Posted On: March 31, 2012

Court Hears Case to Validate a Will

The last will is accepted for probate but the co-administrator requests a decision to dismiss the objections pertaining to the account of the first daughter of the deceased. The second daughter of the deceased and her co-administrator join in their appeals of while the first daughter opposes the motions. The separate motion submitted by the first daughter seek for partial decision without proceedings on her claim to enforce the terms of the deceased of a prior mutual reciprocal will and an agreement not to revoke it. The co-administrator as well as the second daughter opposes the motion.

The mutual reciprocal will was completed by the deceased and his wife. The couple agreed to leave each other’s one-half of their net estates in trust with the remainder of the trust to be passed on another trust in equal shares to their two daughters. A New York Probate Lawyer said their residuary properties are left in trust with equal shares to their two daughters until the daughters reached the age of thirty-five. On the same date, the couple also completed a separate agreement not to revoke their mutual reciprocal wills without the consent of each other. The agreement further states that it will result to the benefit of their heirs.

The parties agree that there are no factual issues to be determined and that the issue of law to be determined is whether the mutual reciprocal wills and the agreement are valid and enforceable to support the first daughter’s claim as a creditor for a one-half share of their father’s properties. Westchester County Probate Lawyer said that consequently, no trial is needed.

The court records revealed that the wife died before her husband and the mutual reciprocal will was accepted for validation by the court. It is acknowledged that after the wife’s death, neither the spousal trust nor the residuary trusts for the two daughters were established by the husband and the wife’s brother. It is further acknowledged that the husband completed six wills and appendices prior to the issuance of letters of administration. The first daughter signed an agreement to revise the generation skipping trust (GST) established in the appendices as to set aside one-third of the GST and to hold that one-third as a separate fund for the benefit of the first daughter's heir and to sign a consent to validate. Subsequently, in accordance with the agreement, the first daughter signed and delivered a waiver of process and consent for validation of the will.

The co-administrators filed a petition for legal settlement and intermediate accounting showing excess cash on hand. Suffolk County Probate Lawyers said that the first daughter submitted modified objections to justify the claims of being entitled to the deceased father’s mutual reciprocal will and agreement. Being entitled to the said mutual will and agreement gives the daughter a 50% interest of his properties plus 50% of all lifetime gifts and transfers made by the father. The first daughter also filed a claim as a creditor for one-half of the assets based upon the mutual reciprocal wills and agreement which was rejected by the co-administrators. Succeeding on it, the first daughter served her third modifies objections to account. Repeating the aforesaid objections and adding the allegation that the deceased father made lifetime gifts to the second daughter and her children in excess of those gifts made to the first daughter and her daughter. The co-administrators filed replies to all the objections by asserting numerous confirmatory defenses.

It is also acknowledged that while preparing the two later wills, the first daughter accompanied her father to the attorney draftsman's office and that she participated in communications and discussions to the will provisions. The co-administrator argues that in doing so, the first daughter sanctioned the changes which her father made in his subsequent wills. They further alleged that the changes made were inconsistent with the provisions of the mutual reciprocal will and the first daughter in so doing lost her right to enforce the mutual will and agreement. The later will is the same with the previous mutual will, leaving the entire assets to both daughters equally, who by this time were over the age of 35 years. The inheritances to the relatives were omitted in the later will and subsequent wills. The later will leaves certain property equally to the two daughters and the remainder in two equal trusts, one for each daughter, which continue beyond the termination period of the trusts establish by the previous mutual wills. The appendix changes the trustees but leaves the beneficial scheme intact. Therefore, there is no evidence that the first daughter contributed to these wills in any way which would constitute a waiver of her rights under the previous mutual wills and agreement.

The second daughter and her co-administrator have also stated that they were unaware of the mutual wills prior to the death of the deceased father. Their lawyer stated in a letter that they did not know about it. The co-administrators did not provided a notice in the validation petition to the first daughter who is unfavorably affected by the proposed will and appendices by virtue of the mutual wills and agreement. However, it reveals that there is no indication in their mother’s assets proceeding that the first daughter received a copy of the mutual Will. Other than knowledge by public notice of the recorded documents, there is no evidence that any of the parties or the attorneys of the co-administrators actually knew of the mutual wills and agreements until after the death of their father.

The co-administrator asserts that because the first daughter failed to assert her rights under her mother’s will. She should be considered to have waived her claim under her father’s mutual will and agreement and stop from asserting any such rights. They further alleged that the law of limitations on the first daughter’s claim began to run when her mother’s will was validated. However, her mother did not breach the previous agreement stating that any failure to fund the residuary trust was a violation of legal duty of the co-administrators and co-trustees under the will and pertained only to the first daughter's rights in relation to her mother’s assets.

With regards to the first daughter’s motion for partial decision without judgment and asking to enforce the terms of her father’s previous mutual will and agreement is granted by the court. Based on certain facts the motion is granted to the extent that her claim against the assets in relation to her interest in the deceased mutual will and agreement is valid and enforceable. It is further granted to the extent that said claim is in the amount of 50% of the net assets value, together with 50% of the total gifts made by the father to the first daughter, second daughter, the three grandchildren and to others which would defeat the purpose of the mutual wills and agreement, minus the value of the gifts received by the first daughter and her daughter. The exact amount of the claim is to be determined after a full accounting of all the gifts made by the father to his heirs.

The court also ordered that the motion to dismiss the objections of the modified objections is denied. The motion to dismiss the objections is denied in all respects. The motion for partial dismissal in favor of the claimant enforcing the terms of the deceased father’s mutual will and agreement is granted.

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Posted On: March 31, 2012

Court Determines Will Contest Issue

An alleged will was found by the accused among the deceased person’s possessions. The document was signed by the deceased but the signatures of the witnesses are torn off and missing. The accused states that the attorney whose name appears at the back of the will does not remember having such document as the alleged will or attending on the execution of any will by the deceased. The complainant was named as the executor and sole beneficiary in the will. If the deceased is found to die without a valid will, her sole heir would be her sister, a Finnish citizen who resides in Finland and who intends to file a will contest. Records show that the probate will not be granted and the deceased died without leaving a valid will. Although it is possible that an investigation may reveal and proof may present that the will was validly executed and was not broken and torn by the deceased.

When the complainant learned about the will, his lawyer visited the accused person’s office and requested that the will be filed immediately as required by law. Since the complainant was anxious to file a petition for the validation of the said will, instead of merely filing the will, the accused filed the will on the same day that he filed a petition for the issuance of a ruling to show the reason why the will should not be admitted for validation. A New York Probate Lawyer said they also filed a petition for a ruling to admit the will for validation and directing the issuance of letters of administration to the executor who may qualify or to determine that the act of tearing caused the instrument to be revoked. If the court found that the will was revoked then as an alternative, the complainant request for the issuance of letters of administration to the accused. The accused takes the position that the will is not valid and validation will be denied. Together with the filing of the petition, the accused made a motion that temporary letters of administration be issued to him.

The complainant opposed the motion of the accused for the appointment of the temporary administrator and moved for an order to dismiss the petition to verify the will. He also requested for a further order to authorize him to petition the court to verify the said will. The accused person’s motion was granted and the complainant’s motion was denied. The order denying the complainant’s motion provides that the motion to dismiss the petition for the validation of the will or the alternative issuance of letters of administration to the accused is denied in all respects.

NY Probate Lawyers said the complainant did not move for the dismissal of the entire petition and it is indicated by the fact that he requested for the authorization to petition the court for validation. If the entire proceeding had been dismissed on motion, the complainant would not require authorization to file a petition for the validation. It is possible that the request for such authorization was made in view of the fact that rule of the Surrogate's Court provides that no petition for the validation of a will or for the grant of letters of administration or of guardianship will be entertained when there is a pending petition of a prior proceeding for the same conclusion respecting the same matter.

The accused was not authorized to submit the will for validation since he was not a person interested in the estate within the definition of law or did he qualify within the provision of the Surrogate's Court Act which states that the surrogate's court may direct the public administrator or county treasurer to present a petition if a will has been filed in the surrogate's office for over sixty days and no other person who is entitled to the petition for its validation has done so. The Surrogate should have granted the motion to dismiss the petition insofar as it sought the validation of the will. In view of the Surrogate's Court Rules, the Surrogate should have granted the complainant’s motion for the authorization to petition the court for the validation of the will.

In view of the conclusion requested in the complainant’s motion, the Surrogate was not required to dismiss the petition as it search for a purpose that the instrument was revoked by tearing it and as alternative, the letters of administration should be granted to the accused. Nassau County Probate Lawyers said that even if the complainant’s motion search for the dismissal of the entire petition, the proof was sufficient to satisfy the court that deceased died without leaving a valid will. The court also authorized him to issue a citation and to continue the proceeding for the issuance of general letters of administration.

Under the circumstances shown, it may not be held that the Surrogate abused his discretion by the granting of temporary letters of administration to the accused.

After the complainant files a petition for the validation of the alleged will, the parties may request to consolidate the proceeding initiated by him with that portion of the proceeding initiated by the accused which has not been dismissed.

Validity of the document is usually the challenged issue in a contest of a will and this can be resolved through the help of a qualified lawyer. Disputes among families arise that may result to court proceedings and a skilled attorney can be with when issues remain unresolved. If real properties become a part of the will, the guidance from our legal team from Stephen Bilkis and Associates will be a great weapon inside the court room.

Posted On: March 30, 2012

Courts Discuss Bond Provisin in Estate Documents

On 4 February 2007, a resident of Nassau County died leaving a will dated 20 September 2006. She was survived by her two (2) children, a grandchild and two (2) minor grandchildren. Such will has been offered for probate by the nominated executor (decedent’s husband).

The will created a trust to be funded with the "exemption amount." The trust shall terminate upon the death of the decedent’s husband who has a limited testamentary power of appointment over the trust principal. If or to the extent that the decedent’s husband failed to exercise the limited power of appointment, the remaining trust principal is payable to the decedent’s husband 1993 Insurance Trust. The residuary estate is then payable to the decedent’s husband. The decedent’s husband and the children are named under the will as trustee and successor trustees, respectively. Also, "no bond or other security shall be required of any Executor for the faithful performance of such person's fiduciary duties in any capacity." Thereafter, the attorney-draftsman submitted an affidavit and averred that he inadvertently used the word "Executor" instead of "fiduciary." Apparently, the decedent's prior will dated 2 April 1993, which contained one trust, dispensed with a bond in the case of any "fiduciary."

In the instant case (estate litigation or estate administration) there is no will contest. However, the court is asked to dispense with the filing of a bond by the nominated trustee due to a purported scrivener's error in the will.

The rules mandate that a testamentary trustee post a bond unless the will provides otherwise. The bond filed by the testamentary trustee shall be "in such amount as the court directs." A testamentary trustee is required to file a bond where the will does not exempt the trustee from this requirement unless clear and convincing reasons are presented to dispense with the bond or to fix it at a reduced amount. Such clear and convincing reasons might be the consents or a showing that the filing of a bond is not economically feasible." The court did not dispense with the filing of a bond by the trustee. The court reasoned that "a will is required to contain written directions as to a decedent's intent and to be executed with certain formalities to avoid speculation with regard to the last wishes of the decedent". A New York Probate Lawyer said that although the court noted that it had no doubt that the decedent trusted the proposed trustee since he did in fact nominate him, it concluded that it could only speculate as to whether the decedent would have dispensed with a bond if he had known the cost. Moreover, the court declined to dispense with the bond based upon the consent of the income beneficiary. The court reasoned that if the income beneficiary failed to live until the trust terminated, there would be no bond to protect the interests of his issue, who were either too young to give their consent or were not yet in existence.

NYC Probate Lawyers said the court ruled that reformation of a will may occur simultaneously with a will's admission to probate where the provision in question clearly makes no sense as drafted and appears to be the result of a scrivener's error. "Generally, extrinsic evidence may not be used to show that a provision was inadvertently omitted from a will, but [the court] should admit extrinsic evidence if there is an ambiguity on the face of the will.

Clearly, the bond provision is evident and does not appear on its face to be the obvious result of a scrivener's error. Queens Probate Lawyers said that hence, the court has declined to reform the will. On the other hand, based upon the attorney-draftsman's affidavit, clear and convincing reasons have been presented to dispense with the requirement of a bond by the trustee (upon submission of consents by the decedent’s children and their respective spouses, the grandchild of legal age and the trustee of the 1993 Insurance trust).

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Posted On: March 30, 2012

Court Determines Who Letters Testimentary Should Be Issued To

On 14 December 2005, the decedent died leaving a will dated 13 September 2005 (the "2005 Will") and a prior will dated 24 January 2003 (the "2003 Will"). She was survived by three (3) daughters. Under the 2003 will, two (2) of the decedent's daughters are named as executor and successor executor. Under the 2005 will, one of the daughters named in the 2003 will is again named as executor.

To whom shall the letters testamentary be issued?

The rules state that the issuance of preliminary letters testamentary was to provide a form of letters to the named executor which would allow for the immediate administration of the estate (estate administration or estate litigation) when there may be a delay in probate (will contest). The purpose was to honor the testator's preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest. Although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator's will. A person not named as an executor has no standing to seek preliminary letters. Moreover, where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters is mandatory "upon due qualification". If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.

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

Consequently, one of the daughter’s application for preliminary letters testamentary predicated on her nomination as substitute executor under the 2003 will was denied, and the other daughter’s application for preliminary letters testamentary as executor under the 2005 will was granted. The court has ruled that the 2005 will dispenses with the filing of a bond. Long Island Probate Lawyers said that though the court may still require a bond if "extraordinary circumstances" exist, such is not the case. There are no extraordinary circumstances to warrant the filing of a bond. Thus, preliminary letters testamentary was issued to the daughter named as executor in both wills to serve without bond upon her duly qualifying under the law.

Also, the court, based upon its "broad equitable powers, however, including the power to convert or fashion a remedy based upon the facts alleged, without strict adherence to the title of the proceeding given by the petitioner" deems that portion of the instant proceeding which seeks authority to commence a discovery proceeding, as an application for the issuance of limited letters of administration to one of the daughters (executor under the 2003 will). Manhattan Probate Lawyers said for that reason, limited letters of administration was issued to the other daughter upon her duly qualifying according to law, without bond.

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Posted On: March 29, 2012

Courts Decide Will Contest Regarding German vs. American Wills

This proceeding is about the two last wills made in different states by a deceased woman. The petitioner in this appeal requests for the validation of the will executed in 1955 while the deceased was in New York County. The petitioner as the representative in administering the assets leaves the residuary estate to a New York charity. The deceased traveled to West Germany in 1965 and executed again a holographic will in 1967. The will provides that it revokes all prior wills. The woman died in Germany in 1968. The respondent cross-petitioner is the deceased's post deceased brother and is the sole successor under the later will. The latter will was established in the court proceedings in West Germany in 1972. The respondent cross-petitioner moved for judgment without trial to dismiss the petition and to deny probate to the prior 1955 will. In addition, the respondent filed a petition for ancillary letters on the basis of the 1967 will.

The court rendered a temporary decision holding the motion for the judgment without proceeding in suspending a trial to allow a full opportunity for each part to present proof and cross-examine each other's experts on German law. A New York Probate Lawyer said the facts of the case were set forth in that decision and will be presented when necessary. The trial was held upon the issues of whether the German courts issued a judgment or an administrative certificate, whether the document issued by the German court contains a final ruling under the law or merely a pronounced determination and whether a finding of German residency was essential to the establishment of the will in Germany.

The court found that the legal order was rendered by courts of record in Germany in the establishment of the 1967 holographic will of the deceased. In addition, the certificate of inheritance issued by the District Court in Germany constitutes a final decree and not merely a pronounce determination. Moreover, finding of German residency was necessary to the establishment of the 1967 will in Germany. On the basis of the recognized rules, the court gives full acknowledgment to the establishment of the 1967 will of the deceased in the German courts.
The experts in German law testified for both parties and clarified the procedure for validation of the wills in their country. Those experts agreed that the establishment of a will is a legal court procedure and their testimony and other evidence established are characteristics of such procedure. Nassau County Probate Lawyers said that based on the record, the district court is the only element of the German State court system which deals with the validation of the last will and testaments proceedings.

The district court in Germany who handled the proceedings issued a long preliminary judicial determination to award the certificate of inheritance to the respondent cross-petitioner, the brother of the deceased. The court heard testimony and took evidence in the proceeding. The proceeding was contested by the petition and the charity raised and brought a court case on the issue of the deceased person's alleged incompetency in making the 1967 will. The contestants, the petitioner and the charitable organization appealed the judicial determination to the Superior Court. The superior court then reviewed the decision of the lower court and received advice from the experts in international law. The Superior Court also rendered a long legal decision upholding the preliminary determination of the District Court. The District Court then awarded the certificate of inheritance to the proponent of the 1967 holographic will.

The petitioner has argued that the certificate of inheritance cannot be deemed final in the sense that the matter was already settled in the court in New York. It is always subject to revocation upon proof of falsity or fraud in a proceeding brought in the same District Court which issued the certificate. The acknowledged testimony revealed that the certificate of inheritance is given full force and effect in Germany. The court finds that the capacity of the District Court to revoke a certificate of inheritance is no way to lessen the legal effectiveness of the certificate of inheritance, certainly not unless and until so revoked or recalled.

The court also considered the effect of further proceedings in the German courts which may be conducted despite the issuance of a certificate of inheritance on the authority of their District Court and Superior Court. The opponent’s action may be brought in Superior Court, as a court of original jurisdiction, which is a plenary procedure concluding in the issuance of judgment which is characterized as final. In the case, the petitioner and the representative of the earlier will, after instituting the proceedings before the Surrogate's Court, made application to the Superior Court to initiate such an opponent action but withdrew the action shortly because the costs of $39,000 were imposed as a condition. If it is still open to the petitioner to continue, or begin retrial, such opponent action in the Superior Court, and in the unlikely event that the Superior Court should overrule itself or the Supreme Court should reverse the current final ruling, then, perhaps it would be presented with newly discovered legal evidence superseding what is now final.

NYC Probate Lawyers said the issue upon which evidence and testimony was given at the trial is whether a finding of German residency was essential to the establishment of the 1967 will in Germany. The evidence submitted is definite that both the District Court and the Superior Court dealt thoroughly with the questions of residency and that the issue was indeed a necessary aspect of those proceedings. The District Court took testimony and received evidence upon the question of residency and determined that the deceased was a resident in Germany at the time of her death. The Superior Court reviewed the issue of residency as well, enlisting the help of German experts in international law. Testimony clearly showed that it was requisite for the certificate of inheritance as a legal requirement, to establish residency in West Germany. It is uncontested that a finding of such German residency was essential to the establishment, that is to say, validation of the later will in Germany.

The evidence clearly established that the rulings of the District and Superior Courts of West Germany have been provided by courts duly constituted under the laws of West Germany, with the authority over the subject matter of the action and over the parties. The court, therefore, gives full recognition to the certificate of inheritance issued by the District Court of Germany, and the appellate decree of the Superior Court establishing the 1967 will of the deceased.
The respondent cross-petitioner seeks ancillary letters of administration in the court with respect to the 1967 will and the court has the power to issue such orders in the proceeding. The deceased left the property in the County of New York. Accordingly, the court decided that the motion for dismissing the petition for validation of the 1955 will, and allowing petition for ancillary letters of administration of the 1967 holographic will established in Germany, is granted. The State Tax Commission has appeared and has been satisfied. The will must be admitted to ancillary validation before ancillary letters are issued. The court interprets the cross-petition as requesting admission of the will to ancillary validation and such request is granted and ancillary letters will be issued.

One of the most common problems encountered in a last will and testament is the multiple execution of such document. If the same happens to you or your family member, the competent New York Probate Lawyers at Stephen Bilkis & Associates will gladly assist you in dealing with such legal troubles.


Posted On: March 29, 2012

Court Decides if Petition for Preliminary Letters Shoud Be Granted

On 28 October 2006, the decedent died leaving a will dated 27 April 2006. The will nominates two (2) executors. Thereafter, one of the executors renounced his appointment. The decedent was survived by his two adult children.

Under the will, the entire residuary estate is left to the decedent's companion and the decedent's children are disinherited. One of the named executors (petitioner) now petitions for preliminary letters testamentary.

