New York Probate and Estate Administration Blog

In 1970, a doctor executed a will prepared by his attorney. The original will was retained in the attorney's files and the doctor was given a conformed copy. The attorney died in 1972 and the doctor died in 1979, at which time the original will could not be located in the attorney's files. The proceeding to admit the lost will for validation was commenced by the will proponent. The law provides that a lost or destroyed will may be admitted for validation only if it is established that the will has not been revoked; or execution of the will is proved in the manner required for the validation of an existing will, and all of the provisions of the will are clearly and distinctly proved by each of at least 2 credible witnesses or by 1 witness and a copy or draft of the will proved to be true and complete.

At trial, the proponent submitted evidence that the doctor did not revoke the original will since it was lost while in the possession of the attorney-draftsman. The appellant submitted evidence tending to show that the doctor had revoked the will by tearing it into pieces. Two of the witnesses who attested to the original will testified with respect to due execution but neither could remember any of the substantive provisions of the will.

A New York Probate Lawyer said that regarding the third requirement of the law, the legal secretary who typed the original will testified that she recognized her initials on the first page of the conformed copy of the will that was received into evidence. She also recognized that the type was the same used by her IBM typewriter. She recalled that the original will contained many provisions and that many bequests were made to foreigners. She further testified, however, that she never read the will after she typed it and could not remember any of the provisions of the original will. No other witness testified as to the contents of the original will.

The question thus becomes whether the testimony of the secretary combined with the submission of the conformed copy of the will clearly and distinctly proves all of the provisions of the original will within the meaning of the law in order to permit the admission of the lost will for validation. The court held that the three prerequisites for admission of a lost will for validation had been fully satisfied and admitted the lost will for validation. Specifically, the court found that the presumption of revocation of the will by the doctor had been overcome by the testimony that the will was lost while in the possession of the attorney-draftsman and that the contestants did not meet their burden of proving revocation by physical act or superseding will or appendices. Satisfied that the original will had been duly executed, the court interpreted as merely demanding proof of the authenticity of the submitted copy as a true and complete duplication of the original will and held that the secretary’s testimony sufficiently identified the copy and proved that its contents were identical to the original.

NYC Probate Lawyers said that the court permits the validation of a lost will which has been duly executed and has not been revoked only if of the provisions of the will are clearly and distinctly proved by witness and a copy or draft proved to be true and complete. The plain wording of the statute leads to the conclusion that the witness must testify as to the substantive provisions of the original will and not merely to the effect that the submitted copy is believed to be authentic.
The contents of the will must be proved after existence of the will and its destruction has been established. The statute provides that all of the provisions of the will must be clearly and distinctly proved by each of at least two credible witnesses or by one witness and a copy or draft of the will proved to be true and correct. In this respect the present statute does not differ from the prior one. Knowledge of the execution of the will is not knowledge of its contents. And while the witnesses need not give the exact language of the will, but merely the substance, each of the witnesses must testify to all the principal parts of the will. A copy of the will takes the place of the second witness, but the witness' supporting letter does not.

The dissent nevertheless argues that the legislative history supports the conclusion of the Surrogate's Court and the majority. One of the research counsel reported to the commission concerning his proposal to revise the evidentiary requirements to provide due execution of the lost or destroyed will be established; proof of the contents of the will by each of two witnesses; and a copy of the will should suffice to prove contents.

Although this fact alone disposes of the contention urged by the dissent, it was nevertheless found that the legislative history referred to is, at best, ambiguous and therefore unsupportive of the construction urged. The passage relied on can be interpreted to support the construction of the statute for it states the general rule that the contents must be established by the testimony of two witnesses, but proposes an exception that a copy should suffice to prove the contents, meaning that a copy should be a permissible substitute for the testimony of one of the witnesses. Section of the Surrogate's Court Act, expressly required the testimony of at least two credible witnesses, a correct copy or draft being equivalent to one witness. It is doubtful that the author of the passage intended to propose a radical alteration of existing law by suggesting that a copy of the will should serve as a sufficient substitute for the testimony of two witnesses instead of one.

But even if the legislative history were construed to support the position that a copy of the will alone should constitute sufficient proof of contents, it is not supported by the mandate and the express language of the statute. The court should not ignore the words of a statute, clear on its face, to reach a different result through judicial interpretation.

The legislative policy embodied is designed to prevent the validation of fraudulent wills. The policy will be subverted if a will, such as the one at issue, may be established and admitted for validation merely on the basis of testimony regarding the event surrounding the execution of the will rather than as to the contents of the will itself. A strict construction of the statute in question is therefore essential in order to insure that this legislative policy is properly effectuated.

It is evident in light of the foregoing that the secretary’s testimony did not clearly and distinctly prove all the provisions of the will as required. Although the attesting witnesses remembered various events surrounding the execution of the will, neither of them had read it and were also unable to testify as to the substance of its contents. Thus, assuming that the copy of the will submitted into evidence was actually a conformed copy of the original will, the respondent proponent did not otherwise carry his burden by clearly and distinctly proving all the provisions of the will by at least one credible witness.

There is, however, additional evidence, not referred to by the majority, which establishes with indisputable clarity the authenticity of the photocopy of the will. NY Probate Lawyers said that the testimony of two of the subscribing witnesses establishes that the doctor and his wife both executed their wills at the same time and place. Present were the doctor and his wife, the two subscribing witnesses and the attorney. The will of the doctor’s wife was executed first, the two witnesses then signed as witnesses to the will, as did the attorney. A copy was verified by the attorney and was given to the doctor’s wife and the original retained by the attorney. The same procedure was followed for the execution of the doctor’s will, and the subscribing witness, testified that the copy given to the doctor was a photocopy in a blue back, which showed on its face page that it was the last will and testament. It consisted of a few pages, though he could not say how many, and the printing on the last page of which (conforming the copy) he had watched the attorney insert, and that the copy of the will produced in court was the copy the attorney gave to the doctor. Though he had not read or otherwise become acquainted with all the provisions of the will, the subscribing witness’ testimony together with that of the secretary and the Surrogate's finding that the staples had not been removed from the copy presented in court was sufficient to authenticate the copy as a copy of the will of the doctor had executed. The other subscribing witness who testified did not say in so many words, that the copy in court was the copy given to the doctor, but he confirmed that he had looked at the first and last pages and his testimony was otherwise essentially the same as his fellow subscribing witness.

The will of the wife was admitted in evidence without objection. The will appears to the naked eye to be in the same type face as the doctor's will and like the doctor's will bears in the upper left hand corner of the first page a legend. It is, moreover, identical in its provisions with the doctor’s will, except as it substituted his name for hers in its dispositive provisions and made resulting conforming changes, and except that in disposing of the estate should the other spouse not survive (or die in a common disaster) one of the 48 specific bequests was in the sum of $2,000 in the doctor’s will but in the amount of only $1,000 in his wife’s will. The date of execution borne by the two wills is the same. The names of the subscribing witnesses appear in the same order and are the same names and addresses that appear on the conformed copy of the doctor’s will, but appear to be in manuscript writing whereas on the doctor's will they are printed. Moreover as the Surrogate noted on the record when the wife’s will was introduced, both wills consisted of nine typewritten pages. The doctor’s wife died on February 1, 1971. Her will was not admitted for validation because her husband, as the sole beneficiary under it, noted that he was tenant by the entirety of the property that would have passed under it, but a copy of the will was filed as part of the petition to fix tax on her property. The copy of her will admitted in this probate proceeding came from the Surrogate's Court file.

Accordingly, the order of the Appellate Division should be reversed, with costs to all parties appearing separately and filing separate briefs payable out of the properties, and the petition for validation of the lost will of the doctor be dismissed.

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A woman died in a nursing home and her will was validated in the court. The legal representative, whom she appointed, filed a petition containing an accusation of the jurisdictional fact that the woman died in her residency. It named, among others, the hospital as a beneficiary in the sum of $1,000. Waivers and consents on probate were filed, which included the waiver of a person who was designated in the petition as the sole heir of the woman.

Application has been made to the court to vacate the validation, on the ground that the woman was returned to her permanent residency at the time of her death and that the surrogate's court did not have jurisdiction over the estate of the woman. Objections had been filed, after validation of the will, which were submitted, signed and verified by the attorney of the hospital.

A New York Probate Lawyer a formal order to defend was obtained and served to the legal representative and, to defend to the court why the decree of validation, should not be vacated. A cross-application was served by the legal representative to the hospital and its attorneys as counsel to dismiss the objections and the motion to vacate validation.

The motions were argued. It shows that the legacy of $1,000 had been paid to the hospital at the time of the argument. Different arguments have been presented by both parties. The hospital’s attorney submits to the court that the surrogate's court did not have jurisdiction in the residency of the woman at the time of her death, and that the long lifetime history of the woman, as a resident and highly respected citizen and teacher in the county, required validation of her will in her county. According to New York City Probate Lawyers, the legal appointee and his attorneys have questioned the authority of the hospital’s attorney to bring the proceeding in behalf of the hospital, claiming that there has been no official action of the hospital which authorized the application to vacate the validation of the will of the deceased.

The court did not deem it necessary to consider the question of authority of the hospital’s attorney to bring the proceeding in behalf of the hospital for the reason that the hospital is a successor only and has no standing to attack the validation of the will. As a beneficiary, the hospital was not a necessary or proper party to the proceeding, and the fact, alone, would seem to be the simple answer to the question of standing to raise any issue relating, directly or indirectly, to validate. If the hospital had no standing in the proceeding, it is difficult to see how it can have any standing after the validation, and there is authority to that effect.

The commentary under apparently takes the view, and attorneys for the hospital also argued, that has upset the conclusiveness of the decree of validation. Westchester County Probate Lawyers said that the court does not agree with the position for in fact, did not overrule of the former surrogate's court act, from which it was derived.

Status or standing is a preliminary issue to be resolved as a condition precedent to the issues presented by objections. As the hospital has no standing to attack the validation of the will of the woman, and under such circumstances its attack is collateral, its motion to vacate the decree of validation in her county is hereby denied and the application is dismissed.

The court finds no objection to the legal appointee in the administration of the estate of the woman in her county. It does not constitute the practice of law within the prohibition of the courts law.

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A son of a deceased man who filed an objection in a probate proceeding and the petitioner in an administration proceeding that was consolidated with the proceeding, has now noticed for settlement a decree dismissing the validation petition. He has also moved to have his application for letters of administration restored to the calendar. The deceased man’s daughter, the proponent in the validation petition, opposes her brother's applications and, in effect, seeks to vacate her prior default in her brother's motion to dismiss her petition.

When the father died, he was survived by three children. A New York Probate Lawyer said that the validation petition was filed provides for an equal distribution of the estate between the two children other than the son who made the objection. It appears from allegations made in the pending applications that the other son, the beneficiary of 50% of the properties under the will, died on April 2, 2006 and that he was not married and did not have any children.

The son who made the objection made several applications in the validation proceeding for relief based upon the proponent's failure to provide requested discovery. The court's last determination on the issue directed the production of certain documents by the proponent. Queens Probate Lawyers said that after the deadline passed without production of the additional documents, the son moved to dismiss the validation 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. 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 son’s application to dismiss the validation 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 validation petition, the court rendered a decision, 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 proceeding.

The proponent's excuse for failing to respond to the disclosure demand or to oppose the motion to dismiss the validation 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 proceeding. Moreover, New York Probate Lawyers said she now submits a sworn statement that the documents requested by the son 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. This is especially so where, more than four and one-half years have elapsed since the proceeding was commenced and the proponent states that she is now ready to move forward with the proceeding but that the son cannot have the requested documents because they have been discarded due to urination, roach infestation. Thus, the son 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 representation in the will contest, which as a result of the death of one brother now appears to involve only the proponent and the son, renders it unlikely that the proponent would be able to expeditiously conclude the validation proceeding should the court excuse her default in opposing the application to dismiss the proceeding and, upon re-argument, deny that application. Given the history of the 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 the validation proceeding has been pending does not justify reversing the prior dismissal of that the validation proceeding based upon the proponent's failure to diligently prosecute it and to produce documents pursuant to the court's directions.

Manhattan Probate Lawyers said that the decree that was noticed for settlement by the son provides that the propounded instrument is a forgery. Although the son made that allegation in his motion, the court did not grant the application on that basis. Consequently, in accordance with the court's decision, the decree entered simultaneously with this decision provides that the validation 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. The application to restore the administration proceeding to the calendar of the court is granted.

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A resident of Connecticut died in 1936. He left a will duly admitted for validation in the State of Connecticut. He created a testamentary trust providing payment of the one third of the income to a life beneficiary, his nephew. The nephew bearing the same name as his uncle is a resident of Cattaraugus County, New York. The instant proceeding is brought in the Surrogate's Court, Cattaraugus County in connection with the administration of the estate of the deceased nephew. The proceeding follows proceedings earlier brought in the validation court of Fairfield County, State of Connecticut referable to intermediate and final accountings of the testamentary trustee, a Chemical Bank.

A petition of a trust company for the determination of the validity and enforceability of claim of a chemical bank to the last will and testament of the man was filed. New York Probate Lawyers said that the trust company was the appointed representative for the administration of the estate and the said chemical bank was the beneficiary of a large trust set up by a will. The facts in support of the petition have been agreed to by opposing counsel in a written condition. It states that the man properly accepted to validate his will in the state of his residency.

The life beneficiary of a man died and with his death, payments of income terminated as well as the trust. The remaining principal of the trust was directed to be paid over to the designated remaindermen.

During the operation of the trust, Nassau Probate Lawyers said that the chemical bank filed intermediate accountings. In an account filed, commissions on income were claimed by the chemical bank and the same were allowed in an amount which is not set forth in the requirement of facts. For reasons not stated, it positively appears, however that only a portion of the payment allowed on the accounting were paid by the chemical bank. Some were allowed to be remained unpaid. In addition, all income in the hands of the trustee was paid over to the life beneficiary thus, depleting any source of cash in the hands of the trustee for payment of the allowed. The chemical bank again, paid over all trust income then on hand to the beneficiary, retaining no dues supposedly for the period.

Discovering its failure to collect the noted allowed and allowable payments, the chemical bank contained in its final account, filed to the court of the deceased residency. After setting forth various calculations for receiving, it concludes that the due payment plus taxes will be charge to the properties of the man.

Under the set facts, the court considered the discrepancy between the amount of commissions presently claimed and the amount of commissions purportedly allowed by the deceased’s court of residency as insignificant. Further, it appears from the set facts that the claim for a tax summary letter supposedly allowed under the court order is not asserted by the claimant. Whether it has been abandoned or waived does not positively appear and it is sufficient that it has not been asserted.

The attorney for the trustee concedes in his memorandum that the order of the court, with authority to supervise asset administration, is not in such form as to be an enforceable judgment in the state. He concedes that a suit in their superior court would be required to reduce the order of the court with authority to supervise asset administration. The court review of the applicable law supports the statements of the trustee's attorney.

In adopting the procedures of the uniform act to the case for the decision, it appears that a filing of an authenticated copy of the order of the man’s residency court with any county clerk in the state of New York, together with the required affidavit stating the amount due and other required information would give such order the status of a decision of the Supreme Court of the State of New York immediately enforceable by execution. Under the terms of the act the foregoing result would apply despite the fact that the order of the other court, without additional suit and reduction to judgment in the superior court is unenforceable in that state. In brief, the provisions of the uniform act would improve the effect and finality of the order of the man’s residency court over that accorded it in the state of rendition. Whether or not the legislature of the State of New York envisioned any such peculiar result, it has, nevertheless, clearly provided for it.

Brooklyn Probate Lawyers said that reassessment by the legislature of the act and possible amendment thereof might be in order.

Based on records, the uniform act then provides in detail for the effect of a foreign judgment, decree or order filed in accordance with the recited provisions for the effect of a foreign judgment, decree or order filed in accordance with the recited provisions.

The order of the man’s residency court has been submitted as a part of the set facts. After reciting that an account of the trustee had been revealed to the court for payment, it ordered a hearing to be held on the payment of the account. It further ordered that notice of such hearing be given both by publishing a copy of this order in a newspaper having a circulation in said district, and by mailing a copy of the order, postage prepaid, to the beneficiaries under the trust to the legal representative of those who have died and other at their last known addresses. In addition, it is important to note that the trust company, as legal representative did not appear in person or through an attorney in any proceeding in the man’s residency court relative to the accountings of the trustee. The set facts indicate clearly that the representative bank was in default of appearance in any and all such proceedings.

It is not claimed or argued that the New York legal representative of the properties committed a tortuous act either within or without the State of the deceased man. The asserted legal basis for liability of the legal representative for the return of trust income voluntarily paid, but alleged to be subject to trustee's commissions is unjust improvement. The proceedings giving rise to the asserted liability is grounded in the areas of equity. Further, it is not asserted that the New York legal representative was engaged in business in the State of the deceased, nor in interstate commerce. Similarly, it appears that the accounting proceeding did not involve real property within the State of the deceased.

The court holds that the applicable principle of law of the State of New York in force at the death of the man was that the payment of all trust income without condition of trustee's commissions on such income constituted a waiver of commissions on the income. The court further holds that the trust in issue was made subject to the principle of law.

Given that it is factually set that the trustee did pay out all income without the condition of commissions. The decision of the court is that the claim of the trustee for the return of commissions is invalid, an order of the court of the man’s residency to the contrary notwithstanding. But, such order is void for the want of jurisdiction. Comity should not be accorded an order which improperly construes the applicable New York law. The claim of the trustee is rejected. Decision is for the executor.

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A guardian for an old man is accused of gross negligence, malpractice, inaction, unlawful and breach of authority relationship regarding his conduct and/or lack thereof in exercising a certain right of election on the old man’s behalf against the last will and testament of his deceased son.

The claim for compensatory and disciplinary damages results, allegedly, from the defendant's failure as guardian of the father to have taken steps necessary to have enabled his ward to exercise his personal right of election against an excessive testamentary gift for educational purposes. While this probate proceeding concerned the will of the son who died, the facts herein involved concern the estates of three deceased because, as will appear more fully below, soon after the son died, the mother died and shortly thereafter, the father died.

A New York Probate Lawyer said that under the son's will, the father, at the time of the son's death, then over 90 years of age, was one of the son's two beneficiaries, the other being the mother. The petition for validation of the son's will was later amended to describe the father as being then a person under disability because he was incapable of managing his own affairs and a request made, in view thereof, for the appointment of a guardian to protect the father's interests in his son's estate. By order the then Surrogate appointed the defendant as guardian for the father in the validation proceeding of the son's will. Parenthetically, the defendant was a long-time friend of the family. In the proceeding, the mother was separately represented by independent counsel.

Under the terms of the son's will dated and witnessed March 20, 1971, eleven days prior to his death, after disposing of certain personality to his mother, the son left his entire estate, both real and personal to the University of Detroit for educational purposes. The father, through his guardian and the mother, through her counsel filed objections to the validation of the son's will. Additionally, the mother served a written notice of election against the excessive gift for educational purposes dated and verified upon the preliminary executor appointed in the son's validation proceeding and filed the original thereof in the Surrogate's Court.

While the son's proceeding was pending, the mother died. Under the terms of the mother's will, three days before her death, a trust was created for the father for his life with the remainder payable to the defendant, her lawyer-friend who was then acting as guardian for the father in the son's validation proceeding. The Defendant was also the named executor of the mother's will and, thereafter, received preliminary letters testamentary by order of the Surrogate's Court. Parenthetically, it should be noted that defendant was not the draftsman of the mother's will.
While the validation proceedings of both the son and the mother were pending the father died intestate and the plaintiff herein was appointed administrator of the father's estate by order of the Surrogate's Court. By instrument verified and filed in the Surrogate's Court, the plaintiff, as administrator of the father's estate, filed objections to the validation of the mother's will.

The validation proceedings of the son's and mother's wills were adjourned from time to time in the Surrogate's Court pending settlement discussions relative to the objections filed and then a written agreement of settlement was entered into among the preliminary executor of the son's estate, the preliminary executor of the mother's estate (who was the father's former guardian) and the plaintiff-administrator of the father's estate. Several individual beneficiaries of these properties also joined in the settlement agreement. This agreement settled the objections to validation filed against the son's will and the mother's will. As part of the consideration for this settlement agreement, the estate of the mother assigned to the estate of the father the elective share which the mother had sought to enforce with respect to the excessive educational gift made in the son's will to the University of Detroit and further agreed to pay to the father's estate.
The complaint now made by the plaintiff, the administrator of the father's estate, essentially charges the defendant, the lawyer who served as the father's guardian in the validation proceeding relating to the son's will, with having intended to deprive his ward, the father, of the father's right to inherit from the mother's estate and with further injuring his ward by 'failing' to take the steps necessary for the appointment of a committee for the father to protect the latter's interest in the son's estate through the exercise of the father's right to elect against the excessive educational gift made in the son's will to the University of Detroit.

A Staten Island Probate Lawyer said that the Defendant, as guardian of the father, was appointed as such by order of the Surrogate in the validation proceeding of the son's will. The mother's will, as noted above, was drawn by another attorney who also supervised its execution three days before the mother's death. While the evidence adduced disclosed that defendant, while acting as the father's guardian was told by the mother in the early part that the latter wanted to make the defendant a beneficiary of her will, the fact is clear that it was not until the mother finalized her plans to do so by the execution of her will. While the plaintiff has attempted to show that the defendant, as guardian of the father in the son's estate was placed in a position of conflict with his ward by virtue of defendant's interest in the mother's will, no such conclusion can be drawn from the record.

At no time did a will made by the mother exist in which the defendant-guardian was named a beneficiary until three days before the mother died. Neither is there evidence that the defendant-guardian inveigled the mother into naming him as a beneficiary in her will; rather, the evidence shows that the mother advised the defendant-guardian of her testamentary thoughts and inclinations and the defendant-guardian, quite properly, provided her with the name of an attorney with whom she could consult for the purpose of drawing her will (who was the same attorney who had already appeared on her behalf in the validation proceeding of the son's will). These facts, in and of themselves, do not mean that this defendant-guardian wrote himself into the mother's will. Long Island Probate Lawyers said that the mother did consult with her own attorney who drew her will pursuant to her instructions. Her husband was her only beneficiary and her plan for his benefit, as set forth in her will, was consistent with his circumstances of advanced age and disability--circumstances which certainly warranted his being cared for through the medium of a trust with liberal powers of invasion rather than his being bequeathed a substantial portion of the estate outright.

More importantly, however, is the fact that there has been no showing that the defendant-guardian's knowledge of a possible interest in the mother's testamentary plans worked to the father's detriment. The defendant-guardian duly filed objections on behalf of his ward, the father, to the validation of the son's will and objections to the validation of the mother's will were duly filed by the plaintiff, the father's administrator. Thus, the father's rights in both validation proceedings were protected and preserved and the objections to validation would ultimately have been judicially determined were it not for the subsequent agreement and stipulations of settlement which took place among the various parties.

The Plaintiff has predicated his main charge of malpractice against the defendant-guardian upon the latter's failure to seek an advisory opinion from the Surrogate with respect to the exercise of the father's right to elect against the excessive gift for educational purposes made in the son's will. All parties agree that this right conferred by the statute is personal and must be exercised during the father's lifetime to be effective. It is the plaintiff's contention that had the defendant-guardian properly performed his duty, a committee for the father should have been appointed who could have then received the requisite judicial permission to exercise the right of election on the father's behalf.

In summary, while the Court is not unmindful of the strict duty of allegiance owed by a guardian to his ward, that duty pertains only to the proceeding then existing and cannot be extended, as the plaintiff would here, to matters falling outside the issues presented for resolution in the immediate proceeding then before the Court. Accordingly, this Court finds no cause of action stated and dismisses the complaint herein.

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A woman died and signed a will two days prior to her death. The will state that she left her entire estate to one man. But, she did have another will dated many years prior to her death. It states that she left her assets to her brother and sister, unfortunately they did died already, and it says if they died partial of the assets will be preceded to one of the Catholic Congregation and the remainder to her cousin and his wife.

The man filed a civil case to validate the earlier will, to which the other heirs from another will filed an objection. The eight day trial resulted on a denial to the motion, by which the jury found that the deceased person doesn’t have the legal ability to make a will and it was only done by influence. The man requests a higher court to review the lower court decision and again denied. The heirs of the late will filed a petition to legally validate it. They issued temporary letters and no objection has been filed. And the other man from earlier will seeks leave to file objections to the late will, a stay to pending appeal and an order requiring the temporary administrator to file a bond pending appeal.

A New York Probate Lawyer said that based on records, in order to file objections, the prospective objector must have an interest in the properties that would be adversely affected by the admission of the will to attest. The man argues that he has standing because he has an interest in the properties and would be adversely affected by validation of the late will. And, as an appellant, he has contingent interest in the properties. However, this is not sufficient to file objections. The adverse consequences must be the direct result from the admission of the will to validate. It is clear that the man is not adversely affected by the validation of the late will. The only ground on which he can objects to the validation of the will is that there is a valid later will, which is the earlier will. However, the argument has already been determined in the prior trial and been rejected. He also argues that the court should permit him to intervene under its discretion to permit any party with a fair or slightly possible financial interest to intervene.

He also asks that the court to remain in the validation proceeding until his appeal is heard and determined. The affirmation of his attorney states that no prior application for this relief has been made. However, in fact, his application for a stay twice has been denied each time. His attorney insists that there was no prior application, arguing that the prior applications were made in a prior proceeding. The instant motion for a stay pending the determination of his appeal is denied.

Finally, he requests that the court require the heirs’ for the late will to file a bond. He argues that the other heirs were a resident of Florida. He argues that If their will is admitted to validate there will be nothing to prohibit them from transferring the assets to himself and his wife. He state that he will suffer prejudice if his appeal is successful and the assets will already have been distributed.

The other heir’s cross-moves for sanctions. Suffolk County Probate Lawyers said that the court provides with the discretion in any civil action or proceeding to award costs, in the form of reimbursement for actual expenses and reasonable attorney’s fees, resulting from frivolous conduct or financial sanctions upon either the party or counsel.

In the instant case, the motion is not only playful but in bad faith. The attorney has affirmed that there was no prior motion for a stay. When questioned, he attempted to argue that because the instant validation proceeding was a new proceeding; there technically was no prior motion for a stay. This attempt to deceive the court ignored the fact that the man moved to stay all proceedings (including the projected proceeding to probate the prior will) in this court and the Appellate Division, without success. Such disingenuousness by an attorney, who is an officer of the court, is evidence of bad faith in bringing the motion.

Based on the above, Nassau County Probate Lawyers said the attorney of the earlier will is sanctioned, payable to the Lawyer's Fund for Client Protection. As to that part of the cross-motion which asks that reasonable attorneys fees for the attorney for proponent be assessed against him.

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A woman has petitioned the court to vacate the probate of a will of a deceased person whom she is not related to and to permit her to file objections to the validation. The deceased man’s will was admitted to validation by the court and the estate was distributed in April, 2006.

