005 leaving a will (the "2005 Will") and a prior will in January 2003 (the "2003 Will"). The 2003 will nominates the decedent's daughter as executor and another daughter as successor executor. The 2005 will also nominates the first daughter as executor. The decedent was also survived by her other daughter.

A New York Will Lawyer said that the 2003 will bequeaths all shares that the decedent had in any companies or corporations to the decedent's grandchildren, equally and the decedent's bank accounts to her daughters equally. The 2003 will further provide for bequests of tangible personal property. The 2003 will gives the decedent's cooperative apartment in equal shares. The remainder of the estate is bequeathed in one-third (1/3) shares to each of the decedent's daughters.
The 2005 will gives all of the decedent's jewelry to a daughter, and the balance of the decedent's tangible personal property located in her home to another daughter and her husband. The 2005 will further provide for a bequest of the decedent's joint bank account to the daughter executor or if she does not survive, to another daughter. Under Article FOURTH of the 2005 will, the residuary estate is bequeathed to the daughter executor.

A Queens Probate Lawyers SCPA 1412, which governs the issuance of preliminary letters testamentary, was enacted to provide a form of letters to the named executor which would allow for the immediate administration of the estate when there may be a delay in probate. The purpose of SCPA 1412 was to honor the testator's preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest.

Long Island Probate Lawyers said that although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator's will. A person not named as an executor has no standing to seek preliminary letters. Moreover, SCPA 1412 provides that where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters under 1412 is mandatory "upon due qualification". If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.

A testator's wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Preliminary letters may be denied, however, where the nominated executor's eligibility is at issue. Where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that the dishonesty makes him ineligible under SCPA 707. Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters. Further, if it is in the best interest and protection of the estate and its beneficiaries to appoint a fiduciary other than the nominated executor, temporary letters may issue to the Public Administrator.
SCPA 1412 [2][a] affords an executor named in a later will a priority over an executor named in an earlier will. Where competing wills are offered, the court may, however, issue preliminary letters to the executor of the earlier will for "good cause shown". Good cause shown has been found to exist where the circumstances surrounding the execution of the later will are so suspect that issuance of letters to the executor of the earlier will will better protect the parties.
Here, the petitioner has requested that preliminary letters issue to her as a substitute executor under the 2003 will. Thus, the daughter, as an executor named in the 2005 will, has a prior right to letters pursuant to the provisions of SCPA 1412(2)(a). Under SCPA 1412, preliminary letters must issue to Karen in the absence of good cause shown or serious misconduct which renders her unqualified.

Petitioner argues that preliminary letters should issue to her because she intends to commence a discovery proceeding against the daughters and other persons who have knowledge of the decedent's assets and the events and circumstances leading to $36,000 of credit card debt on the decedent's charge card. Petitioner's allegations fail to demonstrate "good cause" or serious wrongdoing which would permit the court to nullify the decedent's choice of fiduciary. Accordingly, Petitioner's application for preliminary letters testamentary predicated on her nomination as substitute executor under the 2003 will is denied, and daughter's application for preliminary letters testamentary as executor under the 2005 will is granted. The court, based upon its "broad equitable powers, however, including the power to convert or fashion a remedy based upon the facts alleged, without strict adherence to the title of the proceeding given by the petitioner" deems that portion of the instant proceeding which seeks authority to commence a discovery proceeding, as an application for the issuance of limited letters of administration to the petitioner.

Accordingly, limited letters of administration shall issue to petitioner upon duly qualifying according to law, without bond.

The 2005 will dispenses with the filing of a bond. Pursuant to SCPA 1412(5), even if the will dispenses with the filing of a bond, the court may require a bond if "extraordinary circumstances" exist. There are no such extraordinary circumstances here. Preliminary letters testamentary shall issue to the daughter upon her duly qualifying under the law to serve without bond.
An executor is a person appointed by a decedent to be responsible for the division of the estate. As such, he must be responsible and be guided by a lawyer. Here in Stephen Bilkis and Associates, our Nassau County Probate lawyers will guide the executor in order for him to perform his duties well. We also have our Nassau County Estate attorneys who will assist a testator in drafting his last will and testament.

Court Decides Case Where Will is Lost

April 7, 2014,

A New York Probate Lawyer said by this proceeding, the petitioner, the nominated fiduciary, seeks to admit to probate a copy of the last will of decedent, the original not being found after the death of the testator. The decedent's will was executed in 2009.