The primordial issue (in the estate litigation) is whether or not the petition for preliminary letters should be granted.

The governing rule with regard to the issuance of preliminary letters testamentary was enacted to provide a form of letters to the named executor which would allow for the immediate administration of the estate when there may be a delay in probate (will contest). A New York Probate Lawyer said that its purpose was to honor the testator's preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest. Although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator's will. A person not named as an executor has no standing to seek preliminary letters. Moreover, where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters is mandatory "upon due qualification". If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.

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

In the instant case, the decedent’s daughter has requested that preliminary letters issue to her as executor under an alleged 2004 will. She claimed that the petitioner/executor:
1. has failed to produce the 2004 will;
2. has failed to comply with discovery demands;
3. is unfit to serve because of alleged misstatements by the process server upon which the order for substituted service was based and the fact that the letter enclosing the waiver and consent were sent to the wrong address;
4. has set forth a questionable valuation of assets in the application for preliminary letters;
5. acted in collusion with the residuary legatee; and
6. thus, failed to demonstrate "good cause" or serious wrongdoing which would permit the court to nullify the decedent's choice of a fiduciary.

On the other hand, the petitioner/executor asserted that:
1. his counsel did not draw any will for the decedent in 2004 and has no knowledge of any 2004 will;
2. even if there is an earlier will naming another executor, the executor in the purported later will has a prior right to letters; and
3. preliminary letters must issue in the absence of good cause shown or serious misconduct which renders him unqualified.

The court has ruled that the 2006 will dispenses with the filing of a bond. A Staten Island Probate Lawyer said that pursuant to the governing rules, even if the will dispenses with the filing of a bond, the court may require a bond if "extraordinary circumstances" exist. There are no such extraordinary circumstances here. Thus, preliminary letters testamentary shall issue to the petitioner/executor upon his duly qualifying under the law, to serve without bond.

Know your rights and what remedies are available for you. Call Stephen Bilkis & Associates. We have skilled lawyers who can assist you. Do not waste time and protect your rights. Know what you need to know. Ask our experienced and proficient lawyers about your alternatives. Be wise and call now.

Posted On: March 28, 2012

probate

A husband and wife were American citizens domiciled in Israel. The wife executed a will on January 12, 1987 and died on February 25, 1991 in Israel. The husband executed a will on January 14, 1988 died April 11, 1991 also in Israel.

The wife’s will provided that her entire estate will be left to her husband. She also provided that if her husband died before her, then her estate will be executed by her eldest daughter. The estate will then be equally shared by her eldest and middle daughter. Her youngest daughter will only receive $1.

The husband’s will made his wife and his eldest daughter his sole distributees. The husband’s will was probated in Israel in 1991.

2 brothers of the wife also died and left trusts for their sister in their will. The executors of the brother’s estate never gave to the sister her share in her brothers’ estate while she was alive.
In New York, on December 6, 2002, the middle and youngest daughters of the wife filed for the issuance of letters of administration and for them to be named administratrix so that they can sue the bank executing their older uncle’s estate and claim the trust that their uncle had left in his will for their mother. A New York Probate Lawyer said the youngest daughter sent notice of her petition to her eldest sister living in Israel but she did not file an answer and she did not appear before the Surrogate’s Court.

The New York Surrogate’s Court issued letters of administration to the middle and youngest daughters in New York on March 30, 2003. In November 2003, the youngest daughter, the administratrix filed suit to compel the executor of their uncle’s estate to render an accounting of their uncle’s estate and to explain why it had not distributed to their mother or to her estate the trust left to her by her late brother.

Also in November 2003, the eldest daughter, an American citizen domiciled in Israel, finally brought their mother’s will into probate. Her mother’s will dated January 12, 1987 was not probated after her death in 1991 because at that time, it was not clear that she had properties left to comprise her estate. The mother’s will left her entire estate to her husband. The husband who died two months after his wife left his estate to his eldest and middle daughter.

Long Island Probate Lawyers said when the youngest daughter who was named administratrix by the Surrogate’s Court of New York learned that her eldest sister had filed a probate proceeding in Israel for the probate of their mother’s will, she filed a motion in the Surrogate’s Court of New York to issue a restraining order against her sister and probate court in Israel from further proceeding with the probate of their mother’s will.

In March 2004, the eldest sister asked the Surrogate’s Court of New York to vacate the letters of administration issued to the youngest daughter stating that their mother had a will and it was being probated in Israel. They also claimed that material misstatements of facts were made by the administratrix in her petition for letters of administration and that she was not fit to serve as administrator or fiduciary of the mother’s estate.

The only two questions before the Supreme Court are whether or not the Surrogate’s Court of New York can issue an injunction against an Israeli court to stop it from probating the will of an Israeli domiciliary; and whether or not the issuance of the letters of administration by the Surrogate’s Court of New York bars the probate proceeding in Israel.

Brooklyn Probate Lawyers said the Court ruled that the Surrogate’s Court was correct to deny the petition for injunction filed before it to stop the Israeli court from proceeding with the probate of the mother’s will in Israel.

The youngest daughter applied for injunction through a mere motion and this is not procedurally sufficient. The youngest daughter also failed to prove that she is entitled to the injunction: she did not state how the probate proceedings would affect her adversely. And even if the probate proceedings affected her adversely, her cause of action should be an objection in the probate proceedings in Israel instead of an injunction in New York. The youngest daughter failed to claim a relief that can be granted to her by the New York court. Issuing an injunction would forever leave the issue of the validity of the mother’s will undecided. If the New York court were to issue an injunction against the Israeli court, the result would be a denial of probate to a will without a hearing on the merits.

On the issue of the issuance of letters of administration, the Surrogate’s Court ruled that this does not bar the probate of the will in Israel. The purpose of the letters of administration is for the administratrix to be empowered to secure any and all properties of the estate. It has not declared the decedent to be intestate yet. When the the Israeli court has denied probate to the mother’s will then will the issue of disposing the estate using the rules of intestacy be relevant.
The petition for injunction is denied. The letters of administration are not revoked.

Administering an estate is a complicated task that involves not only the payment of debts and taxes of the deceased but it may also involve running after debtors of the deceased so that the value of the estate can be proved. A skilled lawyer can assist in filing suit against debtors of the deceased. The debts must be collected for the proceeds to form part of the estate. An experienced lawyer can present evidence and argue in behalf of the estate to secure credits belonging to the estate. Call Stephen Bilkis and Associates for advice and a free consultation.

Posted On: March 28, 2012

Court Rules on Will Jurisdiction Issue

An American citizen domiciled in France died leaving behind bank accounts in New York worth less than $1,000.00, real properties worth a few hundred thousand dollars in France and almost a million dollars worth of money and personal property in Switzerland. At the time of his death he was married to a French national and they had one minor child. Prior to his death in 1972, the decedent executed a will sometime in 1970 in New York and this same will was presented for probate by two persons who were not main parties to the case. The New York will stated that half of the entire estate of the decedent must go to the wife and the other half should be held in trust in favour of the minor child. The will specifically directed that the same should be probated in New York.

It was also learned that aside from the will executed in New York, the decedent also executed a deed of donation which will specifically take effect upon his death. This deed of donation was executed in 1972, or 25 days before the death of the testator/Donor and in front of a notary public in France. The deed directed that all the estate of the testator be disposed and transferred in favour of the surviving spouse with a proviso that the minor child’s legitime be protected under French law. The deed of donation then is contrary to what the 1970 New York will provides.

Upon the death of the decedent, a proceeding was instituted in the court of New York for the disposition of the properties of the decedent according to the will executed in New York and at the same time a litigation is also pending and awaiting trial in France disputing the validity of the deed of donation. A New York Probate Lawyer said the proponents of the New York proceedings argued that the New York will should be given preference and that New York law should be applied in distributing the properties of the decedent. They also brought to the attention of the court that there was a pre-nuptial agreement between the spouses limiting the share of the wife to $10,000.00 in case of the husband’s death and that there was agreement between them that the laws of New York should be applied in the distribution of his estate.

The widow filed a motion to contest the proceedings in the New York court arguing that for the proper settlement of the estate administration of the decedent, it is more convenient for the French court to take cognizance of the same and not the New York court. The widow believed that the French court is more convenient and would be in a better position to rule on the case.

In ruling on the proceedings initiated and the motion filed by the widow, the court declared that under the circumstances, the French court is the proper forum to hear and try the estate litigation. Westchester County Probate Lawyers said the court stated that the validity of the New York will can be better determined by the French court and this is because there is already a trial about to be commenced in that jurisdiction. To court stressed that since a trial is about to start in France regarding the validity of the deed of donation, then the matter regarding the will contest or validity of the New York will must be submitted before the French court rather than commence a simultaneous proceeding in New York and France.

The court also elaborated that although the decedent is still an American and has not renounced citizenship, he nevertheless never maintained any residence in the country and that the only address that he has was the one that he used in opening an account with Chaste Manhattan Bank and which address is not actually in New York but in another county so therefore New York County has no jurisdiction to begin with but it should be with Queens County which was the address that he used with his Chaste Manhattan accounts. NY Probate Lawyers said in view of the foregoing, the court ruled in favour of the motion filed by the widow and the motion to dismiss the probate proceedings was granted.

Matters concerning the settlement of estates of deceased persons are not ordinary in many sense and that is why the services of a New York Probate Lawyer are needed. Stephen Bilkis and Associates is a law firm that has expertise in the field of both testamentary and intestate proceedings and as such, they can provide the expertise one may need in this area. A New York Estate Lawyer will handle all your legal requirements when it comes to wills and succession as well as other legal concerns peripheral to this field of discipline.

Posted On: March 27, 2012

Daughter Brings Will Contest Action Against Estate

This is a summary proceeding case involving the public administrator of New York versus the respondent who was one of the heirs of the decedent. The facts of the
case states that the decedent died in 1977 leaving a will. In that will, the house and lot was devised to one of the daughters and the other two children that includes the herein respondent were allotted legacies in the form of bank account of their testator-father. It turned out that there were no more deposits in the said bank accounts and the only property left by the decedent was the house and lot which was allotted to just one daughter. The two daughters that included the respondent in effect did not inherit anything.

The daughter who inherited the entire estate of the decedent died on September 2000 without leaving a will. The court issued letters of administration to the public administrator who is now the petitioner in the case, for the legal disposition of the daughter’s properties and assets which included the estate of her father. In 2008, the respondent filed objections to the probate of the will of her father alleging that the said will is a forgery and that there was an earlier true will that was made by her decedent father. Notwithstanding the objection of the respondent, a New York Probate Lawyer said the proceedings continued and the house and lot originally coming from the decedent father was sold in June 18, 2010. After the house and lot was sold, the public administrator filed a petition for the final accounting of the proceeds of the sale as well as the finalization of his duties in this particular issue.

The respondent filed objections to the petition for final accounting filed by the petitioner and posed certain issues that according to her are enough to consider that the entire procedure for the estate administration and consequent sale of the property of her decedent father was erroneous. Among the claims of the respondent included the charge of impropriety on the part of the public administrator because he was also the one who bought the property in the auction and re-sold it later at a higher price. Another was that the property was sold at a very low price as compared to the valuation that is based on the government assessor’s office. The other issue posed by the respondent refers to the commission that was due to the public administrator and such other expenses that were all charged to the proceeds of the sale and also the possibility of incurring additional assessment and charges from the tax division of the government.

With the objections posed by the respondent, and the reply presented by the petitioner, the issue was submitted by the petitioner for summary judgment of the court. A Staten Island Probate Lawyer said both parties agreed to the move for summary judgement with their position papers as the sole basis of court’s judgment.

In ruling on the motion for summary judgment in this estate litigation, the court addressed the issues presented by the respondent one by one and also the reply given by the petitioner. The will contest earlier presented by the respondent was not given due course as there was nothing that could prove the same to be true. In deciding, the court ruled that there was nothing irregular with the sale of the property and that the petitioner followed the mandate given to him by the court in an orderly manner. Queens Probate Lawyers said that the price of the property was sold at a price lower than the fair market value was based on the fact that the house at that time needed repairs as it was neglected. The government makes a valuation of the property based only on limited factors while in reality additional considerations are factored in determining the actual price that it can be sold like the condition of the house, its location, the neighbourhood, etc. Finding no reason to give credence to all the arguments of the respondent, the court granted the petition for summary judgment in favour of the petitioner public administrator.

Property dispositions of the decedent will require the assistance of a skilled lawyer. Losing a case such as the one discussed above can be avoided if legal counsel is an experienced in handling proceedings such as this one. To protect your rights in the manner that is dictated by the law, hire a competent lawyer at the first instance to protect your rights as an heir, devisee or legatee. Stephen Bilkins and Associates can give you the necessary legal assistance when it comes to these types of legal issues.


Posted On: March 27, 2012

Court Discusses Will Contest between Son and Stepmother

In legal action arising out of a dispute between the individual plaintiff from New York and his stepmother from Florida with regard to the ownership of corporate stock in a New York corporation, the plaintiffs appeal from an order of the Supreme Court, New York County, and a judgment which granted four motion of the defendants to dismiss the action on the grounds of inconvenient forum. The stock in question had been owned by the father of the plaintiff from New York and the husband of the stepmother from Florida. The couple together had owned and managed the corporation for many years. In a will, the husband bestowed to his wife the corporate stock that had been bestowed to the son in a prior will. It was the offering of the August 1980 will for probate in a Florida court. Objections on the Florida validation had been interposed by the son on the grounds that his father had been incompetent and the subject of undue influence by his stepmother that led to the commencement of the lawsuit in January 1983. Although phrased alternatively, and in some respects inconsistently, the six causes of action set forth in the complaint all rest on the essential claim that at the time the father retired from the corporation, he had entered into an agreement with the son with regard to the disposition of his stock in exchange for the son’s promise alleged to have been fulfilled.

The said agreement states that the son would receive stipends for the rest of his life. Summarized briefly, the complaint alleges that the father had promised to sell and deliver his shares to the corporation and in fact did so, and that the corporation should be declared the lawful owner. That if it be found that the father had not delivered his shares in accordance with his agreement the plaintiffs are entitled to specific performance. That alternatively, the father had promised to bestow the shares to his son in a will, which he would not alter until his death, and he in fact made such a will, the revocation of which in the 1980 will constituted a breach of the agreement. That if at the validation proceedings the will is rejected and the father is deemed to have died without a valid will or under a will not containing endowment of the stock to the son, the plaintiffs are entitled to specific performance. That if declaratory or specific performance relief is not granted, damages should be awarded to the son from the stepmother in the amount that had been paid by the father under the stipend agreement because of her alleged tortious interference with the agreement between the father and his son.

Lastly, that the stepmother and several of the other individual defendants, joined together to cause the father to breach his agreement, activities in furtherance of this plan occurring both in New York and Florida, and that the plaintiffs are entitled to damages in the amount of the stipend payments that had been made to the father.

A New York Probate Lawyer said that four of the defendants, represented by the same attorney, moved to dismiss each cause of action on the grounds of inappropriate forum and further moved to dismiss each cause of action alleging lack of subject matter of jurisdiction, another action pending, the statute of frauds, lack of personal jurisdiction, and lack of against jurisdiction. Not addressing any of the other motions, the Special Term dismissed on the grounds of inappropriate forum, placing primary reliance on the circumstance that the August 1980 will had been offered for validation in the Circuit Court of Dade County in Florida, and that objections to that will had been filed by the son. The court concluded that the ownership of the shares would necessarily be determined in the Florida validation proceeding, and that it would therefore be a waste of the court's resources to duplicate the work of the Florida courts. The determination seems to be erroneous. The court are confronted with an action brought by a New York corporation and a New York resident concerning the ownership of shares in a New York corporation, the stock certificate for which, both parties agreed on oral argument, has at all relevant times been located in New York. The said facts alone establish that the action has a substantial nexus with this State. Moreover, it is apparent from the record that events relevant to the issues raised occurred both in New York and in Florida. No plausible basis for an application of inappropriate forum is suggested unless that basis is to be found in the circumstance that a will claiming to dispose of the deceased father’s stock in the corporation was offered for validation in Florida. No authority has been called to our attention in giving such dispositive effect to the circumstance. At the time Special Term entered, its order appealed from was pending. As indicated, a validation proceeding in Florida where objections had been filed by the son, alleging that his father was not competent at the time the will was executed, and that he had been the subject of undue influence.

Although the resolution of those issues would clearly have an effect on some of the contentions presented that might have justified deferring trial of the action until after the completion of the Florida proceedings, it is apparent that the issues presented are essentially different from those that had been presented in the Florida validation proceedings. Westchester County Probate Lawyers said that in any event, those proceedings have been concluded, and the will has been accepted for validation. It may well be that in connection with the estate Florida would have subject matter jurisdiction with regard to claims seeking to determine the ownership of shares of stock that the father undertook in the validated will to bestow to the stepmother. But the fact that Florida courts may also have jurisdiction to determine the issues raised in the action is hardly a basis for concluding that New York is not a convenient forum under the circumstances presented. Moreover, it appears that no proceedings addressing the issues presented have even been commenced in Florida, nor are we informed by any of the parties that they contemplate commencing such proceedings. If indeed an action addressing the issues presented here were to be commenced in Florida, it may be that a question of courtesy would then be presented which would require serious consideration on the basis of all the then relevant considerations. But issues of courtesy that might arise in that contingency scarcely provide a colorable basis for concluding now that New York is not a convenient forum to entertain the action that has been commenced here under the circumstances presented. In view of the determination of a majority of this court to affirm Special Term's dismissal of the action on the grounds of inappropriate forum, an extended discussion of the issues raised by the other motions is not warranted.

Suffolk County Probate Lawyers said the order of the Supreme Court, New York County and the subsequent judgment of that court which dismissed the complaint for inappropriate forum should be modified to the extent of denying the motions to dismiss the third and fourth causes of action as barred by the statute of frauds, and denying that motion as to all other causes of action, and the judgment should be modified to the extent of striking the dismissal of the first, second, fifth and sixth causes of action and reinstating those causes of action, and should be otherwise affirmed.

Inheritance are given to us to provide us relief in any way possible but if these bequest causes us to be under legal disputes then it is a must for us to consult the New York Will Contest Lawyers of Stephen Bilkis and Associates. They can surely provide us with sound legal advice that will guide us in achieving triumph over legal issues.

Posted On: March 26, 2012

Estate Executor Brings Action for Lack of Payment

This is not really estate litigation as it is a case involving the commission/fees of a person who was assigned to perform the accounting of the wealth of a decedent. It all started when a wealthy individual commissioned a lawyer-friend to write his will and named the said lawyer together with another close friend as executors of the properties and money left once he is gone. The rich man died at the age of 91 and survived by his wife. He had by that time amassed a huge amount of money and properties. The testator bequeathed to his widow their home and a $5M trust fund. When all the bequeaths for family and friends were satisfied, he instructed in the will to give the rest of his wealth to charity naming in particular a school, a hospital and a foundation.

In the will, there was a provision that the executors will be entitled to a payment of $400,000 each and this is meant to cover the work that is involved in carrying their duties as such. The executors entered in the performance of their duties by filing and requesting for letters testamentary from the court. A New York Probate Lawyer said the court granted the request and the executors started with their duties. One of the executor, a close friend of the testator realized that the job involved will require more than the usual. This is because of the vastness of the wealth left by the decedent which was around $250M and the complexities involved in process of estate accounting of the various bequeaths stated in the will as well as the grants given to various organizations.

In view of this, the said executor filed a summary proceeding in the court to request that his fees/commissions be increased from the originally stated $400,000 stated in the will, to the amount of $5M which is based on statutory provisions. He later on reduced his claim to a little over $2M. The beneficiaries timely opposed the motion and filed their opposition thereto arguing that since the will specifically stated the mounts that will be paid to the executors once the probate proceedings start, the same should be given effect. They further contended that since the executor did not question the provision of the will concerning the fees to be paid to them, that he is now estopped from questioning the same. Long Island Probate Lawyers said they also noted that there was even a proviso in the will that should the assigned executors find the task too difficult for them, that a company be made the executor to take their place.