According to records, answers and objections to her petition were filed by the executor, a grandson of the decedent, and two other grandchildren. Following a conference with the court, the parties attempted to reach a settlement, but were unsuccessful. Thereafter the matter was submitted to the court for a decision on the papers, including a reply and an additional affidavit in support of the petition.

According to a New York Probate Lawyer, the Petitioner raises several arguments in support of the relief requested. Primarily that she is in possession of a later will, in which she is named executor and a beneficiary. She states that she was neither cited nor waived citation in the proceeding which granted validation to the 1992 will, and that she intends to file objections to the validation based on the later will. She also alleges that the deceased, who died while an inpatient at a nursing home in New Jersey, was a resident of Manhattan, and not of Rockland County as alleged in the petition which resulted in the validation decree, and that, therefore, the proceeding should not have been brought in this court. The Petitioner filed the purported will in this court and filed her petition to vacate validation. The respondents, by their answer and objections, allege that the petition should be denied because the petitioner is guilty of laches, based on her unexplained and unjustified delay in offering the purported later will for validation and in bringing the instant proceeding, which will result in substantial prejudice to them if she is successful. They further argue that petitioner is unable to demonstrate a likelihood of success on the merits, because the 2001 purported will is not likely to be admitted to validation. They maintain that the 2001 document is suspicious on its face, that the deceased lacked sufficient capacity to execute a will in 2001 and that the 2001 document was the product of undue influence.

NYC Probate Lawyers said that in her reply, the petitioner counters that she is not guilty of laches, that the court should consider the new evidence which is the 2001 purported will, offered as a basis to vacate the decree, that the delay was not unreasonably long, and that the respondents have unclean hands because they were made aware that the 2001 document existed by letter date. She also avers that her attorney was delayed in filing a validation petition because he had difficulty in obtaining a certified copy of the death certificate, and that the attorney filed a notice of appearance in the validation proceeding. She also denies respondents' claims of lack of sufficient capacity to execute a will and undue influence and alleges that the execution of the 2001 document was supervised by an attorney-draftsman.

The Respondents, in their additional reply, argue that the presumption of undue influence in the case must be overcome by the petitioner in order to demonstrate a likelihood of success on the merits, and that she has failed to do so. They allege that the attorney-draftsman of the 2001 document was or is petitioner's attorney, that petitioner had a confidential relationship with the deceased and that the deceased would not have been physically able to attend the execution of the will unless the petitioner had accompanied him. They also state that the petitioner has failed to submit sworn statements from herself and the attorney-draftsman to disprove the allegations of undue influence. Finally, they argue that petitioner's present situation is one of her own making, since she failed to do anything to preserve her rights before the validation of the will was final, despite being in possession of the 2001 document and being aware that there was a pending proceeding.

NY Probate Lawyers said that after the additional reply was filed, the petitioner submitted an affidavit from the attorney draftsman who was one of two witnesses to the 2001 document, attesting to its due execution. The other witness is deceased. Although leave of court was not obtained before filing this affidavit, the court will accept it, for whatever value it has.

An application to vacate a validation decree is addressed to the discretion of the court, and the decree should be vacated only in extraordinary cases. To justify opening or vacating a decree admitting a will to validation, a petitioner must show to the satisfaction of the court that she has standing, facts sufficient to demonstrate a substantial basis for contesting the will, and a reasonable probability of success on the merits. In the present case, respondents have raised the defense of laches to the petition. A court may refuse to vacate a validation decree if unreasonable delay exists to such an extent that granting the relief would be unjust and inequitable. What constitutes unreasonable delay depends on the circumstances of a particular case and rests in the discretion of the court.

The facts as presented here demonstrate that petitioner comes before the court with less than clean hands. She has failed to explain why she did not file objections to the validation of the earlier will before the decree became final. Clearly she could have done so. Doing so would have caused the validation to be held in suspension until the validity of the 2001 document was determined. She has not offered any valid excuse for failing to act in a timelier manner. The excuse that her attorney had difficulty obtaining a certified copy of death certificate is meritless; the court already had a certified copy of the death certificate on file, and another would not have been required. Her assertion that the 2001 document is new evidence entitling her to relief is totally without merit. The section which provides for relief from a judgment or order in a civil action specifically refers to newly-discovered evidence which could not have been discovered in time to move for a new trial. The document in question is not newly discovered, since petitioner has had it in her possession presumably since the death.

In the instant case, petitioner has failed to demonstrate that she is entitled to the relief requested. Whether the court labels her actions a waiver, or determines that she is guilty of unreasonable delay, the fact remains that petitioner has provided no explanation for her delay of over ten months from the death, eight months after validation was granted, and four months after she notified respondents that she had a purported later will, to take any action to preserve her position. At the very least she should have filed the will with the court and thereby stopped the validation from proceeding until the court had obtained jurisdiction over all parties adversely affected by the 2001 document. By awaiting the outcome of the proceeding and then attempting to assert her rights, the court finds that she effectively waived her right to object to the earlier will.

In addition petitioner has failed to overcome respondents' serious allegations concerning undue influence and decedent's lack of testamentary capacity, and has thus failed to demonstrate a likelihood of success on the merits. And, finally, the prejudice to respondents, who relied on the validity of the decree, would be very great. The court therefore finds that she is guilty of unreasonable delay.

Finally petitioner's contention that the validation should be vacated because the deceased was not a resident of Rockland County is without merit. This court had jurisdiction of the properties of the deceased who was a resident of New York. Even if his residence at the time of death was Manhattan, as petitioner alleges, that is a question of venue, not jurisdiction. Once validation was granted by the court, it court retains jurisdiction of the properties for all other issues related to the properties. The petition to vacate validation is denied.

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A man filed a motion to withdraw a waiver and consent he did for the legal validation of his cousins will. And, this motion is opposed by the primary representative of the estate and the four charities who are the beneficiaries under certain instruction.

This happened five months after the death of his cousin, he did a waiver and consent; however, an attorney appeared for him a month after, and this is also the return date of the citation in this proceeding, and indicated that he wanted to withdraw his consent for the legal processing of validation of the will. The assets consists of personal property valued more than a million.

The instruction was done when his cousin was about 95 years old. The single page, two-sided tool is a downloadable legal form and does not appear to be attorney supervised. The opposite side of the form shows his shaky and weak signature, and the signature of the two witnesses. One of those witnesses now serves as a primary person appointed to perform the will and formerly served as one of legal guardians. Apparently, the other witness was an aide at the facility where she resided at the time she signed the instruction.

A New York Probate Lawyer said that the man served objections to attest on all parties except the guardian, but the objections were not accepted for filing due to his waiver and consent to process the validation of his cousins will. Those proposed objections says that his cousin is lacked of capacity to make a will, the instruction made was not freely and voluntarily done. The signature, the instruction and its publication were obtained by fraud and unjustified influence, and the requirements about the law of appointment of guardian were not complied with at the time of implementation.

In his motion papers, he state that he is legally blind, possesses lower educational attainment and is ignorant of the law. He urges that he never received the letter containing the waiver and consent to attest and affidavit of heirship that was mailed to him by counsel to the primary representative, and that attorney never advised him of various rights or the import of the waiver and consent. He contends that at the time he did the waiver and consent, he was unaware that his mother's property was a share of his cousins belongings, he lacked any understanding of the procedure or consequences of the legal processing of validation, such as his right to object to the will and his right to counsel, and he did not understand that by executing the waiver and consent, he would forfeit the potential right of his mother's properties. Based on his conversations with counsel, at the time he received the waiver and consent, he believed that he was signing that document in order to expedite the process.

Westchester County Probate Lawyers said the primary representative oppose the motion asserting that, upon his receipt of the waiver and consent, the man called to discuss the family tree and the forms he received, and he never advised their attorney that he was blind or that anything was missing from the envelope mailed to him. The letter states that if the man had no objection to the processing of the distribution of the properties, it would expedite the process. The representative note that the man executed both the waiver and consent and the affidavit of heirship as requested.

The charities also oppose the motion stating that there is no clear and convincing evidence that the waiver and consent was the result of fraud, overreaching, misrepresentation or misconduct or that there is any other basis for revocation, at the time that the man executed the waiver and consent, he was acting as the legally appointee of his mother's assets and should have known that the document he done would have a legal and binding effect.

New York City Probate Lawyers said that in reply, the man annexes various documents and state that due to his blindness, he follows a strict procedure upon his receipt of documents, which is to scan them into his computer and use a closed circuit television to magnify their contents. As his computer does not contain a scanned citation, he did not receive it, and he only learned of it when his subsequently retained attorney obtained a copy. His attorney stressed that the waiver and consent was obtained through improper overreaching and misrepresentation and, in any event, it should be suspend for good cause in the interests of justice.

Based on records, in legal processing of validation of will. It may not be admitted unless the court is satisfied that its implementation was valid, even if no interested party files objections to its validity. Thus, where a person who applies for a motion with reasonable expedition seeks to withdraw a waiver and consent to attest, the application may be granted where the petitioner demonstrates some merit to the objection, a reasonable probability of success and the absence of prejudice to the other parties. Furthermore, the courts are more liberal in granting these applications where other parties have already filed objections, or it is apparent that they tend to file objections, or where the application is made very soon after the execution of the waiver and consent.

The proof on the motion and court filings demonstrate that the attest was served by mail on the man, and his waiver and consent was executed, the same date that preliminary letters issued. The court does not find any wrongdoing by the proponents' counsel in obtaining the waiver and consent. Nonetheless, the letter sent to the man by counsel indicates only that the process would be expedited as a result of his execution of the waiver and consent. In view of the man’s blindness and limited education, and the fact that he was not represented by counsel at the time he did the waiver and consent, the court credits his contention that he failed to fully understand the legal impact. Thereafter, he expeditiously obtained an attorney and sought to withdraw his waiver and consent prior to the admission of the will to verify. Without in any way passing on the ultimate outcome of a will contest, the documents annexed by the man and in court files demonstrate that, at this time, his proposed objections have merit and a reasonable probability of success. The proposed objections are similar or identical to the issues raised by the Public Administrator in the proceeding. As it appears that the Public Administrator will file objections in any event, this also militates in favor of granting the motion, and allowing the interposition of the man's objections creates no prejudice to the representative and the charities, which are in the same position they were in. Moreover, the court's paramount concern is to admit only valid wills to attest. Where, as here in a pre-probate context, one interested party as well as another non-interested party expresses genuine concern as to the validity of the instructions and its execution, as demonstrated by the documents submitted, the withdrawal of a waiver and consent to allow the interposition of objections must be permitted.

Accordingly, the motion is granted. The man shall serve and file his objections within 10 days after the entry of the order to be settled here on.

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A son from California filed for an order dismissing the pending proceeding to probate his mother's New York Will that raises an interesting question of jurisdiction. The son argues the jurisdiction of the court to prove the validity of the Will of a non-residence which requests New York to prove valid and invokes New York law on the ground that her French legal residency has assumed jurisdiction over her estate. The motion is opposed by the Petitioners in the proceeding, the co-executors named in the Will, who are presently serving as preliminary executors.

The mother who made the Will was born a French citizen in 1899, and she became a naturalized United States citizen. She was a New York resident for about thirty years. For approximately seven years she was employed in the law offices in New York City. During this period she worked as secretary to one of that firm's senior partners. A lawyer-client relationship with that firm also commenced during that time. The French Ordinary Residence Card issued indicates that the mother who made the Will stated that she returned to France on October 24, 1971.

A New York Probate Lawyer said the Will which is the subject of the jurisdictional attack was drafted by the firm in New York she worked for. It was allegedly executed by the deceased in the firm’s Paris office in 1972, and there is no challenge on the matter. Both the petitioners and the son refer to the 1972 document as the New York Will. Both sides seemingly agree that this Will, whether admitted to be proven valid in New York or established in accordance with French law, governs at most the property of the deceased mother which was physically located in New York when she died, and that it does not affect property actually located in France, which passes under the French Will.

The French Will states that the assets of the deceased mother located in New York when she died in 1978 and which she was apparently content to have remained in New York despite the fact that she moved to France in 1971 consisted of bank accounts and a brokerage account. At the time of her death the value of this New York property exceeded $320,000. Bronx Probate Lawyers said that the property located in France when she died consisted of an interest in real property to wit her apartment, and the personal property in the apartment. The value of this French property is disputed; the petitioners contend that its value is approximately $75,000 while the son’s position on oral argument was that it might be worth as much as $150,000.

On December 15, 1977 the deceased mother executed the document which the parties call the French Will. It is undisputed that the French Will has been established in France in conformity with French practice. On oral argument counsel for the son stated that the New York Will was in the process of being established in France and it appears from documents subsequently filed with the court that this has occurred although, for the reasons not essential to the resolution of the issue at hand.

In outline form, the provisions of these two Wills are as follows: The first paragraph of the 1972 New York Will contains the crucial language for purposes of this motion. It recites the deceased mother’s residence as being in Paris, France and then declares that she elect that the Will shall be admitted to original administrators in the State of New York and shall be construed and regulated by the laws of the State of New York, and that the validity and effect thereof shall be determined by such laws."

A Brooklyn Probate Lawyer said the settlement provisions are simple. The deceased gives a life interest in her apartment in in Paris to her friend if then living, or, if the friend predeceased her, which occurred, the apartment passes to the deceased mother’s adopted son, the one who filed the motion herein. Under Article Third all personal and household effects etc. other than those disposed of in connection with the apartment in are given to the said friend, or if she is not then living, to the deceased mother’s friend, who is concededly a French resident.

Sources revealed, the entire remaining property is given in trust for the benefit of the aforesaid friend for life and upon her death, or upon the deceased mother’s death, if said friend should predecease her as she did, the remaining is disposed of as follows: $5,000 to her "adopted son"; $5,000 to a godchild in England; $10,000 to a friend, a French resident; and the balance to be divided between the aforesaid French resident friend and a French mutual aid society. The nominated executors and trustees are her friend and the Bank of New York. Her executor and trustee friend is a member of the Law firm she worked for. As a substitute or successor executor for him, the deceased mother named her friend, from Oyster Bay, New York.'

The final article of the New York Will contains a warning providing for the lapse of any provision made in the Will for any person named as a beneficiary who shall Will Contest or file objections to the admission to prove the validity of the Will.

Just as the New York Will be attune with the approach to the delegation of the property and the Estate Administration, the 1977 French Will presumably reflects the practice in that country. The deceased mother simply appoints her French friend as the person who is given the excess portion of inheritance on condition that she performs the special legacy. The special legacy is endowment of the apartment in Paris and its contents to the deceased mother’s adoptive son. On its face the provision is fitting with the terms of the New York Will which were to become operative in case the deceased mother’s friend predeceased her as she did.

There are two other relevant provisions in this instrument. One is the specification that legacy is not made as an excess portion of inheritance and outside a share. As a consequence of the foregoing, the adoptive son will only be able to claim it as taking less than a share. The other is revoking any other previous provisions, with the exception of those which are contained in her American Will, bearing the date of 1972, which has been deposited in New York City unless such provisions would be contrary to the Will.

Apparently the motion is directed to the court's jurisdiction. It is cast in terms of the efficiency of administration and the reduction of expense which the son alleges would result from deferring to France and declining jurisdiction. The essential issue here, however, is much more related to the son’s acknowledged forced right to inheritance claim. The affidavit of the son’s California counsel in support of the motion affirms that he was informed that under French law the son is entitled, as the deceased mother’s child, to one-half of her property. While the son’s acknowledges the possibility that the French law might be found applicable to his claim to a share of the assets located in the U.S. State is no ground for the denial of jurisdiction in New York, quoting the Court of Appeals opinion in Matter of Steel, it seems clear that the desire to assert the forced right to inheritance claim in the French courts provides the motivation for the instant motion. Similarly, some of the force of the executors' opposition is presumably fueled by the disparity of position.

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In 1924, a woman died a resident of New York County leaving a will which was validated in New York County. In her will, she created a trust, the income of which was to go to her brother for life, the remainder to his next of kin, subject, however, to a power in him to make a different disposition by a general power of appointment in his will.

Her brother, the designated life beneficiary and heir of the power, was an American-born citizen who resided in Germany with his German wife and three German children for many years preceding his death there. In the fall of 1939, allegedly because he 'was worried about the possibility that the German Government would confiscate the trust, he executed a will in which he exercised his power of appointment in favor of the petitioner. The will was executed in the German language and was formally valid under the law of Germany. At the suggestion of his son, the will was delivered for safekeeping into the hands of a notary in Berlin where it was placed in an office safe.

A New York Probate Lawyer said that in 1943, four years after the brother executed the will; the New York trustee of the Foster trust was served by the Alien Property Custodian with Vesting Order which vested in the United States Government the entire interest of the brother and his next of kin in the trust. Shortly thereafter, more than two years before he died, the building in Berlin in which his will was being stored was burned to the ground in a bombing raid and the will was destroyed.

It was not until a year and a half after it happened that he learned of the destruction of his will from his son. His reaction to this news was testified to, over objection, by his son; he suggested, according to the latter, that the destroyed will had become without object and that he intended to come to this country and, when here, exercise the power of appointment in favor of his wife.

After his death in 1946, the petitioner instituted the present proceeding to admit his will to probate. The court, finding that the deceased had properly executed the will, that it had been fraudulently destroyed within the meaning of the statute and that it had not been revoked, admitted it to validation. Upon appeal by another of the deceased woman’s sons, the Appellate Division reversed and dismissed the petition. Although the court recognized that an accidental destruction was encompassed within the term fraudulently destroyed and although the court found that revocation was not established, it held that the one who made the will had orally adopted the will's prior destruction.

Manhattan Probate Lawyers said that the appellant's point is that the son had no right to appeal because he was not an aggrieved party. The contention is based on the fact that the 1943 vesting order transferred to the Government all right, title, interest and claim of the husband and his next of kin in and to the trust. If such a transfer was affected, the argument runs, the son no longer had any right or interest in the Foster trust as next of kin and, accordingly, even if his father's will were denied validation, neither he nor any other next of kin of the deceased would be entitled to share in the trust.

Queens Probate Lawyers said that the argument has a superficial appeal, but that is all. It may well be that the vesting order in and of itself deprived the son of all right or interest in the Foster trust and, if that is so, he will never be able to share in that trust. However, the Surrogate's decree admitting the husband’s will to validation created a further obstacle to his son's sharing therein. Before the entry of the decree, from which the son appealed to the Appellate Division, he had to overcome only the vesting order. After its entry, he had also to overcome the force and effect of the document offered by the petitioners. This is sufficient to constitute the son as an aggrieved party.

The decedent spent most of his life in Germany, died a resident of Germany and executed the will in question in that country in the German language and in the form prescribed by German law. Since the validity and effect of a will of movables is determined by the law of the state in which the deceased died resided, the question of the effect of the destruction of the will should be governed by German law.

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In 1958, a woman from Salamanca, New York died and left her surviving two sons and daughter, all of full age, and several grandchildren. A document purporting to be the last will and testament of the deceased, with a petition for validation was duly filed with the court. The will submitted for validation was drafted by an attorney of Salamanca, New York, a man with many years of experience as a practicing attorney and was witnessed by the attorney and a young woman employed by the drafter of the will. In the proceeding, the petitioner seeks permission of the court to withdraw his waiver of citation consenting to the validation of the will of the deceased.

The petition for probate of will was verified by one of the two sons of the deceased, and accompanying the petition was the waiver and consent of the son which consents that the paper writing bearing date 1955 purporting to be the last will and testament of the deceased to be admitted to validation.

A New York Probate Lawyer said the citation was duly issued, addressed to the surviving daughter of the deceased, and proof of due service upon the said daughter and proof of mailing notice of validation to the other heirs was filed. The petition was verified; the waiver of citation was signed and verified the same date which also is the date of death of the deceased. The citation was returnable before the court at the court room in the forenoon of that day, but at the request of the proponent, the matter was adjourned and re-adjourned from time to time until the subscribing witnesses were examined.

The Petitioner, who is a son of the deceased, appeared in person and was represented by counsel. The daughter and the youngest son also appeared in person and were represented by counsel, even though he had filed a waiver consenting to the validation of the will.

The subscribing witnesses to the will were sworn, testified and were cross-examined by the attorney representing each of them. The daughter, by her attorney requested an adjournment for the purpose of filing objections and the same adjournment granted to the youngest son upon the request of the attorney to give him an opportunity to make appropriate motion to vacate his waiver of citation and to file objections.

Long Island Probate Lawyers said that based on records, at the expiration of the ten day adjournment, no objections had been filed on behalf of the daughter, and the court having received a communication from the counsel on behalf of the youngest son, which informed the court that he did not intend to move to set aside the waiver of citation executed by him consenting to the validation of the will, and that he did not intend to file objections to the validation. Thereupon the will was duly admitted to validation and letters testamentary on that date granted to the eldest son, the executor named in the will.

A petition has now been presented to the court signed by the youngest son and filed with the court, wherein the petitioner prays that an order be granted, addressed to the executor, directing him to show cause why the petitioner should not be permitted to withdraw his waiver of citation and cancellation of evidentiary letters and for such other relief as to which the petitioner may be entitled. The petition verified by the youngest son is supported by an affidavit signed by the grandson of the deceased and the son of the petitioner. The petition alleges, among other things, that the letter referred to from the firm representing the youngest son, was unauthorized; that fraud and misrepresentation were exerted upon the Petitioner by the petitioner's brother who is the executor named in the will, is alleged in the petition, substituted the will offered for validation in the place of one which had been exhibited to the petitioner by his brother dated January 26, 1956; and that the petitioner when he signed the waiver of citation in the office representing his brother, thought he was consenting to the validation of a will dated January 26, 1956, instead of the one presented for validation dated December 19, 1955, although the waiver of citation signed by the petitioner, plainly and clearly describes the document being offered for validation as having been dated December 19, 1955.

The supporting affidavit by the petitioner's son states that the grandson visited his grandmother, the deceased, in August of 1956; that he took her to the office where he believed the attorney who drafted the will in 1955, prepared another will for the deceased and he did not see the document for he waited in his car until his grandmother left the attorney’s office; and that even though he was requested to be present when the alleged new will was that day signed, did not do so as it was, in his words was none of his business; and that he took her back to her then place of residence in Salamanca, New York.

The eldest son submitted his affidavit, in which he denies knowledge of any will other than the one admitted was dated December 19, 1955. New York City Probate Lawyers stated that that will was handed to him in an envelope on which was labeled and dated December 19, 1955 and his statement is corroborated by the affidavit of his wife submitted in support of his affidavit. He denies ever showing his brother any other will and that when he and his brother visited the office of an attorney on the day of the death of the deceased, that the only will he had ever seen or which had been in his possession and which he had exhibited to his brother was the one discussed by them with the attorney at his office; that the papers were prepared by the attorney’s secretary; that the petitioner read the waiver before he signed it; and that there was no act of fraud or misrepresentation of any kind committed by the assigned executor in the will.

The answering affidavit is supported by an employee at the office of the attorney who drafted the will, a girl of wide experience as a secretary whose affidavit sets forth the facts that she prepared the papers, the petition for the validation of will and the waiver and consent for the Petitioner, and that he read the consent and that he knew what he was signing; and that he acknowledged the execution of the document before her.

The attorneys representing the respective parties submitted the matter to the court on the papers filed in this proceeding and on all proceedings had to date and on all papers filed with the court, except that petitioner does not stipulate to be bound by the letter dated October 22, 1958, after presenting their oral arguments on their respective positions and a brief has been filed by petitioner in support of his position.

The question that must be considered is whether the petitioner has shown that fraud or misrepresentation was perpetrated by the executor, upon him, and if any undue advantage was taken of the petitioner to obtain his waiver of citation which consented to the validation of the will in question by such sufficient and convincing proof as to justify a decree to set the same aside.

No testimony was taken in this proceeding, but the act of the parties in submitting the matter to the court on the papers filed in this proceeding, and on all proceedings had to date in the estate of the deceased and all papers filed with the court therein has the same force, weight and effect as though proof had been taken.

The fraud, misrepresentation, coercion, or other ground tending to destroy the validity of a waiver must be shown and should be clear and convincing.

Here we have the sworn statement by the petitioner that he was shown a subsequent will of the deceased, by his brother, and that he was tricked into signing a waiver consenting to the validation of an earlier will. The respondent, executor, flatly denies this. The son of the petitioner makes oath as to a third, a still later will, the existence of which are both denied by the attorney who prepared the will which has been admitted to validation. There have been no facts presented by the petitioner to show that such subsequent wills ever existed except his bare statement that he saw one.

The petitioner has shown no facts which establish to any degree that he was tricked into signing the waiver of citation consenting to the validation of the will dated December 19, 1955. The terms and provisions thereof were discussed by him and his brother with the attorney at his office as set forth in the affidavit, verified February 4, 1959. He was shown a waiver of citation by the attorney’s secretary, and she says in her affidavit that the petitioner examined the waiver and appeared to be reading it and then signed it in her presence and that she took his acknowledgement. The waiver itself, on file with the papers, clearly shows the date of the will, validation of which he was consenting to, was December 19, 1955.

The petitioner is a man of mature years, well-educated and fully as well informed on matters of this kind as is his brother, the executor. The execution of the waiver of citation and the consent to validation of the December 19, 1955, will was his own voluntary act and he is bound with knowledge of the contents of the instrument and with its legal effect. The document is in no way ambiguous and there is no proof that there was any misleading representation made to him at the time he signed it.

No question has been raised as to the competency of the deceased at the time of the execution of the will of December 19, 1955; no question has been raised as to its due execution. The question as to the regularity of the validation is not before the court. The petitioner was present at the taking of proof on the validation, represented by an attorney who participated in the examination of the subscribing witnesses, and has had the advantage of every legal right to which a prospective contestant could have had. He was aware of all the facts set forth in his affidavit at the time of the validation proceeding and ample opportunity has been afforded to him to establish the basis of this proceeding.

The Court accordingly determines upon the merits that the petitioner has failed to establish a basis in fraud, misrepresentation, coercion, or on any other ground for setting aside the waiver of citation and consent to the validation of the will dated December 19, 1955, which waiver was duly executed by him. The application of the petitioner is accordingly denied and his petition dismissed.

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An 87 year old deceased rich man who was never married and had no children had invested wisely and left a non-specific estate of over $7,000,000. His latest will executed left his residuary estate in equal shares to his sister, his brother, two children of his predeceased brother and his sister’s three children — the eldest son, the younger son and a daughter. His sister was named as executor however she died before her brother. His sister’s younger son is the successor executor. His nephew filed a petition to validate the 1988 will and was appointed as preliminary executor. Objections were filed by the deceased man’s brother and the two children of his predeceased brother. The objections alleged lack of authority capacity, fraud and undue influence.

In January, 1989, he was taken to a clinic after becoming dizzy and falling. In April, 1989, he had a stroke. He was seen by the doctors at his clinic, who documented the deterioration of his mental condition. In January, 1990, he established a trust for his sister and her children and ultimately transferred over $1,500,000 to it. In December, 1990, he was found wandering in the Bus Terminal. The nephew arrived at the terminal and returned his uncle to his apartment. However, he was soon discovered walking outside his apartment in his underwear. The police took him to a hospital, where tests showed organic brain syndrome of the Alzheimer's type. He was placed in the Nursing Home for Adults, an adult care facility. He was hospitalized again where he was diagnosed as having advanced dementia and atrophy of the brain. He was discharged to an adult health care center. The other nephew brought a proceeding to be appointed his uncle’s conservator. He and another uncle were appointed as co-conservators. The rich man’s brother arranged for his brother to be transferred to a facility in California, where he died a few days later.