A New York Will Lawyer said that the decedent was survived by her husband and three children, two of whom are minors. A guardian ad litem was appointed for the minor children and has filed a report in which he recommends that the lost will be admitted to probate and that the court approve a stipulation of settlement providing the same. The decedent's will provides for the distribution of her assets to her children. The will provides in Article Fifth (b) that the decedent leaves no portion of the residue to her husband, not because of any lack of affection for him, but because he is the sole beneficiary of a life insurance policy in the face amount of $1,000,000 and he will also become the sole owner of their home as well as a condominium in Florida. The decedent's husband filed objections to the lost will being admitted to probate which were later withdrawn by the proposed stipulation of settlement.

In order to have the copy of the will probated, petitioner relies on the provisions of SCPA 1407 which provide: A lost or destroyed will may be admitted to probate only if: 1. It is established that the will has not been revoked, and 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

Nassau County Probate Lawyers said on considering first the requirement that the execution of the will be proved in the manner required for probate of an existing will, the court is satisfied that petitioner has established that the will was executed in compliance with EPTL 3-2.1. The execution of the original instrument was supervised by an attorney, permitting the inference that the statutory requirements were met. The court is satisfied that the execution was in compliance with the statutory formalities.

Staten Island Probate Lawyers said that all of the provisions of the will were clearly and distinctly proven by the copy of the will offered for probate which was satisfactorily proven to be true and complete by the affidavit of the attorney draftsman who states that the subject document is a true copy of the original will.

As to revocation, it is well established that where a will cannot be found after the death of the testator, there is a strong presumption that it was destroyed with the intent to revoke it. However, this presumption may be rebutted by facts and circumstances showing that the will was accidentally lost.

Under the circumstances, the evidence is sufficient to show that it is unlikely the decedent intentionally revoked her 2009 will. The court is satisfied that the original instrument was either accidentally destroyed or lost and not revoked by decedent during her lifetime. The court further finds that the stipulation of settlement, which provides for the probate of said will, is in the best interest of the decedent's minor children and is approved.

Staten Island Probate Lawyer said the court has reviewed the affidavit of services of the guardian ad litem. The guardian ad litem for the infants performed 15 hours of service. The guardian ad litem performed the following services on behalf of his wards: reviewed the file; telephone calls with the attorneys involved in the case; telephone calls with the attorney/draftsman; attended conferences at the Surrogate's Court; reviewed the proposed stipulation of settlement; telephone calls regarding the draft of the stipulation; prepared his report; and communicated status of proceeding to the court.

As with any request for a fee, 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 fees rendered in the course of an estate. This remains true even in the event that the parties have consented to the requested fee. Here, there has been no opposition to the affidavit of services filed by the guardian ad litem. 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; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. 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 a case.. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable without constituting an adverse reflection on the services provided.

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.
Considering all of the factors as set forth above, the fee of the guardian ad litem is fixed in the amount of $3,500.00. Said fee shall be paid within thirty (30) days of the entry of a decree herein.

A Last Will and Testament is an evidence of the last hopes of a decedent, no property shall pass to the heirs until a will is probated. Here in Stephen Bilkis and Associates, we have our Nassau County Probate attorneys to help you file a petition in court for the probate of a will. Consult our Nassau County Estate lawyer in case you intend to draft a last will and testament.

Objectant Moves for Disqualifying Counsel

April 5, 2014,

A New York Probate Lawyer said this probate proceeding, objectant moves for an order disqualifying counsel, the petitioner and nominated executor under the will of the decedent. The lawyer crossmoves for sanctions on for making a frivolous motion.

A New York Will Lawyer said that the motion was brought in connection with the contested probate of an instrument. The decedent died in January 2007, survived by three children. A petition for probate was filed and an SCPA 1404 examination was conducted. Objections were subsequently filed by herein objectant. In connection with the depositions and objections, the lawyer, the nominated executor, is represented by of counsel t. Depositions were concluded thereafter.
The motion for disqualification arises out of legal representation of the Company, which has four shareholders who each own 25% of the corporation. The shareholders are objectant, her husband, her brother, and brother’s wife. In 2000, the company commenced two actions one of which, against the brother, remains open. The company is now in bankruptcy proceedings. Objectant seeks disqualification as counsel to executor in the probate proceeding on the grounds that they cannot represent executor, whose interests are adverse to the interests of its former client, objectant.