The executor countered that he cannot be estopped from asking for the right statutory commission for an executor because he did not execute in writing that he agreed to the estate administration with the given meagre amount and that he entered in the duty of being an executor in compliance to the will executed by the testator and he also did not know that the same will involve such a huge undertaking. That though there is no will contest involved, the duties required is still difficult due to the works that needed to be done. Also, his act of entering into the duties of an executor cannot be construed as having also surrendered his right to the statutory right to receive the right amount for his services.

In striking down the motion for summary judgment, the court ruled that the said executor has only two options under the circumstances. Manhattan Probate Lawyers said that is to perform his duties under the provisions of the will with the given amount as specified or to resign and let the alternative executor company take his place. The court found no merit to the contention of the executor that he did not agree to the terms of payment as indicated in the will. The court further declared that by the executor’s acts, he has already validated his agreement to the provisions of the will with regards to his payment. This could be seen from the signatures that he affixed during the proceedings even though it is not particularly about his fees.

The interpretation of the will of a deceased person requires legal expertise and to this, a skilled lawyer can help any party who encounters an issue about the interpretation of any will. When the distribution of the properties of a deceased person requires the determination of the court, there is also a need to engage the services of a qualified lawyer. Stephen Bilkis and Associates is a law office that has expertise in both fields and anything that relates to wills and succession. They have been in this field for quite some time and they know how to effectively protect your interests.

Posted On: March 26, 2012

Court Listens to Jurisdictional Challenge of Will

An appeal on the ruling on the last will and testament of a deceased woman was filed in the Surrogates’ Court of Eric County. In the first appeal, the respondents appeal from a ruling admitting the last will and testament of the deceased who is a resident of Vermont to original validation and granting letters of administration and letters of trusteeship to the petitioner. In the second appeal, the respondents appeal from an order that dismissed their challenge to matter of jurisdiction of the Surrogate's Court to the validation of the deceased woman’s will. In the third appeal, the respondents appeal from an order that denied their motion for leave to renew the jurisdictional challenge that was dismissed by the order in the second appeal. The order in the third appeal superseded the order in the second appeal therefore the second appeal must be dismissed. In the third appeal the Surrogate erred in denying the respondents' motion for leave to renew and upon renewal, should have declined to exercise jurisdiction over the property of a nonresident and granted the respondents' motion to dismiss the petition. The findings and order of the Vermont Probate Court accepting original jurisdiction over the property constitute new or additional facts that were unavailable at the time of the original challenge and that would change the prior determination.

Turning to the merits of the ruling in the first appeal and the order in the third appeal, it is firmly established in New York that jurisdiction over the property of a nonresident should not be transferred from the resident of the person who made the will unless it is required by some vital rule of law. Further, the Surrogate's Court may exercise jurisdiction over a nonresident deceased person’s property when the deceased leaves the property in the state. A New York Probate Lawyer said that in determining whether to accept an application for original validation of a will of a nonresident which has not yet been admitted for validation in the deceased person’s residence, a court should examine the nature of New York's contacts with the deceased and her property, including the location of the assets, the residence of the nominated executor and beneficiaries, the expense of proving the will in the residence of the deceased, the deceased person’s request, if any, for New York validation and the good faith of the proponents. The court should also consider what weight should be given to the fact that the residence of the deceased has already assumed jurisdiction over the property.

The petitioner contends that the Surrogate properly exercised jurisdiction over the property of the deceased based on the exercise in her will of certain limited powers of appointment over two trusts established by her predeceased husband for her benefit. Bronx Probate Lawyers said the property includes a trusts owned property situated in New York and ownership of three bank accounts allegedly located in New York. Contrary to the petitioner's contention, the assets of the trusts were never the deceased woman’s property and thus are not for validation assets located in New York sufficient to grant jurisdiction in New York over the deceased woman’s property. It is well established that the property in a trust remains the property of the benefactor until it absolutely entrusted in some person or corporation and that a beneficiary with a power to appoint by will is a mere representative of the benefactor. Thus, when the deceased exercised the powers of appointment gave her by the terms of the trusts in favor of other trusts established in her will, she was not disposing of her own assets but, by authority bestowed upon her by her husband, she was disposing of property which never lost its identity as part of the trusts' property.

The three bank accounts are intangible personal property, and the usual rule with respect to such property is that for administrative purposes they have their location at the residence of the owner. Brooklyn Probate Lawyers said there is no compelling reason to depart from the usual rule that intangibles have their location at the residence of the owner, which is Vermont. The three bank accounts in question constitute only 23% of the deceased woman’s property, and two of the three beneficiaries are nonresidents of New York.

Contrary to the petitioner's disagreement, the Vermont law does not discriminate against a resident of New York acting as an executor. In any event, Vermont stated that it would consider the petitioner for appointment and, in fact, the petitioner has been appointed by Vermont as co-executor. Also, while one of the three beneficiaries resides in New York, that person advocates for validation in Vermont, and the other two beneficiaries reside in Vermont and Florida, respectively. There is no indication in the record that it would be more expensive to validate the will in Vermont rather than in New York and, although the will was drafted in New York and executed in New York, it contains no request that the will be validated in New York. In sum, Vermont has already accepted jurisdiction over a resident’s property, and it can be discern that there is no reason to transfer the original jurisdiction over the property from Vermont to New York based on the interests of the deceased, the beneficiaries or of New York State.

It is hereby ordered that the ruling appealed from be the same and is hereby unanimously reversed on the law without costs, validation is denied and letters of administration and letters of trusteeship are revoked.

Owning properties on different state makes us fragile to different distinct laws. To avoid legal disputes, it would be a wise move to familiarize ourselves with existing laws. When you are caught in this kind of situation, have the New York Probate Lawyers of Stephen Bilkis and Associates assist you and guide you through your ordeal.

Posted On: March 25, 2012

Court Stays Estate Proceedings until Criminal Case is Resolved

Three probate proceedings in the estate of the deceased woman moves for an order for a partial stay or a protective order directing that the surviving son’s obligations to respond to all discovery demands that have been served on him temporarily be stayed until related criminal charges pending against him are resolved. The Library and the Museum, two charitable beneficiaries under the wills of the deceased woman oppose the motion. The District Attorney moves for an order granting him the right to intervene in the proceedings and upon intervention, granting a stay of all proceedings pending the resolution of the criminal charges pending against the surviving son. The motion is opposed by the surviving son, the Library and the Museum. The Attorney General of the State moves for an order granting a stay of all proceedings or in the alternative, a stay of all discoveries except document discovery and setting a date for a conference.

A woman was survived by her only child. Three sets of paper writing claiming to be wills of the deceased woman were filed in court. The first paper writing is a will dated January 30, 2002, along with a first, second and third supplement. The second paper writing is a will dated February 2, 2001 with a sole supplement. The third paper is a will dated January 8, 1997, also with a sole supplement.

A New York Probate Lawyer said the trust bank filed a petition for the validation of the 1997 will. The surviving child of the deceased filed a petition for the validation of the 2002 will and the first two supplements only. He also filed a petition for the validation of the 1997 will.

By order, Westchester Surrogate’s Court established a schedule for the taking of document discovery. The order included dates for the exchange of documents and the depositions of witnesses.

On November 27, 2007, an arraignment was unsealed against the surviving child and the drafter of the third supplement to the 2002 will. NYC Probate Lawyers said the arraignment alleges acts of various crimes which took place from about 2001 to 2007. It charges the surviving son with crimes concerning the offering of the second supplement for validation, and the attorney’s drafting of the third supplement. At the arraignment, the surviving son’s plead was not guilty.

By notice of motion, the surviving son moved for a partial stay and a protective order to suspend his obligations to respond to the discovery demands until such time as the criminal proceeding was terminated. In opposition, the Library and the Museum argue that the surviving son is not entitled to a stay or a protective order. The Library and the Museum claim that they are concerned about the delay and possible prejudice due to the surviving son’s advancing age. The Library and the Museum insist that the surviving son should be required to serve his documents subject to a privilege log and he could move for a protective order.

By notice of motion the District Attorney moved to intervene and upon intervention, to stay all proceedings pending the resolution of the criminal charges pending against the surviving son and the drafter of the supplement. In support of his motion, the District Attorney argues that of the 18 counts contained in the arraignment, seven relate directly to wills before the court in the said proceedings. He also argues that the other counts are likely to relate to the issues of the proceeding, and many, if not all of the parties to be deposed will be called as witnesses in the criminal proceedings.

The Library and the Museum do not object to the intervention but argue that a blanket stay of discovery is not necessary. They also object that document production should continue in order to assess the value of any settlement proposals they may receive and that a stay of no more than six months should be granted to allow the criminal proceeding to progress.

By notice of motion, the Attorney General moved for a stay of all trials or in the alternative, a stay of all discoveries except document discovery and setting a date for a conference after the issuance of the stay. Bronx Probate Lawyers said the Attorney General argues that the District Attorney's application is reasonable because the surviving son would be unfairly privileged in his criminal defense if allowed civil discovery. He also argues that the parties to the civil proceedings would not be unduly discriminated by a stay of a limited duration and that they might benefit a resolution in the criminal proceeding.

In his reply, the surviving son motions now consents to the District Attorney's request for a stay provided that the parties currently in default of production of the documents pursuant to the court's discovery order be ordered to make production prior to the stay.

The District Attorney moves to intervene. The court finds no basis for intervention as of right. However, the court exercises its discretion to grant intervention based on the common questions of fact and law between the criminal and civil proceedings.

A law provides that a court may grant a stay in a proper case. The pendency of a criminal proceeding does not automatically stay a related civil proceeding. The issuance of a stay in the civil proceeding is directed to the sound discretion of the trial court. In deciding whether to issue the stay, the court may consider the risk of inconsistent adjudications, application of proof and potential waste of judicial resources. The court may also consider whether a party will invoke the Fifth Amendment privilege against self-incrimination in the civil proceeding.

Based on the above, the court grants a stay provided that the obligations of the parties under the October 17, 2007 order are stayed except that the parties shall complete document discovery as set forth in paragraph one of that order by January 28, 2008. Also included in the provision is that until any non-party subpoena to appear in court served have not been returned prior to the date of the decision and order, the production there under is stayed, and the stay is effective until further order of the court. The parties, including the District Attorney, shall appear which the court will entertain oral argument on whether or to what extent the stay should be lifted.

The parties have expressed an interest to pursue the settlement negotiations during the postponement of the criminal prosecution and the document production among the parties will facilitate the process. The court rejects the argument of the District Attorney that production of the documents will necessarily benefit the surviving son in the criminal proceeding. At a conference with the parties, the court was advised that most of the documents demanded among the parties had either been produced or had been made available for inspection. In addition, by order of the Supreme Court, New York County, the record of the guardianship proceedings of the deceased was unsealed, and those documents are now available to the parties.

The surviving son’s motion for a protective order is denied on record. The court rejects the surviving son’s argument that he will be unfairly prejudiced if he is made to produce his documents because of the negative inference of asserting the Fifth Amendment privilege against self-incrimination. He will produce his documents by the date set by court. Any claims of privilege shall be the subject of a motion for a protective order which must be made returnable on or before February 13, 2008. The documents which the court determines are subject to the Fifth Amendment privilege against self-incrimination will not be produced until further order of the court. Given the issuance of the stay, no inference will be drawn from whatever privilege he will seek to assert. The motions are denied except as otherwise provided.

A criminal proceeding will take a lot of your time, resources and patience. When dealing with legal issues concerning last will and testaments, you can count on the legal team at Stephen Bilkis and Associates. The team of dependable lawyers will provide you with sound legal advice that will guide you on journey to winning your lawsuits.

Posted On: March 25, 2012

Court Decides Estate Issues Regarding Same Sex Marriage

The deceased man endowed in his will his three surviving brothers, a goddaughter and his same sex partner spouse that he married in Canada. He left the residue of his estate to the respondent, his same-sex partner spouse. The deceased man appointed the respondent spouse as the executor of his will, the said will included a no-contest clause which threatens anyone who challenges the legality of the will shall be eliminated. The respondent, as the executor named in the will, filed a petition for probate in the Surrogate's Court. The respondent identified himself as the deceased man’s surviving spouse and the sole successor. The respondent served the beneficiaries with notice of validation and the Surrogate's Court issued a ruling granting validation.

On January 26, 2009, the Surrogate's Court issued an opinion finding that the respondent was indeed the deceased man’s surviving spouse and sole successor. In regard with such findings, citation of the validation proceeding need not be issued to anyone. The court found that the deceased man’s same-sex marriage to the respondent was valid under the laws of Canada, where it was performed. The said marriage did not fall into either of the two exceptions to the marriage recognition rule, as the marriage was not affirmatively prohibited or proscribed by natural law. Accordingly, the Surrogate's Court found that the marriage was entitled to recognition.

The appellant alleges that the court was not in jurisdiction to grant the validation proceeding without having been issued with citation being the deceased man’s surviving siblings.

New York Probate Lawyer said subsequently, the legal representative served the beneficiaries with notice of validation and the Surrogate's Court issued a judgment granting the validation of the last will and testament of the deceased.

The appellant spouse argued that the recognition of the deceased man’s same-sex marriage violated a public policy in New York and that he should have been cited in the validation proceeding and provided with an opportunity to file objections as a beneficiary.

By the order to make a court appearance, the appellant spouse petitioned the Surrogate’s court for the cancellation of the validation proceeding and permission to file objections, claiming that the court was without jurisdiction to grant validation without citation having been issued on the deceased’s surviving siblings. A Staten Island Probate Lawyer said the appellant argued that the recognition of the deceased's same-sex marriage violated the public policy in New York and with that he should have been cited in the validation proceeding and provided with an opportunity to file objections as a beneficiary. The court found that the appellant’s position that same-sex marriage violated public policy had been specifically addressed and rejected by the appellate division, and with that the petition of the appellant is accordingly dismissed and deliberately without merit.

Based on the records, New York's long-settled marriage recognition rule affords courtesy to out-of-state marriages and that recognizes as valid a marriage considered valid in the place where it was celebrated. The New York law does not extend such recognition when the foreign marriage is opposing to the prohibitions of natural law or the express prohibitions of the ruling. The said marriage does not fall within either of the two exceptions to the marriage recognition law.

Furthermore, the failure of the legislature to enact a bill benefits the most undefined foundation for positive inferences. Thus, Queens Probate Lawyers said that the Legislature's failure to allow same-sex couples to enter into marriage in the state or require recognition of validly performed out-of-state same-sex marriages, cannot serve as an expression of public policy for the State. In the absence of an express legal prohibition legislative action or inaction does not qualify as an exception to the marriage recognition rule.

Different States and different countries have distinct laws and ruling in dealing with marital concerns. Marrying in another state or country or entering into a union with someone outside of your state may cause conflicting issues. If you and your partner are caught in this kind of problems, consult with Stephen Bilkis and Associates.

Posted On: March 24, 2012

Court Determines Case Filed by Executor

This is the probate proceeding of a deceased man’s last will and the objection filed by the counsel of the executor of the estate on the request from the court. The counsel of the executor has objected to a request from the court's accounting department for the payment of an additional fee of $625.00 upon the executor’s required filing of the inventory of his List of Assets. The additional payment was requested based upon the addition of the real property located in North Carolina of his completed form. The executor of the property excluded that asset from the gross value of the assets as reported on the validation petition when it was initially calculated. The form for the petition required that improved and unimproved real property be listed only if it is located in New York State.

The Uniform Rules for the filing of the inventory of List of Assets shows no basis for excluding non-New York real property from the assessment of the gross properties passing by will, except with respect to a proceeding for ancillary validation. The part of the rules stated that the attorney of record shall provide the court a list of assets compose of the gross property for tax purposes but separately listing the assets that were either owned by the deceased individually including those in which the deceased has partial interest, or were payable or transferrable to the properties of the deceased and those properties held in trust. Also to be listed separately are those properties over which the deceased had the power to designate to a beneficiary, jointly owned property, and all other non validation property of the deceased. The section specifically requires the collection of the additional fee upon the filing of the inventory list, a requirement clearly contemplated by the enabling the law.

In the event such list of assets is not filed, A New York Probate Lawyer said the court may refuse to issue certificates, or may revoke the letters and may refuse to issue new ones until the list has been filed and the fees have been paid as provided. Failure to voluntarily file the list of assets may also constitute grounds for disallowance of commissions or legal fees. In case any additional filing fees are due, they shall be paid to the court at the time of the submission of any of the documents described.

The court does not read official form as either intending or requiring exclusion of non-New York State real property from the assessment of the deceased’s gross properties from the will. Notably, the form does not have an entry for either all real property or all non-New York real property; nor are there instructions to omit non-New York real property from the petitioner's estimate of the total value of all property constituting the deceased's gross properties from the will.

The initial validation fee is based upon the petitioner's estimate of the value of the gross testamentary properties. In that instance, NYC Probate Lawyers said the validation petition stated the approximate value of deceased's gross heritable properties as greater than $250,000.00 but less than $500,000.00 requires a processing fee of $625.00. The purpose of the additional numbers requested is unclear from either the form or the law. The most important fact is that the court clerk is required to determine the final and more accurate number from the subsequent filing of the list- inventory filed.

As the argued by the petitioner's counsel, the language used in the official form for the validation petition suggests that a distinction should be drawn between the real property located within and outside the State of New York but the distinction has no legal direction and significance. The law requires that the validation fee be computed based upon the gross value of the assets passing by will, with an initial assessment at the time of the filing and a subsequent assessment that may require an additional validation fee. Brooklyn Probate Lawyers said the law also authorizes the chief administrator to disseminate the rules to assure that the proper fee is ultimately paid. A list of inventory that is filed properly shows real property and the out-of-state property is properly included because it is a part of the deceased's taxable property. The inclusion of the foreign realty requires a total fee of $1,250.00. As the initial validation fee was $625.00, the clerk is mandated by the court to collect an additional fee of $625.00.

If problem concerning your family member’s last and will testament troubles you and you can’t think of possible solution, our skilled lawyers at Stephen Bilkis & Associates are ready to give you credible answers on your predicaments. If you want sound legal assistance or advice, feel free to call or visit our offices all throughout the NY Metropolitan Areas.

Posted On: March 24, 2012

Court Determines Jurisdiction of Will between Florida and NY

A woman died in Florida on January 17, 2985. She had assets in Florida and New York. Her will was drafted and executed in New York under the supervision of her New York lawyer who is also the named executor in her will. He is the one who petitioned the Surrogate’s Court of New York for the probate of his client’s will.
The testator bequeathed to her siblings half of the estate and the remaining half was bequeathed to the legal heirs of the testator in accordance with the laws of descent and distribution of New York.

The testator’s lawyer at first wrote to the Surrogate’s Court stating his opinion that the testator has changed her domicile from New York to Florida. Later, he changed his mind and filed this application for probate in the Surrogate’s Court of New York. A New York Probate Lawyer said the heirs at law filed a similar action for probate of the will in Florida. They assert that the testator was domiciled in Florida. The testator’s brother filed the petition and asked that he be named as executor because the testator’s lawyer is ineligible for appointment as executor in Florida as he was not a resident of Florida.

The distributees of the will filed a motion for summary judgment asking that the will be admitted to probate. The Surrogate’s Court set a date for pre-trial where the parties were given the opportunity to amicably settle the matter but no agreement was produced.

The Surrogate’s Court then denied the motion for summary judgment to admit the will into probate. Suffolk County Probate Lawyers said the Surrogate’s Court held that the testator was domiciled in Florida and it refused to exercise its jurisdiction.

The lawyer and the distributees appealed the Surrogate’s Court’s dismissal of the motion for summary judgment.

The Supreme Court held that the question on where a person is domiciled is a mixed question of fact and law. The Surrogate’s Court should have accepted evidence and reviewed the evidence on the question of the testator’s domicile. The Supreme Court further held that the person who alleges that the testator has changed his domicile is the person who has the obligation to submit evidence proving his allegation.

At the time of the testator’s death, it is admitted that she had residences in both Florida and New York. Under the laws of domicile of New York, when a testator has two residences, the residence which was established first is the testator’s domicile. This presumption holds until there is clear evidence that the testator has changed domicile.