According to a New York Probate Lawyer, he objections to probate were tried before the Surrogate in a non-jury trial. The trial lasted nine days and was vigorously challenged. Based on the record, the Court found that the deceased rich man lacked the ability to execute a will in 1988. It further found that he was susceptible to undue influence due to his weakened physical condition, that his sister’s relationship with him was motivated by her interest in his money. It is further found that there was a confidential relationship between him and his sister created by her control over his finances. Critical to the finding that his sister had actually exercised undue influence over him in the will contest were the findings made by the Court that prior to 1986, he had given only small gifts to family members but that after his sister began to exert influence over him, he transferred almost $2,000,000 to trusts for the benefit of her children and that she signed checks to each of her children from an account he established. The nephew does not dispute receiving the money, but argues that he had no knowledge of any impropriety.

The Court denied validating the 1988 will on the grounds of lack of capacity to execute the will and undue influence. A Staten Island Probate Lawyer said the nephew appealed but the decision of the Surrogate was affirmed. Significantly, the appellate court considered the creation of the trusts and the 1989 gift checks as the product of undue influence.

A petition to remove the nephew as preliminary executor was filed. It was alleged that he should not be the preliminary executor because he and his mother had improperly transferred monies from his uncle to themselves during the last years of his uncle’s life. A Suffolk County Probate Lawyer said that after a conference with the court, the nephew agreed to file a temporary account of his actions as preliminary executor to which objections were filed.
After the 1988 will was denied validation, letters of administration were issued to the sister-in-law of the deceased man and to his niece from his predeceased brother. The co-administrators reached a settlement with two of his sister’s three children, concerning the non-probate assets they received from their uncle. The co-administrators were not able to reach settlement with his sister’s other son.

The Petitioner seeks an order compelling the nephew to turn over non-probate assets he received from his uncle. This consists of the proceeds of the trust established for him, his share of the trust established for the family, as well as cash taken from the deceased man’s assets which he received from his mother. In addition, the Petitioner seek to have the nephew reimburse the estate for attorneys' fees he paid from the estate in the effort to validate the 1988 will. Finally, they seek to surcharge the nephew for funds allegedly unaccounted for since the intermediate account was filed.

Where the transfer is by gift, the recipient bears the burden of proving, by clear and convincing evidence, that the gift was voluntary and knowingly made by the donor, uninfluenced by fraud, duress or coercion. Moreover, where the gift is made by an agent, the recipient has the burden of showing that the agent was operating in the interests of the person in making the gifts.
The nephew claims the decision denying validation to the 1988 will has no bearing on the issue of lack of capacity and undue influence in the disputed gifts. He argues that the administrators cannot rely on the prior validation proceeding, under the doctrine of affirmative defense to establish the invalidity of the transfers. He has submitted an affidavit in opposition to the motion stating that he did not exercise undue influence on his uncle.

In the instant case, the Court found that the family members noticed changes in the deceased man’s behavior. At this time, he lost interest in personal hygiene and became unable to keep his apartment in order. Significantly, he was unable to keep his financial records in order. The changes were noted by his relatives and other witnesses.

Prior to this time, his sister had little contact with him, but his nephew had maintained contact with his uncle. His sister used her son to establish a relationship with the deceased uncle. When his mother informed him that she was taking over her brother’s affairs, the nephew ceased his visits with his uncle. By the spring of 1988, the deceased man’s sister was able to exert control over his finances. This was noticed by his tax preparer when he observed the sister bossing her brother. The deceased man set up a trust account for which his sister had authority to write checks. She used her authority to give $9,985 to her children and her brother established trusts for the benefit of her children.

The Court found that the deceased man lacked the capacity to execute a will as of October 1988, when the 1988 will was executed. The element of capacity to execute a will is an understanding that one is making a will, awareness of the nature and extent of one's property and the objects of one's bounty. Less mental capacity is required to execute a will than any other legal document. The capacity necessary to create a valid trust, on the other hand, is the same as capacity to make a valid contract. This is the same standard as the capacity to make a valid gift. Therefore, a finding that the deceased man lacked the capacity necessarily disqualifies a finding that he had the capacity to create a valid trust or gift. Once lack of capacity is shown, there is a presumption that it continues until overcome by clear and satisfactory evidence of capacity. There is no evidence that his mental condition ever improved. Indeed, it became progressively worse. Accordingly, the Court's finding of lack of capacity to contest the will establishes his lack of capacity when the trusts and gifts were made. In addition, the large outright gifts to the children of his sister which his sister made from his accounts, wherein he set up a joint account with right of survivorship in her three children to which he transferred approximately $1.5 million from his other accounts. It is found that there was sufficient evidence not only that his sister had a motive and opportunity to exercise undue influence, but that such influence was actually utilized.

The nephew argues that the burden of proof is different in a contest of will and a proceeding to invalidate a gift or trust. In a contest of will, the burden of establishing capacity is on the proponent of a will. The nephew alleges that the burden of proving lack of capacity to the gifts is on the Petitioner. However, the burden of proving the elements of a valid gift is on the recipient, who must satisfy the burden by clear and convincing evidence. Where undue influence is alleged, the burden is on the party alleging undue influence, whether in a validation proceeding or proceeding challenging the validity of the transfer.

Some courts have declined to apply the doctrine of affirmative defense against a person appearing in his or her individual capacity who had earlier bring into court an issue in a representational capacity as the executor of an estate. However, an exception to this rule is made if the non-party contested or substantially controlled the prior lawsuit. If the non-party's interests were fully and fairly represented, the doctrine may apply. As a consequence, a person who appears in his or her representative capacity that includes his or her own individual interests will be bound, by virtue of their representative status in the first proceeding.

In the instant case, there is no basis for the court not to apply affirmative defense to void the gift transfers. As noted above, the deceased man’s mental condition from 1988 through 1990 was questioned. This is the time period when the gift transfers were made. The nephew, as the beneficiary under a will that left him over $1,000,000 and as the beneficiary of equally substantial trusts and gifts, had a substantial and direct interest in litigating his uncle’s mental condition and in establishing the validity of the gift transfers to him. He was given a full and fair opportunity to litigate the validity of the gift transfers. Indeed, he litigated these issues aggressively at trial and on appeal. Warren does not allege any facts that would validate the disputed gift transfers which were not already raised in the validation proceeding. His statement that he never saw his mother unduly influence his uncle is not sufficient to create an issue of fact, especially because he testified at trial that he rarely saw his uncle after his mother came into the picture in 1986. Therefore, application of the doctrine of affirmative defense prohibits re-litigation of this finding in the instant accounting proceeding.

Based on the above, there is no basis to re-litigate the issue of capacity and undue influence. The court found the deceased man lacked capacity to execute a will as of October, 1988. In its decision, this court found that the subject transfers were evidence of the deceased man’s sister undue influence on his brother to benefit herself and her children. Based on the above, the gift transfers should be voided. Whereas the doctrine of affirmative defense disproves all issues capable of trial.

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According to reports from a surrogate’s court, a decedent was survived by his wife, and two children from a previous marriage. In his last will and testament, he had chosen his wife to act as estate administrator. Upon his death, the will was submitted to probate court. The court named the wife as the estate administrator in the letter of testamentary.

Long Island Probate Lawyers said that before the decedent’s death and months after the wife was accorded as estate administrator, she exercised her functions. It was asserted to be true that she made several transactions which resulted to lessen the funds of the contested estate. The wife have made repeated fund transfers from an alleged joint account to her own account; paid her personal bills and expenses thru multiple on-line transfers from decedent’s personal accounts in a certain bank; and checks payable to her decedent’s husband were signed, endorsed and deposited to her account.

A New York Probate Lawyer said that the decedent’s children, with the help of their probate lawyers filed a case contesting the earlier decision of the court in naming the wife as the appointed executor. They reasoned out that she was unfit to carry out the terms of the contested will by virtue of dishonesty, by not providing their needs, by shallow understanding of good will and by thoughtlessly or carelessly expending of their funds. They asked the court to appoint decedent’s son as the executor instead of the wife. They submitted to the court a written document of the decedent’s therapist. The therapist testified under oath and sustained the allegations of the decedent’s children. The estate litigation lawyers further make clear that the case under litigation was not a subject for time consuming dispute. Children’s funds were at stake. The wife was guilty of a series of acts-any one of which, the court has the authority to give an order to remove the wife as executor in an earliest time.

In deciding the case, the court was certain that the wife mixed the money of her husband with her funds. The money involved was held in trust fund for the children. The probate court firmly resolved that the lavish withdrawals, combined with repeated dishonesty and self-serving statements were comprised actions. Such actions will cause danger or risk to the children’s funds. Her conduct was enough ground and justification for her immediate removal from the office without a hearing and the preliminary letters issued to her be cancelled and be without effect.

The wife, being a lawyer entered for herself a motion of reargument to the court to prove the allegations against her to be false and erroneous by stating that; first, the court’s determination of her conduct endangered the safety of the estate was characterized by error; second, the children’s claim that the estate in litigation was in danger of risk was without valid basis; third, the bringing in of the decedent’s money to her own account, the repeated on-line withdrawals and dishonest statements were of no merits. The reasons behind her actions were to continue the decedent’s previous practice to deposit his money to the estate bank. They have not opened a joint account, but instead opened an individual and separate bank account. The decedent’s money was for his two children to inherit upon his death. The withdrawals from the decedent’s account were made to pay his hospital expenses, household bills, and compensation of her household errands while her husband was in the hospital.

The children with their estate lawyers opposed the arguing over again, of a motion made in court by the wife. They were satisfied with the court’s decision in their favor. The court correctly and intelligently interpreted the contested will. The decision was based on undisputed facts and of general importance. The lawyers argued that the acts admitted by the wife as just and proper were grave in manner and extent. It will tremendously destroy the lives of decedent’s children.

Brooklyn Probate Lawyers said that in losing the funds in trust under the control of an executor involved in a lawsuit for her wrongful and deceitful action will make tremendous negative impact on the decedent’s children. Skilled lawyers will stand by you and help see you through your case.

This issue was brought to the court to extend the time to file objections in validation of the will and a motion for construction of the provision. This is concerning the legal proving of the will of a woman who died, leaving a taxable estate of almost two million dollars. The most recent will dated, two weeks before his death has been offered for validation by the appointed representative. However, the prior will has been filed with the court. Petitioner and several other interested parties have examined the witnesses. The court has extended the time for filing objections pending a decision on the construction issue.

The petitioner to the recent will, prays for a resolution that the no-contest provision does not apply to the other heirs, who include a foundation itself and a number of charities. The other organization supports the foundation's position and has submitted an affidavit containing information that the no-contest provision is not directed to the charities. The woman’s grand-niece and other beneficiary have opposed the requested relief.

A New York Probate Lawyer said the recent will contains several gifts to individuals and charities of either specific dollar amounts, or items of tangible personal property, or a combination of both. In addition, the will sets up trust for her grand-niece and places another in trust for her sons. The grand-niece receives tangible personal effects and the house.

Under the will, the residue of the woman’s estate to a company as trustee for the foundation to be held as a continuous charitable fund in memory of the woman and her late husband. Nine charities are designated as income beneficiaries of fund assets .In addition, the will states that if the foundation or any of the other named organizations fails to qualify as a charity as defined in the internal revenue code, that organization's portion of the fund's income shall be distributed to such other qualifying charities as the trustee shall select.

Nassau County Probate Lawyers said that written on her will that if any beneficiary under this, that in any manner oppose the attest of this Will or any of its provisions in any manner whatsoever, then in such event any share or interest in her estate given to such beneficiary under this Will is hereby revoked and shall be disposed of in the same manner provided herein as if such contesting beneficiary had predeceased her None of the parties has raised this issue in its written submissions.

Based on the record, the court is of the opinion that a refusal to interpret the provision under the will until after the verification. In light of the particular facts and circumstances surrounding the will's preparation and execution, would tip the balance heavily against the petitioner and subject it and any other potential charitable opponent to risk. The lack of clarity of the particular provision itself creates an additional and excessive risk for the petitioner and a risk beyond that inherent.

Brooklyn County Probate Lawyers said that the court finds that there are good and compelling reasons to proceed and render a construction in the instant case before admitting the will to rightfully validate. This situation is factually distinguishable .The maker of the will was an elderly, chronically ill, and was hospitalized during the time she had made extensive changes to her will. Less than two months before she died, she abruptly left her legal counsel with whom she worked for almost two years and put her legal affairs into the hands of another attorney, not previously known to her. In the twenty-four months prior to her death, she did no fewer than six wills. Her last will was signed only two weeks before she died.

The court also concerned that the will offered for validation seem to depart substantially from several of the woman’s primary estate planning goals, saving estate taxes and benefitting her charitable interests, as embedded in prior wills and articulated to her former counsel. Calculations provided by several of the parties indicate that because the recent will made by the deceased considerably increases gifts passing to certain individuals at the expense of the charitable organizations, the property will be subjected to considerable property taxes. The property now must pay two, rather than one, representative commissions.

The court considers that the almost unique facts and circumstances of the instant case give rise to such a present need. And therefore, the court interprets the recent will of the woman before making any determination about its verification.

Accordingly, the court finds that the will reflects a clear intent to benefit various charitable organizations is very important to the woman and her late husband, as well as numerous relatives and friends.

The court recognizes that the intention to benefit charitable institutions is a consistent and prominent feature in the decedent's estate plan, as indicated by a comparison between the prior will and filed with the court, and the recent will offered for verification. The provision, containing the charitable trust, is carried over almost unchanged from the first will to the recent one. Indeed, by affidavit filed in this proceeding, the attorney-draftsman of four previous wills, states that in each of the wills he drafted as per request of the deceased woman, the residue was left in a perpetual charitable trust.

The court point out that the deceased woman intended the no-contest provision to extend to such beneficiaries, she could have added specific language to the will. The deceased woman did not specifically relate the no-contest provision to non-human beneficiaries evidences an intention that it does not apply to such entities.

The court is particularly troubled by the fact that, if indeed, as respondents argue, that the woman wished to include the charities in the forfeiture provisions, she left the ultimate distribution of the shares of unsuccessful charitable contestants completely in doubt. It requires too great an assumption to find in that the disposition of a share or shares, for that matter, in the event of an unsuccessful challenge. And, the woman cannot have intended to leave open the possibility that the entire residue could pass by intestacy if the foundation unsuccessfully contested, especially in light of the desire, consistently articulated in this and in prior wills, to create a lasting charitable memorial to herself and her late husband.

The court is aware of the fact that the will was drafted by a legal counsel who is an experienced counsel in properties practice, who could be expected to anticipate and make provision for such contingencies. Wills that are prepared by experienced attorney-draftspersons must be more strictly interpreted than instruments created by laypersons. And, therefore, the court do not interpret the absence of specificity and the failure to provide for the ultimate distribution of shares forfeited by charitable opponents, but rather deliberate reflections of the deceased woman’s desire that the no-contest clause have no applicability to the charitable foundations.
The court finds that, taken together, the language of the provision clause itself, with its lack of specific reference to charitable entities, the first appearance of the section in the recent will, positioned just after the pre-residuary gifts, to which substantial changes had been made, and the overall properties plan, consistently articulated in this and prior wills, clearly indicate that the deceased woman did not intend the provision to apply to the charities.

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A man filed a motion to withdraw a waiver and consent he did for the legal validation of his cousins will. And, this motion is opposed by the primary representative of the estate and the four charities who are the beneficiaries under certain instruction.

This happened five months after the death of his cousin, he did a waiver and consent; however, an attorney appeared for him a month after, and this is also the return date of the citation in this proceeding, and indicated that he wanted to withdraw his consent for the legal processing of validation of the will. The assets consists of personal property valued more than a million.

The instruction was done when his cousin was about 95 years old. The single page, two-sided tool is a downloadable legal form and does not appear to be attorney supervised. The opposite side of the form shows his shaky and weak signature, and the signature of the two witnesses. One of those witnesses now serves as a primary person appointed to perform the will and formerly served as one of legal guardians. Apparently, the other witness was an aide at the facility where she resided at the time she signed the instruction.

A New York Probate Lawyer said the man served objections to attest on all parties except the guardian, but the objections were not accepted for filing due to his waiver and consent to process the validation of his cousins will. Those proposed objections says that his cousin is lacked of capacity to make a will, the instruction made was not freely and voluntarily done. The signature, the instruction and its publication were obtained by fraud and unjustified influence, and the requirements about the law of appointment of guardian were not complied with at the time of implementation.

In his motion papers, he state that he is legally blind, possesses lower educational attainment and is ignorant of the law. He urges that he never received the letter containing the waiver and consent to attest and affidavit of heirship that was mailed to him by counsel to the primary representative, and that attorney never advised him of various rights or the import of the waiver and consent. He contends that at the time he did the waiver and consent, he was unaware that his mother's property was a share of his cousins belongings, he lacked any understanding of the procedure or consequences of the legal processing of validation, such as his right to object to the will and his right to counsel, and he did not understand that by executing the waiver and consent, he would forfeit the potential right of his mother's properties. Based on his conversations with counsel, at the time he received the waiver and consent, he believed that he was signing that document in order to expedite the process.

Manhattan Probate Lawyers said the primary representative oppose the motion asserting that, upon his receipt of the waiver and consent, the man called to discuss the family tree and the forms he received, and he never advised their attorney that he was blind or that anything was missing from the envelope mailed to him. The letter states that if the man had no objection to the processing of the distribution of the properties, it would expedite the process. The representative note that the man executed both the waiver and consent and the affidavit of heirship as requested.

The charities also oppose the motion stating that there is no clear and convincing evidence that the waiver and consent was the result of fraud, overreaching, misrepresentation or misconduct or that there is any other basis for revocation, at the time that the man executed the waiver and consent, he was acting as the legally appointee of his mother's assets and should have known that the document he done would have a legal and binding effect.

Queens Probate Lawyers said in reply, the man annexes various documents and state that due to his blindness, he follows a strict procedure upon his receipt of documents, which is to scan them into his computer and use a closed circuit television to magnify their contents. As his computer does not contain a scanned citation, he did not receive it, and he only learned of it when his subsequently retained attorney obtained a copy. His attorney stressed that the waiver and consent was obtained through improper overreaching and misrepresentation and, in any event, it should be suspended for good cause in the interests of justice.

Based on records, in legal processing of validation of will. It may not be admitted unless the court is satisfied that its implementation was valid, even if no interested party files objections to its validity. Thus, where a person who applies for a motion with reasonable expedition seeks to withdraw a waiver and consent to attest, the application may be granted where the petitioner demonstrates some merit to the objection, a reasonable probability of success and the absence of prejudice to the other parties. Furthermore, the courts are more liberal in granting these applications where other parties have already filed objections, or it is apparent that they tend to file objections, or where the application is made very soon after the execution of the waiver and consent.

The proof on the motion and court filings demonstrate that the attest was served by mail on the man, and his waiver and consent was executed, the same date that preliminary letters issued. The court does not find any wrongdoing by the proponents' counsel in obtaining the waiver and consent. Nonetheless, the letter sent to the man by counsel indicates only that the process would be expedited as a result of his execution of the waiver and consent. In view of the man’s blindness and limited education, and the fact that he was not represented by counsel at the time he did the waiver and consent, the court credits his contention that he failed to fully understand the legal impact. Thereafter, he expeditiously obtained an attorney and sought to withdraw his waiver and consent prior to the admission of the will to verify. Without in any way passing on the ultimate outcome of a will contest, the documents annexed by the man and in court files demonstrate that, at this time, his proposed objections have merit and a reasonable probability of success. The proposed objections are similar or identical to the issues raised by the Public Administrator in the proceeding. As it appears that the Public Administrator will file objections in any event, this also militates in favor of granting the motion, and allowing the interposition of the man's objections creates no prejudice to the representative and the charities, which are in the same position they were in. Moreover, the court's paramount concern is to admit only valid wills to attest. Where, as here in a pre-probate context, one interested party as well as another non-interested party expresses genuine concern as to the validity of the instructions and its execution, as demonstrated by the documents submitted, the withdrawal of a waiver and consent to allow the interposition of objections must be permitted.

Accordingly, the motion is granted. The man shall serve and file his objections within 10 days after the entry of the order to be settled here on.

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The petitioners of this probate case wanted to withdraw their petition and requested the court to issue letters of administration. The petitioners wanted to abandon their action placing on probate the alleged copy of the testament.

According to the last will and testament of the decedent, the remaining estate will go to her sisters. The decedent named one sister as the executor of the will while the other one was named as the successor. The said executor had predeceased the testator and no issue was raised. The whole estate was passed on to the successor of the will which was also the other successor.

The successor had filed a petition for a guardian to be appointed for her property. Since the court has found that the successor cannot to be relied on managing her own properties, a guardian was appointed. The petitioners of the case were the appointed guardians.

A New York Probate Lawyer said the guardians, also known as the petitioners, were granted by the court to place the will for probate. During that time, the original copy of the will and testament cannot be found. With this information, the petitioners filed for a probate on the copy of the original will. The original will was found later on among the important documents of the deceased. It was assumed that buyer of the house once owned by the deceased threw away the papers, thinking they had no value. One of the guardians confirmed this information in her statement that a former hand had taken possession of the house and discarded the papers in question.

The petitioners have now asked the court to abandon their initial probate petition and issue letters of administration instead. In their petition, the guardians have alleged that they cannot submit the will for probate since they lack a second subscribing witness.

Nassau County Probate Lawyers said that according to the provisions of the law, the court has to respect the wishes written by the testators in their last will and testament. The obligation of the court should be a public policy matter. Under normal circumstances, it is the obligation of the executor of the will to take the necessary steps in order to obtain probate. The nominated executor has to ward off any form of attack against the will. The law further states that if the nominated executor is disabled or dies, the person who is named as guardian may take the duty to petition the will for probate.

However, the court has taken note of exceptions to this rule in which there are instances in which petitioning for probate becomes futile. If the executor believes that the will being petitioned for probate is not the original one, the executor has no right to submit it for probate. Another exception to this obligation is when the will becomes ineffective. Brooklyn Probate Lawyers said the executor does not have the duty to submit the will for probate when the legacies indicated in the will have expired. The will becomes ineffective when the executor did not act on the will or has died.

The law also states that even if the last will and testament is valid, the same instrument does not have to be petitioned for probate if the proof is deemed to be doubtful. According to the law, the court can grant letters of administration in cases when the probate of the instrument is delayed. When all the parties interested in the estate will agree that the will should not be under probate, the court does not have the authority to order the admission of probate.

In this case, the exceptions to the rule are not presented. The nominated executor in this will is still alive. The petitioners filing for probate acted on her behalf as the guardians. Based on the provisions of the law and review of the petition, the court has decided to deny the petition to withdraw probate.

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The petitioners in this case have filed a motion for summary judgment which will dismiss the public administrator’s objections. The petitioners are also seeking the admission of the testator’s will for probate.

Before the death of the testator, he had been living in a facility for the elderly for many years. One of the two petitioners in this case is the current administrator of the elderly home. The other petitioner held the position of director of the same place. As co-executors of the will, the entire estate of the decedent will go to them.

A New York Probate Lawyer said that upon learning of the will, the petitioners have filed for probate but the public administrator prevents the action. The public administrator is obliged under the law to become one of the parties in litigation. The objections were raised because during that time, the decedent allegedly did not have the ability to draft a testament. The public administrator also made allegations that the contested will was only written because of the undue influence of the petitioners.

Staten Island Probate Lawyers said that the preliminary letters were issued to petitioners but these were later revoked because the petitioners failed to comply with the requirements. During that time, the court has ordered them to pay the bond. The public administrator was appointed by the court as the temporary executor while the petitioners’ case is pending.

Suffolk County Probate Lawyers said that the motion filed by the petitioners was due to a recent discovery. The petitioners’ statement is supported by their respective statements, the affirmation of the lawyer and various evidences. The deposition testimony was also presented as evidence. Under the provisions of the law, the petitioners for the summary judgment have the burden of providing proof that they are entitled to the motion. The petitioners must present sufficient proof that the issues raised by the public administrator have no legal basis.

According to the law, the court can grant summary judgment if the petitioners have enough evidence to support their case. The public administrator must support his objections with sufficient proof that undue influence was used to write the will of the decedent.

The decedent has been found on the doorstep of an apartment building. He was hospitalized for treatment and observation. The social worker who was assigned to the hospital contacted the petitioners if they could admit the patient into their facility. The petitioners agreed and placed the decedent in a private room.

According to the statement of the lawyer who drafted the will, the decedent had called his offices and wanted to talk to a lawyer concerning financial matters. The lawyer could not remember if there was someone else involved in their conversation. The lawyer said that the decedent was not a former client and he doesn’t know where he got the contact number. He assumed that the number had reached the decedent by word of mouth.

When the lawyer had agreed to meet with the decedent in the facility, the decedent proceeded to inquire about drafting a will. According to his testimony, it was his first time to draft a will for one of the residents in the facility. After his meeting with the decedent, he advised the old man to talk to a psychiatrist. The lawyer gave this advice after finding out that the decedent wanted to bequeath his assets to the petitioners.

The next day, the decedent went for a psychiatric exam. The exam was performed with the petitioners inside the room. After the results were obtained, the physician ruled that there were no signs of dementia. According to the doctor, the patient only showed slight memory problems. He also confirmed that the patient was fully capable of making financial decisions.

The public administrator also presented another expert opinion from the state psychiatrist who interpreted the exam results. The physician claimed that the decedent was also suffering from dementia thus he is incapable of making any decision regarding his money. The conflicting opinion of both doctors has created a significant issue.

The motion for summary judgment was denied by the court based on circumstantial evidence regarding undue influence used by the petitioners to get the decedent to sign the will.

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According to reports from a surrogate’s court, a decedent was survived by his wife, and two children from a previous marriage. In his last will and testament, he had chosen his wife to act as estate administrator. Upon his death, the will was submitted to probate court. The court named the wife as the estate administrator in the letter of testamentary.

Before the decedent’s death and months after the wife was accorded as estate administrator, she exercised her functions. It was asserted to be true that she made several transactions which resulted to lessen the funds of the contested estate. The wife have made repeated fund transfers from an alleged joint account to her own account; paid her personal bills and expenses thru multiple on-line transfers from decedent’s personal accounts in a certain bank; and checks payable to her decedent’s husband were signed, endorsed and deposited to her account.

A New York Probate Lawyer said that the decedent’s children, with the help of their probate lawyers filed a case contesting the earlier decision of the court in naming the wife as the appointed executor. They reasoned out that she was unfit to carry out the terms of the contested will by virtue of dishonesty, by not providing their needs, by shallow understanding of good will and by thoughtlessly or carelessly expending of their funds. They asked the court to appoint decedent’s son as the executor instead of the wife. They submitted to the court a written document of the decedent’s therapist. The therapist testified under oath and sustained the allegations of the decedent’s children. The estate litigation lawyers further make clear that the case under litigation was not a subject for time consuming dispute. Children’s funds were at stake. The wife was guilty of a series of acts-any one of which, the court has the authority to give an order to remove the wife as executor in an earliest time.