A Westchester County Probate Lawyer said in response, the lawyer notes that his representation of executor is limited to (1) the depositions of her prior counsel and his associate, who may be material witnesses in the probate matter, and (2) the objections to probate filed by objectant. More significantly, the lawyer points out, company represented another company, and not the objectant, in the proceedings in Supreme Court. Accordingly, the lawyer argues, objectant was never a client and therefore lacks standing to seek disqualification of the firm in the probate matter. Counsel further argues that even if the court determines that objectant is a former client of the firm, disqualification of the firm would not be appropriate in the probate matter, as no substantial relationship exists between the Supreme Court action filed on behalf of company and this probate proceeding, which would be a prerequisite for disqualification. Simultaneously, the lawyer brought a cross-motion for monetary sanctions, arguing that the motion for disqualification is frivolous, dilatory and not in good faith.

Suffolk County Probate Lawyers said the ethical obligation of an attorney who wishes to represent a client with interests adverse to those of a former client is set out in Rule 1.9 of the Rules of Professional Conduct,1 which provides, in part: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing".

Applying this standard, the Court of Appeals developed a tripartite test to determine whether an attorney should be disqualified on the basis of adverse client interests. The first part requires the individual who seeks disqualification of an opponent's attorney to prove that he or she has a prior attorney/client relationship with said attorney. The second part of the test requires a showing that the matters in the two proceedings are substantially related. Lastly, the movant must show that the interests of the two clients are materially adverse. If a party seeking to disqualify an adversary's attorney is able to prove all three parts of this test, such proof "gives rise to an irrebuttable presumption of disqualification".

Where an attorney has an ongoing relationship with one client, and concurrently represents a second party whose interests are adverse to those of the first client, whether or not in the same proceeding, the courts apply a much stricter standard to determine whether the attorney's representation of the second party is improper. It is virtually axiomatic that it would be ethically inappropriate for an attorney to bring a lawsuit against his or her current client, barring the most extraordinary circumstances. It is, perhaps, not quite as clear when the representation of two clients with adverse interests involves two completely separate matters. Even so, the "simultaneous representation of, even though on unrelated matters, is at best unseemly". What is frequently referred to as the "prima facie" or "per se" rule was first delineated in a case as follows: "Where the relationship is a continuing one, adverse representation is prima facie improper and the attorney must be prepared to show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation". This standard shifts the inquiry away from the substantiality of the relationship between the two matters being handled by the attorney, and instead focuses on the attorney's responsibility to provide his or her client with absolute loyalty. The attorney opposing disqualification bears a heavy burden of proof to show the court that his or her concurrent representation of the second client will not create a conflict in loyalties or diminish the vigor of the attorney's representation of the first client.

"It is well settled that a corporation's attorney represents the corporate entity, not its shareholders or employees ". As a general rule, "[a]n attorney does not represent a co-shareholder simply by reason of his or her representation of the corporation, unless he or she affirmatively assumes that duty". However, a court may find the existence of an attorney/client relationship where a shareholder "reasonably believed [that the corporate attorney] was acting as his counsel". In this case, cited by the attorney in his reply affirmation, corporate counsel undertook the representation of one 50% shareholder suing the other 50% shareholder, who then moved to disqualify plaintiff's counsel. "Although, in the ordinary corporate situation, corporate counsel does not necessarily become counsel for the corporation's shareholders and directors ... where, as here, the corporation is a close corporation consisting of only two shareholders with equal interests in the corporation, it is indeed reasonable for each shareholder to believe that the corporate counsel is in effect his own individual attorney". The court then notes "the general proposition that in a close corporation, the issue of corporate versus individual representation must be decided on a case by case basis" A determination as to whether a fiduciary relationship exists between a client and an attorney must be very fact-specific

In the proceeding before this court, objectant claims to be a client of the firm by virtue of her status as a 25% shareholder in Acme. At first glance, this fact might appear to align this case with the case discussed above. However, that case involved two active shareholders, both of whom treated the company as though it were a partnership, and both of whom attended meetings with the corporate attorney together and separately seeking legal advice on behalf of the corporation. In contrast, an affidavit filed by the brother affirms that objectant is a non-participatory non-voting shareholder in company who plays no role in its management. Objectant does not dispute brother's statement or assert that she ever met with any member of the firm, nor does she claim that she has any basis to believe that the firm represented her individually.
Objectant has not established that she is or ever was a client of the firm. "[A] party who is neither a present or former client of an attorney has no standing to complain about the attorney's representation" The court therefore denies objectant's motion for disqualification. The cross-motion for sanctions is also denied.

An Estate of a decedent should be divided in accordance with the provisions of law. Here in Stephen Bilkis and Associates, we advocate fairness and justice in so far as we ensure that justice is rendered. We have our Nassau County Probate lawyers who will represent the executor for the proper settling of the estate of the deceased. Communicate with our Nassau County Estate lawyer now and be advised on how to partition ones estate depending on the properties left.