Long Island Probate Lawyers said the testator had two driver’s licenses from Florida and New York. She registered to vote in Florida. But all of her financial and business operations were in New York. Her bank accounts are all in New York, and in her will, she expressly stated that she is a resident of New York. In her will, she asked to be buried in New York near her home.

While it is true that the lawyer and executor of the testator had expressed his opinion that the testator has changed her domicile to Florida, this is his personal opinion and it cannot be controlling. The testator’s brother who filed the probate proceeding in Florida has also declared to the authorities in Florida when he furnished them a copy of his sister’s death certificate that he believed his sister to be domiciled in New York.

The Court held that in view of all these facts, the respondents have not clearly or convincingly proved that the testator had intended to change her domicile. This issue was an issue of fact and law which should have been tried. For this reason, the Surrogate’s Court’s dismissal of the petition for probate is reversed.

The Supreme Court also stated that even if there is clear and convincing proof that the testator has changed her domicile to Florida, there is still grounds for the Surrogate’s Court to entertain the petition for probate: the testator’s assets are almost all located in New York, his fiduciary/executor is in New York and Florida discriminates against the executor named in the will. All of the beneficiaries of the will ask that the will be probated in New York. And most importantly, the testator herself has declared herself to be domiciled in New York and she expressed her desire for her estate to be administered in accordance with the laws of New York.

The issue of domicile is crucial for the success of a petition for probate. A skilled lawyer can help you argue and prove the domicile of the testator. The legal team at Stephen Bilkis and Associates are willing and ready to assist you. See them at any of their offices throughout the New York area and ensure that you don’t come to court unprepared to prove the testator’s domicile.

Posted On: March 23, 2012

Court Decides Jurisidiction Between Switzerland and U.S.

A Swiss national died on July 7, 1941. Prior to his death, he executed a will in New York purportedly to cover his personal properties in this State. The will was executed in 1934. When he died in 1941, the personal properties left by the testator were divided among his widow and three children. The petitioner in this case was not given any share because he was deemed by the testator as having been amply provided for. The estate in New York was divided in such a manner that ½ went to the widow and the other half went to the two children minus the said petitioner. This settlement was finalized in October 25, 1941

Apart from the 1934 will, the testator also executed a hand-written or holographic will which was executed on March 2, 1940. This later will disposed of the properties located in Switzerland, the domicile of the decedent and a decree was issued by the proper court of Switzerland while the New York proceedings was still on-going. A New York Probate Lawyer said he 1940 will did not make any mention of the earlier 1934 will nor was there any express or implied revocation of the same. The later will of 1940 disposed of all properties of the testator without making any reference to the personal properties located in New York because the will was silent on the issue of what securities were to be disposed and where such securities could be located. The only thrust of the 1940 will was to make a disposition of all the properties specifically found in Switzerland and there was no mention about the securities located in the state of New York nor was there any reference to the 1934 will. The said will also stated that all the testator’s securities must be given to the wife and all real properties located in Switzerland be sold and the proceeds must be divided between the widow and the three children which includes the petitioner. Since the estate taxes figured heavily in the picture, there was very little left for the heirs and the surviving spouse to divide. The petitioner in particular received very little amount when all the taxes were factored in the computation of the net estate.

The petitioner, one of the sons of the testator, went to the Court and asked for the issuance of ancillary letters testamentary and to ask the court to vacate an earlier decree excluding him from the partition of the personal properties in New York which was the subject of the 1934 will. He also argued that under Swiss laws, the effect of a succeeding will is to revoke all prior wills executed by the testator and that therefore the probate of the 1934 will was not in order because of the existence of a later will which was executed in 1940. Bronx Probate Lawyers said he claimed that if the 1940 will is to be given effect, he would not have ended up with practically nothing because though there were almost no securities left in Switzerland at the time of the death of his father, there were on the other hand enough securities that can be divided coming from the personal properties located in New York. To all of these arguments, the executor countered that the petitioner is already barred by means of estoppels from pursuing and contradicting the decree because sufficient time has already elapsed between the finality of the estate administration and consequent liquidation and the filing of the proceedings made by the petitioner.

The Court in deciding the case noted that the petitioner only instituted the proceedings after the probate court has made its decision and distributed the personal properties in the form of securities to the surviving spouse and the two children. No personal properties were left in the State of New York when the petitioner filed this case and he now wants the executor to pay from his own pocket what was supposed to be due to him as an heir.

Having studied the case thoroughly, the court ruled that the petitioner has no more remedy under New York law and that if at all, he should institute an action with the proper courts in Switzerland. The 1934 will was specific in stating that he is not covered by the distribution of the personal properties of the decedent and that the 1940 will did not in any manner revoke the earlier will of 1934. It is as if another will was made independent of the earlier will and specifically giving instructions with regards to personal properties found in New York. Brooklyn Probate Lawyers said there is then no conflict between the two wills.

The court also argued that the petitioner is already barred by laches and can no longer be allowed to pursue his claim involving estate litigation against the decree of the court and the administration as well as the division among the heirs made by the executor. The court argued that the petitioner was aware when the will contest of 1934 was submitted for determination to a New York Court and he did not assail the proceedings therein and because of this, the principle of laches is applied against him. The court in so ruling, refused to vacate the decree made by the probate court and the distribution of the properties made by the executor.

When it comes to the exigencies of court litigation involving wills and its probate, an expert New York Estate Lawyer must be hired by the concerned party. A New York Probate Lawyer is an expert in the field of both testate and intestate succession and they can provide the needed legal assistance to protect the legitime or other rights of an heir. Stephen Bilkins and associates is a law firm that handle legal issues involved in Probate proceedings and they are particularly adept in this field of legal discipline. They have helped many clients in the past and you could be the one who may need their services in the future.


Posted On: March 23, 2012

Court Determines Jurisdiction of Conflicting Wills

An American citizen who was domiciled in Austria made two wills in 1962 and in 1964. The 1964 will was brought before the Surrogate’s Court in New York for probate by the testator’s lawyer who was also his executor. In this will, the testator revoked all prior wills and he directed that the remainder of his estate after the payment of debts and funeral expenses be shared by his ex-wife and his close personal friend.

The two daughters of the testator filed their objections to the probate proceedings in New York. They claim that because the testator was a resident and domiciliary of Austria, the courts in Austria have jurisdiction over his estate. It was also claimed by them that the Austrian Court has already begun hearing the probate proceedings of the 1962 will of their deceased father which the daughters instituted.

The 1962 will provided that the testator’s estate consisting of 145 common shares in an American telephone and telegraph company be distributed to his ex-wife after deducting the payment of debts and funeral expenses. And, if his ex-wife was dead, then the shares of stock will be divided equally between his two daughters.

A New York Probate Lawyer said that the Austrian court wrote the New York lawyer of the testator (who had filed the probate of the 1964 will in New York) telling him that if a certified copy of the 1964 will is furnished the Austrian court then the Austrian court can determine its validity and the issue of the revocation of the 1962 will can also be determined.

It appears that the Austrian court has delivered the proceeds of the estate to the daughters because the executor named in the 1962 will renounced his nomination as executor. It also appeared that the New York lawyer has not appeared in the Austrian court. And the Austrian court is still waiting for the 1964 will to be produced before it.

The Surrogate’s Court dismissed the daughters’ objections and admitted the 1964 will into probate. The only question raised by the daughters on a certified appeal was whether or not the Surrogate’s Court correctly dismissed the objection and admitted the 1964 will into probate.
The Supreme Court reasoned that a will executed by a person who is not domiciled in New York may still be admitted into probate if the will operates to dispose properties in New York and the will was executed in compliance with the laws of due execution of wills in New York. Nassau County Probate Lawyers said that a will cannot be originally probated in New York if it has already been probated in the testator’s domicile or has been denied probate by judicial decree in another jurisdiction.

The Supreme Court ruled that the Surrogate’s Court did not err in dismissing the daughters’ objections and admitting the 1964 will into probate.

The 1962 will was the one admitted into probate in Austria, not the 1964 will which is before the Surrogate’s Court. There was no judgment or decree from Austria as the proceedings there had been halted pending the production of the 1964 will.

The Court also observed that the issue is the validity of the 1962 and 1964 wills. The Austrian court has acted in accordance with its laws to distribute the personal property of the testator which was located in Austria. But it has not made any decree regarding the properties of the testator in New York because the 1962 will makes no mention of the disposition of the properties in New York.

The properties of the testator in New York comprise 90% of the total estate. The executor named in the 1964 will is a New York resident and one of the legatees is also a resident of New York. Also, the Austrian Court wrote a letter to the executor of the 1964 will stating that it would entail huge costs to prove the 1964 will in Austria which is why the executor decided to probate the will in New York. A Queens Probate Lawyer said the executor decided to litigate in New York where the substantial properties of the estate are located and risk the forfeiture of the properties in Austria which were minimal.

More importantly, the probate proceedings in New York were initiated in good faith and not with any desire to thwart the laws of Austria. For these reasons, the Court found that the Surrogate’s Court’s dismissal of the objections and admission of the 1964 will was not without basis.

Probating a will in the proper court is crucial to securing one’s hereditary rights under a will. If the will is presented for probate in a court that has no jurisdiction over the will or the estate, the probate petition will be dismissed unless a skilled lawyer can best inform you which court has jurisdiction to take cognizance of the probate of a will. At Stephen Bilkis and Associates, their legal team ready and willing to assist you to ensure that a valid will can be successfully admitted into probate.

Posted On: March 22, 2012

Court Determines Jurisdiction Question with French Will and Trust

An American citizen who was a successful business man in New York got married to a French woman and thereafter bought a home in France where he lived together with his wife and daughter. Every now and then, he comes back to New York to look after some concerns about the business that he sold particularly because the said payment has not been fully paid. Whenever he was in New York, he would stay from time to time in a Flushing apartment which was especially provided to him by the corporation that he previously owned before selling it to his business partner.

It was also in New York that he executed a will in 1970 covering his estate and stated that the said will must be probated in the courts of New York when the proper time comes. Embodied in the will are provisions ceding to his wife all his personal properties and personal effects as well as a weekly allowance. The will also provided for an allowance to his brother which would come from the residuary trust. The daughter of the testator was also provided in the will and she was supposed to receive the income from a trust fund up to the time that she reaches the age of 35. He named as executor his long-time business partner for whom he sold his entire business interest in New York.

A New York Probate Lawyer said a few weeks before the death of the testator in 1972, he also executed before a French notary public, a deed of donation. Said deed of donation is in the form of inter vivos donation which will take effect upon the death of the donor. In the said Deed of Donation, he is leaving the entire estate administration and ownership to this wife subject to the condition that if there be children of the donor at the time of his death, then the wife as donee shall determine the right amount to be given to said children subject to the rules of the applicable law when that time comes.

When the testator died a few weeks after the Deed of donation was executed, he left money in the form of cash and securities in a Swiss Bank, real properties in France, and almost a thousand dollars in bank deposits in New York plus the balance that has to be paid to him by his business partner for the sale of the company that he started in New York. Westchester Conty Probate Lawyers said the business partner who was also made the executor of the will that was earlier executed started the proceedings for the probate of the will of the testator in New York County. The widow opposed the said institution of the proceedings for the settlement of the properties of the decedent alleging that the testator though an American citizen is already domiciled in France and as such, French court and law should be applied.

The Surrogate court of New York ruled in favour of the wife declaring that the allegations of the wife have merit. It argued further that even though the decedent continuously used New York as his address, there was no clear indication that he really intended to use the same as his domicile. Moreover, New York City Probate Lawyers said the court also opined that the very small bank account left by the testator in a New York bank is insubstantial to be considered as enough for it to assume jurisdiction and since there is also an estate litigation pending in a French court regarding the same properties left by the decedent, the Surrogate court deemed it proper that the decision be made by the said French court instead.

Upon appeal, and taking into consideration all the facts presented regarding the actions made by the decedent prior to his death, the higher court declared that indeed the decedent, although still an American citizen, nevertheless by his acts adopted France as his place of domicile. This is supported by the fact that he no longer own any properties in New York save for a small bank account that is worth just a few hundred dollars. Therefore, the French courts have jurisdiction to rule on the will contest initiated by the assigned executor of the decedent.

New York Estate Lawyers are experts in matters involving property settlement of deceased persons. Since the formulation and execution of a will is an important act that must be made according to the formalities required by law, it is important to consult an expert New York Probate Lawyer to assist in its formulation and even revision during the lifetime of the testator. Stephen Bilkins and Associates are experts in the field of property settlement involving deceased persons and they can provide the legal assistance in a very effective manner.


Posted On: March 21, 2012

Court Rules of Power of Surrogate

A man appointed his wife and his daughter as executors of his estate. The bank was designated as the successor executor. In a supplement to his will, he removed his wife as executor and named his daughter as the sole executor and appointed the bank as the successor executor. Following the man’s death, a hearing was ultimately conducted in the Surrogate's Court to determine whether the daughter’s initial letters of administration should be revoked and whether she was ineligible to be a permanent executor and trustee under her father's will. The Surrogate decided that the daughter’s removal was justifiable and the court affirmed on the ground that the record supported a finding of inexcusable delay and the intentional refusal to obey the court's direction. The court also affirmed the appointment of the bank as permanent executor and trustee. In the meantime, the wife who also died and her will were offered for probate in Westchester County.

The Surrogate court issued preliminary letters of administration to the bank being the nominated executor and trustee. Queens Probate Lawyers said the daughter intervened objections to the validation of the will. The law firm which had provided attorneys for the wife during her lifetime regarding the validation proceeding in her husband’s will was retained by the bank as its counsel in both properties.

By order to show cause, the bank applied for a ruling admitting the husband’s Will and its supplement, the letters of administration and trusteeship to validate. The daughter opposed the bank's application and in a cross-motion, the daughter sought extensive relief which includes the disqualification of the bank from its appointment as executor of his father’s will and the prohibition of the subject law firm from acting as counsel to the bank and participating in the proceedings other than serving as witnesses. The bank objected to the daughter’s cross-motion, but the Surrogate, despite granting preliminary letters of administration to the bank, ruled that a hearing should be held in relation to the eligibility of the bank to be made as permanent executor and trustee. The Surrogate court also ruled that a hearing should be held to determine whether the law firm in question should be disqualified as the bank's attorneys in the validation proceeding. However, a New York Probate Lawyer said it was an abuse of discretion for the Surrogate to require a hearing under the circumstances herein. The Surrogate directed, and the court affirmed, that the bank will be designated as permanent executor and trustee. The bank promptly complied with the directives of the Surrogate's Court Procedure Act who dealt with the qualification of the executor. In addition, a proposed ruling and counter-ruling, and even the suggested the counter-ruling offered by the daughter which named the bank as the recipient of the letters of administration and trusteeship were submitted to the Surrogate's Court. Indeed, the daughter failed to throw in any objection until the bank applied by means of the order to show cause for the issuance of the letters after the Surrogate had not acted on the ruling or counter-ruling. Yet, Manhattan Probate Lawyers said her papers do not allege any facts imposing that the bank be declared ineligible.

The law is established that the person who made the will’s selection of an executor must be given great regards and that the Surrogate's power to refuse to grant letters is limited by law. Thus, the grounds for the Surrogate declining to issue letters are no broader than those specifically contained. Where, as herein, the party in opposition has not provided any facts for declaring the bank ineligible, no hearing is authorized, and the objections should have been summarily dismissed. Further, a potential conflict of interest between an executor and a party interested in the property, or the executor thereof, as the daughter claims to exist in the instant situation, does not warrant the denial of letters to, or removal of an executor. Rather, it is actual misconduct, not a conflict of interest that justifies the removal of an executor. In any event, none of the purported conflicts of interest asserted by the daughter, such as proper reimbursement by the executor of one property from the other property and the possible enhancement of the assets of one property over that of the other, raises any questions about the bank's eligibility since these issues can be resolved in an accounting. Similarly, the daughter’s claim that the executor of the husband’s property should commence suit against the bank's attorneys appears to be founded upon nothing more than the previous litigation between her and her mother, who was also represented by the same law firm and which culminated in the daughter’s removal as preliminary executor and her disqualification as permanent executor and trustee of the property of the husband. However, the daughter’s personal antipathy to the law firm scarcely presents a legally apprehensible basis for disqualifying it from now serving as the bank's counsel and depriving the bank of the right to retain the attorney of its choice merely because of an adversary's claim of a potential conflict of interest.

Finally, the daughter’s provisional allegations of disregard and misconduct by the bank do not state any grounds for denying issuance of the letters. In effect, she contends that the bank's supposed willingness to give a property guaranty to another bank, the lender for the family business, demonstrates inconsideration. Considering that the bank had not yet obtained either preliminary or permanent letters in her father’s property at the time that the daughter made her accusation, her assertion is entirely baseless. As for the claim that the bank is guilty of misconduct simply refers to other misconduct in the execution of his office but the bank has thus far been unable to perform its office of executor or trustee.

Consequently, for all of the foregoing reasons, the Surrogate's Court improperly ordered that a hearing be held and should, instead, have granted the application by the bank for permanent letters of administration and trusteeship.

In dealing with legal issues, it is would always benefit us to seek out advice from competent people. Taking the wrong turn would cause us great amount of money and time. At Stephen Bilkis and Associates, you can count on reliable group of skilled lawyers to provide you with the most credible legal advice.

Posted On: March 21, 2012

Court Hears Validation Proceeding for Deceased Priest's Will

A validation proceeding for the will of a deceased priest have two questions presented for determination. The matters to be determined are the right of the respondent to attack the jurisdiction of the Court and the finding of the residence of the deceased at the time of his death.

The Petition for Probate was filed together with an original will of the deceased. Two days prior to the filing, an order to search the safe deposit box of the deceased in a savings bank in New York was signed by the Monroe County Surrogate based upon a petition stating that the deceased had died a resident of the Rochester City New York. The safe deposit box was searched and a will identical to the one filed in Ontario County Court was found it was filed in the Surrogate's Office of Monroe County Court by an officer of the said bank.

A New York Lawyer said that on the return day of the Citation, a Notice of Retainer and Appearance was filed by an attorney acting for the respondent who is a sister of the deceased. He advised the Court of the existence of what seemed to be a duplicate original will on file in the Monroe County Surrogate's Office. The matter was adjourned until December 3, 1962, during which period of time the Court personally went to the Monroe County Surrogate's Office and examined the application for the opening of the safe deposit box and the will which had been filed there as a result of such search. On December 3, 1962, a short hearing was held in the matter. The Court advised the respective attorneys that it had examined the file in Monroe County Surrogate's Court. The attorney for the respondent requested an adjournment for two weeks with the understanding that he would file an answer with the Court and a copy with opposing counsel by December 10th and that the issues be raised by the answer and should be tried on December 17, 1962. On December 10th, respondent's attorney filed an answer.
It is the respondent's contention that the Court lacks jurisdiction for the validation of the will on the grounds that the deceased died a resident of Monroe County rather than Ontario County, and throughout the proceedings her attorney has denied the Court's jurisdiction even though the respondent’s attorney originally filed the said notice of retainer and appearance. On the contrary, it is contended by the proponent of the will that the respondent is precluded from attacking the jurisdiction of the Court because of the general appearance and the answer to the petition for validation.

It is clear that the objecting respondent, from remarks made by her counsel in the open Court from the outset of the proceeding together with the opening statement made in the answer filed intended at all times, a special appearance to object to jurisdiction shall deny the motion made by the proponent's attorney at the hearing to dismiss the answer and to proceed with the validation of the will as filed.

The court is not unmindful of the existence of a section in the Surrogate's Court Act which states that a jurisdiction once duly exercised over any matter by a Surrogate's Court excludes the subsequent exercise of jurisdiction by another Surrogate's Court over the same matter, and all its incidents. Brooklyn Probate Lawyers said that since the Monroe County Surrogate's Court accepted jurisdiction for the purpose of signing the order for the search of the safe deposit box two days prior to the filing of the petition for validation in the Court, it is argued that the Monroe County Court rather than Ontario County Court had obtained the exclusive jurisdiction.
The deceased was a Priest and in such capacity served as Pastor in Victor New York for approximately 25 years until he became Pastor Emeritus. As a Pastor, he occupied a room at the head of the stairs in the Rectory for many years and after becoming Pastor Emeritus he was furnished a different room where he resided. At times, he assisted the new Priest to officiate the Mass and continued to remain in Victor New York until he went to Watertown New York to visit friends. While still in Watertown, the Priest apparently suffered a stroke and was confined to the hospital in Watertown until he was transferred to a hospital in Rochester. He remained until he moved to his sister's home in Maplewood Avenue, Rochester New York. The said sister is the same person as the respondent. He resided with his sister until his condition became such that it became necessary for him to enter a nursing home in Rochester New York, where he stayed until he was transferred to a hospital and died.