In deciding the case, the court was certain that the wife mixed the money of her husband with her funds. The money involved was held in trust fund for the children. The probate court firmly resolved that the lavish withdrawals, combined with repeated dishonesty and self-serving statements were comprised actions. Such actions will cause danger or risk to the children’s funds. Her conduct was enough ground and justification for her immediate removal from the office without a hearing and the preliminary letters issued to her be cancelled and be without effect.

Brooklyn Probate Lawyers said that the wife, being a lawyer entered for herself a motion of reargument to the court to prove the allegations against her to be false and erroneous by stating that; first, the court’s determination of her conduct endangered the safety of the estate was characterized by error; second, the children’s claim that the estate in litigation was in danger of risk was without valid basis; third, the bringing in of the decedent’s money to her own account, the repeated on-line withdrawals and dishonest statements were of no merits. The reasons behind her actions were to continue the decedent’s previous practice to deposit his money to the estate bank. They have not opened a joint account, but instead opened an individual and separate bank account. The decedent’s money was for his two children to inherit upon his death. The withdrawals from the decedent’s account were made to pay his hospital expenses, household bills, and compensation of her household errands while her husband was in the hospital.

Bronx Probate Lawyers said that the children with their estate lawyers opposed the arguing over again, of a motion made in court by the wife. They were satisfied with the court’s decision in their favor. The court correctly and intelligently interpreted the contested will. The decision was based on undisputed facts and of general importance. The lawyers argued that the acts admitted by the wife as just and proper were grave in manner and extent. It will tremendously destroy the lives of decedent’s children.

Losing the funds in trust under the control of an executor involved in a lawsuit for her wrongful and deceitful action will make tremendous negative impact on the decedent’s children. New York Estate Administration lawyers will stand by you and help see you through your case. New York Estate Litigation lawyers can argue your side and make sure that you and your loved ones are compensated.

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The petitioners in this case have filed a motion for summary judgment which will dismiss the public administrator’s objections. The petitioners are also seeking the admission of the testator’s will for probate.

Before the death of the testator, he had been living in a facility for the elderly for many years. One of the two petitioners in this case is the current administrator of the elderly home. The other petitioner held the position of director of the same place. As co-executors of the will, the entire estate of the decedent will go to them.

Upon learning of the will, the petitioners have filed for probate but the public administrator prevents the action. The public administrator is obliged under the law to become one of the parties in litigation. The objections were raised because during that time, the decedent allegedly did not have the ability to draft a testament. Nassau County Probate Lawyers said that the public administrator also made allegations that the contested will was only written because of the undue influence of the petitioners.

A New York Probate Lawyer said that the preliminary letters were issued to petitioners but these were later revoked because the petitioners failed to comply with the requirements. During that time, the court has ordered them to pay the bond. The public administrator was appointed by the court as the temporary executor while the petitioners’ case is pending.

The motion filed by the petitioners was due to a recent discovery. The petitioners’ statement is supported by their respective statements, the affirmation of the lawyer and various evidences. The deposition testimony was also presented as evidence. Under the provisions of the law, the petitioners for the summary judgment have the burden of providing proof that they are entitled to the motion. The petitioners must present sufficient proof that the issues raised by the public administrator have no legal basis.

Brooklyn Probate Lawyers said that according to the law, the court can grant summary judgment if the petitioners have enough evidence to support their case. The public administrator must support his objections with sufficient proof that undue influence was used to write the will of the decedent.

The decedent has been found on the doorstep of an apartment building. He was hospitalized for treatment and observation. The social worker who was assigned to the hospital contacted the petitioners if they could admit the patient into their facility. The petitioners agreed and placed the decedent in a private room.

According to the statement of the lawyer who drafted the will, the decedent had called his offices and wanted to talk to a lawyer concerning financial matters. The lawyer could not remember if there was someone else involved in their conversation. The lawyer said that the decedent was not a former client and he doesn’t know where he got the contact number. He assumed that the number had reached the decedent by word of mouth.

When the lawyer had agreed to meet with the decedent in the facility, the decedent proceeded to inquire about drafting a will. According to his testimony, it was his first time to draft a will for one of the residents in the facility. After his meeting with the decedent, he advised the old man to talk to a psychiatrist. The lawyer gave this advice after finding out that the decedent wanted to bequeath his assets to the petitioners.

The next day, the decedent went for a psychiatric exam. The exam was performed with the petitioners inside the room. After the results were obtained, the physician ruled that there were no signs of dementia. According to the doctor, the patient only showed slight memory problems. He also confirmed that the patient was fully capable of making financial decisions.
The public administrator also presented another expert opinion from the state psychiatrist who interpreted the exam results. The physician claimed that the decedent was also suffering from dementia thus he is incapable of making any decision regarding his money. The conflicting opinion of both doctors has created a significant issue.

The motion for summary judgment was denied by the court based on circumstantial evidence regarding undue influence used by the petitioners to get the decedent to sign the will.

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The petitioners of this probate case wanted to withdraw their petition and requested the court to issue letters of administration. The petitioners wanted to abandon their action placing on probate the alleged copy of the testament.

According to the last will and testament of the decedent, the remaining estate will go to her sisters. The decedent named one sister as the executor of the will while the other one was named as the successor. The said executor had predeceased the testator and no issue was raised. The whole estate was passed on to the successor of the will which was also the other successor.

A New York Probate Lawyer said the successor had filed a petition for a guardian to be appointed for her property. Since the court has found that the successor cannot to be relied on managing her own properties, a guardian was appointed. The petitioners of the case were the appointed guardians.

The guardians, also known as the petitioners, were granted by the court to place the will for probate. During that time, the original copy of the will and testament cannot be found. With this information, the petitioners filed for a probate on the copy of the original will. The original will was found later on among the important documents of the deceased. It was assumed that buyer of the house once owned by the deceased threw away the papers, thinking they had no value. One of the guardians confirmed this information in her statement that a former hand had taken possession of the house and discarded the papers in question.

Manhattan Probate Lawyers the petitioners have now asked the court to abandon their initial probate petition and issue letters of administration instead. In their petition, the guardians have alleged that they cannot submit the will for probate since they lack a second subscribing witness.

According to the provisions of the law, the court has to respect the wishes written by the testators in their last will and testament. The obligation of the court should be a public policy matter. Under normal circumstances, it is the obligation of the executor of the will to take the necessary steps in order to obtain probate. The nominated executor has to ward off any form of attack against the will. The law further states that if the nominated executor is disabled or dies, the person who is named as guardian may take the duty to petition the will for probate.

However, the court has taken note of exceptions to this rule in which there are instances in which petitioning for probate becomes futile. If the executor believes that the will being petitioned for probate is not the original one, the executor has no right to submit it for probate. Another exception to this obligation is when the will becomes ineffective. The executor does not have the duty to submit the will for probate when the legacies indicated in the will have expired. The will becomes ineffective when the executor did not act on the will or has died.

The law also states that even if the last will and testament is valid, the same instrument does not have to be petitioned for probate if the proof is deemed to be doubtful. According to the law, the court can grant letters of administration in cases when the probate of the instrument is delayed. When all the parties interested in the estate will agree that the will should not be under probate, the court does not have the authority to order the admission of probate.

In this case, Queens Probate Lawyers said that the exceptions to the rule are not presented. The nominated executor in this will is still alive. The petitioners filing for probate acted on her behalf as the guardians. Based on the provisions of the law and review of the petition, the court has decided to deny the petition to withdraw probate.

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A couple executed a Joint Will that will make whoever is the survivor among them as the one to be given the entire property whether own individually or several and be the executor of the irrevocable Joint Will. The Joint Will further provided that whatever remained after the death of the survivor would be distributed to a trust, with equal shares of the trust to be allocated among their grandchildren and one of their children, their daughter. The Joint Will's terms state that it is forever binding, and may be revoked or modified only by a writing subscribed by both parties and executed with the formality of a Will.

Approximately 8 years after the execution of the Joint Will and after approximately 50 years of marriage, the couple was divorced by judgment dated April 6, 2001. Several months before, apparently in anticipation of the divorce, the couple reaffirmed the Joint Will by executing a Marital Settlement Agreement, the terms of which were incorporated into the divorce judgment. The agreement stated, in pertinent part, that neither party would attempt to revoke the Joint Will, and provided quit claim deeds granting sole title of their condominium to the husband and sole title of their other condominium to the Wife. No further action was taken by either the Wife or the husband regarding the Joint Will.

According to a New York Probate Lawyer, in 2006, the Wife established her 2006 Irrevocable Trust, the body of which was her condominium. The Wife and her son-in-law were named as the trustees.

The trust document states, in pertinent part, that upon the Wife’s death, its principal is to be distributed to such one or more persons out of a class composed of her former Husband and her descendants and spouses of the her descendants on such terms as the Wife may appoint by a Will hereafter executed specifically referring to this power of appointment.

Accorsing to NYC Probate Lawyers, subsequently, the Wife nominally exercised the rights of the power of appointment of the trust document through a one-paragraph will, executed in 2007 will. The 2007 will stated that it was not intended to modify or revoke the Joint Will, which shall remain in full force and effect. Rather, its sole purpose was, pursuant to the power of appointment of the trust document, to provide for the trust to convey, upon her death, its corpus, the condominium, in equal shares to the her four children.

Following the Wife’s death, the Husband filed a petition for the probate of the Joint Will. In 2008, the Husband applied for preliminary letters as evidence to be issued to him, which the Surrogate's Court granted in an order on 2008. That same year, the Husband, as the preliminary executor of his former Wife’s property, commenced a turnover proceeding against, among others, his daughter and her Husband, seeking, to his son-in-law as trustee of the trust, to execute and deliver the deed to his former Wife’s condominium to the her properties.
In their answer to the Husband’s petition, the daughter and the son-in-law alleged, among other things, that the condominium was no longer a part of the properties, as a will is not effective until the death of the one who made it, and that neither the Joint Will nor the 2007 will prohibited the deceased Wife from making gifts or transferring property during her lifetime. Thereafter, in August 2008, the son-in-law, as trustee of the trust, commenced a proceeding for the validity of the 2007 will.

The daughter and son-in-law filed objections to the Husband’s appointment as executor of the Wife’s estate. They alleged that the Wife had already transferred her ownership interest of the condominium to the trust on June 2, 2006, and, therefore, the property was neither a part of the Wife’s properties nor subject to the terms of the Joint Will that the Husband submitted for validity. They also alleged that the Husband had an absolute conflict of interest that prevented him from being the estate administrator of his former Wife’s properties according to her 2007 will and, if the Surrogate's Court would allow him to act as his former Wife’s executor regardless, his letters should be limited and he should be required to post a bond.

NY Probate Lawyers said in September 18, 2008, the Husband filed objections to his son-in-law’s petition for validity, claiming that the terms of the 2007 will violated the Joint Will and, therefore, the 2007 Will should not be admitted for validation. The son-in-law moved for summary judgment of dismissing the petition for the validation of the 2007 will, dismissing the objections to the son-in-law’s appointment as executor, and to direct the son-in-law to execute and deliver the deed to the condominium to the deceased Wife’s properties.

The terms of Article of the Joint Will therefore create two categories of property that passed to the survivor, any property comprising the entire property of the one dying first, and all property of which either of the couple has the power of disposal. The Husband asserted that even accepting his daughter’s argument that the Wife transferred title to the condominium to the trust, thereby placing such property outside the Joint Will, such property was nevertheless encompassed by the second category created by Article SECOND of the Joint Will.

Specifically, the Husband asserted that because his former Wife, retained upon her death the power of appointment regarding the disposal of the condominium, and exercised such power in her 2007 will by directing that upon her death, the trust was to convey such property to their four children, in equal shares, the deceased Wife retained the power of disposal over the condominium. Accordingly, because the deceased Wife retained the power of disposal over the condominium, the 2007 will was, in effect, a nullity, because it did not exercise the deceased Wife’s power of appointment in favor of the Husband, as required by Article SECOND of the Joint Will and, accordingly, that branch of his daughter’s cross motion which was for summary judgment on their petition for the validation of the 2007 will should be denied.

In a decision the Surrogate's Court found that the Husband was entitled to summary judgment on the petition in the turnover proceeding to the extent of a direction that as co-trustee, his son-in-law transfers back the condominium to the property. The Surrogate's Court held that the Husband was entitled to summary judgment on the petition for the validation of the Joint Will, dismissing the daughter’s objections to his appointment as executor, and dismissing the son-in-laws petition for the validity of the 2007 will.

In an order, the Surrogate's Court, in effect, granted the Husband petition for the validity of the Joint Will and, in effect, granted that branch of his motion which was for summary judgment on the petition in the turnover proceeding, directing his son-in-law as trustee of the trust, to execute and deliver the deed to the condominium to him, as executor of his former Wife’s property.

At the time they executed the Joint Will in 1993, the couple had been married for nearly 43 years. As they did not separate until 1997, it is reasonable to infer, that at the time they executed the Joint Will, they intended to remain married and to give to each other their respective properties as well as all properties over which they retained power of disposal. Given the circumstances in which the Joint Will was executed—namely, a long-standing marriage—the phrase whether owned jointly or severally was not, as the daughter contend, intended to qualify the power of disposal phrase, but instead intended to expand the scope of the requisite power of disposal to include properties the couple owned jointly or severally with each other.
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A son from California filed for an order dismissing the pending proceeding to probate his mother's New York Will that raises an interesting question of jurisdiction. The son argues the jurisdiction of the court to prove the validity of the Will of a non-residence which requests New York to prove valid and invokes New York law on the ground that her French legal residency has assumed jurisdiction over her estate. The motion is opposed by the Petitioners in the proceeding, the co-executors named in the Will, who are presently serving as preliminary executors.

According to a New York Probate Lawyer, the mother who made the Will was born a French citizen in 1899, and she became a naturalized United States citizen. She was a New York resident for about thirty years. For approximately seven years she was employed in the law offices in New York City. During this period she worked as secretary to one of that firm's senior partners. A lawyer-client relationship with that firm also commenced during that time. The French Ordinary Residence Card issued indicates that the mother who made the Will stated that she returned to France on October 24, 1971.

The New York Will which is the subject of the jurisdictional attack was drafted by the firm in New York she worked for. It was allegedly executed by the deceased in the firm’s Paris office in 1972, and there is no challenge on the matter. Both the petitioners and the son refer to the 1972 document as the New York Will. Both sides seemingly agree that this Will, whether admitted to be proven valid in New York or established in accordance with French law, governs at most the property of the deceased mother which was physically located in New York when she died, and that it does not affect property actually located in France, which passes under the French Will.

Westchester County Probate Lawyers said that the French Will states that the assets of the deceased mother located in New York when she died in 1978 and which she was apparently content to have remained in New York despite the fact that she moved to France in 1971 consisted of bank accounts and a brokerage account. At the time of her death the value of this New York property exceeded $320,000. The property located in France when she died consisted of an interest in real property to wit her apartment, and the personal property in the apartment. The value of this French property is disputed; the petitioners contend that its value is approximately $75,000 while the son’s position on oral argument was that it might be worth as much as $150,000.

On December 15, 1977 the deceased mother executed the document which the parties call the French Will. It is undisputed that the French Will has been established in France in conformity with French practice. On oral argument counsel for the son stated that the New York Will was in the process of being established in France and it appears from documents subsequently filed with the court that this has occurred although, for the reasons not essential to the resolution of the issue at hand.

In outline form, New York City Probate Lawyers said the provisions of these two Wills are as follows: The first paragraph of the 1972 New York Will contains the crucial language for purposes of this motion. It recites the deceased mother’s residence as being in Paris, France and then declares that she elect that the Will shall be admitted to original administrators in the State of New York and shall be construed and regulated by the laws of the State of New York, and that the validity and effect thereof shall be determined by such laws."

The settlement provisions are simple. The deceased gives a life interest in her apartment in in Paris to her friend if then living, or, if the friend predeceased her, which occurred, the apartment passes to the deceased mother’s adopted son, the one who filed the motion herein. Under Article Third all personal and household effects etc. other than those disposed of in connection with the apartment in are given to the said friend, or if she is not then living, to the deceased mother’s friend, who is concededly a French resident.

Sources revealed, the entire remaining property is given in trust for the benefit of the aforesaid friend for life and upon her death, or upon the deceased mother’s death, if said friend should predecease her as she did, the remaining is disposed of as follows: $5,000 to her "adopted son"; $5,000 to a godchild in England; $10,000 to a friend, a French resident; and the balance to be divided between the aforesaid French resident friend and a French mutual aid society. The nominated executors and trustees are her friend and the Bank of New York. Her executor and trustee friend is a member of the Law firm she worked for. As a substitute or successor executor for him, the deceased mother named her friend, from Oyster Bay, New York.

The final article of the New York Will contains a warning providing for the lapse of any provision made in the Will for any person named as a beneficiary who shall Will Contest or file objections to the admission to prove the validity of the Will.

Just as the New York Will be attune with the approach to the delegation of the property and the Estate Administration, the 1977 French Will presumably reflects the practice in that country. The deceased mother simply appoints her French friend as the person who is given the excess portion of inheritance on condition that she performs the special legacy. The special legacy is endowment of the apartment in Paris and its contents to the deceased mother’s adoptive son. On its face the provision is fitting with the terms of the New York Will which were to become operative in case the deceased mother’s friend predeceased her as she did.

There are two other relevant provisions in this instrument. One is the specification that legacy is not made as an excess portion of inheritance and outside a share. As a consequence of the foregoing, the adoptive son will only be able to claim it as taking less than a share. The other is revoking any other previous provisions, with the exception of those which are contained in her American Will, bearing the date of 1972, which has been deposited in New York City unless such provisions would be contrary to the Will.

Apparently the motion is directed to the court's jurisdiction. It is cast in terms of the efficiency of administration and the reduction of expense which the son alleges would result from deferring to France and declining jurisdiction. The essential issue here, however, is much more related to the son’s acknowledged forced right to inheritance claim. The affidavit of the son’s California counsel in support of the motion affirms that he was informed that under French law the son is entitled, as the deceased mother’s child, to one-half of her property. While the son’s acknowledges the possibility that the French law might be found applicable to his claim to a share of the assets located in the U.S. State is no ground for the denial of jurisdiction in New York, quoting the Court of Appeals opinion in Matter of Steel, it seems clear that the desire to assert the forced right to inheritance claim in the French courts provides the motivation for the instant motion. Similarly, some of the force of the executors' opposition is presumably fueled by the disparity of position.

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The issues being raised in this estate case have two aspects. One issue talks about the objection of probate on the last will and testament of the deceased. Another issue raised on the case was whether the main executor of the will had the right to request for discovery proceeding concerning the property owned by another party.

Before the writer of the will and testament passed away, he drafted an instrument which states that all his property should go to his niece. The niece named on the will becomes in effect the executor of the will.

A few months after the drafting of the first instrument, the decedent had allegedly turned over a deed of one of his real properties to another party other than his niece by marriage. However on the same day, the decedent drafted an instrument and identified it as his last will and testament. According to that instrument, it would revoke or reverse all wills drafted prior to the recent one. This includes the first draft that named his niece the sole executor of his estate.

In the recent will before the decedent pass away, he named the other party, the one who had the deed to his property, as an alternate beneficiary of all his assets. The different between the first and recent testament was the inclusion of the respondent as one of the beneficiaries.
The niece petitioned for a probate on the recent will executed by the deceased. The respondent had requested the surrogate court to change the date of the instrument to match the date in which she received the deed of the property from the then decedent. The niece objected to the execution of the second instrument.

According to a New York Probate Lawyer petitioner has been named the main executor of the testament. In this regard, the petitioner asserted that the respondent had in her possession cash, house furnishings, car and income from real property. The respondent refused to turn over the said assets belonging to the deceased.

The petitioner also indicated in her objection that the real property of the deceased was illegally acquired by the respondent on the same day the latest version of the will and testament was granted. A Manhattan Probate Lawyer said that in connection with the matter, the petitioner has also asked the court to inquire about the other properties that the respondent might still have that belonged to the deceased. The respondent has denied all the accusations made against her and challenged the petitioner that she had no probate case.

The law states that any individual who shows interest in the properties of the decedent will be affected when the will is subjected to probate. The interested person can object to this event. There is an exception to this provision in which the entitlement of property will not be revoked by another instrument. The same person will not be allowed to file any objection to the probate unless the court grants it.

In general, the niece in this case will not get anything from the estate if the will and testament of the deceased will be admitted to probate. The only exception to this law is when the same person is interested in a previously drafted will and the recent instrument is not admitted for probate while the recent one is accepted, that person will receive more from the properties in question.

Queens Probate Lawyers said that according to the provisions of the law, an individual cannot file for an objection if he is not the receiver or the distributee of the properties. Therefore, the court has decided to go on with the probate of the estate. The petitioner’s objections are also denied.

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A man who died in New York City was survived by two brothers. One lived in Endicott and the youngest in Pennsylvania who drove to Endicott and arrived in the evening to attend his brother's funeral the following day.

A New York Probate Lawyer said that prior to the funeral, the youngest brother suggested that arrangements be made to read the will soon. Shortly after the funeral a conference was held at the Trust Company. Present were the two brothers, the executive vice-president of the Trust Company; the counsel for the Trust Company; and an associate attorney with his father-in-law.

The testimony concerning what occurred at that conference is completely contradictory. Postponing for the moment a discussion of the completely opposing testimony, it is agreed that both the living brothers each signed a form of Waiver and Consent to Probate. These waivers were retained by the father-in-law of the associate attorney.

Later that day, both brothers journeyed to the office of a counsel. The next day, both were present in the Trust Company when a search for a will was made on the safe deposit box of their deceased brother. Among the assets were somewhat over 3,000 shares of IBM stock, then worth in excess of $1,000,000.00.

There were two supplements attached to the will. The first affected only the inheritances to both and the second affected the interests of all excess recipients. All the excess recipients became necessary parties to establish the validity of the will. Eventually it developed that these excess recipients would number over 250 people, most of who lived in Switzerland.

Nassau County Probate Lawyers said that a petition was made for the appointment of a temporary administrator and letters of temporary administration were issued to the Trust Company. The associate attorney testified that when he filed the will and appendices, he attempted to file the waivers of citation and consents to validate but that they were not accepted because no proceeding was then pending.

The youngest brother consulted counsel in nearby Philadelphia. A conference was held at the Trust Company, attended by its executive vice-president; the associate attorney, the elder brother and his counsel; and the Philadelphia counsel for the younger brother. When the discussion indicated that objections were being considered to the validation of the will and appendices, no one mentioned the fact that waivers of the issuance of citation and consents to validate had been signed earlier by the brothers.

The father-in-law of the associate attorney, due to poor health, died the following year, according to Brooklyn Probabate Lawyers. Eventually the associate attorney concluded that the task of getting together material on the large number of parties for establishing the validity of the will and appendices would be unduly delayed if done by a single practitioner. He retained a firm to act as his counsel. A petition was filed on the same year and a citation was issued, which included the names of both brothers and both were served with a copy of the citation.

Within the time granted by the court, objections to validate were filed. Conferences continued among the attorneys and on at least two occasions, the court participated in a pre-trial conference to ascertain whether the differences might be resolved. When no resolution of the differences appeared possible, a petition was made for an order framing the issues and an order was made for a trial.

Shortly thereafter, the two waivers of citation and consents to validate signed by both brothers were filed. Both men were directed to show cause on why their objections should not be dismissed on the ground that they had previously consented to the validation of the will. Such is the recital of facts about which there is no dispute.

It is the position of the court that the validity of these waivers and consents to be established must be determined primarily on the basis of what occurred at the conference. Both men contend that the waivers are invalid because they were not properly acknowledged; and that they were deceitfully obtained; and that the advocate of the will and appendices is prohibited from use of said waivers because of the lapse of time between their execution and filing in this court.

According to reports, it was the younger brother’s recollection that the bank officer, did most of the talking at the conference; requested his waiver and consent; advised him that its execution was merely to record his presence at the conference; and presented the forms in blank for his signature. The elder brother’s recollection was less detailed. He, too, said that the bank officer did most of the talking. He understood the waiver and consent was signed so the court could permit payment of his late brother's debts. He, too, said he signed a blank form.

The executive vice president of the Trust Company and the associate attorney testified that the deceased father-in-law of the associate attorney brought photocopies of the will and appendices to the conference along with waivers of citation and consents to validate, with the blanks filled out in his handwriting; that ample opportunity was given the brothers to examine documents; and finally, that the attorney’s father-in-law requested the waivers be signed, stating those are needed to establish the validity of the will.

The father-in-law did not take the acknowledgments but said as the associate attorney to notarize them. The associate attorney testified that he did not ask either of the brothers if they so acknowledged their signatures. He stated that since he had seen each sign, he believed it unnecessary to ask the oral question and he signed the certificates of acknowledgment in the usual form.

Of all waivers filed in the proceedings, the greatest number must certainly be waivers of the issuance of citation and consents to establish validity. Upwards of 60% of the wills validated in the court are admitted on jurisdiction acquired by these waivers. Perhaps their frequent use makes it rare when the nature of the waiver is called into question.

On analysis it is clear that the waiver really consists of two parts. One is a waiver of the issuance and service of a citation and a general appearance in the proceeding. The second part is consent to validate without further notice. For a legitimate request to validate the will, the portion relating to consent is unnecessary. When a citation is issued and no objections are filed, there are no consents by the persons so cited.

Counsel for the brothers in seeking to dismiss the motion, argue that the waiver and consent in each instance was not validly acknowledged. Relying on that claim, they charge that the whole waiver is void.

Generally an acknowledgment has nothing to do with the validity of a waiver. Its purpose is to furnish due proof of the execution of waivers affecting real property. A waiver is good between parties even though defective acknowledgment prevents its recording. In some instances, the statute requires acknowledgment for validity, such as the waiver of the issuance and service of citation previously mentioned; waiver of a right of election; assignment of an interest in an estate; a building and loan contract; and others. The word acknowledgment is frequently used but rarely analyzed.

The second reason advanced by counsel for the brothers is that the consent was obtained through deceitful misrepresentations. The court believes the burden of proving fraud rests on the one claiming it. Reduced to its bare essentials, counsel for the brothers would require the rules of the station house at the first interrogation apply whenever a will is read following death. Much argument was made that no efforts were made to advise the brothers that they were entitled to counsel. The brothers were conned into signing waivers and consents to validate by the suave representative of the bank.

Ignoring the ambiguities poured forth at length, there was one statement made by the attorney’s father-in-law that was not accurate. It was his statement when requesting the waivers and consents that the consents are needed to validate the will. Technically, this is not correct and a non-lawyer could well be misled.