Court Determines Fee to be Paid to Guardian Ad Litem

April 4, 2014,

A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on March 2, 2007, leaving a last will and testament dated June 4, 1993. A petition for probate was filed by a legatee under the will who was related to the decedent by marriage. By order dated February 1, 2010, the court appointed a guardian ad litem to represent the interests of decedent's missing and unknown distributees. On February 3, 2012, the guardian ad litem filed his report recommending that the will be admitted to probate. At that time, he also filed an affirmation of services. At the request of the court, the guardian ad litem filed a supplemental affirmation on July 24, 2012.

A New York Will Lawyer said the issue in this case is the determination of the fee payable to the guardian ad litem.

Long Island Probate Lawyers said 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. 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".

A Queens Probate Attorney said the guardian ad litem is entitled to a fee for his or her services rendered (SCPA 405). The factors considered by the court in determining the fee apply equally to an attorney retained by a fiduciary or to the 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. Normally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets.

In evaluating the cost of legal services, the court may consider a number of factors. These include: (1) the time spent; (2) the complexity of the questions involved; (3) the nature of the services provided; (4) the amount and complexity of the litigation required; (5) the amounts involved and the benefit resulting from the execution of such services; (6) the lawyer's experience and reputation; and (7) the customary fee charged by the Bar for similar services.
The petitioner originally submitted an affirmation of legal services which, while detailed, did not include any time records. This report reflected that the guardian ad litem provided a total of 71.15 hours of services. At a billable rate of $275.00 per hour, the fee totaled $19,566.25, which was then discounted by $8,566.25, bringing the requested fee down to $11,000.00. The affirmation indicates that none of the hours of services which were billed reflect time spent preparing the affirmation.

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.

The court requested additional information concerning the time spent by the guardian ad litem in providing services. In response, the guardian ad litem submitted a supplemental affirmation, but this, too, did not contain contemporaneous time records. Instead, it consisted of a one-page summary of the 71.15 hours devoted to accomplishing various tasks.

The petition for probate reflects an estate consisting of personal property of $166,000.00 and improved real property valued at $355,000.00, for a total estimated value of $521,000.00. In his report, the guardian ad litem provides an updated estate value of $505,695.00. The fee requested by the guardian ad litem, even after the substantial voluntary discount of 43%, would constitute a fee in excess of two percent of the gross estate. Although due diligence was required in searching for the decedent's missing and unknown distributees, the probate proceeding was otherwise fairly standard, and it involved no litigation. The guardian ad litem, however, spent more than 70 hours in fulfilling his responsibilities, including approximately 40 hours preparing his 14-page report.

It is well established that the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. While the court appreciates the excellent and thorough services provided by the guardian ad litem, in setting his fee, the court is limited by the nature of the proceeding and the size of the estate.

Accordingly, the fee of the guardian ad litem is fixed in the amount of $6,975.00, which shall be paid within 30 days of the issuance of a probate decree. This decision constitutes the order of the court and no additional order need be submitted.

If you have an issue regarding the administration of the estate seek the assistance of a Nassau Estate Administration Attorney and Nassau Probate Attorney at Stephen Bilkis and Associates.

Petitioner Seeks to have Will Codicil Admitted into Probate

April 3, 2014,

A New York Probate Lawyer said that, this is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated June 26, 2002, the original of which cannot be located. The petitioner is the nominated alternate executor, the decedent's daughter. The nominated executor, the decedent's husband, has filed a renunciation of his right to serve as executor. A waiver and consent has been filed by the decedent's son, the decedent's only other distributee, who was expressly disinherited both by the will offered for probate and by the revocable lifetime trust which is the residuary beneficiary under the will.

The issue in this case is whether the last will and testament of the decedent should be admitted for probate.

A New York Will Lawyer said in order to have a copy of the will admitted to probate, petitioner must satisfy the requirements of SCPA 1407 which provides: A lost or destroyed will may be admitted to probate only if: 1. It is established that the will has not been revoked, and 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

A Bronx Probate Lawyer said on considering first the requirement that the execution of the will be proved in the manner required for probate of an existing will, the court is satisfied that petitioner has established that the will was executed in compliance with ETPL 3-2.1. The execution of the original instrument was supervised by an attorney permitting the inference that the statutory requirements were met. The court is satisfied that the execution was in compliance with the statutory formalities.