On January 17, 1962, the deceased priest executed a Power of Attorney to the respondent’s attorney. The letters were written by the attorney of the respondent advising the Rochester Hospital Service and the publishers of the Victor Herald of a change in the priest’s address to his sister’s address in Maplewood Avenue, Rochester New York. Bronx Probate Lawyers said that he testimony further reveals and is substantiated by the respondent's exhibit that the deceased priest had made application to enter the nursing home in Rochester New York and that his name was placed on the waiting list during the month of February, 1962. The home was in the process of construction and was not opened until October 15, 1962. The last paragraph of said exhibit reads that the nursing home was already opened. The nursing home was opened on October 15, 1962, but the priest died on October 8, 1962 and was therefore not admitted.

Arrangements were made as the testimony reveals that the deceased priest definitely did not want to go to a nursing home at Hornell New York but desired to stay in Monroe County where his family and friends were. The testimony of the respondent, her husband, and of the respondent’s attorney were taken and revealed that the deceased priest requested everything to be taken out of his room at the rectory in Victor and be moved to his sister's home in Maplewood Avenue in Rochester New York. The brother-in-law of the deceased priest made several trips to get the priest’s possessions including boxes stored in the basement, and upon one of the said trips, the deceased priest accompanied him. The facts further reveal that the deceased did not say Mass from the time that he was taken while in stroke until the time he died. Furthermore, the deceased did not want to go back to Victor unless he was able to function and perform his priestly duties and that the Bishop had made the decision that he could not get any housekeeper to stay in the rectory to look after him. The testimony also claims that the deceased priest’s eyesight was impaired because of his illness, and he could only write his name with difficulty. The respondent attorney’s testimony reveals that he made arrangements at the request of the deceased priest to remove him from the hospital and be taken to his sister's home. The attorney recalls that during the deceased priest’s stay at his sister’s home, he had a separate room, he was given a bath and his meals were being furnished by the sister and the brother-in-law. The attorney testified that during the month of May in 1962, the deceased priest visited a doctor who told the deceased priest that there was no correctional method by which his eyesight could be improved. It appears that the deceased priest had been to the nursing home and liked it very much and felt that he would be better off at the nursing home rather than obliged his sister and burden her with his care.

Funeral services for the deceased priest were held at a Church in Victor New York but he was buried in a Sepulcher Cemetery in Monroe County.

The will of deceased recited that at his outset he was resident of Victor Ontario County, New York but his Power of Attorney recited that he was from the Village of Victor, County of Ontario, State of New York.

In order to acquire a new residency, there must be a union of residence and intention. A change of residence even for a short time with the intention of good faith to change the residence has an effect, but there must be a present, definite and honest purpose to give up the old and take up the new place as the residence of the person whose status is under consideration. A change of residence may be made for the purposes of health. The fact that the deceased priest stated in his will that he was from Victor, Ontario County, New York is not able to determine his residence at the time of death but is rather arguable.

It is argued by the attorney for the proponent that where there is a question of residence as between counties and not states and the answer rests largely on convenience of administration. The Court concluded that the validation proceedings must be brought in the Surrogate's Court of the county of the deceased person’s residence since it has exclusive jurisdiction of the estate. Expediency, therefore, must be disregarded and the determination of the surrogate in each case must rest upon the facts and the pertinent law.

The proponent argues that removal of a person from his or her home to a hospital is insufficient to establish residence as used in the law. The removal with the help of and at the request of the deceased of all his possessions from the rectory in Victor, coupled with his application and apparent intent to enter the nursing home indicate an intention on his part to abandon his old residence and to take up a new residence in the City of Rochester, New York. The intention to take up a new residence in the nursing home as expressed by the filing of the application may be taken into account even though he never actually lived to physically enter the home.

The fact that the deceased was a Catholic Priest seemed relevant and might well set the case apart from the usual one. A Catholic Priest, being a celibate, has no immediate family. In fact, he had no close relatives maintaining a home in Victor to which he could return once he left the hospital. Surely, the mentioned fact coupled with all the sad circumstances of his illness and subsequent health decline, furnished strong reasons why he should determine to return from Victor, New York, and acquire Rochester, New York as his legal residence in his remaining years.

Submit order on notice accordingly sustaining the jurisdiction of Monroe County Surrogate's Court and directing the transfer of the proceedings herein as well as the original will filed in this Court to the Monroe County Surrogate's Court.

People move from one place to another due to varied reasons and the last place we were or where we stayed longer may not necessarily be our place of residence. If confusion of a family member’s residence arises in a last will, consult a skilled lawyer at Stephen Bilkis and Associates.

Posted On: March 20, 2012

Court Decides Jurisdiction Issue Regarding Will and Trust

A man who was born and raised in Brooklyn died and survived by two grandchildren. For many years, the deceased and his wife lived in Florida where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona where his grandson lived. They were living in Phoenix when the deceased man’s wife died. The deceased remained in Phoenix until he moved to New York in late September 2005.

While living in Phoenix, the deceased executed a will, which left his estate to the trustee. On the same day, he executed a trust agreement creating a revocable lifetime trust. Under the terms of the trust, the property passes to the grandson upon his grandfather’s death.

In 2005, the deceased called his sister and told her he wanted to return to Brooklyn to live with her. The sister and her daughter visited the deceased on September 27, 2005. At that time, the deceased was 95 years old and suffering from cardiac problems. The deceased asked his sister to take him back to Brooklyn to live with her.

According to the sister, the deceased told her that he wanted to change his will, his revocable trust and his health care proxy before boarding the plane. A New York Probate Lawyer said that when they travelled to New York, the deceased visited the offices of a law firm in Arizona and asked the firm to change the beneficiaries of the 2004 will and trust. The deceased executed a new will which is an amendment of the 2004 trust and health care proxy. The 2004 trust was amended and provides that upon his death, his sister receives one half of the trust principal, his granddaughter will receive three eighths of the trust principal and his grandson will receive one eighth of the principal. The deceased then left immediately for the airport leaving his belongings behind to travel back to New York that day.

That same day, the son filed an emergency petition for his appointment as conservator and guardian of the deceased. He alleged that the deceased had been taken from his house by church members. Westchester County Probate Lawyers said the proceeding was partial. Based upon the grandson’s testimony, the Arizona court granted his petition, appointed him as temporary guardian of the deceased and determined a pending hearing on whether a permanent guardian should be appointed.

Shortly after arriving in New York, the deceased was hospitalized for surgery for a blood clot on his leg. The granddaughter had a petition prepared for the appointment of a guardian of the deceased man. Meanwhile, the Arizona attorney who drafted the 2005 will was served with a petition demanding to deliver the deceased to Arizona. New York City Probate Lawyers said in response to the turnover petition, the deceased submitted an affidavit stating that he was residing in Brooklyn and listing his sister’s address as his residence.

The Mental Hygiene Law petition was filed in the Supreme Court, Kings County. A court evaluator was appointed by Kings County court and interviewed the deceased. The deceased died on December 4, 2005, before either proceeding could be concluded.

According to the affidavit in support of petitioner's motion, the petitioner's attorney filed a petition to probate the 2005 will. The petition stated that the deceased was a resident of New York. The validation clerk accepted the petition and the filing fee and made an entry in the minute book. No file number was issued on the pending review of the petition. On December 8, 2005, the attorney was notified in writing that the petition was not accepted for filing because there was insufficient proof of New York residence. The check for the filing fee was also returned on the ground that the check had alterations. On December 14, 2005, the attorney submitted a replacement check for the filing, also submitted was a copy of the deceased man’s affidavit of residence filed in the Arizona conservatorship proceeding, stating his residence as Brooklyn, New York, and an attorney's affirmation on the deceased man’s residence.

On December 16, 2005, the grandson filed a petition to validate the 2004 will in the Maricopa County Court of Arizona, claiming that the deceased was a resident of Phoenix Arizona. On December 20, 2005, the attorney's affirmation on residence of the deceased was rejected because it was based upon information and belief. The petitioner filed a copy of the court evaluator's report, stating that the deceased told the evaluator that he was happy to be back in New York and did not want to return to Phoenix, Arizona. On January 31, 2006, the validation clerk issued a file number for the validation proceeding.

On February 1, 2006, the grandson filed objections to the validation of the 2005 instruments in Arizona. The objections deny that the will was executed in accordance with the formalities of law. He also claims that the deceased lacked the capacity to execute a will and that the will was executed by mistake and its execution was not freely made but a result of undue influence, duress and fraud. In addition, the objections claimed that there was a prior proceeding pending in Arizona to the validation of the 2004 will and that the Kings County New York court lacks jurisdiction on the subject matter.

The petitioner moved for preliminary letters of administration and a determination on the petition to the validation of the 2005 will filed in the Surrogate's Court of Kings County. The grandson filed an affidavit in opposition which claims that the court should dismiss the motion and presumably, the proceeding on the grounds that the court lacks jurisdiction on the subject matter and there is a prior pending proceeding in Arizona.

The law provides that a party may move for a judgment dismissing one or more causes of action against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States. The court need not dismiss upon this ground but may make such order as justice requires.

In Surrogate's Court, all proceedings are special proceedings commenced by the filing of a petition. In addition, the law provides that a proceeding is commenced with the filing of a petition, provided that process is issued and the service required on all respondents is completed within 120 days. While the law expressly provides that the date a petition is filed is used for purposes of statute of limitations questions, the date a petition was filed has been used to determine when a proceeding was commenced in other situations.

The law expressly provides that filing must be accompanied by the appropriate filing fee. The Court of Appeals has indicated that the payment of a filing fee is jurisdictional. There appears to be split among the departments of the Appellate Division on the issue of payment of a filing fee, with a majority holding that the tender of the filing fee is jurisdictional, so that the failure to pay the required fee renders the filing fatally defective.

In the instant case, the petition was filed on December 6, 2005. Papers are filed upon their physical receipt by the court clerk. The clerk accepted the petition but did not issue a file number or record its filing until a supplemental affidavit of residence was filed. The petitioner submitted a supplemental affirmation of residence on December 14, 2005, but it was rejected by the clerk because it was executed by the petitioner's attorney upon information and belief. It was not until the petitioner filed a copy of the report of the court evaluator that the petition was accepted and a file number issued. By then, the grandson had initiated a validation proceeding in Arizona.

Whether the Arizona proceeding was filed first depends on whether the New York proceeding was initiated upon filing the petition on December 6, 2005 or upon being accepted by the validation clerk on January 31, 2006. In turn, it depends on whether the requirement that the petitioner establish the issue residence by the supplemental documents was jurisdictional. The analysis starts with the fact that the petition filed on December 6, 2005 in New York conformed to the requirements of the law and was in its proper form. The allegations in the verified petition are legitimate proof of the facts asserted until denied by an answer, objection or other proof. Therefore, for purposes of obtaining jurisdiction on the subject matter, the allegation that the deceased man was a resident of New York creates a legitimate proof showing of subject matter jurisdiction, subject, of course, to rebuttal.

The result is not affected by the fact that the validation clerk in Arizona required a supplemental proof of residence. Whatever the basis for the requirement of additional proof of residence, furnishing such proof is not required by the law. Therefore, the requirement is not jurisdictional and does not affect the filing date of the petition.

However, the failure to tender the filing fee in proper form may be a jurisdictional defect.
The law has no corresponding provision. It does provide that upon filing a petition for validation, the clerk shall charge and receive a fee as determined. Upon receiving the petition and fee, the clerk accepts the papers for filing and issues a file number. Therefore, it is not clear whether the tender of the filing fee is jurisdictional. The Court held that the failure to pay the required recording fee did not render the filing of a notice of election untimely. In the instant case, the court need not determine whether the improper tender of payment rendered the filing void. A replacement check was accepted on December 14, 2005. The act of replacing the check as payment cured the defect. Using either date, December 8, 2005 or December 14, 2005, the New York proceeding was filed before the filing of the validation petition in Arizona on December 16, 2005. Based on the above, the court determines that the New York validation proceeding was initiated by December 14, 2005. Accordingly, the grandson’s application to dismiss the said proceeding on the ground that there was a prior proceeding pending in Arizona is denied.
The claim that the court lacks subject matter jurisdiction depends on whether the deceased man established residence in New York State. The matter requires a hearing. Since the validation proceeding in New York was filed first, principles of orderly administration of justice and conservation of judicial resources mandate that the New York court should hold the hearing on determining the issue of residence of the deceased.

Since the validation proceeding in New York was filed before the one in Arizona, the court should hear and determine the residence of the deceased. Accordingly, the application to dismiss the proceeding on the ground of lack of subject matter jurisdiction is held in temporary suspension pending a determination of residence.

A person’s undecided residence should not cause disputes over his surviving family. Since he may not be around to express himself, the Court would be the only place where such issues can be put to rest. In times like this, you can call an experienced lawyer at Stephen Bilkis and Associates.

Posted On: March 20, 2012

Court Discussed Enforceability of Swiss Estate Documents

An American citizen was domiciled in Switzerland. He died on January 2, 1964. He executed a will in New York on November 6, 1961. In this will, he bequeathed his entire residuary estate to his second wife and directed that his will be submitted for probate in New York and for the laws of New York to govern his estate.

The testator’s first wife appeared as the guardian of his two children and objected in the probate proceedings. She claims that the testator’s property must be disposed of under Swiss law as this is provided for by a treaty between the United States and Switzerland. She claims that under the treaty of 1850, her ex-husband’s personal property must be distributed under Swiss law even if they are found in New York. Under Swiss law, her children will be entitled to shares in the estate as forced heirs.

A New York Probate Lawyer said the Surrogate did not rule on the objection of the first wife but it issued a decree admitting the will into probate and it ordered the executor not to pay or satisfy any distributive share without orders of the Surrogate.

The executor now moves to have this restriction removed on appeal.

The Supreme Court said that the expressed desire of the testator that New York laws shall govern the disposition of his estate has been respected by the courts. It is true that the provisions of a treaty between the United States and another sovereign country take precedence over any law of New York. But in this case, the second wife seeks for a strict interpretation of the treaty provisions. And she relies upon an interpretation of the treaty provisions in an unpublished case decided in Switzerland.

The court decisions in Switzerland cannot bind the courts in the United States especially if the interpretation of the treaty in that decision works to deprive American citizens of the right to freely dispose of their property.

The Supreme Court opined that this could not have been the intent of the treaty. Bronx Probate Lawyers said instead the Court held that the treaty alluded to intended to give the citizens of the United States and Switzerland equal treatment with the nationals where they reside. A perusal of the treaty shows that they only give the citizens of both the US and Switzerland the right to acquire, possess and alienate properties in the same manner as citizens of those countries.

The treaty also gives citizens of the US the power to dispose of their personal property in Switzerland by sale, testament, donation or any other manner. More importantly the treaty provides that controversies arising among claimants to a succession shall be decided in accordance with the laws and by the judges of the country where the property is situated.

Brooklyn Probate Lawyers said this clearly means that if the ex-husband who is a US citizen has elected in his will to make the laws of New York apply to his will then this is allowed by the treaty especially when it disposes of properties found in New York. The treaty cannot make the laws of Switzerland apply to properties found in the United States as the first wife argues. This interpretation of the treaty is unwarranted.

For these reasons, the restriction imposed by the Surrogate’s Court of New York in its decree is removed. It is understood that Swiss courts shall apply Swiss law in controlling real and personal properties of the testator within their jurisdiction while New York courts shall apply New York law in controlling real and personal properties of the testator in New York.

Administering an estate requires that all the properties of the testator be gathered and accounted for before it is distributed. A skilled lawyer can help you prepare a report and inventory of all the properties of the estate. He can also help you collect receivables due to the estate. Legal guidance is indispensable in cases where the estate has to run after those debtors of the estate. At Stephen Bilkis and Associates, capable legal team is ready to confer with you and assist you.

Posted On: March 19, 2012

Court Determines Distribution of a Trust and Will Assets

In 1935, a trust fund was created by a mother in favour of her son which provides among others that in the event of the death of her son, the trust shall be divided in 6 equal parts and one of which shall be held in trust for her grandson. The trust also stated that should the grandson die, the trustee should distribute the remainder of the funds according to the will of the said grandson or the laws of intestacy should there be no will executed by the latter in favour of his heirs. The trust agreement was entered into between the mother and a trust company in New York which was also the domicile of the mother at that time.

The son who was the original beneficiary, died in 1962 while the grandson died in California in 1965 survived by his widow and a daughter as well as 5 children coming from the first marriage. The grandson had a will and it was admitted to probate in California since it was his domiciliary. The will of the grandson specifically directed that all his remaining trust fund be further divided into two trusts for the benefit of his spouse and daughter with a proviso that the trust for the daughter be terminated 21 years after the last survivor of his wife, his daughter, and the children of his daughter who were living at the time of his death, has died.

A New York Probate Lawyer said the original trustee in New York commenced a proceeding for the final accounting and settlement of the trust intended for the grandson. The executor of the grandson’s estate which was in California instituted a separate proceeding involving the issue of heirship at the Superior Court of California. The executor claimed that the will executed by the grandson should be construed in a manner that the trust should be terminated upon the death of the grandson’s daughter. The New York court from which the final accounting and settlement of the trust was filed, decided to hold further proceedings pending the determination of the California Superior Court of the issues brought to its attention.

In 1967, the Superior Court of California granted the motion by the grandson’s executor and declared that it is indeed the intent of the grandson/testator that the remaining trust be terminated in order to preserve the intention and validity of the will because to rule otherwise will violate the law against perpetuities. A Staten Island Probate Lawyer said the California court ruled that based on the provisions of the will, any residue coming from the original trust and still remaining 21 years after the death of the grandson’s wife should be terminated.

Based on the ruling of the California Superior Court, the children by the first marriage of the grandson appealed the court’s decision because they were supposed to share in the residual trust had it not been declared terminated by the court. They appealed 6 months after the decision was made on the estate litigation and argued that the decision was erroneous because it could not have been the intention of the testator to terminate the residual trust which was supposed to be distribute to the decedent’s heirs and that their failure to attend and contest the earlier court proceeding was due to excusable neglect, surprise, inadvertence, or mistake.

In affirming the decision of the California Superior Court which ordered the limitation of the trust’s duration so as not to be violative of the rule on perpetuities, the tribunal argued that since the appellants did not contest at the right time the proceedings in the California Court, they cannot now be allowed to question the validity of the ruling which has become final and executory. They had the chance to join the will contest proceedings before the court but they chose not to and just waited how the same will be determined. Long Island Probate Lawyers said failing to get a favourable ruling for their ideal estate administration desires, they cannot now be allowed another opportunity to disturb the California ruling which has become final and executory.

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Posted On: March 19, 2012

Court Determines Jurisdiction Issue regarding a Will

The petitioner is the surviving spouse of the deceased who died a resident in the State of Florida. The deceased man’s Last Will and Testament was executed in the State of Florida and admitted for validation by the Circuit Court of the County of Lee, State of Florida. The will specifically devises the deceased man’s interest in the real property in the Town of East Greenbush Rensselaer County, State of New York, to his former wife and the remainder of his property to his two children. The deceased man’s son is the executor nominated in the will and he was appointed by the Florida Circuit Court. The executor, thereafter, petitioned the Court for supplementary probate of the deceased man’s will and it was subsequently admitted for validation.

All of the deceased man’s assets were located in the State of Florida except for the real property located in the Town of East Greenbush. The petitioner has exercised her elective share under the Florida law since the deceased man's last will made no provisions for the petitioner spouse. The Florida law does not take into account real property not located in Florida so the petitioner filed a right of election against the deceased man’s New York State real property and has commenced the proceeding for the Court to determine the validity of her right of election.
A New York Probate Lawyer said the deceased man’s former wife has appeared in the will contest proceeding by her attorney and has joined with the executor of the deceased man’s property in denying that the petitioner can exercise a right of election against the East Greenbush property.