The court finds that no credible evidence of any fraud on the part of the bank or its attorney was submitted by the brothers. The third basis advanced by counsel for the brothers to set aside the waivers and consents is based upon an rule of evidence. It is argued that, because of the lapse of time between the admitted signing of the waivers and their filing in this court, the advocate of the will is to prohibit from relying upon their validity. Here the brothers have never changed their position. From the time they left the conference until the present time it would appear that their constant goal has been to set aside the will of their late brother. Situations could exist where they might have changed their position to their disadvantage. Failure to show any change in position requires that the argument based upon allegation be ignored.

After pointing out the lack of evidence to support the arguments made by the brothers to dismiss the present motion, the court remains deeply troubled by the scarcity of any evidence constituting a credible explanation for the virtual disappearance of the waivers and consents until almost the date of trial. According to the testimony, they were not rediscovered until the file had been turned over to trial counsel for review in preparation for the trial of the validity of the will. In examining the entire file, the trial counsel found these waivers.

The testimony of the associate attorney indicates that he tried to file the waivers and consents before any proceeding was pending in the court. He knew then, some three months after they were executed, that they were in existence. Two months later, there was at least one conference between the parties, the general tenor of which indicated that objections would be filed to the will. Yet no statement was made concerning the existence of these waivers and consents. Other conferences followed with no mention of the waivers and consents.

In the practice of establishing validity of the will, every lawyer knows that when an heir receives less than his interstate share under a will, there is frequently reluctance on his part to sign a waiver and consent. The associate attorney’s father-in-law was an experienced practitioner in property matters for many years. While much younger, the associate attorney not only practiced his profession but also had been a trust officer in a bank. It strains the credibility of the court to believe that experienced practitioners, once having obtained waivers and consents in this particular instance, would not immediately feel that they were home free, as far as the two people who might possibly file objections to this will. One just does not forget the existence of waivers and consents obtained at the outset of proceedings when almost immediately on the horizon appeared the possibility of a will contest.

Like any agreement between parties, a waiver can by agreement be withdrawn and canceled. The conduct of the attorneys for the proponent when the first conference was held attended by counsel for the brothers, during which it appeared that objections to the will were being contemplated, and all of the subsequent acts of counsel for the advocate and counsel for the brothers, have been consistent with only one conclusion, namely, that the waivers and consents to validate were withdrawn and no longer valid between the parties and were no longer valid waivers in the proceeding.

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The appellants of a probate case have filed for an objection against the original ruling of probate by the court. The court did not accept the objections of the appellants.

According to the objections of the appellants, they asserted that the surrogate court should have used its authority to decide on the matter of estate’s original probate due to the fact that another court already had previous jurisdiction over it. The appellants further argue that the original order for probate had already been settled in a foreign country. Such foreign proceeding was concluded by the court as possibly replicated in the city.

The decedent’s will was executed in the city in which the decedent, also known as the testator, has lived. That will and testament revokes all the previous wills that have been written by the testator. The will contains instructions on the funeral expenses and debt payments. The remaining assets after the previous expenses are deducted shall be awarded to the former wife of the testator and another party. The male respondent of this court proceeding was identified as the executor of the will.

A New York Probate Lawyer said that the former wife and the daughters of the testator have filed objections. The appellants have declared that during the time of the testator’s death, he remains to be a resident of a foreign country. According to the appeal the testator executed his will in that foreign country by virtue of the proceeding.

However, based on the statement of the executor, majority of the testator’s properties are located within this city and not in the foreign residence. The documents presented have limited information regarding foreign law and proceedings.

The court received a certification from the foreign country that contains vital information. The document indicates that the testator was a resident of this country. The foreign court has also indicated in the document that an estate hearing was going on. Under that proceeding in foreign court, the executor and proponent of the case had rejected his rights.

In the same document, the foreign court also certifies that the daughters of the testators have filed petitions for unconditional declaration of acceptance. Due to the release of this information, the respondent of the case has informed the foreign court about the original probate of will. However, there was no current record of the will being sent to the foreign court. The certification has also indicated that the proceeding regarding the estate in question will no longer continue.

Westchester County Probate Lawyers said that the court also notes that the appellant’s legal counsel has obtained a copy of a letter written to the respondent by the foreign court commissioner. The letter contained instructions that the daughters of the testator were authorized to manage the estate of the deceased in that country. The letter has named the testator’s daughters as the administrators of the estate.

The court has requested for a notarized copy of the letter. If the document is indeed valid, the will would revoke the past testament. The next step of that instance would have to the filing of a legacy case. In that scenario, the daughters of the testator would have been declared as the rightful owner of one fourth of the testator’s profits from the estate.

Long Island Probate Lawyers said that upon further review of the information and estate law, the court has found the letter of the justice commissioner to the respondent as evidence that the testator preferred to proceed with estate litigation in the city. However, it was also noted that the testator identified this city as his place of residence. The court ruled that the proceeding held in the foreign country was brought to the city in good faith. Thus, the court has affirmed its earlier order.

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The appellants of a probate case have filed for an objection against the original ruling of probate by the court. The court did not accept the objections of the appellants.

According to the objections of the appellants, they asserted that the surrogate court should have used its authority to decide on the matter of estate’s original probate due to the fact that another court already had previous jurisdiction over it. The appellants further argue that the original order for probate had already been settled in a foreign country. Such foreign proceeding was concluded by the court as possibly replicated in the city.

The decedent’s will was executed in the city in which the decedent, also known as the testator, has lived. That will and testament revokes all the previous wills that have been written by the testator. The will contains instructions on the funeral expenses and debt payments. The remaining assets after the previous expenses are deducted shall be awarded to the former wife of the testator and another party. The male respondent of this court proceeding was identified as the executor of the will.

A New York Probate Lawyer said that the former wife and the daughters of the testator have filed objections. The appellants have declared that during the time of the testator’s death, he remains to be a resident of a foreign country. According to the appeal the testator executed his will in that foreign country by virtue of the proceeding.

However, based on the statement of the executor, majority of the testator’s properties are located within this city and not in the foreign residence. The documents presented have limited information regarding foreign law and proceedings.

Bronx Probate Lawyers said that the court received a certification from the foreign country that contains vital information. The document indicates that the testator was a resident of this country. The foreign court has also indicated in the document that an estate hearing was going on. Under that proceeding in foreign court, the executor and proponent of the case had rejected his rights.

In the same document, the foreign court also certifies that the daughters of the testators have filed petitions for unconditional declaration of acceptance. Due to the release of this information, the respondent of the case has informed the foreign court about the original probate of will. However, there was no current record of the will being sent to the foreign court. The certification has also indicated that the proceeding regarding the estate in question will no longer continue.

The court also notes that the appellant’s legal counsel has obtained a copy of a letter written to the respondent by the foreign court commissioner. The letter contained instructions that the daughters of the testator were authorized to manage the estate of the deceased in that country. The letter has named the testator’s daughters as the administrators of the estate.

The court has requested for a notarized copy of the letter. If the document is indeed valid, the will would revoke the past testament. The next step of that instance would have to the filing of a legacy case. In that scenario, the daughters of the testator would have been declared as the rightful owner of one fourth of the testator’s profits from the estate.

Brooklyn Probate Lawyers said that on further review of the information and estate law, the court has found the letter of the justice commissioner to the respondent as evidence that the testator preferred to proceed with estate litigation in the city. However, it was also noted that the testator identified this city as his place of residence. The court ruled that the proceeding held in the foreign country was brought to the city in good faith. Thus, the court has affirmed its earlier order.

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The brother of the deceased contested to the validation proceeding requesting to dismiss the objections and accept the proposed evidence to probate. The will offered for proceeding claims that the estate shall be equally shared by the deceased person’s mother and brother, assigned as the executor. If either individual die before him, the surviving individual will be the beneficiary. Subsequently, his mother is already dead and he still has a wife.

The wife opposed the argument of her brother-in-law and brings in another argument to its proposed evidence. She state that the evidence offered to validate the will was not duly performed as required by the law. At the time her husband acknowledge the will, if such was in fact made, he did not declare to at least two of the attesting witnesses that the said paper offered for validation was his last will and testament. He did not request that said witnesses to be witnesses and if he signed the will, he did not do so in the presence of the said witnesses nor did he acknowledge to each of them that said subscription appearing on such paper had been made by him. In addition, her husband did know, understand or was aware of the content; meaning and/or consequences of the paper writing presented to him for implementation, if he does implemented the same.

A New York Probate Lawyer explained that in support of the motion to accept the will to validate, the brother submits his own affidavit, the testimony of a witness to the will, the affidavit of the witness and the affirmation of counsel. The wife also submits her own affidavit, the affirmation of counsel, the same testimony of the witness, a draft of the last will and testament and the affirmation of counsel.

There were three witnesses to the proposed will and two of them were already dead. The first witness testified that she was a co-worker of the deceased mother and stated that she knew the deceased by reason of his occasional visits to his mother at the office. They also engaged in casual conversations. She also stated that she worked in the same room in close proximity with the other two witnesses. In her testimony, she doesn’t remember the things clearly and she wasn’t sure of the occasion but she thinks that together with the other witnesses, they witnessed the signing of the will.

Long Island Probate Lawyers explained that the affidavit of the brother stated that upon his brother’s passing, he, his wife, and his sister-in-law were present in his brother’s residence when the safe was opened. In addition, he states that they found, in the safe, the proposed document now being offered for validation among other personal effects.

In the wife’s affidavit, she stated that she had been informed that her brother-in-law located a purported last will and testament from a safe in their house. That after her husband passed away, they retrieved the documents from her husband's safe so that they could obtain papers relating to her husband's service in the army that were required for his funeral arrangements. When the documents were retrieved from the safe, her brother-in-law advised her that he located his grandfather's will and his own birth certificate. He asked the wife if he could have the documents and the wife told him that he could have his grandfather's will and his birth certificate. At no time did her brother-in-law ever locate or claim to locate any document purporting to be her husband's last will and testament from the safe.

In addition, Westchester County Probate Lawyers said the allegation of her brother-in-law that the purported will was found in the safe is a total fabrication. There is a considerable question at issue as to the location at which the supposed document was located and when.

The attorney states that the deceased requested him to draft a will, leaving all his property to his wife other than certain and personal items. The deceased specifically told the attorney that he had never made any will and he wanted to create one for the protection of his wife.

Based on the record, the execution of the proposed evidence was not supervised by an attorney. Moreover, the testimony of the surviving attesting witness was given more than forty (40) years after the completion of the said evidence, does not directly support a finding of due execution as she could not recall certain of the elements. Under such circumstances there are issues of fact as to due execution. Accordingly, the action for dismissing the objections is denied.

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According to reports from a surrogate’s court, a decedent was survived by his wife, and two children from a previous marriage. In his last will and testament, he had chosen his wife to act estate administrator. Upon his death, the will was submitted to probate court. The court named the wife as the estate administrator in the letter of testamentary.

Before the decedent’s death and months after the wife was accorded as estate administrator, she exercised her functions. It was asserted to be true that she made several transactions which resulted to lessen the funds of the contested estate. The wife has made repeated fund transfers from an allege joint account to her own account; paid her personal bills and expenses thru multiple on-line transfers from decedent’s personal accounts in a certain bank; and checks payable to her decedent’s husband were signed, endorsed and deposited to her account.

The decedent’s children, with the help of their probate lawyers filed a case contesting the earlier decision of the court in naming the wife as the appointed executor. They reasoned out that she was unfit to carry out the terms of the contested will by virtue of dishonesty, by not providing their needs, by shallow understanding of good will and by thoughtlessly or carelessly expending of their funds. Their counsel asked the court to appoint the decedent son as the executor instead of the wife. Said party submitted to the court a written document of the decedent’s therapist. A New York Probate Lawyer said that the therapist testified under oath and sustained the allegations of the decedent’s children. Their estate litigation lawyers further make clear that the case under litigation was not a subject for time consuming dispute. Children’s funds were at stake. The wife was guilty of a series of acts-any one of which, the court has the authority to give an order to remove the wife as executor in the earliest time.

In deciding the case the court was certain that the wife mix the money of her husband with her funds. The money involved was held in trust fund for the children. The probate court firmly resolved that the lavish withdrawals, combined with repeated dishonesty and self-serving statements were comprised actions. Such actions will cause danger or risk to the children’s funds. Her conduct was enough ground and justification for her immediate removal from the office without a hearing and the preliminary letters issued to her be cancelled and be without effect.

Suffolk County Probate Lawyers said that the wife, being lawyer entered for herself a motion of reargument to the court to prove the allegations against her to be false and erroneous by stating that; first, the court’s determination of her conduct endangered the safety of the estate was characterized by error; second, the children’s claim that the estate in litigation was in danger of risk was without valid basis; third, the bringing in of the decedent’s money to her own account, the repeated on-line withdrawals and dishonest statements were of no merits. The reasons behind her actions were to continue the decedent’s previous practice to deposit his money to the estate bank. They have not opened a joint account, but instead opened an individual and separate bank account. The decedent’s money was for his two children to inherit upon his death. Some withdrawals from the decedent’s account were made to pay his hospital expenses, household bills, and compensation of her household errands while her husband was in the hospital.

The children with their Estate lawyers opposed the arguing over again, of a motion made in court by the wife. They were satisfied with the court’s decision in their favor. Probate court correctly and intelligently interpreted the contested will. Staten Island Probate Lawyers said their decision was based on undisputed facts and of general importance. The lawyers argued that the acts admitted by the wife as just and proper were grave in manner and extent. It will tremendously destroy the lives of decedent’s children.Losing the funds in trust under the control of an executor involved in a lawsuit for her wrongful and deceitful action will make tremendous negative impact on the decedent’s children. Legal counsel will stand by you and help see you through your case.

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A couple executed a Joint Will that will make whoever is the survivor among them as the one to be given the entire property whether own individually or several and be the executor of the irrevocable Joint Will. The Joint Will further provided that whatever remained after the death of the survivor would be distributed to a trust, with equal shares of the trust to be allocated among their grandchildren and one of their children, their daughter. The Joint Will's terms state that it is forever binding, and may be revoked or modified only by a writing subscribed by both parties and executed with the formality of a Will.

Approximately 8 years after the execution of the Joint Will and after approximately 50 years of marriage, the couple was divorced by judgment dated April 6, 2001. Several months before, apparently in anticipation of the divorce, the couple reaffirmed the Joint Will by executing a Marital Settlement Agreement, the terms of which were incorporated into the divorce judgment. The agreement stated, in pertinent part, that neither party would attempt to revoke the Joint Will, and provided quit claim deeds granting sole title of their condominium to the husband and sole title of their other condominium to the Wife. No further action was taken by either the Wife or the husband regarding the Joint Will.

In 2006, the Wife established her 2006 Irrevocable Trust, the body of which was her condominium. The Wife and her son-in-law were named as the trustees.

The trust document states, in pertinent part, that upon the Wife’s death, its principal is to be distributed to such one or more persons out of a class composed of her former Husband and her descendants and spouses of the her descendants on such terms as the Wife may appoint by a Will hereafter executed specifically referring to this power of appointment.

According to a New York Probate Lawyer, the Wife nominally exercised the rights of the power of appointment of the trust document through a one-paragraph will, executed in 2007 will. The 2007 will stated that it was not intended to modify or revoke the Joint Will, which shall remain in full force and effect. Rather, its sole purpose was, pursuant to the power of appointment of the trust document, to provide for the trust to convey, upon her death, its corpus, the condominium, in equal shares to the her four children.

Following the Wife’s death, the Husband filed a petition for the probate of the Joint Will. In 2008, the Husband applied for preliminary letters as evidence to be issued to him, which the Surrogate's Court granted in an order on 2008. That same year, the Husband, as the preliminary executor of his former Wife’s property, commenced a turnover proceeding against, among others, his daughter and her Husband, seeking, to his son-in-law as trustee of the trust, to execute and deliver the deed to his former Wife’s condominium to the her properties.
In their answer to the Husband’s petition, the daughter and the son-in-law alleged, among other things, that the condominium was no longer a part of the properties, as a will is not effective until the death of the one who made it, and that neither the Joint Will nor the 2007 will prohibited the deceased Wife from making gifts or transferring property during her lifetime. Thereafter, in August 2008, the son-in-law, as trustee of the trust, commenced a proceeding for the validity of the 2007 will.

The daughter and son-in-law filed objections to the Husband’s appointment as executor of the Wife’s estate. They alleged that the Wife had already transferred her ownership interest of the condominium to the trust on June 2, 2006, and, therefore, the property was neither a part of the Wife’s properties nor subject to the terms of the Joint Will that the Husband submitted for validity. They also alleged that the Husband had an absolute conflict of interest that prevented him from being the estate administrator of his former Wife’s properties according to her 2007 will and, if the Surrogate's Court would allow him to act as his former Wife’s executor regardless, his letters should be limited and he should be required to post a bond.

Manhattan Probate Lawyers said that on September 18, 2008, the Husband filed objections to his son-in-law’s petition for validity, claiming that the terms of the 2007 will violated the Joint Will and, therefore, the 2007 Will should not be admitted for validation. The son-in-law moved for summary judgment of dismissing the petition for the validation of the 2007 will, dismissing the objections to the son-in-law’s appointment as executor, and to direct the son-in-law to execute and deliver the deed to the condominium to the deceased Wife’s properties.

The terms of Article of the Joint Will therefore create two categories of property that passed to the survivor, any property comprising the entire property of the one dying first, and all property of which either of the couple has the power of disposal. The Husband asserted that even accepting his daughter’s argument that the Wife transferred title to the condominium to the trust, thereby placing such property outside the Joint Will, such property was nevertheless encompassed by the second category created by Article SECOND of the Joint Will.

Specifically, the Husband asserted that because his former Wife, retained upon her death the power of appointment regarding the disposal of the condominium, and exercised such power in her 2007 will by directing that upon her death, the trust was to convey such property to their four children, in equal shares, the deceased Wife retained the power of disposal over the condominium. Accordingly, because the deceased Wife retained the power of disposal over the condominium, the 2007 will was, in effect, a nullity, because it did not exercise the deceased Wife’s power of appointment in favor of the Husband, as required by Article SECOND of the Joint Will and, accordingly, that branch of his daughter’s cross motion which was for summary judgment on their petition for the validation of the 2007 will should be denied.

Queens Probate Lawyers said that the decision of the Surrogate's Court found that the Husband was entitled to summary judgment on the petition in the turnover proceeding to the extent of a direction that as co-trustee, his son-in-law transfers back the condominium to the property. The Surrogate's Court held that the Husband was entitled to summary judgment on the petition for the validation of the Joint Will, dismissing the daughter’s objections to his appointment as executor, and dismissing the son-in-laws petition for the validity of the 2007 will.

In an order, the Surrogate's Court, in effect, granted the Husband petition for the validity of the Joint Will and, in effect, granted that branch of his motion which was for summary judgment on the petition in the turnover proceeding, directing his son-in-law as trustee of the trust, to execute and deliver the deed to the condominium to him, as executor of his former Wife’s property.

At the time they executed the Joint Will in 1993, the couple had been married for nearly 43 years. As they did not separate until 1997, it is reasonable to infer, that at the time they executed the Joint Will, they intended to remain married and to give to each other their respective properties as well as all properties over which they retained power of disposal. Given the circumstances in which the Joint Will was executed—namely, a long-standing marriage—the phrase whether owned jointly or severally was not, as the daughter contend, intended to qualify the power of disposal phrase, but instead intended to expand the scope of the requisite power of disposal to include properties the couple owned jointly or severally with each other.

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A woman died and signed a will two days prior to her death. The will stated that she left her entire estate to one man. But, she did have another will dated many years prior to her death. It states that she left her assets to her brother and sister, unfortunately they died already, and it says if they died partial of the assets will be preceded to one of the Catholic Congregation and the remainder to her cousin and his wife.

The man filed a civil case to validate the earlier will, to which the other heirs from another will filed an objection. The eight day trial resulted on a denial to the motion, by which the jury found that the deceased person doesn’t have the legal ability to make a will and it was only done by influence. The man requests a higher court to review the lower court decision and again denied. The heirs of the late will filed a petition to legally validate it. They issued temporary letters and no objection has been filed. And the other man from earlier will seeks leave to file objections to the late will, a stay to pending appeal and an order requiring the temporary administrator to file a bond pending appeal.

Based on records, in order to file objections, the prospective objector must have an interest in the properties that would be adversely affected by the admission of the will to attest. According to a New York Probate Lawyer, man argues that he has standing because he has an interest in the properties and would be adversely affected by validation of the late will. And, as an appellant, he has contingent interest in the properties. However, this is not sufficient to file objections. The adverse consequences must be the direct result from the admission of the will to validate. It is clear that the man is not adversely affected by the validation of the late will. The only ground on which he can objects to the validation of the will is that there is a valid later will, which is the earlier will. However, the argument has already been determined in the prior trial and been rejected. He also argues that the court should permit him to intervene under its discretion to permit any party with a fair or slightly possible financial interest to intervene.

He also asks that the court to remain in the validation proceeding until his appeal is heard and determined. The affirmation of his attorney states that no prior application for this relief has been made. However, in fact, his application for a stay twice has been denied each time. His attorney insists that there was no prior application, arguing that the prior applications were made in a prior proceeding. The instant motion for a stay pending the determination of his appeal is denied.

Finally, he requests that the court require the heirs’ for the late will to file a bond. He argues that the other heirs were a resident of Florida. He argues that If their will is admitted to validate there will be nothing to prohibit them from transferring the assets to himself and his wife. According to Nassau County Probate Lawyers, he state that he will suffer prejudice if his appeal is successful and the assets will already have been distributed.

The other heir’s cross-moves for sanctions. The court provides with the discretion in any civil action or proceeding to award costs, in the form of reimbursement for actual expenses and reasonable attorney’s fees, resulting from frivolous conduct or financial sanctions upon either the party or counsel.

Brooklyn Probate Lawyers commented that in the instant case, the motion is not only playful but in bad faith. The attorney has affirmed that there was no prior motion for a stay. When questioned, he attempted to argue that because the instant validation proceeding was a new proceeding; there technically was no prior motion for a stay. This attempt to deceive the court ignored the fact that the man moved to stay all proceedings (including the projected proceeding to probate the prior will) in this court and the Appellate Division, without success. Such disingenuousness by an attorney, who is an officer of the court, is evidence of bad faith in bringing the motion.

Based on the above, the attorney of the earlier will is sanctioned, payable to the Lawyer's Fund for Client Protection. As to that part of the cross-motion which asks that reasonable attorneys fees for the attorney for proponent be assessed against him.

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The issues being raised in this estate case have two aspects. One issue talks about the objection of probate on the last will and testament of the deceased. Another issue raised on the case was whether the main executor of the will had the right to request for discovery proceeding concerning the property owned by another party.

Before the writer of the will and testament passed away, he drafted an instrument which states that all his property should go to his niece. The niece named on the will becomes in effect the executor of the will.

A few months after the drafting of the first instrument, the decedent had allegedly turned over a deed of one of his real properties to another party other than his niece by marriage. However on the same day, the decedent drafted an instrument and identified it as his last will and testament. According to that instrument, it would revoke or reverse all wills drafted prior to the recent one. This includes the first draft that named his niece the sole executor of his estate.

Westchester County Probate Lawyers commented that the recent will before the decedent pass away, he named the other party, the one who had the deed to his property, as an alternate beneficiary of all his assets. The different between the first and recent testament was the inclusion of the respondent as one of the beneficiaries.

The niece petitioned for a probate on the recent will executed by the deceased. The respondent had requested the surrogate court to change the date of the instrument to match the date in which she received the deed of the property from the then decedent. The niece objected to the execution of the second instrument.

According to a New York Probate Lawyer, the petitioner has been named the main executor of the testament. In this regard, the petitioner asserted that the respondent had in her possession cash, house furnishings, car and income from real property. The respondent refused to turn over the said assets belonging to the deceased.

The petitioner also indicated in her objection that the real property of the deceased was illegally acquired by the respondent on the same day the latest version of the will and testament was granted. In connection with the matter, the petitioner has also asked the court to inquire about the other properties that the respondent might still have that belonged to the deceased. The respondent has denied all the accusations made against her and challenged the petitioner that she had no probate case.

The law states that any individual who shows interest in the properties of the decedent will be affected when the will is subjected to probate. The interested person can object to this event. There is an exception to this provision in which the entitlement of property will not be revoked by another instrument. The same person will not be allowed to file any objection to the probate unless the court grants it.

In general, the niece in this case will not get anything from the estate if the will and testament of the deceased will be admitted to probate. The only exception to this law is when the same person is interested in a previously drafted will and the recent instrument is not admitted for probate while the recent one is accepted, that person will receive more from the properties in question.

Long Island Probate Lawyers said that according to the provisions of the law, an individual cannot file for an objection if he is not the receiver or the distributee of the properties. Therefore, the court has decided to go on with the probate of the estate. The petitioner’s objections are also denied.

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A man who died in New York City was survived by two brothers. One lived in Endicott and the youngest in Pennsylvania who drove to Endicott and arrived in the evening to attend his brother's funeral the following day.

Prior to the funeral, the youngest brother suggested that arrangements be made to read the will soon. Shortly after the funeral a conference was held at the Trust Company. Present were the two brothers, the executive vice-president of the Trust Company; the counsel for the Trust Company; and an associate attorney with his father-in-law.

The testimony concerning what occurred at that conference is completely contradictory. Postponing for the moment a discussion of the completely opposing testimony, it is agreed that both the living brothers each signed a form of Waiver and Consent to Probate. These waivers were retained by the father-in-law of the associate attorney, according to a New York Probate Lawyer.

Later that day, both brothers journeyed to the office of a counsel. The next day, both were present in the Trust Company when a search for a will was made on the safe deposit box of their deceased brother. Among the assets were somewhat over 3,000 shares of IBM stock, then worth in excess of $1,000,000.00.

There were two supplements attached to the will. The first affected only the inheritances to both and the second affected the interests of all excess recipients. All the excess recipients became necessary parties to establish the validity of the will. Eventually it developed that these excess recipients would number over 250 people, most of who lived in Switzerland.

A petition was made for the appointment of a temporary administrator and letters of temporary administration were issued to the Trust Company. The associate attorney testified that when he filed the will and appendices, he attempted to file the waivers of citation and consents to validate but that they were not accepted because no proceeding was then pending.

According to Suffolk County Probate Lawyers, the youngest brother consulted counsel in nearby Philadelphia. A conference was held at the Trust Company, attended by its executive vice-president; the associate attorney, the elder brother and his counsel; and the Philadelphia counsel for the younger brother. When the discussion indicated that objections were being considered to the validation of the will and appendices, no one mentioned the fact that waivers of the issuance of citation and consents to validate had been signed earlier by the brothers.

The father-in-law of the associate attorney, due to poor health, died the following year. Eventually the associate attorney concluded that the task of getting together material on the large number of parties for establishing the validity of the will and appendices would be unduly delayed if done by a single practitioner. He retained a firm to act as his counsel. A petition was filed on the same year and a citation was issued, which included the names of both brothers and both were served with a copy of the citation.