Brooklyn Probate Lawyers said of all of the provisions of the will were clearly and distinctly proved by the copy of the will offered for probate which was satisfactorily proved to be true and complete by the affidavit of one of the attesting witness who states that the subject document is a true copy of the original will. The other attesting witness, the attorney/draftsman, is deceased.
As to revocation, it is well established that where a will cannot be found after the death of the testator, there is a strong presumption that it was destroyed with the intent to revoke it. Under SCPA 1407 [1], the proponent has the burden to overcome the presumption of revocation by proving that the will was not revoked during the testator's lifetime. The proponent must demonstrate, by the facts and circumstances, that the will had been destroyed in the testator's lifetime without his knowledge, consent or procurement, or accidentally lost.

As indicated above, the propounded will leaves the decedent's residuary estate to a lifetime trust for the benefit of decedent's husband and daughter, to the exclusion of her son. Affidavits submitted by the husband and daughter indicate that the decedent and her husband had their respective wills and the joint lifetime trust executed on the same date and all the instruments were thought to have been placed in a large binder and kept by the decedent's husband in the family home. After the decedent's death, the original will of the decedent could not be located, although the husband's original will was contained in the binder. The affidavit submitted by the decedent's husband indicates that the subject will is the only will ever executed by the decedent, and that in the two years period between the will's execution and the decedent's death no other will or codicil was executed by the decedent. After the decedent's death, the copy of the will was found with the decedent's other important papers, but the original will could not be located.

As indicated above, the decedent's son, who is the person adversely effected by the will's admission to probate, has filed a waiver and consent. Additionally, the fact that a photocopy of an executed will was found in decedent's papers after death presents some evidence of non-revocation.

Accordingly, the court held that, based upon the proof submitted, the court is satisfied that the original will was destroyed or lost accidentally and, therefore, not revoked by decedent during her lifetime (SCPA 1407 [1]). The copy of the will and the original codicil will, therefore, be admitted to probate.

If you wish to contest the probate of a will seek the assistance of a Nassau Will Contest Attorney and/or Nassau Estate Attorney at Stephen Bilkis and Associates.

Court Rules on Case Involving Lost Will

April 1, 2014,

A New York Probate Lawyer said in this Will Contest proceeding, a motion was filed for the allowance of an attorney from testifying at an examination before trial, and for a further order precluding the respondent for failure to file an adequate bill of particulars.

A New York Will Lawyer said that in August 1980, the decedent consulted another attorney, in connection with the preparation of a new will which because of her death shortly thereafter was never prepared or executed. The lawyer has been briefly examined, the examination was interrupted in order to obtain rulings from the court in regard to the attorney-client privilege.
While an attorney will generally not be compelled to testify as to matters revealed to him by his client within the course of his professional employment, there are, however, several exceptions, one of which permits an attorney "to disclose information as to the preparation, execution, or revocation of any will or other relevant instrument" in an action involving the probate, validity, or construction of a will. The proponent argues that this exception clearly applies in the instant proceeding.

However,New York City Probate Lawyers said several cases contain dicta that the exception does not permit an attorney to testify with respect to a consultation with a client looking toward the drawing of a will when no will was actually prepared or executed. At the time the case law was decided the exception did not, as at present, permit the attorney to disclose information as to the preparation of "any will"; rather disclosure was only permitted as to the preparation of the "will so offered for probate or required to be construed or of any prior will." The case specifically prohibited the attorney "who neither directly or indirectly took part in the preparation or execution of the instrument offered for probate" from testifying. It is at least arguable that the result in the case should be confined to its interpretation of the former and not the present statute. Moreover in another case law, the conversation the attorney had with the decedent apparently sought legal advice about her existing will and it does not appear that there was any discussion of the preparation of a new will.

Manhattan Probate Lawyers said it has been argued that the modern trend towards freer admissibility of evidence should correspondingly limit the attorney-client privilege and that the direction should be towards a narrow construction and the development of further conditions and exceptions. Apparently reinforcing this trend, the proposed New York State Code of Evidence suggests that the exception should read as follows: "As to a communication relevant to an issue concerning the validity of, or intention with respect to, a deed of conveyance, will or other writing executed by a deceased client purporting to affect an interest in property."
As can be noted, there is no suggestion that the attorney as a precondition to disclosure must have involved himself in the preparation and execution of any will or other document.

Concededly the above discussion can be considered largely dicta since it is clear here that while the attorney did not prepare or supervise the execution of a new will, he at least had discussions relating to a revocation of the former will and presumably codicil. The statute specifically authorizes an attorney to disclose information as to "the * * * revocation of any will."
Admittedly the major significance of the lawyer's testimony to the petitioner are conversations with regard to the existence of her will at the time of their consultation. Apparently the decedent was told by the lawyer to bring her old will to his office when she returned to execute the new will in order to physically destroy it. While such testimony may not be barred because of privilege, it does not appear to be admissible at the trial under New York's traditional view of competency of evidence on revocation. Nevertheless there should be no objection to it being disclosed at a pretrial examination.