The Court's analysis of the proceeding started with the Estate’s Power and Trust Law which states that the right of election granted by the section of the law is not available to the spouse of a deceased who was not a resident of the state at the time of death, unless such deceased elects to have the disposition of his property situated in the state governed by the laws of the state.

New York City Probate Lawyers said it is clear from a reading of deceased man’s will that there are no provisions wherein he elects to have the disposition of his property situated in New York State governed by New York State law.

The will before the Court does not contain any provisions of the Estate’s Powers and Trust Law stating that deceased man’s East Greenbush property should be disposed of pursuant to New York State law. In the absence of such declaration, there is no need for the Court to engage in conflicts of laws analysis pursuant to the Estate’s Powers and Trust Law.

The petitioner argues that it is unfair to deny a spouse the right to elect against New York State real property owned by her non-resident spouse who has disinherited her. The petitioner points out that denial of the right to elect leads to the absurd result that if a spouse wants to disinherit his spouse from receiving any property located in New York, then he can move out of New York State, establish residence in another state, and execute a will in the other state disinheriting a spouse so that she would not have any rights against the New York property. The result, however unfortunate, is precisely what New York State law allows. Westchester County Probate Lawyers said a Section of the Estate’s Powers and Trust Law quite clearly indicates that a resident of New York can defeat any rights his spouse might anticipate having under the New York State right of election by simply changing his residence at any time prior to death.

In view of the extensive recent amendments to the Estate’s Powers and Trust Law, it must be assumed that the Legislature intended the said results to occur. The newly adopted Section which applies to deceased persons who died on or after September 1, 1992 is exactly the same and applies to deceased persons who died prior to September 1, 1992. Accordingly, the petitioner's notice of election is deemed invalid and the petition to determine the validity of the right of election is dismissed.

Disputes over properties and residency seem to always go hand-in-hand. Different States and different countries have distinct laws. In times of legal disputes, you can consult a skilled lawyer at Stephen Bilkis and Associates. The dependable team of lawyers will guide you all throughout your journey in solving your legal issues.

Posted On: March 18, 2012

Court Decides Jurisiction Issue Regarding Estate

A decedent, who is a resident of Texas and domiciled at Mexico, has possessions in Cayman Islands.

A New York Probate Lawyer said the decedent, while living in New York in 1988, opened an investment account in London. During his lifetime, he deposited over $1,300,000 through a New York bank and his account was handled by an investment manager of the London investment house. The deceased named his marital son as the beneficiary of said investment account.

In 1989, the decedent made an arrangement with a trust officer of another bank to establish a discretionary off-shore trust account in Cayman Islands using the funds from his investment account in London.

In April 1990, he executed a “Letter of Instructions and Wishes to Establish a Trust and Company” giving absolute discretion to the trust in case of his incapacity and he sent an “Asset Transfer Instruction Letter” to London investment house ordering transfer the remaining balance of his investment account to his trust account in Cayman Islands. Thereafter, he named his other non-marital son residing in Canada to be the beneficiary of said trust. The following day, the decedent committed suicide causing his death.

The spouse of the decedent’s ex-wife was declared as administrator in Mexico responsible for decedent’s estate administration. The Mexican Probate Court declared decedent’s marital son in London as the sole and universal heir of his father’s estate. Bronx Probate Lawyers said the London investment house made arrangements with the trust bank in Cayman Islands to manage the decedent’s assets and was later on liquidated by London investment house as per order of the trust bank.

Proceeds of the liquidated trust were transferred to a bank account in Cayman Islands.
A year after the death of the decedent, his administrator from Mexico petitioned New York Surrogate Court for ancillary letters of administration involving a bank account in said state. The real purpose of the estate litigation is to conduct discovery proceedings in tracing the decedent’s investment fund in London in excess of the $1,200,000 transferred to his trust account in Cayman Islands. The administrator appointed a New York Estate Administration lawyer to be an ancillary administrator who alleged that both the investment house in London and the trust company in Cayman Islands made an unauthorized transfer of funds of the decedent. He, furthermore, claimed that the New York Surrogate Court have power to conduct the turnover and discovery proceedings upon its issuance of the ancillary letter of administration over decedent’s small bank account in New York. The same Court concluded that it possessed and acquired jurisdiction over the subject matter of the proceedings and that an ancillary administrator’s powers are not limited to the collection of decedent’s assets but also covers will contest. The proceedings were questioned by both the London investment house and a bank in Cayman Islands handling the trust account of the decedent.

The New York Surrogate Court’s jurisdiction is being inquired into whether or not it has jurisdiction over the decedent’s assets at Cayman Islands.

Brooklyn Probate Lawyers said the Supreme Court ruled that the New York Surrogate Court has no jurisdiction over decedent’s assets in Cayman Islands. According the Surrogate’s Court Procedure Act (SCPA) Article 16, “ancillary administration shall be granted in this state only when there is an actual administration in the domiciliary jurisdiction.” The aforementioned provision does not allow New York Surrogate Court to overcome jurisdiction of the Mexican Probate Court where the decedent is domiciled covering assets located outside New York. Furthermore, similar provisions in SCPA made the Supreme Court to conclude that authority of the Surrogate’s Court over assets of non-domiciliary decedent in an ancillary proceeding is generally limited to properties within its State.

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Posted On: March 18, 2012

Court Reviews Probate of Divorced Couple

A man had separated from his wife and died on November 19, 1983 in Pennsylvania where he was admittedly residing. He was survived by his wife and two adult sons.

On December 5, 1983, a petition for probate of the deceased man’s last will and its supplement was filed by the friend of the deceased and his attorney who were his nominated executors. Jurisdiction of the New York County Surrogate’s court was invoked on the basis that the personal property of the deceased which includes shares of a corporation in America, had come into the county of New York after his death. The beneficiaries under the will namely, the deceased man’s two sons, his father, his brother and two sisters, all consented for validation in New York County.

No provision was made for deceased man’s wife in the will. A New York Probate Lawyer said she was cited and filed an answer to petition with jury demand. Among her allegations, the wife contends that the New York County Court lacks jurisdiction over the estate because the subject jurisdictional assets and the shares of the corporation were fraudulently brought into the county. Subsequently, despite her contention that the court lacks jurisdiction, she moved for the issuance of temporary letters to any person other than the nominated executors under the will. The proponent’s cross-moved for the issuance of preliminary letters.

The deceased and his wife were separated pursuant to an agreement executed on December 2, 1980 in the state of New York. The separation agreement expressly provided that any dispute shall be determined by the Supreme Court of the State of New York in accordance with the laws of New York. Under the agreement, provision for the sale of her interest in the family corporation which is a major asset of the couple, was made by the wife.

In 1981, the deceased initiated an action in the Supreme Court New York County to convert the separation agreement into a divorce. The wife answered alleging the inadequacy of the agreement on several grounds and counterclaimed for a divorce on the ground of abandonment. The said proceedings were unresolved at the husband’s death and the action to determine the validity of the separation agreement has been adjourned pending the appointment of a personal representative of the deceased man’s property.

Shortly after the husband’s death, one of the named executors brought the deceased man’s stock in the family corporation into the county. The stock is apparently the principal asset of the deceased man’s property.

The issue concerning the jurisdiction of the New York County Court over the property of the deceased who is a non-resident of New York County was raised by the wife. Several statutes govern the original validation of the wills of non-residents. The principal statute provides that a will of a non-resident which upon validation may operate on any property in the state and is deemed by the laws of the state to have been validly executed for validation in the New York state, may be admitted for validation in the same manner as any other will may be admitted for validation under the act, except as otherwise prescribed.

Another provision, a Staten Island Probate Lawer expressed in terms of venue, governs the jurisdiction of the Surrogate's courts over properties of non-residents. The law in relevant part provides that the Surrogate's court of each county has jurisdiction exclusive of every other Surrogate's court over the property of any non-resident of the state who left a property within that county and no other. It further provides that any resident of the state who left personal property which, since his death came into the county and no other county and remains unexecuted.

Thus, the court has jurisdiction to admit to original validation the will of any non-resident who at the time of his death had property within the New York County. The court also has such jurisdiction if the property was brought into the county after the death of the non-resident.
In the latter instance, a decision discusses in detail all prior decisions governing the circumstances under which bringing property into the county after the deceased person’s death will confer jurisdiction upon the court. It is apparent from the decisions that jurisdiction should not be declined merely because the property was brought into the county for the purpose of conferring jurisdiction if there was no wrongful intention and other circumstantial evidence are also present. Jurisdiction has however been declined when administration in New York was sought for fraudulent or other improper purpose.

No evidence has been presented to show any improper purpose in bringing the stock certificates into the county. Although jurisdiction over the property of a deceased must be accepted by the court, to entertain a non-resident’s property is discretionary.
Suffolk County Probate Lawyers said a number of cases discuss the factors which enter into the exercise of such discretion. The cases clearly establish that among the primary considerations for the exercise of discretion are the wishes of the person who made the will if expressed and also the convenience of the executors and beneficiaries.

In the instant case, many considerations exist which require the court to entertain jurisdiction. The will contains a provision which indicates that validation in New York was contemplated by the deceased. Another consideration is that there is a litigation which relates to the property and such is pending in New York County. Additionally, one of the two nominated executors and three of the four attesting witnesses to the will and supplements reside in New York. Finally, all persons interested in the property, other than the deceased man’s estranged wife, have consented to validate in the New York County court.

The wife’s rights in the property are as yet undetermined. Under the terms of the separation agreement, she waived any and all rights in her husband's property. She however contests the validity of the agreement. If she is unsuccessful in setting aside the agreement, she will have no interest in the property. If she is successful, her rights are protected equally under the laws of New York as well as Pennsylvania.

Consequently, for all the said reasons, the court exercises its discretion and entertains jurisdiction. The court is satisfied that an executor must be appointed immediately in order to protect the assets of the property and to facilitate the litigation pending in the Supreme Court, New York County.

The nomination by the person who made the will of executors who shall administer his property is entitled to great respect. In the absence of the establishment of cause for disqualification, the nominated executors must be appointed.

The law sets forth those classes of persons who are ineligible to serve as executors. The grounds are not exclusive. The criteria contained for the removal of an executor may also be used to disqualify a named executor before appointment. A potential conflict of interest with a party interested in the property does not of itself constitute a ground for disqualification. No facts have been alleged to require a hearing on the fitness of the nominated executors.

Accordingly, the motion for the appointment of a temporary administrator is denied. Preliminary letters of administration shall be issued to the deceased man’s friend and his attorney who were nominated as executors, upon their duly qualifying according to law and filing a bond in an amount to be fixed in the ruling.

Wives fight over the husband during his lifetime, it is however very unlikely to fight over him or his will during his death. When you are trapped in a similar situation, call a qualified lawyer at Stephen Bilkis and Associates would be a wise thing to do.

Posted On: March 17, 2012

Court Decides Will Jurisdiction Issue

This case involves the settlement of the estate of a French born individual who acquired American citizenship at the age of 51 and died at the age of 79 in his domicile which was in Switzerland. He was survived by his wife a French national, and an acknowledged illegitimate son also a French citizen. The decedent left a will leaving all of his properties to his widow and leaving nothing to the said acknowledged illegitimate son. At the time of his death, the testator left properties in Switzerland, New York and France. The widow filed with a proceeding with the New York Surrogate court in order to claim the properties left by the testator and presenting the will for determination in the said court. The court admitted the will of the testator and took cognizance of the case and later on made a decree settling the estate administration by ordering that the properties net of any encumbrances and other obligations be released to the widow.

The acknowledged illegitimate son assailed the decision of the Surrogate Court of New York and filed an appeal for the revocation of the decrees made by the said court first when it assumed jurisdiction and second when it distributed the properties to the widow to the detriment of the share that the petitioner-son was supposed to be entitled if the case was tried in the court of Switzerland. The petitioner further alleged that since the decedent was a resident of Switzerland and he had considerable personal properties in the said country and only limited personalty in New York, then the court that has jurisdiction and the laws to be applied should be according to the Swiss law as envisioned in the 1850 Treaty between the United States and Switzerland that envisioned such a scenario happening with their citizens.

A New York Probate Lawyer said the petitioner then is of the opinion that the Surrogate Court of New York had no jurisdiction to try the issues involving this particular case. The petitioner also argued that there were personal properties in Switzerland that was brought by the widow to New York just so that it can be covered by the laws of New York which is according to him highly irregular and should also be struck down as a violation of the law.

The widow, which is the respondent in this case, argued that the decree made by the Surrogate Court should be made to stay and apply as conclusive as far as the defeated will contest claims of the petitioner is concerned. The reason being that, the petitioner also participated in the Surrogate Court’s proceedings and only questioned the assumption of jurisdiction of the said court and nothing more. Nassau County Probate Lawyers said the respondent also argued that, the US-Swiss treaty applies only to Swiss citizens and/or domiciliary and not to American citizens who was in the Swiss country for temporary sojourning purposes. That because of this treaty interpretation the Swiss law does not apply to the probate of the decedent’s will pertaining specifically to personal properties found in other countries such as the US.

The issues squarely presented before the higher court involved two major issues. First; on whether the estate litigation decree in a New York Surrogate Court should be vacated. Two; on whether the US-Swiss Treaty should be given effect as to this particular case.

As to the first issue, the tribunal ruled that the petitioner is no longer allowed to contest the decree made by the Surrogate Court as far as the estate administration is concerned because he participated in the said court’s hearing and did not assail the proceedings. He only wanted to stop the proceedings for alleged lack of jurisdiction and did not contest the manner in which the proceeding was conducted much less argued that he should have a share in the properties. As for the personal properties that were allegedly brought by the widow from Switzerland to New York so as to be covered by the decision, the court also noted that the petitioner knew of this development and he also did not timely object to such a move. Failing to appeal the decree of the surrogate Court also barred the petitioner from further contesting its jurisdiction.

As to the second issue, the tribunal ruled that since the petitioner participated in the Surrogate court’s proceedings and did not contest the finding of the said court as far as the domiciliary determination of the decedent which was New York, then the petitioner is also precluded from later assailing such decree. Brooklyn Probate Lawyers said at best, the petitioner got a reprieve when the court declared that the order of the lower court denying the motion to vacate its decree is dismissed for non-finality.

Issues involving properties of a family member becomes a big concern upon that family member’s death. Without the help of a skilled lawyer to guide you through the entire court proceedings, you may end up holding an empty bag in the end. Stephen Bilkins and Associates have lawyers who are experienced in this field and can ensure that your rights are protected.



Posted On: March 17, 2012

Court Determines Formula for Calculating Endowments in a Will

In paragraph third of a will, a deceased woman made twenty-seven gifts to individuals and charitable institutions thereto. Each of the endowments was described as consisting of a fixed percentage of her property. The parties are in dispute as to whether the language of gift requires that the legacies be measured in terms of a percentage of the gross or of the net property and, if the latter, as to the formula for determination of its dimensions. The court construes the direction of the woman as requiring division of the property upon its net rather than upon its gross value.

A New York Probate Lawyer said that it is conceded that as a general rule, in the absence of some provision to the contrary, debts and administration expenses are deducted in computing the value of a property when a fraction thereof has been bestowed.

There is nothing to be found anywhere in the will to suggest that the deceased woman entertained any notion of making her endowments in terms of percentages of the gross property and as a consequence, the court cannot concur in the proposition that such was her intention.
The formula to be employed for measurement of the net property requires that there be deducted from the gross value of all of the assets left by the deceased woman, a sum equal in amount to the total of the debts, property taxes and expenses of administration. To be included in the latter category is the sum of $300,000 to be paid to the mother of the deceased woman in consideration of her withdrawal of objections to the admission of the will to probate. To save the legacies for the respondents, it was necessary that the proponents succeed in the will contest by victory after trial or by purchasing peace for the property from the respondent. Either course will entail the expenditure of property funds. The costs of litigation including counsel fee constitute expenses of administration within the ordinary meaning of the term and is plainly beyond dispute. The court is unable to ascertain any distinction between payments for that purpose and the cost of the settlement to which all of the respondents agreed.

Three of the endowments established in paragraph third of the will were left to married couples. A Staten Island Probate Lawyer said this bequest was intended by the deceased woman to be shared by husband and wife jointly and equally and is not open to doubt and the court so holds.

In paragraph third subdivision of the will, provision is made for an endowment to a Protestant Church. A sum equivalent to one-half of one percent of the property was given to the said Church. It has been stipulated by all of the parties that the affidavits of persons familiar with the facts may be treated by the court as the equivalent of common-law proof and the record upon which determination of the questions presented for solution may be made. In connection with the particular issue to which the provision of the will gives rise, there have been received for filing the affidavits of the draftsman of the will and the attorney for the Roman Catholic Church. The attorney states that the name of the church was misspelled. The woman had mistakenly written few alphabets in the name of the church. The attorney claims that in preparing the will, she mistakenly assumed what appeared to be a P to be a symbol for the word Protestant. She later realized that the initials were R.C. and were intended to indicate the words Roman Catholic. It is the attorney’s clear recollection that the woman’s instructions and intent were that the legacy in question be for the Roman Catholic Church in New York City.

Staten Island Probate Lawyers said that in paragraph three of the will, a legacy of one-tenth of one percent of the property is left to a gentleman. The affidavits of intimates of the deceased and the draftsman acknowledge that error an occurred in spelling the name of the said gentlemen. To make it perfectly plain, the beneficiary intended by the woman was her friend of long standing, the respondent, and the will is so defined.

In disposing of a portion of the remainder of one of the two residuary trusts, the woman gives the remaining one-third to the named charitable organizations, each in equal amount to the other.

Did the deceased woman intend to make a gift of an equal share of the remainder disposed of to the eight charitable institutions named or was it her intention, as expressed in the juxtaposition of the titles of the last two legatees designated, that the first six are each entitled to a one-seventh share of the total and the remaining two are entitled to a fourteenth apiece? The position in which the name of a beneficiary appears in a will may have an important bearing upon the rights of its wearer.

The executors take the position that the provision of the will operates to forfeit the legacy of the respondent, but their demonstration of facts upon which they rely in support of their argument falls very far short of depriving the beneficiary of the protection of the Decedent Estate Law. No forfeiture of any benefit under a will shall be occasioned by disclosure on the part of the beneficiary to any of the parties or to a court of information relating to any paper submitted as a last will or by disclosure of such beneficiary to any party or to a court of information relevant in a proceeding for validation of such submitted paper.

No forfeiture of a benefit under a will shall be occasioned by refusal or failure of the beneficiary to join in a petition for the validation of a paper submitted as a will, or by refusal or failure of the beneficiary to execute a consent to or waiver of notice of such validation proceedings.
An infant or incompetent party may affirmatively oppose the validation of a proposed will without forfeiting any benefit thereunder. The respondent filed no objections to the will and the bare contention that he failed to cooperate with the proponents or the criticism of his testimony while being examined as a witness before trial would hardly justify the court in denying him his legacy and its payment is accordingly directed.

The woman died on May 25, 1955 and letters of temporary administration on her property were issued. A question arises as to the date on which interest commenced to run on the general legacies which the deceased woman defined in terms of percentages of her property. Although the amounts of those endowments cannot be definitely determined until the net value of the property is finally established under the earlier ruling in the court’s decision, the general legacies will carry interest on the amounts then fixed running from the date when they matured. The Surrogate's Court Act and the Decedent's Law provide that legacies become payable seven months subsequent to the issuance of letters of administration. It has been held in a number of cases that letters of temporary administration are embraced within the phrase letters of administration as employed in both of the sections cited at least to the extent of fixing the date upon which interest commences to run on general legacies. The rule for decision of the case was most clearly stated by the Court of Appeals identical in text with those under consideration here with the exception that the period fixed was a year rather than seven months.

The court said that two questions are presented by the appeal. First is whether interest on a general pecuniary legacy begins to run one year after the deceased woman’s death or one year after the grant of letters of administration and whether the one year mentioned in the after grant of letters means that, the time begin to run from the date of granting the letters of temporary administration in the pending validation proceedings.