Within the time granted by the court, objections to validate were filed. Conferences continued among the attorneys and on at least two occasions, the court participated in a pre-trial conference to ascertain whether the differences might be resolved. When no resolution of the differences appeared possible, a petition was made for an order framing the issues and an order was made for a trial.

Shortly thereafter, the two waivers of citation and consents to validate signed by both brothers were filed. Both men were directed to show cause on why their objections should not be dismissed on the ground that they had previously consented to the validation of the will. Such is the recital of facts about which there is no dispute, commented a Staten Island Probate Lawyer.
It is the position of the court that the validity of these waivers and consents to be established must be determined primarily on the basis of what occurred at the conference. Both men contend that the waivers are invalid because they were not properly acknowledged; and that they were deceitfully obtained; and that the advocate of the will and appendices is prohibited from use of said waivers because of the lapse of time between their execution and filing in this court.
According to reports, it was the younger brother’s recollection that the bank officer, did most of the talking at the conference; requested his waiver and consent; advised him that its execution was merely to record his presence at the conference; and presented the forms in blank for his signature. The elder brother’s recollection was less detailed. He, too, said that the bank officer did most of the talking. He understood the waiver and consent was signed so the court could permit payment of his late brother's debts. He, too, said he signed a blank form.

The executive vice president of the Trust Company and the associate attorney testified that the deceased father-in-law of the associate attorney brought photocopies of the will and appendices to the conference along with waivers of citation and consents to validate, with the blanks filled out in his handwriting; that ample opportunity was given the brothers to examine documents; and finally, that the attorney’s father-in-law requested the waivers be signed, stating those are needed to establish the validity of the will.

The father-in-law did not take the acknowledgments but said as the associate attorney to notarize them. The associate attorney testified that he did not ask either of the brothers if they so acknowledged their signatures. He stated that since he had seen each sign, he believed it unnecessary to ask the oral question and he signed the certificates of acknowledgment in the usual form.

Of all waivers filed in the proceedings, the greatest number must certainly be waivers of the issuance of citation and consents to establish validity. Upwards of 60% of the wills validated in the court are admitted on jurisdiction acquired by these waivers. Perhaps their frequent use makes it rare when the nature of the waiver is called into question.

On analysis it is clear that the waiver really consists of two parts. One is a waiver of the issuance and service of a citation and a general appearance in the proceeding. The second part is consent to validate without further notice. For a legitimate request to validate the will, the portion relating to consent is unnecessary. When a citation is issued and no objections are filed, there are no consents by the persons so cited.

Counsel for the brothers in seeking to dismiss the motion, argue that the waiver and consent in each instance was not validly acknowledged. Relying on that claim, they charge that the whole waiver is void.

Generally an acknowledgment has nothing to do with the validity of a waiver. Its purpose is to furnish due proof of the execution of waivers affecting real property. A waiver is good between parties even though defective acknowledgment prevents its recording. In some instances, the statute requires acknowledgment for validity, such as the waiver of the issuance and service of citation previously mentioned; waiver of a right of election; assignment of an interest in an estate; a building and loan contract; and others. The word acknowledgment is frequently used but rarely analyzed.

The second reason advanced by counsel for the brothers is that the consent was obtained through deceitful misrepresentations. The court believes the burden of proving fraud rests on the one claiming it. Reduced to its bare essentials, counsel for the brothers would require the rules of the station house at the first interrogation apply whenever a will is read following death. Much argument was made that no efforts were made to advise the brothers that they were entitled to counsel. The brothers were conned into signing waivers and consents to validate by the suave representative of the bank.

Ignoring the ambiguities poured forth at length, there was one statement made by the attorney’s father-in-law that was not accurate. It was his statement when requesting the waivers and consents that the consents are needed to validate the will. Technically, this is not correct and a non-lawyer could well be misled.

The court finds that no credible evidence of any fraud on the part of the bank or its attorney was submitted by the brothers. The third basis advanced by counsel for the brothers to set aside the waivers and consents is based upon an rule of evidence. It is argued that, because of the lapse of time between the admitted signing of the waivers and their filing in this court, the advocate of the will is to prohibit from relying upon their validity. Here the brothers have never changed their position. From the time they left the conference until the present time it would appear that their constant goal has been to set aside the will of their late brother. Situations could exist where they might have changed their position to their disadvantage. Failure to show any change in position requires that the argument based upon allegation be ignored.

After pointing out the lack of evidence to support the arguments made by the brothers to dismiss the present motion, the court remains deeply troubled by the scarcity of any evidence constituting a credible explanation for the virtual disappearance of the waivers and consents until almost the date of trial. According to the testimony, they were not rediscovered until the file had been turned over to trial counsel for review in preparation for the trial of the validity of the will. In examining the entire file, the trial counsel found these waivers.

The testimony of the associate attorney indicates that he tried to file the waivers and consents before any proceeding was pending in the court. He knew then, some three months after they were executed, that they were in existence. Two months later, there was at least one conference between the parties, the general tenor of which indicated that objections would be filed to the will. Yet no statement was made concerning the existence of these waivers and consents. Other conferences followed with no mention of the waivers and consents.

In the practice of establishing validity of the will, every lawyer knows that when an heir receives less than his interstate share under a will, there is frequently reluctance on his part to sign a waiver and consent. The associate attorney’s father-in-law was an experienced practitioner in property matters for many years. While much younger, the associate attorney not only practiced his profession but also had been a trust officer in a bank. It strains the credibility of the court to believe that experienced practitioners, once having obtained waivers and consents in this particular instance, would not immediately feel that they were home free, as far as the two people who might possibly file objections to this will. One just does not forget the existence of waivers and consents obtained at the outset of proceedings when almost immediately on the horizon appeared the possibility of a will contest.

Like any agreement between parties, a waiver can by agreement be withdrawn and canceled. The conduct of the attorneys for the proponent when the first conference was held attended by counsel for the brothers, during which it appeared that objections to the will were being contemplated, and all of the subsequent acts of counsel for the advocate and counsel for the brothers, have been consistent with only one conclusion, namely, that the waivers and consents to validate were withdrawn and no longer valid between the parties and were no longer valid waivers in the proceeding.

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The guardian of the decedent’s estate has filed for a petition and requested the court to allow the probate of the alleged will. The petition also contained that a fee should be established by the court.
The testator of the will and testament has passed away. He left his wife and 3 children his estate. The widow was named the guardian as stated in the decedent’s will. The widow at that time is afflicted with dementia. The two older sons of the testator were also named as co-guardians for their mother.

The two sons requested a probate of a specific will. A few months later, they filed another probate on another will and requested that the previous motion be denied by the court.

The first in will in question contained provisions that the testator’s tangible assets be awarded to his wife. His older sons were also named as the executors of that will. The other testament in question allegedly contained specifications that the personal assets and residences of the testator will be given to his wife. This particular will have named the wife as the trustee and executor. The two sons in this will were named as the alternate executors and trustees.

The court has reviewed the background of the testator. The decedent in this case was tax lawyer. His law career was spent mostly with a corporation whom he has shares of common stock. If the first will questioned above will be accepted by the court on probate, the widow of the testator will not get anything since the stocks belong to the sons. If the probate will be accepted on the second will, the wife will receive her share of the proceeds. There will be no need to pay for estate tax. In the second will, the wife will get her share of the trust.

Brooklyn Probate Lawyers explained that the court is tasked to decide on whether to allow the second will to be admitted for probate when it doesn’t find anything wrong with the first will. The petitioners in this case have cited a prior case concerning a remedy given by the court. In that previous case, the court had allowed the parties to abandon a proceeding concerning the matter of probate for a second instrument. The court also accepted to probate the first instrument in that case.

Back to the current case, the guardian has asserted the probate of the second instrument since this will be in the best interest of the mother and wife of the testator. If the first will is subjected to probate, the estate will be taxable, according to a New York Probate Lawyer.

Based on the report of the guardian, the court gave authority to the guardian to consent to the probate of the second will in behalf of the wife with dementia. When the guardian has submitted their consent, the second testament will be subjected to probate.

Regarding the fee of the guardian, the court is responsible for the approval of legal expenses to be charged to the property. The court also has the discretion to decide on a reasonable amount as payment of fees.

The court will evaluate the legal expenses of the guardian based on different criteria. The court will have to consider the complexity of the arguments, the time spent in preparing the case, the reputation of the lawyer and experience. In order to arrive at the best possible amount, the court will have to decide and balance its decision by evaluating all the factors involved.

The guardian had presented the amount to be paid as legal fees. Bronx Probate Lawyers explained that court has agreed to this amount since the guardian has meets the criteria.

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The appellants of a probate case have filed for an objection against the original ruling of probate by the court. The court did not accept the objections of the appellants.

According to the objections of the appellants, they asserted that the surrogate court should have used its authority to decide on the matter of estate’s original probate due to the fact that another court already had previous jurisdiction over it. The appellants further argue that the original order for probate had already been settled in a foreign country. Such foreign proceeding was concluded by the court as possibly replicated in the city.

The decedent’s will was executed in the city in which the decedent, also known as the testator, has lived. That will and testament revokes all the previous wills that have been written by the testator. The will contains instructions on the funeral expenses and debt payments. The remaining assets after the previous expenses are deducted shall be awarded to the former wife of the testator and another party. The male respondent of this court proceeding was identified as the executor of the will.

Accoridng to a New York Probate Lawyer, the former wife and the daughters of the testator have filed objections. The appellants have declared that during the time of the testator’s death, he remains to be a resident of a foreign country. According to the appeal the testator executed his will in that foreign country by virtue of the proceeding.

However, based on the statement of the executor, majority of the testator’s properties are located within this city and not in the foreign residence. The documents presented have limited information regarding foreign law and proceedings.

Bronx Probate Lawyers said that the court received a certification from the foreign country that contains vital information. The document indicates that the testator was a resident of this country. The foreign court has also indicated in the document that an estate hearing was going on. Under that proceeding in foreign court, the executor and proponent of the case had rejected his rights.
In the same document, the foreign court also certifies that the daughters of the testators have filed petitions for unconditional declaration of acceptance. Due to the release of this information, the respondent of the case has informed the foreign court about the original probate of will. However, there was no current record of the will being sent to the foreign court. The certification has also indicated that the proceeding regarding the estate in question will no longer continue.

The court also notes that the appellant’s legal counsel has obtained a copy of a letter written to the respondent by the foreign court commissioner. The letter contained instructions that the daughters of the testator were authorized to manage the estate of the deceased in that country. The letter has named the testator’s daughters as the administrators of the estate.
The court has requested for a notarized copy of the letter. If the document is indeed valid, the will would revoke the past testament. The next step of that instance, according to a Staten Island Probate Lawyer, would have to be the filing of a legacy case. In that scenario, the daughters of the testator would have been declared as the rightful owner of one fourth of the testator’s profits from the estate.

Upon further review of the information and estate law, the court has found the letter of the justice commissioner to the respondent as evidence that the testator preferred to proceed with estate litigation in the city. However, it was also noted that the testator identified this city as his place of residence. The court ruled that the proceeding held in the foreign country was brought to the city in good faith. Thus, the court has affirmed its earlier order.

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A rich man died leaving several properties in Central America and two States in the U.S. Almost two and one-half years later, a petition was filed in the court of a U.S. State by the Country of the deceased man for the order which is alleged to have been destroyed after the man’s death. That petition contains the further allegation that the man was, at the time of his death, a resident of the Country from Central America. The petition was amended in which the petitioner set forth transactions and proceedings with U.S. State Tax Commission wherein the petitioner was advised of the Commission's disagreement that the man had been a resident of the U.S. State. According to a New York Probate Lawyer, the petition was thereupon amended to read that the man, at the time of his death, was either a resident of the U.S. State or a resident of the Country from Central America.

The petition against the U.S. State was to dismiss their petition for the probate of the will on the grounds that the involved U.S. State court has no jurisdiction to entertain the proceeding and if it has jurisdiction, that it should decline, in its discretion, to exercise it. The Petitioner Country requests a hearing on the matter of the deceased person’s residence and the location of his property.

Tax Law requires that in every proceeding for original letters appointed by in the estate of a non-resident deceased person, the State Tax Commission must be cited as a necessary party. The section contains other provisions to protect the State's interest with respect to the collection of any tax that might be payable. The petition herein having been amended so as to leave open the question of the man’s residence, the State Tax Commission is taking no active part in the process of the proceeding. It is obvious, therefore, that the amendment of the petition represents not so much a change of mind on petitioner's part but rather an effort to avoid at this time unnecessary legal action.

It is true that the parties are not all in agreement respecting the man’s residence. Two of the contestants allege that he was a resident in Central America. The Attorney General of the U.S. State and a special guardian of infant parties allege U.S. State as his residence. However, no person claiming the U.S. State residence desires to bring into court the man’s residence concern as a preliminary issue in the process of the proceeding. The U.S. court would have jurisdiction whether the deceased man was a resident or being a non-resident, he died without leaving personal property within the county upon a motion for a preliminary trial of residence.

The Attorney General appears to be the only party to the proceeding contending that the deceased died a resident of the U.S., and he joins in opposition to the motion stating that the question is not relevant to the matters in controversy as to the validity of the paper considered as the deceased man’s last will. The court agrees in the conclusion and holds that the Petitioner has failed to demonstrate the necessity for determination of the issue of residence.

In challenging the jurisdiction of the court to entertain the process of administering the proceeding, the motion papers nonetheless admit that the gross assets owned by the deceased man at the time of his death had a value of over $3,500,000 and such assets are held in custody by the Country in Central America with over $500,000; U.S. State over $2,500,000; Province of Canada--over $500,000. According to a Manhattan Probate Lawyer, the Petitioner alleges, however, that the man left no real or tangible personal property in the U.S.; that his intangible property in the U.S. consists of several bank or brokerage accounts and stock certificates of a number of corporations, a great majority of which were organized outside of the U.S. State. The Petitioner requests a preliminary trial to determine the location of the assets taken into custody by the Public Administrator of the County who acts as temporary administrator of the deceased man’s assets.

The temporary administrator appointed by the court has submitted a report to the court in which he states that a brokerage firm was indebted to the deceased man, there was deposit in a bank, another firm owed the deceased man, and there were securities valued in millions, most of them in street names, all physically located in the U.S. State. All of the securities have been sold by the temporary administrator and the proceeds have been invested in bonds of the United States, the State and the City, all of which are held by the appointed person under the supervision of the U.S. State court.

A trial of the preliminary issue would be expensive and slow. Inasmuch as the court would have jurisdiction in any event, at least insofar as property in the U.S. State is concerned, the parties have long ago reached the point where they are anxious to try the important basic question, that is, the genuineness and validity of the will. The Petitioner, on the other hand, apparently prefers to delay the trial until the matter can be tried in Central America, where the proceeding is moving along at a leisurely pace.

Insofar, the motion to seek a hearing to determine the location of the securities left by the deceased man is denied. The property in the hands of the temporary administrator not only has a location within the County of the U.S. State, but is actually being administered under the supervision of the court and is actually and physically before the said court.

Records revealed that it is argued by the Petitioner that the authority of the U.S. court to entertain a proceeding for the process of administering the will of a non-resident is limited to those properties where no original administration proceeding is pending at the residence of the person who made the will. In the discussion of the question of jurisdiction of the U.S court, it is assume, without deciding the point, that the deceased man was a resident of a Country in Central America. In this property, a proceeding to determine the validity of the will is pending in Central America, which, for convenience, shall be referred to as the residence of the deceased. It cannot be said that this court lacks jurisdiction to entertain the probate proceeding and that, as matter of law, the proceeding must be dismissed.

Thus far it is considered only the power and authority of the court to proceed with the process of administering of the alleged will. Indeed, except for the Petitioner, the trial of the fundamental issues would have been completed by now. What has transpired since the last decision serves to confirm that decision. The Attorney General of the State opposes the present motion. The man died more than five years ago. Contrary to the usual practice of the court, the actual trial of the proceeding has not yet started. No one can assert when the trial in residency can proceed. No one can predict the result. No one can say whether a final decree in the residency will be on a ground that would prevent independent contest. No one can say how long final decision will be delayed. Since the prior decision of the court refusing to dismiss the proceeding, there has been substantial legal action and extensive services by counsel. To remit all parties to another forum after all the advances, and retreats, the exploration, and preliminary conflicts, would be a postponement of justice equivalent to a denial.

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The following estate litigation was filed by the proponent. The proponent in this case is one of the three daughters of the testator. In her petition, she wanted to revoke the administration letters that were given to her sister. Because of this incident, the two sisters of the proponent had filed a motion against the proponent in to prevent her from submitting the testator’s will for probate.

The mother and now the deceased had resided in another country. One of the daughters of the deceased had requested letters of administration. In her petition, the sister had asserted that her mother was named as the distributee of the property of the proponent’s brother. According to a New York Probate Lawyer, the petition also indicated that the bank handling the estate administration did not perform its duty to distribute the proceeds of the estate to the others.

The two sisters gave consent to the appointment of their brother. The letters of administration were sent to the petitioner while the other sister defaulted since she was not in the city during that time. But she did receive the letter.

The sister who received the letters of administration filed a petition to have the bank explain why it failed to distribute the estate of their brother. After a few months, the proponent in this case has requested the foreign country in which her father resided, to have the last will and testament to be subjected for probate proceeding.

The will and testament contained instructions to give her husband all her assets. If the husband had passed away before she did, the other sisters will receive equal shares of the estate while the other will get a dollar. The father died in the foreign country of residence specifically Israel. His last will and testament was on probate there. Under that will, the deceased father named the proponent of this case as the executor of his last will and testament.

According to a Nassau County Probate Lawyer, the respondent filed her objections to the probate of the will under probate in another country. She relied on the grounds that her mother lacked the ability to make a testimony. She also filed for a proceeding in that foreign country which expressed her intentions of abandoning the probate on the testament of her father.
The proponent of this case then proceeded to file an objection to the letters of administration given to the respondent. The proponents of the case had contended that the decedent had a testament. They also said that their sister was not capable of acting as distributee. Based on their statements, there were also errors in the letters of administration. According to the sisters, the letters of administration may contain misstatements that may have been interpreted by the courts as true information. Misstatements are misleading and can lead to errors in judgment on the part of judicial authority.

A Staten Island Probate Lawyer said that based on the provisions of the law, an injunctive relief is sought may be granted according to the court’s discretion. For the petition to have legal basis, the petitioner will have to prove that he or she has merit and possesses the equities necessary for the remedy. The injunctive relief in this case is said to be a drastic solution.
If the courts in this city will not allow nor accept the comity rule to accept the probate of the will pending in a foreign court, there will be no reason for the same court to deny the petition based on the letters of administration.

The injunctive relief sought by the proponent in this case is denied. There shall be no foreign court proceeding that will submit the instrument for probate.

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In a work-related accident, the decedent suffered permanent substantial disability in October 1973. An employer’s workers’ compensation insurance carrier was instructed to pay disability benefits to him. The defendant had pre-existing diabetes so the carrier applied and was give reimbursement from the Special Disability Fund pursuant to Workers' Compensation Law. When the decedent died on January 7, 1982, his widow filed to claim death benefits because she alleged that the injury sustained in October 1973 was an underlying factor in her husband’s death. New York Probate Lawyers said that in compliance with the Workers' Compensation Law the carrier converted the claim and applied for reimbursement from the Fund. There was a hearing with before an Administrative Law Judge and the application of the wife for death benefits was granted. The carrier did not ask for a review of the Workers' Compensation Board about the connection of the injury to the death.

There was a later hearing for the carrier’s application for reimbursement from the Fund. The fund asked the Administrative Law Judge not to make a ruling until they could get a review from the Workers' Compensation Board if the wife’s claim was compensable. The request was denied and the request of the carrier for settlement was granted. The fund appealed to the Board stating the wife would have not been awarded benefits because the death was not related to the injury sustained in October 1973. The Board’s decision was that the fund lacked standing to raise the issue.

When the case was already with the Appellate Court, the court said they agreed with the Board that reversing the decision will allow the Fund to reopen the primary issues related to the compensability of an injured or deceased employee's claim. The Fund’s stand is the causal relationship between the death and the work-related accident. The legal idea of the Workers' Compensation Law is to hire employers to hire permanently handicapped people. This is because of the reimbursement they are offered if they compensation to a work-related accident. The court said the representative of the fund only has standing in the proceedings when the employer claims for such compensations are being heard not when there is a claim from the employer. The conspiracy of an employee and employer is averted with the employer not being able to get reimbursement for the first two years of benefits, commented Westchester County Probate Lawyers.

If the court gives the Fund authority to take proceedings on the primary issues of compensability, even after the benefits have already been granted to the wife will generate two results that are inconsistent with the purpose of the Workers' Compensation Law. One of the results will be to re-open the claim of the wife that will be in violation of the provision “to avoid extended medical controversies and delays in benefits.” The other one is for the employer to not be able to claim reimbursement, but will also not be able to get the money back from the wife. Long Island Probate Lawyers mentioned this will have a negative effect on the employers’ motivation to hire handicapped employees. This weakens the primary purpose of the law. Another argument of the Fund is to deny them of the chance to contest is breach of due process. This they did not raise with the Board so it did not become part of the review. Since the Fund was created by Legislature and is doing governmental function on behalf of the State, they are not able to assert rights under the Constitution against the State. The decision of the Board was affirmed without costs.

People often think that when making demands for compensation with regard to a work-related accident, they do not need legal counsel. Whether you have a workers compensation issue, an estate litigation matter, or need a last will and testament, it is vital to have quality legal counsel assisting you.

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This is a case filed by William Power Maloney against the estate of E. Townsend Irvin and against other people including the widow and other beneficiaries of the estate. It was determined in a report sent to a New York Probate Lawyer that Maloney served as counsel of lawyer for one of the beneficiaries, J. Gordon Douglas, who was also later named as executor of the estate. Much was discussed about this case because there were also other people involved in the estate like the Woodbury family.

Maloney was asking for the settlement of his legal fees because of the services he rendered to his client, J. Gordon Douglas. He was asking the court grants his petition and that he be paid for his services and that the payment should come from the Irvin estate. At that time, Maloney was asking to be paid the sum of $16,000 for his estate litigation services. It was questioned by the court and by the other beneficiaries why such an amount be paid to him from the Irvin estate when in fact, according to them Maloney did not perform or rendered any services for the deceased or his estate.

Because of the longstanding arguments of the widow and the Woodbury family along with J. Gordon Douglas, the proceedings regarding the estate has taken so long already. Douglas, according to Maloney approached him and said that unless there is a compromised agreement between the widow and the Woodbury family, the trial could probably take longer than necessary. Maloney said that he worked with the disputing parties to come up with a settlement. According to him, the sum of $25,000 was agreed upon by the disputing parties that finally ended their objections and disputes. But it unknown to both parties that Maloney was working for them and the estate. They were under that impression that Maloney represented Douglas who was at that time was not yet named as executor of the estate.

According to NY Probate Lawyers, here were a lot of discussion and confusion to the testament of Maloney that he was a major part of the settlement entered into by the opposing parties. It was then finally ruled that only the sum of $1500 should be paid to him as legal counsel of Douglas who became executor of the estate and not the $16,000 he was originally asking. This is in the courts argument that he, Maloney, cannot ask for that amount from the estate because it was not determined or established that he indeed worked or rendered services for the estate.

Maloney later told the court that aside from that, he claimed that the father of his clients also approached him with claims that the deceased owed him a considerable amount of money as well. Maloney was asked by the father of his client to review huge files of documents as proof of his claim. Maloney claimed that he was able to “pacify” the older Douglas not to take the matter into court. He said that because of that which he considered as services rendered for the estate, he was charging $10,000 as legal fees. This was also denied.

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The matter of Max Zurkow’s estate, his daughter had filed a motion for the court to wait on admission of a decision regarding the probate of the last will and testament. She also asked for a time extension to file objections and time to be able to examine the proponent and for an interpretation of the effect of the terrorem clause or no-contest clause that is included in the will.

On the return day of the hearing for the original matter, the daughter showed and the proponent was directed to change the petition because the adoptive daughter of Mr. Zurkow’s predeceased son was not mentioned. Another data that a New York Probate Lawyer obtained was the daughter was not served with the supplemental citation and is claiming she only received a day’s notice that a decree on the admission of the will to probate is going to be presented to the court. The daughter got an immediate order to show cause to wait in making a decision on the decree.

The daughter had checked witnesses who are verifying the proposed will and now wants to examine the proponent of the will. Her allegation was that the son of the testator, who is also an attorney at law, acted as the decedent’s attorney, and the will being executed in his office. Further, she is claiming that the provisions of the will were altered to assign other benefits to the proponent and his family at her expense. A Queens Estate Lawyer cited that the daughter was as well saying that her father was 80 years old at the execution of the will and was relying on other for his physical needs.

The last will and testament of Mr. Zurkow say that if anyone opposes the probate of his will, that person and any participant will rescind his right to any bequest. The daughter asked that court that before they grant or deny her request for the examination of the proponent, they first interpret this part of the will. A Nassau County Probate Lawyer said that the court will not be able to construe any part of the will before it is in probate. In can however, check if the examination of the proponent is part of the public policy of declaration. This means that the action that will be done is does not tantamount to a breach of the terrorem clause.

In this case, the court said it is their practice that if the person who drafted the will or a member of his firm and/or his family will receive a part of the estate in probate of a proposed will, he is required to submit an affidavit explaining that the will was free and voluntary made. He needs to explain in the same affidavit why he or his family is receiving a special treatment under the will. If it is a member of his firm who drew up the will then he will need to explain if he had any connection the actual making of the will and the person who actually made it should have his own affidavit saying that he acted in behalf of the decedent and not the proponent.

The affidavits will be carefully scrutinized by the court. It will not be examined for as long as there are unexplained suspicious circumstances. In this case, the proponent submitted applications that showed he will be receiving more of the will goes into intestacy or going without a valid will. It appeared, however, that the daughter of the proponent, the granddaughter of the decedent will receive a substantial amount that is more than what she will receive in intestacy as she is not considered as an heir to the estate. The court then granted the request of the daughter to examine the proponent with regard to any matter regarding the will.
Being sure of what the law will or will not allow you to do when matched by a condition of a will may be hard. You would not want to lose any of your rights a beneficiary. This is where a knowledgeable and experienced legal counsel comes in. They will go through the will with you and review the rule of law with you to determine the proper plan of action in making sure you are getting your due.

When looking for a lawyer who would handle your case properly and with care in New York or Long Island, you have Stephen Bilkis & Associates. We will not only check on the conditions of the will but see to it that we have exhausted the options provided in the law to get your fair share. You can get a free consultation with us at 1-800 NY - NY- LAW.

According to a New York Probate Lawyer, this is a case about the estate of Bertha Weil Fitzgerald. Reports that reached his office said that the estate was left to a number of charitable institutions and couple of churches according to her will. These charities and churches are Catholic Charities of the Archdiocese of New York, National Society for Prevention of Blindness, Inc., The Fresh Air Fund, First National City Bank as Committee of the Property of Paul S. Ames, Jr., Society for the Prevention of Cruelty to Children, Archbishopric of New York and for Terence Cardinal Cooke, The Salvation Army, Heart Fund, American Cancer Society Inc., and the New York Hospital-Cornell Medical Center.