Accordingly the examination of the lawyer is directed to be continued on a mutually agreeable date, or failing agreement, on ten days written notice at which time he may disclose any and all information relating to the revocation of the decedent's will and codicil, and any other conversations surrounding such communications.

The motion to preclude is based on an allegedly defective bill of particulars, which was supplied by respondent to petitioner in accordance with 1830.19 of the Second Department Surrogate Court Rules. Respondent's answer to this is contained in paragraph 3 of his bill of particulars which states "The instrument purported to be the copy of the Last Will and Testament offered for probate is not signed by the deceased or attested to by the witnesses, nor is it the original of said Last Will and Testament which original was in the custody of the deceased. The presumption is that it is revoked." Petitioner claims that this answer is not responsive because it does not specifically state the time and means of any alleged revocation as required by § 1830.19(a)(3)(ii) of the Second Department Surrogate's Court Rules. § 1830.19(a)(3)(ii) states that if a contestant alleges that a will is not the last will, the proponent shall be entitled to a bill of particulars which shall state whether it is claimed that the instrument offered for probate was revoked and if so, state when and the method by which the revocation was accomplished. Respondent's reliance on the presumption of revocation implies when and how the revocation was accomplished and therefor it is a sufficient answer.

However, a copy of a lost will is only used to prove contents and cannot be probated. "The instrument offered for probate" actually refers to the lost original will which proponent is attempting to probate. Therefore respondent's answer is insufficient and respondent is ordered to supply a new answer as to whether it is merely claimed that the instruments offered for probate, the missing original will and the original codicil, were not executed in accordance with statutory requirements. Motion granted to the extent of requiring a further bill as indicated above and otherwise denied.

Probate is necessary in order to make the provisions of the will effective. Here in Stephen Bilkis and Associates, we have Nassau County Probate lawyers, who will represent the named executor of the last will and testament of the decedent. We also have Nassau County Estate attorneys for your other concerns. Contact us now for more details.

Court Rules on Case Where Multiple Will Documents Involved

March 31, 2014,

A New York Probate Lawyer said the subject of this Probate proceeding is the question of revocation of a six-page handwritten document, an alleged carbon copy of which has been offered for probate as the last will and testament of the decedent.

According to a Nassau County Will Contest lawyer, the decedent is an attorney, who died in May 1977. Thereafter, letters of administration were issued to the Public Administrator, County of Nassau, who received the keys to the decedent's residence from a Nassau County police detective and made a thorough search of the residence.

A New York Will Lawyer said among the decedent's personal papers the public administrator found a sealed envelope bearing the words "Copy of Deed to Lutheran Cemetery," "Copy of Last Will and Testament " and the signature of the decedent. On the back of the envelope, written across the flap was the signature of the decedent.
The envelope was found to contain a deed to a cemetery plot at Lutheran Cemetery and an apparent carbon copy of a handwritten document purporting to be the last will and testament of the decedent. The objectants concede that the document is written in the decedent's handwriting. No evidence was offered to prove that the document was a carbon copy although the proponent herself alleges that it is a carbon and not a ribbon copy.

Long Island Probate Lawyers said the instrument provides for the disposition of real property, bequeaths $300.00 to each of eight cousins of the decedent and the residuary estate to other cousins who served and appointed as executors of the estate. Three of the cousins named in the instrument and five other individuals whose status is contested by the proponent are the objectants in this proceeding.

Queens Probate Attorneys said at the time of her death, the decedent no longer rented a safe deposit box. An inspection of her safe deposit box at the National Bank of North America failed to disclose any instrument purporting to be the last will and testament of the decedent or a copy thereof.

Where a will is last known to be in the possession of the decedent and is not found at his death, the presumption arises that the decedent himself destroyed the will animorevocandi. This presumption of intentional revocation may be rebutted by circumstantial evidence.

In the present case, the witnesses, whose names are printed on the instrument offered for probate, testified regarding the execution and attestation of the decedent's will in 1960, the signing of a copy of the will by the decedent, in their presence, and the retention of both the original and the copy by the decedent.

Where the proponent of a will cannot produce the executed ribbon copy but produces a fully executed carbon copy which was in the decedent's possession at the time of his death, the presumption of revocation is overcome.