The question on whether the words letters of administration as used in the statute includes letters of temporary administration should be answered in the affirmative. The legislature, having used the words letters of administration instead of letters of administration with the will annexed must be deemed to have employed them in their broader meaning, so as to include letters of temporary administration as well.

The court accordingly holds that the legacies began to bear interest at the rate of 3% per annum on February 11, 1956, or seven months after the issuance of temporary letters of administration. It is further directed that the income beneficiary of the pre-residuary trust is entitled to the income earned by the trust from the date of the death of the woman at the rate earned by the property.

Paragraph Fourth of the will permits each of three individuals to select as a memento an item of jewelry from the collection left by the deceased woman with the provision that the selection be confined to individual pieces as distinguished from sets. Having viewed the collection and been aided in its deliberations by the opinions of the expert witnesses, the court holds that lots 5 and 5A or 5 1/2 as designated in the report of the appraiser constitutes sets within the meaning of the will and that only the balance of the collection is available in satisfaction of the bequests.
The Roman Catholic Church is specifically located at Park Avenue New York City is on the list of beneficiary and a sum equivalent to one-half of one percent (1/2 of 1%) of the deceased woman’s property is endowed to the said church. The only church located near the address designated by the deceased woman is the Roman Catholic Church conducted under the auspices of the Society of Jesus. The relationship of the deceased woman to the said church is established on the record from the sources. The will makes it perfectly clear that it was that church which she had in mind and that the inaccuracy was attributable to the error of the clerk. Accordingly the court holds that the legacy is payable to the Roman Catholic Church, specifically, the Church located at Park Avenue New York City.

Since the objections have been withdrawn or reserved for determination on the final accounting, a ruling may then be submitted on notice construing the will in accordance with the foregoing and settling the account, as filed.

The formula to be employed for measurement of the net property requires that there be deducted from the gross value of all of the assets left by the deceased a sum equal in amount to the total of the debts and expenses of administration.

In addition to the foregoing amendment, the court grants the petitioners' request for leave to abandon certain articles of personality referred to the account and their request to abandon certain records, letters, etc. as set forth in the account.

Last will and testaments are being prepared to avoid issues and confusions from arising in the time of death. Having your name in it signifies the impact you made in the life of that person. It is such an irony that the exact opposite of the intention happens. When you find yourself in such irony, call the experienced lawyers at Stephen Bilkis and Associates.

Posted On: March 16, 2012

Court Decides Will Jurisdiction Issue

The testator died in November 15, 1955. After almost two and a half years , a Petition for Probate of Will dated November 12, 1955, which was allegedly destroyed after the death of the former, was filed on April 23, 1958. The petition alleged that the testator is a resident of the City of Belize, British Honduras, Central America. Thereafter, a supplemental petition was lodged setting forth the transactions and proceedings with the New York State Tax Commission which informed the petitioner that the testator had been a resident of New York County. Thus, the amended petition provided that the testator was either a resident of the County of New York, State of New York or City of Belize, British Honduras, Central America.

A New York Probate Lawyer said Section 249-t of the Tax Law of this City provides for the protection of State’s interest with respect to tax receivable, thus, the State Tax Commission, shall be, in all original proceedings for letters testamentary in the estate of a non-resident decedent, shall be impleaded as a necessary party. However, it did not take an active part. Conflicting allegations arises as the other party contende that the testator is a domicile of British Honduras whereas the Attorney General of the State of New York and a special guardian of infant (an heir) contended New York as his domicile.

However, this Court has jurisdiction over the matter whether the decedent was domiciled here or being a non resident he died without the State leaving personal property within this county.

This Court finding the preliminary issue of domicile as expensive and dilatory rule that the most important issue to resolve at this point is the genuineness and validity of the Will itself.

Challenging the jurisdiction of the Court, the movant mentioned that the estate of the decedent at the time of his death is valued at 3,500,000.00 and were held in custody of British Honduras, State of New York, State of Illinois and Province of Quebec, Canada. Manhattan Probate Lawyers said the estate administration was likewise given to the Court appointed administrator of the intangible personalty in New York which were in custody of the Public Administrator of the County of New York as temporary administrator who likewise reported that New York brokerage was indebted to the decedent in the amount of $73,177.58; there was a deposit in the bank $6,343.39, another firm owed the decedent $10,566.07 and the existence of securities valued at $1,532,692.87 all physically located in New York County.

All the securities were sold by the temporary administrator pursuant to Section 127, Surrogate’s Court Act and the proceeds of which were invested in bonds of the United States, the State of New York and the City of New York which were held in fiduciary under the supervision of this Court.

There is a pending probate proceedings in British Honduras where the decedent is domiciled. The authority of the Surrogate on the estate litigation was long been recognized long before the enactment of any statute governing ancillary probate which must be read in connection with the general statutes which specify the wills that may be probated and the procedure governing the probate in connection with the long established authority of the Surrogate to probate wills, both domestic and foreign. But this was limit in one respect construing Section 159 of the Surrogate Court Act which provides that “a complete scheme for establishing within the state wills duly probated in other countries. New York has elected to give effect to such a decree, admitting a will of personal property to probate’.

Queens Probate Lawyers report that the testator is domiciled in British Honduras. In Sections 21 to 24 of the Decedents Estate Law, a will of non-resident may be admitted to probate in this state if it complies with the requirements of one of those sections and if there is property here. Without limiting the right to probate to any such will, a limitation in a procedurral aspect has been implied from Section 129 of the Surrogate Court Act stating that in an estate where the will has been duly admitted to probate in the testator’s domicile that will must be accepted for ancillary probate here without right of independent contest.

There was no dispute over the nature of the proceedings which have been conducted in British Honduras wherein the Will dated May 10, 1918 was admitted to probate at which the letter testamentary was granted to one of the beneficiaries for the period of twelve months or until a latter will is found.

Relating to an instant case, an action was instituted before the Supreme Court of British Honduras, Probate Side, praying the revocation of letters testamentay and admit the Will dated November 12, 1955. After the decision in said case, the appeal was taken to the Privy Council in England and is still pending for resolution.

Therefore, In view of the foregoing, this Court denies the said motion.

A conflict between heirs arises if the person died testate and has various residences. Likewise, a dispute for that matter can be severed if the decedent’s domicile is unknown or cannot be made certain. Additionally, conflicting issues develops if the law on probate of will, estate litigation and estate administration differs from where the decedent is domiciled and actually resides. These matters can cause the parties unpleasant emotions thus relationship among families is ruined. Do you need an experienced lawyer? To help you out, call Stephen Bilkis and Associates and rest assured an expert shall wholeheartedly accommodate and assist you. A qualified lawyer shall help you analyze the legal action for an extrajudicial or judicial settlement of the estate in order to save family relationships and avoid prolong litigation in Court engendered by wrong appeal on wrong tribunal.

Posted On: March 16, 2012

Probate of Will Presents Jurisdiction Issue

This is a case involving the estate of a decedent who was a national of British Honduras and left properties located in New York and other countries. The decedent left no legitimate heirs and part of the properties he left involved certificates of stocks from 50 corporations and other banks as well as brokerage accounts all found in New York. An action was filed in the Court of New York for the escheat of the said stock certificates and other accounts since there were no legitimate heirs available to lay claim to the said properties. British Honduras, through its representatives also laid claim on the said certificates and other accounts in the name of the State arguing that since the latter died with no heirs, that the State of British Honduras can therefore claim said properties as by law they already belong to the State.

The facts state that the decedent executed a will way back in 1918. This will was admitted to probate by the Supreme Court of British Honduras. Later on, a second will surfaced in 1955 and an action was brought to have the 1918 will revoked because of the existence of a later will. Suffolk County Probate Lawyers said petitions were filed to declare the 1918 will as destroyed or revoked which was timely opposed by the concerned parties. Delays were incurred due to the legal battle and before the Court of British Honduras can finally decide the issue, the Surrogate Court of New York assumed jurisdiction to have the 1955 will probated and appointed to that effect a special guardian for possible infant legatees who are still possibly living in British Honduras.

The government of British Honduras protested the jurisdiction assumed by the Surrogate Court of New York and filed a case in intervention arguing that since the case is still pending in their country, the New York Court has no right to assume jurisdiction. A New York Probate Lawyer said they argued further that since there was effectively only one estate of the decedent and this pertains to all kinds of properties wherever they may be found, and arguing further that the decedent is a citizen of their country, that all other probate or estate administration must originate from the country where the decedent is domiciled and all other proceedings later filled must be treated as only ancillary to the proceedings of the court that first took cognizance of the case.

The only issue squarely presented before the Appellate court is whether or not the government of British Honduras has the legal personality to intervene in the proceedings Probate before the Surrogate Court of New York.

The Court of Appeals of New York in deciding the issues present in the case, opined that since they are not called upon to decide whether the Surrogate Court of New York has jurisdiction over the will contest of the decedent, it is only proper to rule on the issue whether the government of British Columbia has the personality to intervene in the case at hand. A Staten Island Probate Lawyer said the Court explained that if the Attorney General were to be allowed to be a party to the determination of the case, then the government of British Honduras should also have the same right because the properties involved were owned by the a citizen of their country. The fact that all the beneficiaries and descendants of the decedent are also citizens of British Honduras also bolster the logic that said government must be given the right to intervene in this regard. The Court then ruled that both the Attorney General and the government of British Honduras are entitled to be heard and there is no reason to exclude either of them in the estate litigation.


Protecting the rights of legitimate heirs, legatees and devisees is an important role that a New York Estate Lawyer performs. To avoid possible legal problems that might happen because of the absence of a will or other legal impediments to the probate of a will, it is always important that you avail the services of a New York Probate Lawyer. Stephen Bilkins and Associates are experts in the field of Wills and Succession and they can provide the necessary legal assistance in matters concerning probate of a will and other similar services.

Posted On: March 15, 2012

Supreme Court Decides 5 Will Contest Cases

This is a decision of the Supreme Court deciding jointly five cases where despite the existence of will that can be admitted into probate, the parties who could be beneficiaries under these wills decided to ask instead for letters of administration. The surrogate courts, in its discretion, thinking it wiser to distribute the estate in accordance with the rules of intestacy, denied the probate of the will and issued letters of administration to the beneficiaries of the estate who applied for the letters of administration.

Letters of administration are requested for when a deceased person left no valid will. It is issued only in cases of intestacy or when a will requested to be admitted into probate is found to be invalid. In each of these cases, there is a will but the requests for letters of administration were granted just the same.

The Court has ruled that in these five cases, the Surrogate Courts did not abuse their discretion. A New York Probate Lawyer said that in all of these cases, none of the beneficiaries, legatees or distributees were willing to proceed to probate seeing as the estates to be disposed of under the probated will were all small. Probate proceedings will so diminish the value of the estates that there will be nothing to distribute after probate. So the Court upheld the Surrogate Courts’ decision to issue letters of administration.

The testator in the first case made her sister her sole distributee in her will. Suffolk County Probate Lawyers said the sister along with two others was named as executors but the two other co-executors renounced their designation as co-executors. The estate was proved to have a value only of $16,000.00. In this case, the Supreme Court allowed the issuance of letters of administration because the estate is small and its distribution under the will would be the same even if distributed as though there was no will. That is, the estate will go in its entirety to the testator’s only surviving relative and heir, her sister.

In the second case, the testator executed a joint will with the husband. In that will, both the husband and the wife left the entirety of their estate to each other and to their daughter. Since both the parents are deceased and they were sole distributees of each other’s will, the entire estate will go to their daughter who was their sole distributee in case they both die before the daughter. The estate was valued only at $40,000. Again, there was a will that seemed to be valid but because there is only one distributee and the estate was small, the result of the probate of the will would be the same if the estate were distributed as though there was no valid will.

In the third case, the woman’s entire estate consisted of proceeds of a damage suit she filed arising out of an accident which resulted in the death of the testator and her husband, three days after the testator. The sole beneficiaries under this will are two adult sons. One son waived his right as co-executor. Long Island Probate Laywers said the attesting witnesses are all residents of other states and searching for them will be difficult and it will further diminish what small value the estate had. The Court issued letters of administration to the son who had not renounced his designation as executor.

In the fourth case, the value of the estate of the testator was only $5,000.00. The distributees are all adults. They appeared in the probate proceeding where the designated executrix in the will, the sister of the testator, asked the court for letters of administration instead of probating the will. All the legatees appeared and all were adults. They signified that they did not at all object to the issuance of letters of administration instead of probating the will. The court there reasoned that continuing with the probate proceedings will only serve to diminish the value of the estate. Moreover, the legatees had already agreed to share equally the proceeds of the estate. So letters of administration were issued as though there was no will.

In the fifth case, the only surviving beneficiary of the will was an uncle who was disabled and who was already a ward of the State. The Public Administrator of New York had petitioned the probate court for the issuance of letters of administration in his favor. It appeared that the expenses so far incurred in taking care of the disabled uncle had amounted to almost equal the value of the estate which he was to receive. Since the uncle was unable to administer or execute the will as he was disabled, the court ruled that those state appointed guardians should be issued letters of administration and they will simply apply the value of the estate to pay for the cost of the care of the uncle.

If the estate is so small that probate proceedings will just deplete the value of the estate, the Court has deemed it proper to proceed with the distribution of the estate under the rules of intestacy. At Stephen Bilkis and Associates, their competent lawyers are willing to assist those beneficiaries of wills where the value of the estate is small.

Posted On: March 15, 2012

Brother Left Out of Will Files Will Contest Action

On December 1, 1988, a resident of Fulton County, 82 years of age (referred to as the “decedent”), died in Spartansburg, South Carolina. He was survived by a brother who is the only distribute. At exactly two weeks before the decedent’s death, he executed a last Will and Testament (referred to as “the will”) on November 17, 1988. The will excluded the brother but included two strangers, whom they are not related to by blood, who reside in South Carolina. The will was attested to before three witnesses, all of whom reside in South Carolina. Subsequently, by reason of the brother’s exclusion as an heir, the brother then objected to the probate of the will or made a will contest and demanded an examination of the attesting witnesses (a probate is the legal process of administering the estate or estate administration of a deceased person by resolving all claims and distributing the deceased person's property under the valid will - source: Wikipedia). Thus, estate litigation ensued.

Now, where should the examination be held and who must bear the expense of such examination?

The proponent (supporter of the will) claims that once the decedent's will is presented to the court with an affidavit of the attesting witnesses authorized by SCPA with the requirements having been met, the burden of compelling the production of the attesting witnesses is upon the party seeking to depose such attesting witnesses. A New York Probate Lawyer said the proponent refers the court to Powers, Supplementary Practice Commentaries, that " * * * the duty of compelling the attendance of a witness [is imposed] upon the party seeking the examination", and it refused to direct the proponent to produce the witnesses for examination.
The contestant (opponent), on the other hand, claims that the proponent must produce the witnesses to be examined prior to the trial and that it is the proponent's responsibility to produce the witnesses in New York State or to pay the expenses of a commission held outside of the State of New York.

The court held that in a probate proceeding, the proponent must proceed to prove the will by the examination or affidavits of the attesting witnesses. New York City Probate Lawyers said that before admitting a will to probate, the Surrogate's Court is required by statute to inquire particularly into all the facts and must be satisfied with the genuineness of the will, the validity of its execution, the competency of the testator in all respects to make a will at the time of executing it, and the freedom of the testator from restraint at the time of executing it. Such inquiries must be made whether or not there is opposition to the probate of the will. Moreover, the consent alone of all interested parties is not sufficient to admit a will to probate. By statute, the Surrogate must still be satisfied as to the genuineness of the will and the validity of its execution. Generally, where there is no contest, or where the issuance and service of process has been waived by all the interested parties, who are of full age and sound mind, the court will not go beyond the testimony of the attesting witnesses. Here, however, objections have been filed and a full inquiry by the court will be required.

Fees and reasonable expenses of a witness must be paid by the party seeking the examination. At least two (2) of the attesting witnesses must be produced before the court and examined if they are within the State and competent to testify. Westchester County Probate Lawyers said but where the witness is hostile and recalcitrant, the contestant should bear the burden of subpoenaing the witness and paying the witness fees, with the understanding that if the contestants were successful in setting aside the probate of the decedent's will, the court would entertain an application to fix the cost of the examination as a disbursement of the estate.

It is the duty of the court to inquire into all of the facts and circumstances and would require production of the statement whether or not requested by proponents in order that all relevant facts would be before the court.

Where the witnesses to be examined do not reside within the State of New York, obviously it will not be possible to compel their appearance before the Surrogate either by means of a subpoena or by service of the order of the Surrogate. The nonresident witness is then required to submit to oral examination in North Carolina, the cost of which had to be borne by contestant only because the witness had previously been made available by the proponents. It was the duty of the proponent to take out a commission to take the testimony of the subscribing witnesses.

In conclusion:
1. The proponent can be compelled to take the testimony of the subscribing witnesses or other witnesses out of State by commission;
2. In taking the testimony there by commission, in any form, the testator's estate must, in any event, bear the expenses of the preparation of the commission, the fees of the commissioner, stenographer and of any non-resident counsel to assist the proponent;
3. The proponent has the election to take the direct testimony supporting her case either on interrogatories or by an open commission;
4. The party demanding a preliminary examination of such witnesses as proponent may call before the commissioner and has the option of having his cross-examination taken at the expense of the estate as to the fees of the commissioner and stenographer by an open commission, or upon interrogatories; and that contestant must bear the expense of preparing any interrogatories he may have submitted, and any non-resident counsel fees and his own traveling expenses;
5. That if the contestant calls before the commissioner any witness whom the proponent is not obliged to call and does not call, the contestant shall bear the proportionate expense of the fees of the stenographer and commissioner for taking the testimony of such witness.

The passing of a loved one is already difficult and being involved in a lawsuit could be much more painful and tough to bear. The agony of going through the whole process is unimaginable. That’s why a skilled lawyer could help ease the pain by holding most of the burden for you. At Stephen Bilkis & Associates, with convenient offices throughout the New York Metropolitan area, you are protected. We have lawyers who are skilled in the field and can help you in any situation. We assure you of quality service and that we are worth every penny spent.

Posted On: March 14, 2012

Son Contests Mother's Will

A wealthy lady executed a will on February 10, 1992. In this will, she named her husband, a lawyer, to be the executor and principal beneficiary. Her husband was the same lawyer who drafted the will and the attesting witnesses to the will were a couple who were their neighbors and close friends.

In this will as well, the wealthy lady stated that her estate was valued at around $6,000,000. She gave $25,000 to each of her seven grandchildren. She established a trust fund for her husband comprised of credits she expected to receive. She bequeathed the interest earned from the credits she expected to receive to her daughter or to her children if the daughter does not survive her father. She left her residuary estate to her husband. To her son, she left nothing except for the bequest of $25,000 to each of his children. She stated in her will that she left nothing to her son because she had been supporting his children while she was alive and he was sure to receive benefits from the law practice he and his father (the testator’s husband) shared.

After filing the petition, the husband submitted an affidavit prepared by his attorney which contained the facts which the sole surviving attesting witness remembers. A New York Probate Lawyer said the husband also submitted a deposition testimony of the attesting witness as well as his own deposition as the lawyer who prepared his wife’s will. These deposition testimonies were submitted by him to the Surrogate Court to accompany his motion for summary judgment.

The son thereafter filed an objection: Brooklyn Probate Lawyers said he claims that his mother executed another will in February 9, 2003 three days before she died; he claims also that the 1992 will was not executed according to the required legal formalities; he was informed and he believes that when his mother made the will in 1992 (that his father now seeks to admit into probate), his mother was not of sound memory. The son also objects to the motion for summary judgment because his father has not yet proven the validity of the 1992 will.

The Supreme Court first stated that summary judgment is a drastic remedy that is only resorted to when the party seeking the summary judgment has provided sufficient evidence that demonstrates that there are no more material issues of fact.

The Court was not convinced with the son’s objections to the probate of the will or to the motion for summary judgment.

First, the Court noted that the two primary beneficiaries have signified in writing (the husband and the daughter) that they support the motion for summary judgment and both request probate of the will. The only beneficiaries who were not given any formal notice of the son’s objections are the grandchildren who are mostly minors. Their interests will not be prejudiced by the probate of the will because they stand to gain $25, 000 each if the will is probated. On the other hand, if they are given citations and they appear, a guardian will have to be appointed for them and the appointment of a guardian will raise the costs of these proceedings and will diminish the estate.