According to the Will that was executed in 1970, all of these charities and churches shall receive each an amount of $50,000. The Fitzgerald Estate was valued at $2 million. The remainder of the estate shall be given to the Archbishopric of New York. However, Bertha Weil Fitzgerald had a 41 year old son who was legally entitled to the estate of his deceased mother. It was also said on the Will that Bertha did not intend to leave any amount or any part of her estate to her son, who was also invalid and incompetent. The son according to reports had been institutionalized since childhood and therefore was under no condition to care for himself much less to her mother’s estate. It was also noted that the grandmother, Bertha’s mother already left half a million dollars to her grandson when she passed away some years back.

This case was filed by the trust company of Bertha’s son claiming that the son, under their representation did not receive any notice about the Will of Bertha. They claim that the son was not able to file an objection to his mother’s last will and testament and that it was right to do so. It was also noted that by law an incompetent spouse or in this case a son can file for an objection if he or she was left with a sum leas than or not equal to the sum that were left to other beneficiaries in this churches and charitable institutions. It is also what is known as a case of excessive or too much charity.

Also, Brooklyn Probate Lawyers were also informed that the legal counsels of the charities and churches claimed that the objection of the son was not file in time and that it was already too late to file such an objection in court. It was however traced that the son was declared incompetent in 1971 a year after the Will was executed.

Assets and properties including cash and jewelries are all testament of your hard work and challenges in life. It would be devastatingly difficult if for some reasons all the fruits of your hard work will be taken away from you or your loved ones whom you chose to be your beneficiary. Remember that Bronx Probate Lawyers will make sure that your assets are well taken care of as well as your loved ones and other people and or entities you have chosen.

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The very popular Emmy is a trademark shared National Academy of Television Arts & Sciences and Academy of Television Arts and Sciences. Before, these two entities were on under Television Academy of Arts & Sciences, this was in 1946. In the 1950’s they separated because of differences. New York Probate Lawyers say that around the 1977, the National Academy of Television Arts & Sciences (NATAS) and Academy of Television Arts and Sciences (ATAS) entered in a settlement agreement to resolve differences in each group’s right with the use of the Emmy trademark and the related litigation.

NATAS got among other things the exclusive right to conduct one annual award and show per year for national daytime programming (TV shows from 2:00 am to 6:00 pm), national sports programming, national news and documentary programming. ATAS got the exclusive right for the award for night time TV shows (TV shows from 6:00 pm to 2:00 am). The agreement also provides that they will need each other’s consent before creating any new national awards, which shall not be unreasonably withheld. A Manhattan Probate Lawyer found out that the agreement is if the other party feels that the consent was reasonably withheld, then they can resort to an intercession.

NATAS announced that they would be starting to award new Emmys to recognize “new media”. The announcement was made November 2005. The “new media” included Broadband video programming broadcasted over the internet. ATAS was not asked for their consent before NATAS announced the new awards. They as well announced that they will be awarding Emmys in Drama, Comedy, Children’s and Variety for Daytime Broadband. Part of the revelation was a "My Space/ My Emmy" contest, which will be for advanced media awards like video games and other technologies. NATAS had denoted that it will be awarding all entertainment programming on broadband media regardless of the time it was distributed. The awards were scheduled to be given away in June.

ATAS filed a Demand for Arbitration with the American Arbitration Awards (AAA). What they were asking is for relief because of NATAS’ announcement of new awards, which they claim is a breach of their agreement.

A Queens Probate Lawyer found out that the panel established that NATAS had inappropriately exploited the Emmy in no less than four separate occasions. The panel ruled that NATAS should not promote or participate in the "My Space/ My Emmy" contest. NATAS is as well instructed to not award new Emmys that will infringe on the genres reserved to ATAS. This being drama, comedy variety shows, music, "long form" including mini-series, reality shows, children's animation, made for television movies and non-fiction film making. Both ATAS and NATAS are ordered not to award any new Emmy for non-television devices. The panel also found that NATAS exploited Broadband by their announcement.

NATAS filed a petition for a temporary restraining order with its appeal to vacate the interim award, on December 20, 2007. They stated that the panel exceeded its powers by deciding on issues that were not submitted to them. The court of appeals decided that for the un-finalized interim awards, there are no grounds for dismissal. As for the panel going on more than their authority, it is the court’s decision that this is baseless. The court then ordered that injunction to vacate the Interim is denied. The court granted the confirmation of the arbitration.

A case like this is always high profile because it is the media that is involved, and everything is well publicized. Sometimes publicity causes people to lose focus on what must be done. Their goal and task are always with them and what they work for.

At Stephen Bilkis & Associates, we have a skilled legal team who will take care of your concerns when it comes to agreements and contracts. We do not require media scrutiny to do our best. If you have an agreement or a contract with someone that you feel have been breached, or you are involved in an estate litigation matter or will contest, you can go in any of our offices, contact us online or call 1-800 NY - NY- LAW for a consultation. We handle cases from New York and Long Island.

This is a case regarding the Estate of Julia Eckart and the claims of her children regarding each of their shares in the inheritance. According to reports given to a New York Probate Lawyer, the children of the deceased filed a case against the last will and testament of their mother because of the insufficiency of their inherited amount against that of which will go to other people, entities and charities.

Unbelievably, according to Brooklyn Probate Lawyers, Julia Eckart left each of her children the amount of $50 each. According to her will, she also left no other cash or property to the rest of her surviving relatives. That is why the surviving children, Charlotte Anna Eckart, Frank Darmody and Frank Darmody filed a case in court that says that their mother made an excessive contribution to charity and that they were left with nothing except for the $50 each that were provided to them by her last will and testament. The rest of Julia Eckart’s estate, including her real and personal property have been assigned to the Watch Tower Bible and Tract Society of Pennsylvania, which is a non-profit corporation in Brooklyn, New York.

Reports that reached Bronx Probate Lawyers, the court thoroughly examined the case according to the petition filed by the children. There was also a similar case before when a grandson was expressly disinherited on the will that was left by his grandfather. This was the Cairo case which was a long and hardly fought battle in court which now became a source of other similar cases as well. But according to the court, there should be two elements present in a case before it can be ruled as excessive charity. First, there should really be the intension to give too much of her estate to charity. Second, there is the intention to disinherit immediate family members like the spouse or children by the one executing the last Will and testament.

In this case, it was proven that there was truly intent to give too much to charity because practically the Bible Watch Tower became Julia Eckart’s primary beneficiary. As for the second factor which is the intent to expressly disinherit her children, the court studied this angle carefully. Although there was a $50 inheritance, it is not the amount determined by law to which a person will already survive on a daily basis. That is why, after a long discussion and trial, the court was able to determine that the two factors were present to make this case an excessive charity.

The court will determine further the exact condition of the estate, its value and everything that will affect their ruling. They will do the proper accounting before determining the fair amount that will be given to Julia Eckart’s children as well as to the Watch Tower Bible and Tract Society of Pennsylvania.

Losing your property and everything that you have worked hard for all your life is truly devastating not only to you but your family as well. Stephen Bilkis and Associates will stand by you all throughout the process to make sure that your case is well taken care of. They will work for you and your loved ones all the way.

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August 13, 1970, Julia Eckhart died leaving two children, Charlotte Eckart and Frank Darmody. In her will that was dated August 4, 1966, she left each of them the sum of $50 and the rest to Watch Tower Bible and Tract Society of Pennsylvania. The will was admitted to probate and daughter, Ms. Eckart and Mr. Darmody submitted intent to contest the will. This is because of the size of the estate distributed by the will. New York Probate Lawyers say that in the Estates, Power and Trusts Law, gifts to a charitable institution should not be more than half of the estate if contested by a descendant or parent. The law further states that the person can only contest if they are to receive a monetary benefit if the contest is successful as the beneficiary of the will.

Being the children of the deceased is not questionable. What needs to be decided on is if they have the right because they will receive a pecuniary benefit. The executor’s point of view was that the children did not have the right as the will expressed that Mrs. Eckhart, the deceased, did not want to give her children more than the $50, she provided for each of them. He relied on the case of Joseph Cairo as an example. The Cairo case, a Staten Island Probate Lawyer states, had the specific words that said that the deceased did not wish to give the grandson, Joseph Cairo, anything from the estate. The grandson was not going to benefit from a successful contest.

In this matter, the deceased placed her relatives in different levels as her children got $50 inheritance while the others did not. There was nothing that specifically or expressly stated she wished they do not receive anything more than the $50, she had appropriated in her will. The $50 in this case is insignificant. It does not show the intent of the testatrix if she wished to take away inheritance from her children. The law takes out intention with its provision. It keeps only what is stated in the will.

The policy of Stare decisis, which is for a judge to respect prior instances and follow that example, does not apply to this case because they are different. It is also not a hard-and-fast rule because if there is a compelling reason or if there was a misinterpretation of the law, then they can deviate from the old decision. The exceptions also have limitations.

A Bronx Probate Lawyers also mentioned that there is Mortmain Act that checks how much a charitable organization can get so as not to deprive or cheat relatives and dependents of the testator. It is similar to the rule that prohibits a testator from disinheriting a spouse. This does not stop the testator fully from giving everything to charity as they can still place a ‘no contest’ clause that can make sure of it. This revision in the will is a way for the testator to dodge the rule. This modification on the will did not appear in the deceased will.

The order appealed from was reversed by the Court of appeals. The matter was given back to the Surrogates court. The costs were given to each party separately payable from the estate.

The law can still be misinterpreted and also the last will and testaments left by a relative or family member. If you need an order reviewed then what you need is Stephen Bilkis and Associates who can go through the case with you efficiency. They will also be the one to question any misconstrued part to make sure you get what should be yours.

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Chardbourne and Parke, LLP represented the people who are involved in a Will left by Renate Hoffman, deceased. The Will was executed by Hoffman in 1988 and named the German National Church as primary beneficiary of his estate. According to reports, this 1988 Will was strongly objected and challenged by Robert Warshaw and Chase Manhattan Bank, N.A. who were the primary executors of a prior Will of Hoffman which was executed in 1972. This became a long and extensive trial in which the two parties, Chardbourne and Park as well as Warshaw and Chase Manhattan entered in to an agreement in which the German Catholic Church received a considerable sum of $3 million dollars. In addition to this hefty settlement, the church will also receive a half-interest in a trust from the proceeds of the remainder of the estate.

According to further report given to New York Probate Lawyers, Chardbourne and Parke filed a case against Warshaw and Chase Manhattan Bank because of unpaid legal fees when the former performed its legal duties during the German Catholic Church settlement. Unfortunately their case did not progress in court. The court ruled in favour of the defendants, Warshaw and Chase Manhattan. In 2001 however, Chardbourne and Parke filed for an appeal of the previous decision by the court. Warshaw and Chase Manhattan argued that the 1988 Will was not the correct one to be administered and that Chardbourne has acted knowingly on their own. It was also noted by Warshaw and Manhattan that there was further wrong doing on the part of Chardbourne and Parke, LPP.

The trial continued on and arguments were presented regarding the 1988 Will’s validity which was also again brought up. This is due to the fact that Warshaw and Chase Manhattan Bank refused to grant Chardbourne and Parke the legal or attorney’s fees. Warshaw and Chase’s argument was that the 1988 Will was only illegal but that Chardbourne and Park was already aware of this but still continued on with its execution. But based on reports, when Warshaw and Chase Manhattan Bank entered into an agreement and settlement with Chardbourne and Parke, LLP the latter already impliedly recognized the validity of the Will and the contract agreement both parties entered into. Still according to the court, Warshaw and Chase Manhattan allowed a considerable amount of money be given to the primary beneficiary of the 1988 Will which was the German Catholic Church with a half interest on trust as part of the estate. This was considered by the court as more than enough evidence that both parties agreed on the validity of the Will in question. The court also noted that there is no legal cause to deny Chardbourne and Parke, LLP the legal fees for their services rendered.

On this light, Long Island Probate Lawyers also gathered that with regards to the legal fees in question, the respondents, Warshaw and Chase Manhattan only have the right to question the amount that Chardbourne and Parke will present, if it’s reasonable based on the services they performed but not the to question whether they are entitled to legal fees or not.

Your estate, your assets and properties are very important to you. These represent your life long achievements and hard work. Suffolk County Probate Lawyers are here to help you keep them within your family and the people you only wish to share them with.

Stephen Bilkis and Associates is here to help and has made it easier for you to access their offices which are already all over the Metropolitan area of New York. Remember that without skilled legal counsel, you might lose your life worth of savings and possibly more.

The public assistance recipients who had been classified as employable with limitations had a filed an instant law suit against the City administration and the State. The people were classified as such because of the medical problems that they have. Their allegation was that the City administration often puts them in jobs that are not compatible with their disabilities. The plaintiffs who have been assigned to the Work Experience Program (WEP) state that aside from the incompatible jobs, the State has failed to supervise the program under the Social Services law.

New York Probate Lawyers found out that the court has found that the plaintiffs had raised a serious fairness issue and could be entitled to a Writ of Mandamus that requires a government agency to do something that they should by law. It can also be a writ of prohibition, which will prohibit a government agency, even a judge, from doing something that they should not. Or it can also be a Mandamus Review, where a decision of a public agency is reversed.

According to the social services law, in exchange for welfare benefits, the aid recipients need to perform WEP assignments, unless the recipients are exempted due to physical or mental disabilities. The city’s medical contractor determines if they are E-I or employable, E-II or employable with limitations, E-III or temporarily disabled, or E-IV which is permanently disabled, according to a Manhattan Probate Lawyer said. People classified as E-II should still work but will be assigned jobs compatible with their disability.

There are two things that may have gone wrong. The person may have been incorrectly classified or correctly classified but put in the wrong assignment. If a recipient feels that they should not be employable there is a hearing that they can request to determine this. From the information aquired by a Queens Probate Lawyer from the city, the process is included in the notices sent to the recipient after they have been classified.

The medical condition of the beneficiary is not accommodated. The notice states that unless the person requests a hearing within 10 days of receiving the notice, she must continue with the assignment. A named plaintiff, in fact, says that she received her notice without any indication in how to dispute assignments. With her notice, she received an assignment for a maintenance job. She is considered incompatible with this as she has respiratory problems. She requested a hearing before going to the job site so as not to miss the 10-day grace period. The city then said she cannot go on review yet because she is not assigned a specific task yet.

The doctor’s findings are sent in the second notice. The Physician Assessment of Client Employability (PACE) report is the documentation that a beneficiary can bring to a work site to show her limitation. It still does not say anything about the participants’ procedural rights.

The next notice that a beneficiary received contains where they will be assigned. It can be a government office, public park, etc. It does not contain though what specific assignment they would get. The city administrators say this cannot be specified as the work is assigned depending on what that department needs day to day.

The last one that they receive is an orientation manual. It states that they can contest their employability status. It still does not discuss how they can dispute certain assignments. It states that PACE should expressly state that they are unable to work.

The city says that any issue with the job assignment should first be raised with the work-site supervisor and coordinator and then the Participant Services Unit. Only after that they can request a hearing with the city. They state that the proper way is to know what the assignment is first then utilize the current mechanisms available then seek a fair hearing where they still get aid without working.

The court had ruled in favor of the plaintiffs. Not only, with the notices but also on providing a way on how they can dispute an assignment. Being forced to do an incompatible assignment while the case is being tried is also something that they had made clear to change. With regard to remedy, the court granted the defendants claim to convert it to the remedies available.

Even on welfare, a person has rights. It does not mean that you are on welfare, and you do not need to be treated fairly. Stephen Bilkis and Associates can make sure that your rights are upheld, and you get an impartial treatment, in welfare or at a regular work.

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On June 28, 1975, a man died in West Monroe. He left a last will and testament dated November 27, 1972. The will was submitted to probate in November 1, 1977 and letters were issued to a family member as the executor of the estate and sole descendant. Prior to the settlement of the affairs, this family member died. This was November 5, 1981. In January 15, 1982, the nephew of the deceased executor petitioned the court for letters of administration. The court granted this petition in January 19, 1982.

In January 7, 1983, nephew asked the court to rule on whether the decedent exercised his personal right under the excessive gift to charity. By May 4, 1983, a hearing was held to present evidence.

The decedent, upon the death of his mother contacted a lawyer regarding some of the provisions in his mother’s will. The nephew also asked if these certain stipulations in his mother’s will can be broken. He expressed his discontent with his mother’s will especially in the paragraph that allocates any remaining estate to be given to Hospital North. Hospital North at the time of decedents death was non-existent. In a letter dated January 12, 1982 from an attorney for the Hospital North, it was said that the Hospital North was never created and will never be created.

The nephew at some point retained a lawyer with regard to the decedent's estate. The lawyer advised him that he could make a petition to determine an excessive gift to charity. This was executed by the nephew in March 8, 1978, which is within six months being appointed as executor. The lawyer then notarized and sent the petition via first-class mail, prepaid, properly addressed to the Surrogate's Court together with a cover letter dated March 8, 1978, requesting the Court Clerk to file the notice of election. The petition, according to a New York Probate Lawyers, was never received. The court never knew of it until the nephew filed this appeal.

The question that the court needed to address first is if an appeal that was executed but not filed be considered as a notice of election to contest a charitable disposition. Should it be treated as such and given effect?

The court then reviewed the terms of the law covering the contest of charitable donation through a will, and they have determined that even if there are no preceding cases the filing should be treated like the spouse’s right of election. The contest should be filed within six months and since twelve months have passed since the letters have been issued then the right no longer exists. A Brooklyn Probate Lawyer said that the court deems this requirement as mandatory and indispensable.

The court could grant relief if the time that has passed is less than twelve months. Any rights that the nephew had were extinguished with the lapse of the twelve months after the letters were issued. Although the actions of the nephew would show that he intended to contest the will, according to a Nassau County Estate Lawyer, the court considered it as unfiled as the law states that the filing with the court is not optional so the mailing is not filing.

Continue reading " Can an Appeal that was Never Filed Serve as Notice of a Will Contest " »

In a work-related accident, the decedent suffered permanent substantial disability in October 1973. An employer’s workers’ compensation insurance carrier was instructed to pay disability benefits to him. The defendant had pre-existing diabetes so the carrier applied and was give reimbursement from the Special Disability Fund pursuant to Workers' Compensation Law.

When the decedent died on January 7, 1982, his widow filed to claim death benefits because she alleged that the injury sustained in October 1973 was an underlying factor in her husband’s death. A New York Probate Lawyer said that in compliance with the Workers' Compensation Law the carrier converted the claim and applied for reimbursement from the Fund. There was a hearing with before an Administrative Law Judge and the application of the wife for death benefits was granted. The carrier did not ask for a review of the Workers' Compensation Board about the connection of the injury to the death.

There was a later hearing for the carrier’s application for reimbursement from the Fund. The fund asked the Administrative Law Judge not to make a ruling until they could get a review from the Workers' Compensation Board if the wife’s claim was compensable. The request was denied and the request of the carrier for settlement was granted. The fund appealed to the Board stating the wife would have not been awarded benefits because the death was not related to the injury sustained in October 1973. The Board’s decision was that the fund lacked standing to raise the issue. A Queens Probate Lawyer got information that the fund appealed.

When the case was already with the Appellate Court, the court said they agreed with the Board that reversing the decision will allow the Fund to reopen the primary issues related to the compensability of an injured or deceased employee's claim. The Fund’s stand is the causal relationship between the death and the work-related accident. The legal idea of the Workers' Compensation Law says a New York Workers Compensation Lawyer is to hire employers to hire permanently handicapped people. This is because of the reimbursement they are offered if they compensation to a work-related accident. The court said the representative of the fund only has standing in the proceedings when the employer claims for such compensations are being heard not when there is a claim from the employer. The conspiracy of an employee and employer is averted with the employer not being able to get reimbursement for the first two years of benefits.

If the court gives the Fund authority to take proceedings on the primary issues of compensability, even after the benefits have already been granted to the wife will generate two results that are inconsistent with the purpose of the Workers' Compensation Law. One of the results will be to re-open the claim of the wife that will be in violation of the provision “to avoid extended medical controversies and delays in benefits.” The other one is for the employer to not be able to claim reimbursement, but will also not be able to get the money back from the wife. A Nassau County Probate Lawyer mentioned this will have a negative effect on the employers’ motivation to hire handicapped employees. This weakens the primary purpose of the law. Another argument of the Fund is to deny them of the chance to contest is breach of due process. This they did not raise with the Board so it did not become part of the review. Since the Fund was created by Legislature and is doing governmental function on behalf of the State, they are not able to assert rights under the Constitution against the State. The decision of the Board was affirmed without costs.

People often think that when making demands for compensation with regard to a work-related accident, they do not need a lawyer. This may have been harmful to their claims. Skilled legal counsel make sure that your claims are protected even after you get the benefits.

Stephen Bilkis & Associates will fight for your rights to benefits not only from the employers and insurance companies that neglect their obligation in providing compensation. Whether you have an estate litigation matter, or have suffered injury because of the actions of another, we are here to help. We handle claims from all over New York and Long Island. If you have encountered a legal problem, you can contact us online or at 1-800-NY-NY-LAW. We also have offices all over New York.

Laurel G. Ellis died in June 1994. She left a last will and testament dated May, 25 1990. This will contain conditions in the bequest that favored her daughter, Florence. In the will, it gave 50% of the remaining estate after taxes and fees to Mrs. Ellis daughter and the remainder is divided equally between her sons, John and Richard. One would think it is unfair for the mother to do this, but with their history, you would understand why.

The previous will had the children sharing the estate equally, but after Mrs. Ellis' husband died the sons’ relationship with their mother got worse and with her daughter better. There was even a letter sent by John to her mother that accused Florence of scheming to distance Mrs. Ellis from her sons. This was in March 1980. He even went as far as demand to have the old will reinstated and that Mrs. Ellis should not help Florence financially unless there is proof that she needs it. He stated in his letter that if his demand is granted, then he will not publicize the issue. A New York Probate Lawyer said John threatened to file a court case if what he wants is not done. In an undated letter to his brother Richard, he said the "estate would be in court so long that Florence would never see any of the money."

In May 1990, she executed the will submitted for probate. Aside from the provision she placed in favor of her daughter, she added that her will is based on the “loving care and attention” her daughter has showed her and her late husband, unlike the behavior their sons showed. She said the will is a product of a long and careful thought and was not because of undue influence from Florence. Furthermore, in June 1993, she approached a new lawyer to draft a new will for her so that she could continue to express her desire to give the majority of her estate to Florence. The information a New York Probate Lawyer gathered said she was afraid her sons will cause trouble for her daughter. This is when the terrorem clause was added wherein if any of the beneficiaries directly or indirectly contest the will or any of its conditions, their right to their share in the estate is revoked, and that share will be divided between the remaining parties who have not contested.

After the testatrix died in June 1994, July 1994 the Preliminary letters were already issued. September of the same year, John and Richard had started proceedings questioning Florence’s appointment as the executrix of the will. They cited reasons like substance abuse, dishonesty and improvidence or extravagance. They gave 30 pages of allegations against Florence suitability. The cases filed and the request for examination of witnesses and documents continued on until March 1996. By March 12, 1996, a Staten Island Probate Lawyers expressed that the Supreme Court had dismissed the case after a motion was filed by Florence and her husband.

It was only by September 1996 that John and Richard withdrew their contest. This is only after they stated that they see no need for them to withdraw the contest because it was never filed in the first place. The will entered probate on October 22, 1996 with the statement “no objection having been filed.”

Florence, by February 1997, filed a petition with the court to instigate the terrorem clause because of the extensive pre-trial litigation. The surrogate court said that it was not violated. The Appellate Court reversed this decision. This is because the reason that showed in the litigations was that the brothers only wanted to attack the will made by Mrs. Ellis. The brothers argued that the contest was never filed so the terrorem clause was not violated. John also sated he is not named as one who is objecting. Normally, the court will see the pre probate examination as not violating the co-contest clause, but in this case, the brother went as far as question people not part of the will. Under the law, he can examine the proponents of the will, attesting witnesses, the people who drafted the will and the nominated executor. They did not even present solid evidence as to the allegations they were making against Florence. Their action also showed they did not care if they win or lose in the litigation. The requisite for good faith was not shown. The underlying intent shown by the brothers was to object to the will, and this is in violation of the no-contest clause put in by Mrs. Ellis to protect her daughter. The court reversed the decision with the cost being charged to the brothers and for the Surrogate Court to start proceedings on revoking their bequest under the terrorem clause.

Emotions are usually high when it comes to dealing with a family member’s last will and testament. Not just because they feel they should have gotten more but sometimes due to spite for the other beneficiary. An Estate Lawyer is a person who can protect you from the actions of people who act because of ill feeling. They will make sure that the desire of the decedent is the one that is adhered to.

If you would need to schedule a consultation with Brooklyn Probate Lawyers regarding any case in New York or Long Island, you can call 1-800 NY - NY- LAW. Stephen Bilkis & Associates have the resources, and their lawyers have the patience and the care, however long the case may take to get you what is rightfully yours. We can schedule you in any of our offices in New York.

Bessie Schlanger filed an appeal with the Surrogate Court to require payment of a legacy. Ms. Schlanger was to receive 4% of the remaining estate after taxes and fees of Sarah Pasternack. She claims that if the part, which is $10,000, is not paid to her account most likely she will not be able to enjoy any of it. She is saying she is old and needs the legacy. A New York Probate Lawyer mentioned that Ms. Schlanger said the other beneficiaries have received their legacies.

The answer given by the executor of Ms. Pasternack’s estate is that Ms. Schlanger in not entitled to be paid because she violated the terrorem clause of the last will and testament. It stated in the sixth paragraph of the will that if any of the beneficiaries or people mentioned in her will contests or does an act to contest the will, they will forfeit their right the bequest. It further states that if they testify against the probate of the will, then they will lose their right to the legacy. Their part will be, in effect, put back to the remaining interest and shared by the other recipients.

In the response, it is alleged that Ms. Schlanger violated in two ways. She tried to have Ms. Pasternack declared incompetent when she was still alive. This was the first instance. The second instance is in the probate proceedings, where even if she did not appear to contest herself, she conspired with another to have the will disallowed. This, a Nassau County Probate Lawyer maintains, can be considered as a violation to the terrorem clause.

In the conclusion of the competency hearing of Ms. Pasternack, the Court of Appeals dismissed the case. The claim was that the competency hearing was to discredit any will that will be executed by Ms. Pasternack during her lifetime. The court’s ruling on this was it is not in violation of the ‘no contest’ clause. It is because it was done while the testatrix was still alive, and the provisions of the will regarding the contest only applies once the will is already presented in probate.

As for the second reason wherein she is charged of being in cohorts with another person to have the will disallowed. Suffolk County Probate Lawyers found out that son of Ms. Schlanger, Michael Schlanger, filed an objection to the will as a beneficiary of an earlier will. The executor said there should be a hearing that will allow them to present proof of conspiracy between Ms. Schlanger and her son in contesting the probate of the case.