In the present case, there is no evidence that the witnesses, whose names are printed on the carbon copy signed the copy. EPTL 3-2.1 sets forth the requirements for the execution and attestation of wills. A will must be signed at the end by at least two witnesses. The privilege of informal testation is granted to mariners at sea and military personnel only. Since there is no proof that the decedent satisfied these requirements, the conclusion must be that the instrument was not executed with the necessary formalities and is at best a conformed copy of the original. The presumption of revocation is therefore operative.

Declarations of a deceased concerning revocation or non-revocation are only admissable as part of the res gestae, the reason being that it is likely that a decedent may have attempted, during his lifetime, to "silence importunity and elude questions" concerning the testamentary disposition of his property and therefore statements made to third parties concerning his will have little credibility. This reasoning applies with equal force to statements in writing. Written declarations of a decedent which are not received as part of the res gestae are inadmissable on the question of revocation. In any event the letter if admitted into evidence, at best might prove non-revocation as of 1968, more than nine years prior to the decedent's death.

The proponent's argument that the 1968 letter constituted a republication of the 1960 instrument is wholly without merit. EPTL 3-4.6 requires that there be a re-execution and re-attestation for republication of a prior will.

A careful review of the evidence in this case discloses that the proponent has failed to offer sufficient proof to rebut the presumption of revocation and accordingly, the petition for probate of the instrument, and filed with this court is denied.
If there is no showing that the decedent indeed revokes his will, there must be at least an act indicting that he has the intention to revoke a will and substitute another will. Here in Stephen Bilkis and Associates, our Nassau County Will Contest attorneys will help you contest a purported last will and testament of a decedent. In case you need help in proper administration of your estate, you can consult our Nassau County Estate lawyers now for a reliable advice.

Petitioner Brings Case to Probate Lost Will

March 29, 2014,

A New York Probate Lawyer said that a probate proceeding was brought by the Petitioner for the probate of a lost will purportedly executed by her decedent brother.

A New York Will Lawyer said that the decedent died in September 2005. A will executed on in 2003, which provided for his wife, and his three children was admitted to probate by this court in 2005. The petitioner in this proceeding seeks to admit a later instrument to probate as a lost will and revoke the earlier will's probate decree. The allegations contained in the petition may be summarized as follows. Before he died, in 2005, decedent sought the services of his long-time attorney to change the 2003 Will in light of changing circumstances with his wife, specifically her commencement of divorce proceedings against the decedent. As a result of his discussions with the lawyer, the decedent had a new will prepared, the final version of which was completed and then executed by decedent in August 2005.
The terms of the 2005 will differ significantly from the terms of the 2003 Will. The 2005 Will reduced the wife's share to her elective share, it left nothing to the decedent's two children and the terms of an option to purchase the decedent's businesses granted to decedent's son which existed under the 2003 Will as well, were much less favorable to him under the 2005 Will. Also, the 2003 Will provides for a single executor, while the 2005 Will provides for three executors, and petitioner. The petitioner in this lost will proceeding is the decedent's sister. Relevant to this motion is the nature of the relationship the decedent had with an individual.

Westchester County Probate Lawyers said the decedent had a longstanding personal and professional relationship with and individual who worked with him since 1979 in decedent's insurance business. In addition, the decedent allegedly resided with said individual at the time of his death. After the decedent's death, said individual was involved in litigation with several of the companies which resulted in a stipulation and "Confidentiality Order" issued in February 2007. The stipulation requires that documents and/or information that are designated "confidential" shall not be disseminated in any action or proceeding involving the plaintiffs in the aforementioned action, as well as the Estate of the decedent.

Suffolk County Probate Lawyers said that furthermore, said individual entered into several Settlement Agreements. These settlement agreements contain both confidentiality provisions, as well as the incorporation of the terms of the Confidentiality Order. The court notes that the Confidentiality Order was an "order" signed by a special referee in the Supreme Court. This fact will prove to be irrelevant to the reasoning of this decision.

The requirements to prove a lost will are set forth at SCPA § 1407 which provides that "[a] lost or destroyed will may be admitted to probate only if: (1) [i]t is established that the will has not been revoked, and (2) [e]xecution of the will is proved in the manner required for the probate of an existing will, and (3) [a]ll of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete."
In addition, when a will cannot be found after death and the will was in the testator's possession at the time of death there is a strong presumption that the will was revoked by the testator. It is the burden of the proponent to prove non-revocation of the lost will. The proponent can rebut the presumption using "facts and circumstances which show that the will was fraudulently destroyed" during the testator's lifetime.