In a letter submitted by Ms. Schlanger, she says that she said that she did not violate the terrorem clause of the will. She said she did not file objections, did not actively prosecute a contest and did not testify as a witness. For this case though, the court says that they will consider her as have acted in concert and conspiracy with her son. While the son was the main party, the court considered her as the real challenger of the will. In Page on Wills, the rule states that 'A beneficiary who procures and obtains another heir to institute proceedings to contest a will, forfeits his interest under such a condition.' The court is not assuming that Ms. Schlanger really did the said act as it can only be determined by a hearing. The court is following the rule that they must consider the facts of the allegation as being done even if it is improbable. These allegations are deemed true. They set a hearing for the issues raised, and the petition for payment was denied.

A scrupulous legal counsel would plan all actions by a beneficiary who would want to get what should be for them. They would know from the start what actions they would take and what consequences may arise if it is done. They would have prepared for such consequences or avoided them.

For sounds legal guidance, speak to Stephen Bilkis and Associates. Our lawyers ensure that before they make a step with you regarding your concerns they have already checked on everything. You can get a free consultation for any case in New York or Long Island by calling 1-800 NY - NY- LAW.

MBIA Insurance Corporation (MBIA) filed a motion in limine for the court to allow MBIA to use statistical sampling to be able to present evidence for fraud and breach of contract and also to prove damages against Countrywide Home Loans, Inc., Countrywide Securities Corp. and Countrywide Financial Corp. (collectively Countrywide). A motion in limine is a request for a judge to rule if evidence may or may not be introduced in a trial. This can be done before or during a trial. Countrywide opposed this motion. A New York Probate Lawyer said that this is usually done to make sure that a jury will not see a possibly damaging evidence.

On September 27, 2010, a hearing was held to examine the evidence. MBIA presented an expert witness in the person of statistician Charles D. Cowan, Ph.D. Dr. Cowan gave testimony as to his proposed method of sampling the fifteen residential mortgage-backed securitizations (RMBS), which is the issue. The court requested that the different groups submit additional arguments on October 13, 2010. The requested that these opinions be delivered by letter.

One of the motions of the defendant is that the petition was premature. A Long Island Probate Lawyers mentioned that the court in this case did not set time limits with the motions in limine. Although MBIA presented this very early in the trial, it is legal and timely. The defendants, Countrywide, as well contends that legal and factual issues prevent the decision regarding MBIAs appeal. Countrywide says that there are disputed issues that must be settled first before the use of sampling. They stated that with the granting of the motion of MBIA, the court would improperly resolve legal questions that have not yet been fully discussed by the parties in court.

The court agrees that the other issues need to be resolved but the defendant, Countrywide, is not able to present any basis that the current listed issues have a link with the current motion. Countrywide does not present how the resolution or the non-resolution of the issues affects the sample. An additional argument is that MBIA was not able to exhibit how the sampling will be useful in the hearing. Countrywide was claiming that MBIA did not present anything that shows sampling can prove fraud and breach of contract and also to prove damages.

New York Law uses a general acceptance test to test a reliability and admissibility of an expert testimony where the sampling will ultimately work with. They ask if the presented scientific evidence is unusual. This is not the case for sampling as it has been used multiple times in different case tried in court. The next test is if it is accepted by the scientific community. Sampling has a widely spread acceptance in the scientific community. They use it with a variety of things to prove and disprove. The last is if the sampling proposed is reliable. MBIA has presented that for the sampling that they will do, there will only be a 5% margin of error. There will also be different variables that will be considered including delinquency status. Westchester County Probate Lawyers found out that the court decided that the statistical sampling may be used in a trial as it passed the general acceptance test. With this, the court also states that it is not the only way that the parties can present evidence. They also say that they are not saying that the statistical method is perfect and cannot be challenged. Countrywide presented valid disputes, which at the time the court says are premature.

In the decision of the court, it says that granting the motion in limine may save all parties from a long litigation time. It also does not compromise any of the parties’ interest. The court finds no prejudice in the sampling method. MBIA may present their evidence as they choose as the burden of proof is with them and Countrywide can challenge these evidence. The court permits evidence that will be the result of the sampling method. It is not endorsing the method as it should still convince the trier of fact, which may be a jury or a judge. The court considers sampling as a method to get evidence and not the evidence itself.

In cases like this were proving fault and liability may be taken from other people, it is always better to use different methods of gathering evidence. A skilled lawyer knows this. They think outside of the box to prove your case, and they also make sure that the court knows that these techniques may be applied under the law in their presentation.

Whether you have a contractual dispute, or are involved in a estate litigation matter, contact Stephen Bilkis & Associates. We have exceptional lawyers who will be able to present your case suitably and accurately. To contact us, you can walk in any of our offices, check us online or call 1-800 NY - NY- LAW. We handle cases from New York and Long Island.

A proponent of the will of Lina G. Shapiro, petitioned the court at the foot a probate decree to charge the person objecting to the will personally. The probate decree allows this application to be made after the decree has been final.

A New York Probate Lawyer said that when a person files an objection to a last will and testament in good faith and with reasonable grounds, he is entitled to have his protest investigated without him bearing the cost. There was a previous case whereby the Appellate Court reversed a decision of a surrogate court for an objectant to be charged personally because there was some evidence that supported his objection to the lack of testamentary capacity and to negative bad faith. This was in the Coddington will.

Good faith is mainly reliant on whether there is a considerable basis for a will contest. The court cited some examples, like with the Kurowski’s will, where the court charge the cost of the contest personally to the objectant because she had a sworn data that validates the will she is contesting. The Roger’s estate was mentioned because the court assigned the cost to the person who contested because there was no evidence to support his claim. This is not the sole basis for imposing the cost to an unsuccessful contestant.

Let us go back to why there is a contest for this case. In a will executed by Ms. Shapiro dated April, 22, 1958, she disinherited her daughter. The daughter then filed objections to the probate questioning the due execution and saying that there was fraud and undue influence. It also challenged the jurisdiction of the court. She claimed that at the time of her mother’s death, her mother was a principal resident of Florida and not New York. The court was able to determine that the decedent was a resident of New York and not Florida in July 1962. This was still appealed by the daughter but was still affirmed in January 1963.

In May of 1963, her objection with regard to fraud and undue influence was tried by the court with a jury. A Manhattan Probate Lawyer said that the contest about the due execution was withdrawn when it reached trial. After three days in the trial, the court determined that there was no fact to be submitted to a jury so it ruled in favor of the proponent of the will. The daughter did not file an appeal. The evidence at trial proved that the will was valid. The disinheritance is a result of friction that started in 1956, where Ms. Shapiro purchased $120,000 of stock from her daughter’s husband. The husband then questioned the sale saying that Ms. Shapiro misrepresented the value of the stocks. The daughter’s husband insisted on attempting to interrogate Ms. Shapiro, even if there is a sworn statement from a doctor that such examination would put her mother’s life in danger because of a heart ailment. By the time that Ms. Shapiro died there was already great hostility between her, and her daughter whom she disinherited.

According to a Queens Probate Lawyer, the court then found that the contest was filed in bad faith. It is also confirmed that the testatrix intended for the daughter to be disinherited, and it contains stipulations to that effect. With antagonism between them, the daughter couldn’t have logically expected her mother to make any provision for her. There was no evidence to support her claims and objections. The evidence provided pointed that the daughter just wanted to delay the probate with a contest. The court awarded the costs to the proponent less $158 for the transcript that will be charged to the daughter personally.

When dealing with hostility, especially from family, sometimes you cannot help but match it with your own anger. This is where you know you really need a levelheaded legal counsel. When your emotions are high, they will be the voice of reason that will guide you on what you will need to do.

In New York and Long Island, Stephen Bilkis & Associates have skilled lawyers who can help. They are not only levelheaded but also meticulous when it comes to the case that they are handling. They know how to present your position in the best light so it will be easily understood by the courts, and you get the results you want. You can get a free consultation at 1-800 NY - NY- LAW.

Joseph Alexander died November 23, 1975, leaving his adopted son, Ronald Alexander. After the probate of his will, his son filed a petition contesting the amount given to charities as in excess percentage amount allowed by law. Executors were placed to check if the claim was valid, and the courts were asked to determine the effect of the ‘no contest’ clause of the will.

In his will, he gave all his properties, a flat in Switzerland and $25,000 per year to his son. In the event that his son dies before the end of the trust then the remaining amount will be put back to his estate.

Joseph Alexander also included in the will that in his lifetime, he had provided his son loans. He had paid indebtedness acquired by his son from other people. He expressly states in his last will and testament, from what a New York Probate Lawyer gathered, that if his son directly or indirectly oppose the probate of his will, Ronald Alexander will not getting any part of his estate and will only get $1 per annum.

The contest of the charitable bequest, according to the executors had no standing, because he will not receive any pecuniary benefit if the contest was successful. The executors cited the Cairo case where the grandson was expressly disinherited. Although, there was another case that was reconsidered by the Court of Appeals, which was Eckhart, this case is more similar to the Cairo case.

In this case, the will specifically state the loans and payments the testator has made for his son. According to a Nassau County Probate Lawyer, the executors also were pushing the ‘no contest’ clause of the will. The court also does not favor the ‘no contest’ clause. The Court of Appeals has held that the challenge to the validity of an excessive charitable gift cannot result to have a person disinherited. So the filing of the case is not a violation to the terrorem clause.

According to Brooklyn Probate Lawyers, he law still maintains that if the testators wish is expressly to disinherit a relative, then it will be upheld. New York Estate Lawyer said that in this case, Joseph Alexander only explicitly stated that if his son contests the probate, then he will forfeit his share in the will. The son did not contest the probate. In was within the probate that the son expressed his concern on the amount of the bequest to charity. The question is if he will get monetary compensation if the contest is successful. This was determined to be missing. Even if the contest is successful as per the will, his son still gets the fixed amount per annum and the flat in Switzerland.

The law has a different treatment for children born within wedlock and outside wedlock when it comes to claims for support from a deceased parent. Out of wedlock minors are given support in the amount determined by Surrogate court up until the age of 21. This is taken from the deceased parents’ estate. This is typically not greater than what was determined before the parent died as their support. These are not available minors born within wedlock.

Ronald Alexander was not to be disinherited because of the case he filed to have the gift to charity checked as may be more than the half of the estate. He is still entitled to his legacies whatever the outcome of the contest is.

Determining how the ‘no contest’ clause applies in a will contest action can sometimes e tricky. You will need to have a sharp Will Contest Lawyer to assist you for it. Some people may think that contesting a will should not be done, but it is not always the case.

Stephen Bilkis & Associates have a legal team who know that contesting wills can be difficult, let alone contesting wills that have ‘no contest’ clause. They make sure you do not lose anything if the will is contested. If you need assistance, come see us anywhere in New York or Long Island, you can get them at 1-800 NY - NY- LAW. We will give you a free consulation.

Plaintiffs filed a motion against New York State Department of Taxation and Finance for their Statewide Offset Program. A New York Probate Lawyer says that the plaintiffs are taxpayers who are saying that in allowing the offsets, the defendants have violated their rights to notice under the due process and their right to oppose the debts where they offset the refunds. They allege that the program allows the offsetting of their income tax refund to any debt owed by the taxpayer to the New York State Office of Temporary Disability Assistance (OTDA). The plaintiffs are asking for relief and a class certification.

The Court in determining the granting of the motion of the plaintiff’s for class certification determined that issues and facts that are common to the wished-for class outweighs the concerns that are specific to the individual class members. Queens Probate Lawyers mentioned that the court found the question of the violation of OTDA to the due-process clauses of the Constitutions of the United States and New York by certifying debts to DTF without giving plaintiffs' adequate notice or a meaningful opportunity to contest the underlying debts is common to all the members of the proposed class.

The general position of the defendant is that the plaintiffs would not be entitled to recover any damages. They would not be compensated for the government’s violation of their due-process rights if the violation is not the reason for the plaintiff’s losses. The plaintiffs were not able to show evidence of the loss that they are claiming to have incurred because of not having the opportunity t contest the main debt. The court agrees with the defendant’s position on the compensation not being granted if the loss is not a direct result of the violation. The plaintiffs though, ask for the offsets plus interest. A Nassau County Estate Lawyer stated that the opposition indicates that if the opportunity to contest the debt is granted, each plaintiff will have to prove his or her individual case.

The court usually decides on the cases against the government based on previous instances and decisions. In this case, the harm is not perceived but is claimed to have already happened. Under these conditions, a precedent in the favor of an individual plaintiff will not matter in the remaining plaintiffs' cases. The petitioners asked for a leave in court so that they can amend their complaints. The court states that the defendants will not be prejudiced by the amendments and there will be no new allegations to be added. The defendants also have failed to show that the amendments are without merit. With the four month limitation period for the plaintiff’s case, the defendants have not revealed any dispute saying that the claims are not timely.

Sometimes you will be a casualty not only of an individual or a company that has not followed the rule of law when it comes to dealings with you. You may also experience this with government agencies. If you feel that you have suffered because a government office has not followed due process when dealing with your concerns, you need legal counsel that can protect your rights under the constitution. They will be able to grant relief or compensation where it is due. It may be individually or as a group complaining.

In your regular dealings with government offices, if you feel like they have neglected to follow the rules, contact Stephen Bilkis & Associates for guidance. Whether you are contending with a governmental agency, need estate planning advice, or are contesting a will, we will ensure that your rights are protected. Come in to any of our conveniently located offices throughout New York for a free consultation.

In the mater of the last will and testament of Clara Louise Bonesteel, a petition was filed with the Appellate Court with in relation to the decision made in a jury trial. The last will and testament was disputed as not being a valid will for the decedent. The jury found that the last will and testament is legitimate and said that it can be entered into probate.

The case that is filed with the court is with regard to the challengers of the will to be able to get a copy of the stenographic minutes of the trial at the expense of the estate. The law states that a copy of the stenographer’s minutes may be supplied to the contestant and charged to the expense of the estate if they can determine that the contest was made in good faith. It does not matter if the contest was successful or unsuccessful as long as it was made in good faith. In the case of Byron’s will, the court decided that good faith is not to be established before the contest as it will promote prolonged trials because the person contesting the will is assured that the costs will be shouldered by the decedent’s estate. To determine good faith after the trial is a way to ensure that the contest is already in good faith because one will bear the cost otherwise.

In law, there is also a rule of stare decisis. This states that any court lower than the Appellate Court should follow the decision made already by the Appellate Court with regard to the same issues. This applies to other judges even if not from a lower court, but of course not a higher one. In the case regarding Harned’s will, the Surrogate Wingate of Kings County followed the decision of the Appellate Division of the First Department, there was no differing decision from his own Appellate Division in his department. A New York Probate Lawyer mentioned that the decisions of other Special Terms are not controlling. The judge at special term has the duty to follow a decision made by the Appellate Court of another division pending the decision of his own Appellate Division of the Court of Appeals offers a different ruling.

In this case, the court’s ruling is in favor of the proponent of the will. The Appellate Court upholds that and believes the same thing. It is also its opinion with all the particulars of the case at hand that the person contesting the will acted in good faith. There is no case from the Court of Appeals or from Appellate Court, Third Division, which contradicts the view expressed in relation to the Comerford’s will. The judge has said, from information acquired by Brooklyn Probate Lawyers, the counsel has not cited anything to counter the view on the Comerford’s will and even in his own research, he found out the same. In the Comerford’s trial, the decision of the Surrogate court to deny a contestant to charge the estate with the cost of the copy of the trial’s minutes was reversed on appeal. This being considered, the judge is bound to the same conclusion. The petition of the contestant was granted.

There may be fear of incurring more cost in contesting a will, but as the court has shown in this case as long as you can prove in the trial that the contest was done in good faith the cost will be granted to the estate. If you are unsure as to what shows this, Bronx Probate Lawyers will be able to help you determine how you can show it in court. They would not want you to give up your issue just because you do not know how to present it or if is not sure if it is valid.

If you have a will contest, or other probate matter, contact Stephen Bilkis & Associates. They will assess your case from the information that you provide and ensure that your rights are protected. If you have a question regarding any case in New York and Long Island, you can make an appointment with us through the internet or by calling 1-800 NY - NY- LAW. We also have offices all over New York.

In the matter of the will of Mary Cairo’s estate, the grandson, Joseph L. Cairo, filed a contest claiming that the more than one-half of the remaining estate was assigned to charity. The litigation regarding this, the court found that the grandson was not eligible for this case as he is not to benefit from a successful contest. A New York Probate Lawyer got the information that Mr. Cairo was already been provided for by Ms. Cairo in her lifetime. His ineligibility was determined by the words in the will that said that she makes no bequest to her grandson for good and sufficient reasons.

Mr. Cairo, the grandson, after the decision appealed that the counsel fees and other fees be taken from the estate. The reason he presented was that in the process of his contest, the construction of the will was also done. Two of the charitable beneficiaries and the Attorney General countered this.

In an interpretation of the will, the court can allocate an amount that they deem reasonable for counsel fees and other expenses that had been incurred in the process. The Attorney General and the charitable beneficiaries argued that what happened was not a construction of the will and did not benefit the State. They made a case as well about the request not specifically stating that it is to understand the will. The question now that the court needs to determine is if the litigation involved a construction of the will according to a NYC Probate Lawyer.

The Surrogate Court’s decision was that the counsel fees and other expenses should be shouldered by Mr. Cairo. Their position is that the will had specifically disinherited the grandson. The Appellate Court hearing this case saw it differently. First, they do not agree with the attempt to differentiate a proceeding to understand a will from a trial where a will may be interpreted. The court stated that the title of the proceeding is not the one that determines the nature of it. They reversed the decision and granted that the counsel fees and other expenses be charged to the estate. The agreed with the decision of the Surrogate Court that the words of the will had explicitly expressed that the grandson is to be disinherited. Since they saw that in the litigation, the will was interpreted then, they determined the amount to be covered from how large the estate was and the success of the trial. The estate was not big and the trial was unsuccessful, so the Appellate court determined the sum of $750 for counsel fees plus $991.44 for other disbursements. So the total allowance allowed was $1,741.44.

Some people already feel down when their appeal is rejected by the Courts so when they are charged other fees for their contest, they sometimes just let it be and pay them. In this case, you will see that a good Will Contest Lawyer does not rest on one try. They appeal against a decision to get the result that is fair. They know that there are instances where a person though unsuccessful in their appeal can still claim some allowances from the estate.

If you are faced by a disinheritance from a family member in favor of a third party who is not even related, you should know that you have options under the law. You just need to determine if you are eligible. Stephen Bilkis & Associates NY Probate Lawyers will be the one to assist you in checking on this for you. We will also be with you every step of the proceedings. We can be reached online and at 1-800 NY - NY- LAW for an appointment, or you can walk in any of our offices all over New York.

The case regarding Genevieve Tisdale’s estate is about getting a jury trial in connection to the revocable trust executed by her at the same time with her last will and testament. Ms. Tisdale died on October 6, 1995. It is said that her will dated December 15, 1994 was executed with about $2.1 million revocable trust. The estate in the will was under $400,000. The trust fund is the one to be used for estate taxes and other expenses. The estate is divided to different beneficiaries, including charities. The bequest ranged from $10,000 to $200,000. There was an amendment made to the cash gifts made on July 31, 1995.

Michael L. McDermott was the draftsman of both the will and the trust. He is also named as the guardian of the net estate except the tangibles. He is to allocate the state according to the will. If the trust fails, the will also is refers to its terms. Mr. McDermott, a New York Probate Lawyer mentioned, is an Illinois lawyer not admitted in New York. Three months before the testatrix signed the will was the first time that they had met. This issue was already submitted to court.

Five of the family beneficiaries, which are all nieces and nephews, petitioned the court to withhold the trust in both proceedings after the will enter probate. They also asked that in both cases, there be a jury trial on their protest about the execution, capacity, undue influence and fraud. The recipients particularly object to, allegedly, the charitable beneficiaries reflecting Mr. McDermott’s choices and not the decedent’s. They cited the provision for twenty-five percent of the trust remainder is distributable to Spring Hill College in Mobile, Alabama, which is Mr. McDermott's alma mater. Twenty-five percent of the trust remainder is given to the Evans Scholars Foundation where Mr. McDermott is a trustee. Twenty-five percent of the trust remainder is gifted to National Louis University located in the Chicago suburb where Mr. McDermott lives. Lastly, $250,000 is distributable to Misericordia Home in Chicago. They also claim that Ms. Tisdale is your typical New Yorker, who has lived in the Upper East side of Manhattan most of her adult life.

According to Westchester County Probate Lawyers, the contest is sure to have a jury trial. The question is if it is available to the revocable trust. The main reason why people go for the revocable trust is because, for the most part, the Court is not involved in the administration of the estate. Contrary to wills, in revocable trusts do not require sending out notices, they however, give time of a few months for people to appear or contest it. Once it enters probate is the time that notices are sent out. Once in probate they will also have time to contest the will. The law expressly grants probate proceedings a jury trial but not appeals to set aside another instrument. There are cases like reclaiming a property that is given a jury. A trust is not equitable so cannot be admitted to a trial by jury.

It is also said that in trying the case for the will and the trust, will have identical issues to tackle. To avoid any unnecessary and impractical proceedings, with the two having the same provisions it is better have them tried at the same time. If or the other is tried first, there will have a profound effect on the hearing for the one tried later. Long Island Probate Lawyers also says that in hearing the two as one it will deter underhanded acts by people trying to get what they want. The court then denies the petition to set aside the revocable trust.

People may get tricked by people to get something from them. It also applies to people who are executing the will. As the family of the decedent it is much better that you have a skilled legal counsel who will protect your rights. One who knows his way in the proceedings so your presentation of your side is not seen as a sneaky way to get the money for yourself.

For help going through the whole proceeding with you and help you understand what is happening and lay the options for you, you can set an appointment with Stephen Bilkis & Associates. We have offices all over New York and you can also contact them online or at 1-800 NY - NY- LAW. We will handle cases from New York and Long Island.

In the matter of Mary Cairo’s will, a question has been raised whether Joseph L. Cairo her grandson has the right to raise a dispute against the terms for the distribution of the will. The decedent named three different charities as the beneficiary of the remaining part of her estate. This is after her sister, Elizabeth Jennings, gets her cooperative house and all its furnishings, including personal property. In the will, according to a New York Probate Lawyer, she says that if her sister dies before her then her share will also be divided equally between the three charities. The sixth article of the will specifically said “I make no bequest to my grandson, Joseph L. Cairo, and I make no bequests to my daughters-in-law, Antoinette Cairo and Audrey Cario, for good and sufficient reason.”

That in the interpretation of a will, the first rule that the court follows is to determine the actual intention of the decedent. The second rule is to establish such an intent from will as a whole and not just part. The will undisputedly show that Mary Cairo wanted to leave the bulk of her estate to charity. Not only with the bequest but even with the provision that if her sister predeceased her, the bequest to her sister will go to the charities. To make it clear, she even named Joseph L. Cairo and others in her will and stated she is not giving them anything.

This was the basis for Joseph L. Cairo’s argument that he has the right to contest the bequest to charity. He says that since he was specifically mentioned then he has the right. Manhattan Probate Lawyers said that by law there are qualifications that must be met to determine a person’s right to contest a bequest to charity. The first is if the gift is more than one-half of the residuary estate. It can only be objected to by people who stand to benefit from a successful contest. This is where the intent of the decedent’s intention comes in. In her will, she showed that she did not want Joseph Cairo to have any part of her will. She wanted her estate to go to her sister and charity. The courts declaring that if they allow Joseph Cairo to contest, then it will be like saying it is possible for him to get something from the estate which is not what Mary Cairo wanted. IT is the court’s decision that Joseph Cairo does not have standing to contest the will as to the disposition to charity. He is also charged $10 personally.

This case was considered as one of the benchmark cases when dealing with terrorem clauses or no-contest clauses. Often, the decedents include them when they want their beneficiaries to have no problems getting their share. In interpreting the will, you will need Queens Probate Lawyers, who can get your side across clearly and make sure that it is considered.

In this type of case, you could be anyone. You can be the person being disinherited so you would need a quality lawyer, who can fight for your right if they determine that you have one to the estate. Quality legal counsel can make sure the proceedings is according to the will and the law and that your right to benefit is considered. Stephen Bilkis & Associates has the best of them. If you find yourself in this position, or if you are unsure where you stand in a will, walk into any of our offices in New York. We handle cases from New York and Long Island. You can also contact us online or by calling 1-800 NY - NY- LAW.

John A. Stiehler died on July 29, 1984. At the time of his death he had a wife and three adult children from prior marriage. The executor of his estate filed his last will and testament, dated May 16, 1973, and an addition to his will dated September 8, 1982 for probate. He stated in his will that since his wife likes his home in Florida so much, she is given right and privilege to it as long as she lives or until she gets married again. The codicils are also to her benefit. A New York Probate Lawyer obtained information the will stated that since he has been generous to his wife, a contest of the will or any of its supplements will result to her forfeiting her right to the benefits of the will.

The wife filed objections to probate on January 2, 1985. She objected to both will and codicil. After which, she amended her petition to ask for an addition to the will dated July 24, 1984 be added to probate. This codicil did not include the terrorem clause and the limitation with regard to the remarriage. She ultimately withdrew her will contest and contested to the probate of the May 26, 1973 will and the September 8, 1982 codicil but reserved the right to petition for probate of the instrument dated July 24, 1984. In a later document, she also withdrew the petition for probate for the July 24, 1984 codicil. In this case, the wife is asking for an advance to the bequest that is due to her. In an instant proceeding, she asks for the property in Florida.

The executor of the estate contested that the wife had violated the no-contest clause of the codicil and therefore, is not entitled to any of the bequests. The court determined that the first issue to address is if the wife violated the terrorem clause of the will. For this, according to Nassau County Probate Lawyers, they need to establish the intention of the testator. It appears that he had wanted his wife and children to be provided for. The court said that contest can mean different things depending on the case. There are cases wherein the simple filing of an objection even if it was not tried was considered a contest. There are also cases where in order to be deemed a contest the protest should have pushed through in litigation.

The court determines the reasonable interpretation is that the testator would not want an objection filed and subsequently withdrawn to be the cause of forfeiture of the rights of his beneficiary. Brooklyn Probate Lawyers mentioned this is consistent with the general rule that terrorem clauses must be precise in wanting to disinherit. The court also cited that the terms in the codicil presented by the wife showed probable cause. For this case, thought it was not determined if that instrument was valid. Their decision is therefore, to grant the property to the spouse with the remarriage limitation. This is still subject to a renewed application.

The intention of the testator is a large part of any determination of a last will and testament. This is the reason why the court as a general rule requires that a terrorem clause or a no-contest clause be specific on what it aims to do. In wills like this where it shows that in fact the decedent wants his beneficiaries to get their due.

If you find yourself in a position like this where you are torn from filing an objection or not knowing if the document or instrument that you have is valid, speak to Stephen Bilkis & Associates. They will go through the words of the will with you. They will also go through the law to give you the best route to take. If you find yourself in this situation, walk in any of our offices in New York or contact us at 1-800 NY - NY- LAW for a consultation. You can find us online as well and make an appointment from there.