For discovery purposes, New York courts have liberally construed the scope of disclosure for material that is "material and necessary." More specifically, the New York Court of Appeals has stated that "material and necessary" must be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy." Although CPLR 3101[a] allows for "full disclosure of all matter material and necessary in the prosecution or defense of an action." this provision is subject to a limitation, the test for which is one of "`usefulness' and `reason'". As long as the material sought meets this minimal limitation "pretrial discovery is to be encouraged" (Id.). CPLR 3101(a)(4) authorizes disclosure of material and necessary matter from non-party witnesses who do not otherwise fall within the scope of CPLR 3101(a)(3). Such disclosure may be had upon notice stating the circumstances or reasons disclosure is sought or required.

In the instant case, petitioner bears the heavy burden of demonstrating that decedent did not revoke his will prior to his death. Under SCPA § 1407 of the three requirements that petitioner must meet, the first requirement will be the most difficult to satisfy. The first requirement under SCPA § 1407 requires petitioner to prove that the will had not been revoked; petitioner seeks to meet her burden by demonstrating that the decedent's children, were responsible for the destruction or disappearance of the original 2005 Will. In support of this position, petitioner has subpoenaed for a deposition and for production of corporate documents relating to the corporations. Petitioner seeks the production of documents relating to the Net Annual Commissions and Unpaid Principal Balance to demonstrate that the probate of the 2003 Will was more favorable to decedent's children, thereby showing that the actions of decedent's children on the night of decedent's death were suspicious in nature, and therefore, explaining the disappearance of the original 2005 Will.
Through the subpoena, petitioner seeks the production of financial records of the corporations, more specifically, information relating to the Net Annual Commissions of the corporations and of the Unpaid Principal Balance of the corporations.
The objectants seek a protective order from this court preventing the production of documents which, they argue, are confidential and immaterial to the current proceeding before the court. The Confidentiality Order that the objectants base their argument on provides that "'Confidential Material' is defined as material designated as `Confidential Material' based upon a good faith assertion that disclosure of such material might adversely affect a Producer's competitive business revenues, profitability or operations". The subpoenaed information requested is limited in its nature; petitioner seeks only the Net Annual Commissions information from calendar year 2004 and all documents concerning the Unpaid Principal Balance of the Corporations, not all financial information from each of the businesses. The subpoenaed information would not appear to disclose any information relating to how the businesses operate, thereby obviating the concern that the companies will be adversely affected in terms of business revenues or profitability. To further quell any concern the objectants may have regarding disclosure of financial documentation of the corporations, petitioner's counsel noted in his affirmation that petitioner would be willing to enter a Confidentiality Order for this case to prevent disclosure of this financial information to any of the competitors of the corporations.

The objectants seek to prevent disclosure of the settlement agreements on the grounds that the settlement agreements are confidential and to prevent disclosure of trade secrets of the corporations. New York courts have no generally accepted definition of a trade secret, however, several courts have used the definition of trade secret set forth in the Restatement of Torts § 757, comment (b). Under the Restatement definition a trade secret is "any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it".
The objectants have the burden of establishing that the subpoenaed information consists of trade secrets. The objectants have simply stated that the settlement agreements contain trade secrets but have not presented any information that, in fact, the agreements do contain trade secrets of the corporations. Conclusory statements from the attorney for the party seeking protection from disclosure on grounds of trade secret are not generally sufficient to prevent disclosure.

The production of the financial records of the corporations, as well as the production of any settlement agreements may have entered into with numerous other parties as a result of the prior 2005 action are "material and necessary" under the CPLR's broad interpretation for the disclosure of relevant material in a proceeding. In this action, petitioner seeks to show that there is a plausible explanation for why the original 2005 will has not been located and that reason is that certain of the decedent's issue have either hidden or destroyed the original 2005 Will.
Petitioner seeks to demonstrate how much of a benefit the decedent's son, enjoyed when he exercised his option to purchase the decedent's businesses under the 2003 Will as compared to the 2005 Will. It should be noted that one need look no further than the terms of the 2003 Will versus the 2005 Will in order to see that the son would enjoy a significant benefit by exercising his option to purchase under the 2003 Will, however, the additional financial documentation sought by petitioner seems to be reasonably calculated in order to further support her explanation as to why the original 2005 Will could not be located.

A lost last will and testament may be proven and be the subject of probate if the requirements set forth by law are present. Here in Stephen Bilkis and Associates, our Nassau County Probate attorneys will help you implement the provisions in the will by filing a proper petition for probate. We also have Nassau County Estate Administration lawyers who will guide you on the proper steps to undertake in filing court actions related to estates.