Bronx Probate Lawyers said the Court is also not convinced that there is a later will executed by the testator in 2003. If there were truly a will executed in 2003, then the objector should have at least attached a copy of that will to his objection. He should have asked the Surrogate Court for probate proceedings for that 2003 will and then just have the two probate proceedings heard jointly. But no one has come forward to have the 2003 will probated. Both the husband (the nominated executor) and the daughter have signified in writing that they do not wish to have the 2003 will admitted into probate.

The objector even went so far as to state in his objection that the 2003 will was even more despicable as the 1992 will because in the 2003 will, none of the grandchildren will get a $25, 000 bequest. He even stated that he doubts if the 2003 will was valid. But in the same objection, he states that the fact that the 2003 will exists proves that the 1992 will has already been revoked. And he also adds that since the 2003 will revoked the 1992 will, then really, the 1992 will should not be probated and the estate of his mother should be disposed of as though she had no will.

The Court found this argument of the son also flawed, untenable and incredible: if he claims that the 2003 will is invalid, then an invalid will cannot revoke the 1992 will which is a previous valid will. In order to validly revoke a will, the 2003 will had to also be valid also. This argument of the son is self-contradictory. Again, there is no one willing or able to prove the validity of the 2003 will such that the surrogate court was correct when it refused to count the 2003 will as valid.
The son argues that the 1992 will was not valid because his mother was not of “sound memory” at the time she executed the 1992 will. The Court observed that the requirement of the law was for the testator to be of “sound mind” and not necessarily of “sound memory.” These two are different. The requirement to be of sound mind is met when there is proof that the testator understood the consequences of making a will; that she knew the extent and nature of the properties that make up her estate; and that she knew who the people were who should be the objects of her bounty. This objection of the son is also rejected because perfect memory is not required either of a testator or an attesting witness.

The son also questioned the validity of the will because the attesting witness could no longer remember all the details of the execution of the will. The attesting witness was 84 years old when she was deposed and she was testifying to a will that was executed 10 years prior to her deposition.

The witness, however, knew and recalled enough details. She remembers that her friend told her that she was making a will and that she wanted her to sign it as a witness. She cannot remember clearly if they signed her will in their apartment or at the testator’s apartment but she does remember that she and her husband were there as well as the testator and her husband. She remembers seeing the testator sign it and she remembers her husband signing it as well. She remembers that the husband said he had drafted the will and summarized the contents of the will and what it all meant. Through all this, the testator nodded her head in assent and signed the will.

For all these reasons, the Court resolved that the husband had proven that he was entitled to a summary judgment because he had proven that there are no material issues that still need to be tried. The Court also resolved to dismiss the objections and to admit the will into probate.
Will contests are a serious legal matter. One cannot object to the probate of a will simply because one has been left out. To effectively contest a will on legal grounds you will need the services of a competent lawyer. At Stephen Bilkis and Associates, has a trained legal team that are willing to research legal precedents that will help you successfully object to the probate of a defective will.

Posted On: March 14, 2012

Brother Files Will Contest Against Sisters

A man had a son and two daughters. In 1995, the father and the son had a falling out. In December 1996, the father made a will leaving all of his real and personal properties to his two daughters in equal shares. The son was left out of the will entirely. Five months later, the father was hospitalized where he was diagnosed with senile dementia. He was declared to be mentally incompetent.

On the same day he was diagnosed with senile dementia, he signed a deed transferring to his daughter the ownership of his home in Kingspark, New York. He also executed a general power of attorney giving power to his two daughters. In September, the father died.
Two years after the death of the father, in September 2000, the son petitioned the Surrogate’s Court to be appointed as administrator of his father’s estate. Among his father’s properties, he listed his father’s house in Kingspark, New York.

A New York Probate Lawyer said that three months later, in December 2000, his sisters filed their petition for probate of their father’s will and for letters testamentary. In their petition for probate, they averred that their father had no real properties.

A copy of the petition for probate was furnished the son on January 2001. He filed his objection to the probate of the will in November 2001. A Staten Island Probate Lawyer said that in 2002, the sisters testified on deposition.

When the brother heard his sisters’ deposition regarding the general power of attorney and how their father had ceded title to his house to one of his sisters, the son filed an action against his sisters for fraud. He asks that the deed executed by his father conveying the house to his sister be set aside. He also testified that his sisters used the general power of attorney issued in their behalf by the father to withdraw all the money in their father’s retirement account and used the proceeds to buy insurance for themselves.
The sisters appeared in the action filed by their brother for fraud. They ask that it be dismissed saying that his action for fraud is barred because it was commenced beyond the period of six years from the commission of the alleged fraud; and because it was commenced beyond two years from the time that he discovered the fraud.
The brother said that he only discovered the fraud in September 2002 when his sisters testified during their deposition how they asked their father to sign a deed transferring ownership over his house to one of them. He claims that his father had senile dementia at that time and that he could not have given his consent to that deed.

The Court declared that the brother’s action is barred. He had known the facts from which fraud can be inferred since he was served a copy of his sisters’ petition for probate where they clearly stated that their father had no real property.

But the Court reversed the court’s dismissal of all of the son’s causes of action. The cause of action against the sisters’ withdrawal of their father’s retirement fund should not have been dismissed outright with the dismissal of the fraud complaint.

The Court reasoned that the Individual Retirement Account is not an asset of the estate. It cannot be passed by operation of law. Suffolk County Probate Lawyers said the son could not have known that his sisters have withdrawn all the money in those accounts until their deposition was taken. This cause of action should have been tried and not dismissed on motion of the sisters.

But then, during the pendency of this appeal, the brother has withdrawn his objections to the probate of their father’s will. And because of this, the will has been probated. The cause of action for withdrawal of all the money in the father’s individual retirement account cannot be tried jointly with the probate proceedings.

Contesting a will requires convincing evidence that shows that the will was not validly executed or that the testator had no capacity to make a will. A skilled lawyer is best equipped to give advice and to argue as to how to properly contest a will. At Stephen Bilkis and Associates, our legal team is ready to help you contest a will on legal and evidentiary grounds.

Posted On: March 13, 2012

Court Decides Jurisdiction Issue with Will

The Surrogate’s Court of New York admitted a will into probate and issued letters testamentary and letters of trusteeship. On appeal, the Supreme Court reversed the admission of the will into probate and revoked the letters testamentary and letter of trusteeship.

The testator was a resident of the state of Vermont. He however had three bank accounts at a bank in New York. The amounts deposited in the three bank accounts comprise 23 % of the total value of his estate. Three executors were named in the will: one was a resident of Vermont, the other a resident of Florida and the last was a resident of New York. The nominated executor in New York was the one who initiated the probate proceedings in New York.

A New York Probate Lawyer said that it appears that the other executor who was a resident of Vermont had also filed probate proceedings in the Probate Courts of Vermont for the probate of the same will. The Probate Court of Vermont has already taken jurisdiction over the estate of the deceased who was a resident of Vermont because most of the properties of his estate are found in Vermont, with the exception of the three New York Bank accounts. Although, it was also proved that Vermont has not yet admitted the will into probate.

The only question before the Supreme Court is whether or not the New York Surrogate’s Court properly exercised jurisdiction over the estate and will of the testator.

The Court stated that the New York Surrogate’s Court cannot take jurisdiction over the will of a testator who is not a resident of New York unless the testator has properties in New York.
Manhattan Probate Lawyers said that the only properties of the estate, according to the wife of the testator are three bank accounts at a bank in New York. She contends that the testator created a trust account for her consisting of bank accounts in New York.

The Court ruled that since the bank accounts are trusts for the benefit of the wife (one of the designated executors, and the executor living in New York), they did not belong to the testator and the bank accounts do not belong to his estate. Queens Probate Lawyers said that according to the wife, the testator created the trust for her benefit and the trusts are deposit accounts at a New York bank. The Court ruled that trusts belong to the beneficiary (the wife of the testator) the person for whose benefit the trust was created.

Thus, since the only property of the estate in New York is a trust and the trust is for the benefit of the wife, the trust belongs to the wife and not to the testator. There is then no other property in New York and the Surrogate’s Court of New York has no reason for taking jurisdiction over the estate of the testator whose properties may be found in Vermont.

The Court also reasoned that determining whether the Surrogate’s Court of New York should exercise jurisdiction over the will must take into consideration not only the location of the estate’s properties but also the expense involved in proving the will when it is going to be probated outside of the residence of the testator and the good faith of the wife who is proposing the probate of the will in New York.

If the Court considers the trust as a property of the estate and not yet the property of the wife, still, the trust is an intangible personal property and intangible personal properties are considered as properties that are located in the same place where the testator is domiciled until ownership has been vested in another. In this case, the testator was a resident of Vermont so that the trusts are considered as located in Vermont.

The question of where to file a petition for the probate of a will is a complex legal matter that only experienced lawyers can answer for you. Trusting your limited knowledge of the law may cause the will to be denied probate. At Stephen Bilkis and Associates, our legal team is trained to advice you regarding the best place to apply for probate of a will.

Posted On: March 13, 2012

Validity of a Will Questioned

A notary public whose duty is to administer oaths regarding the execution of public documents took a piece of ordinary notebook paper and folded it so that it made four pages. On this sheet of folded notebook paper, the notary public wrote in his own handwriting his last will and testament. T

he words “my Will and Testament” were clearly handwritten at the bottom near the signature of the testator. After the line where the testator’s signature appears, the words “witnessed this 21st day of January 1924” appears. After this line, on the left and right side of the bottom of the piece of paper, two signatures appear. At the bottom of the signatures, the addresses of those who signed are handwritten.

Nine years after writing down this document, the notary public deposited it with the Surrogate’s Court on Queens County for safekeeping. A New York Probate Lawyer confirmed that it remained in the safekeeping of the Surrogate’s Court until the notary public died in 1965.

A day after depositing the document with the Surrogate’s Court, the notary public entrusted an envelope into the safekeeping of his brother-in-law. The envelope was sealed and it was marked as “Important Papers.” Inside this envelope, a card was enclosed where it was declared that the notary public’s will was in the care of the Queen’s County Surrogate Court.
The document is now presented for probate. And objections to its admission into probate were submitted. The ground for the objection was that there was insufficient evidence that the document complied with the formalities required by law.

First, the subscribing witnesses are both dead. Second, there is no proof that those who signed as witnesses actually knew or understood that they were signing as witnesses to a will.
First, the testator was a notary public, a person whose job it is to make documents and attest to the execution of public documents. Nassau County Probate Lawyers commented that he was not an ordinary person who had no understanding of legal formalities.

Second, the testator’s desire to create a will can be inferred from the fact that he wrote in block letters the title of the document which was “My Will and Testatment.” This means that even if the testator only used ordinary notebook paper and he only wrote the document himself in his own handwriting, he had every purpose of disposing of his estate.

Third, the notary public had every intention to comply with the legal requirements for he found two persons to attest to his will. Brooklyn Probate Lawyers said that there may not be an attestation clause on the document ( an attestation clause is a short paragraph where the witnesses acknowledge that they understand that they are signing a will and that they saw the testator sign the document). But it can be inferred from the very bold and very conspicuous writing of the title of the document very near the signatures at the bottom of the sheet that the witnesses cannot but read the title which says “My Will and Testament.”

Fourth, from the physical arrangement of the signatures of the witnesses and the testator it can be inferred that they saw the testator’s signature when they signed the document.

Fifth, the notary public deposited this document with the Surrogate Court. From this, it can be inferred that he wanted his estate disposed of in accordance with his instructions in the document. He wanted this document to govern the disposal of his assets when he is dead by making sure that this document was filed in the probate court.

Sixth, the proponent of the will offered other evidence that tended to prove the handwriting of the testator and the witnesses were genuine.

The Surrogate’s Court Act provides that if all the subscribing witnesses are all dead, the will can still be established when the handwriting of the testator and the witnesses are proved.
It has been held by the Supreme Court that there are no form of words is necessary to make the attestation clause effective. It is enough that the witnesses knew that the testator wanted to make the document his will. If it can be inferred that the witnesses knew that the testator was making his will, then there is sufficient compliance with the requirements.

The Court upheld the ruling of the Surrogate Court to submit to a jury the determination of the due execution of the document. If there is no jury, then the Court holds that there is sufficient evidence from the document itself to prove the validity of the will. The Court decreed the probate of the will and dismissed the objections.

Making a holographic or handwritten will is allowed so long as the handwritten will substantially complies with legal requirements. A New York Probate attorney can give you advice on how your handwritten will can comply with legal requirements. Stephen Bilkis and Associates have capable attorneys who are experienced in advising clients as to legal requirements for validity and due execution of wills.

Posted On: March 12, 2012

Ex-Wife Contests Deceased Husband's Will

A man and wife were married and had three sons. One of the sons had a disability that required lifetime care. The couple divorced in 1985 and the man was ordered to pay support of $100 weekly. The man failed to pay support and the woman obtained a judgment for $7,000 in support arrears. The couple remarried in 1986 but divorced again in 1988. The man was ordered to pay support of $60 weekly. Again he incurred arrearages. In the second divorce decree, the man and his first wife agreed that the first wife and their disabled son will live in the house rent-free until their death.

The man married another woman with whom he had a daughter. When the man died, he left an estate comprising of an interest in a house co-owned by him and his ex-wife. His ex-wife owned the other half interest in the house. He left his entire estate to his minor child from his second marriage and appointed his second wife as executrix of his estate. His second wife succeeded in having her husband’s will admitted into probate and she was issued letters testamentary as executrix of her husband’s will.

The first wife died before the husband. In her will, she gave her disabled son a life interest in her half of the house. And when her disabled son dies, her half interest in the house will go to her two remaining sons.

Upon the death of the husband, a New York Probate Lawyer said the estate of the ex-wife presented a claim for unpaid support. The executrix of the estate of the deceased husband presented a claim for unpaid rent. Before the court, in order to settle the issue, the estate of the husband agreed to sell the half interest of the husband to his sons from the first marriage.

Evidence was introduced that the house’s value was $155,000. The second wife who was the executrix of the man’s estate agreed to sell the half interest of her husband to his sons from the first marriage for the amount of $70,000.00. The son from the first marriage agreed to send a check for that amount.

The check was issued in the name of the second wife. NY Probate Lawyers said the lawyer for the second wife refused to accept the check payment because it was not in his name as they had agreed upon in court. The son paid the check directly to the second wife who deposited it into her own personal account instead of depositing it in court as it is an asset of the estate which belonged to the minor child of the man with his second wife who was bequeathed the entirety of her deceased father’s estate.

The second wife now wants to void the stipulated settlement and she wishes to reinstate all her claims for unpaid rent on the house.

The only question in this part of the appeal is whether or not the second wife’s action to vacate the court settlement can be given due course. The guardian for the minor child who was her father’s sole heir filed a motion for contempt against the second wife of the man.

According to Westchester County Probate Lawyers, the Supreme Court ruled that the court settlement is binding and that the second wife’s actions in taking money belonging to the estate and depositing it into her account was full acceptance of the settlement paid by the sons from the first marriage.

First, the court settlement was binding. The court inquired of the second wife whether she heard the terms of the stipulation and she said that she did. She was asked if she agreed with the stipulation and she said that she agreed with it. She was asked by the judge if her agreement is of her own free will and she said that it was. The court then asked if any force or duress was exerted on her to obtain her consent and she said no.

From all this, the Court ruled that the court settlement was a valid and binding agreement between the two estates ( the estate of the husband and the estate of the wife).

It is clear then that the check which the second wife obtained from the estate of the first wife was the payment called for in the settlement. The check belonged to the estate of her husband and should be distributed to their minor child.

Her act in depositing the amount into her account was a violation of her duty as fiduciary of her husband’s estate. It was an act that violated the trust reposed on her by the court and by the estate to gather the properties and assets of the estate for the benefit of the beneficiary, the minor child. But her acceptance of the sum and that she has used it in support of their minor child is evidence that she has no longer any right to vacate the settlement she had already benefited from.

Executors are bound by a duty to advance the interest of the estate they are called to administer. If they fail in this duty, those beneficiaries of the will may file an action against the executor of the will. In doing this, you will need the service of an attorney who can present facts evidencing the failure and disqualification of the testator. Call Stephen Bilkis today for advice and a free consultation.

Posted On: March 12, 2012

Will Contest Involving Several Properties

This is a will contest involving several properties. One of the parties is Mrs. A, the wife of the decedent, the others are the two named preliminary executors identified in the will, the guardian ad litem of the minor child of the decedent, and lastly Mrs. B, the other wife of the testator. Both women claiming to be the wife of the decedent contested the status of the other and it was not clear as to what decision was made by the Russian court where the dispute was filed.

A New York Probate Lawyer said the court in this case is faced on one hand by a miscellaneous proceeding and on the other by the issues surrounding the probate of the will of the decedent. In the miscellaneous proceeding, Mrs. A filed a motion to restrain the directors and officers of corporation owned by the decedent from selling the properties of the said corporation and also for the granting of limited letters of administration to her by the court. The executors who were at odds with her also moved for the authority to sell the contested property of the company. In this regard, Mrs. A filed a cross-motion asking for several relief related to the corporation as well as for the distribution of the properties as directed by the will of the decedent. In the application for the settlement of the properties of the decedent in the court, Mrs. A also contested the assignment of the executors. The preliminary executors filed a motion in this regard and moved that the objections of Mrs. A regarding their assignment be dismissed.

Oral arguments were received by the court from both parties for the miscellaneous proceedings and after deliberations, the court lifted the TRO and allowed the executors to sell one of the properties owned by the corporation and to start the process for the sale of a piece of real estate property also owned by the corporation. New York City Probate Lawyers said Mrs. A vehemently objected to the sale of the real estate property and a number of conferences were made to settle the differences between the parties. Though there was a settlement agreed upon between the parties, the same was not properly signed and the preliminary executors later on told the court that the property has a buyer and the same is ready for sale. The court gave the executors the permission to sell the contested property.

After selling the real property, the preliminary executors then moved to sell another real property this time the building occupied by Mrs. A and the son of the decedent. The preliminary executors argued for the necessity of selling the said piece of real property in order to settle the estate administration expenses. They reasoned further that Mrs. A has been occupying the property without paying any rent. They argued also that the decedent gave the corporation a $7M loan and as such, the same must be paid by selling the property because the said amount forms part of the estate of the decedent. The preliminary executors also moved at this instance to admit the will for probate.

Mrs. A opposed the motion filed by the preliminary executors by questioning the veracity of the said loan as well as the arguments presented by the other party. Mrs. A agreed that the will should be probated but she disagreed that the preliminary executors be assigned by the court officially and offered herself s their replacement instead. Long Island Probate Lawyers said the guardian ad litem on the other hand also opposed the sale of the real property in question because other properties have already been sold and that it is unclear whether the proceeds of this later sale would still be needed for the settlement of other payables incurred by the court proceedings.

In ruling on the estate litigation before it, the court declared that given the conflicting claims of all the parties, there is a need for further hearing in order for the court to determine fully the claims of the parties. Consequently, the court ruled that the request for the probate of the will is granted but the issuance of letters of administration and to whom it shall be granted will be decided later.

If you have a probate issue, including a will contest, estate litigation or probate litigation matter, speak to Stephen Bilkis and Associates for advice and a free consultation.


Posted On: March 11, 2012

Court Rules on Will Contest Between Close Friends

This is a will contest involving not relatives but unrelated parties. The case stemmed from the will submitted for probate. The will that was executed by the decedent gave a very substantial amount to an alleged very close friend. Prior to this, several wills were also executed by the decedent and each time, the share of that special friend grew bigger in the will. The decedent came from a wealthy family and inherited a lot of money and businesses together with his two brothers. The business that they inherited was managed by his brother while the decedent did not want to venture in business and just enjoyed the share that he has in the family business managed by his brother. The other brother of the decedent was an invalid and therefore could not join in the management of the business and also relied on the other brother for the management of the affairs of the said business.

While alive, the decedent found a person who became his very close friend and confidant. They lived together, toured together, lived a lavish lifestyle together all at the expense of the decedent. Several business ventures were started at the behest of the special friend using the money of the decedent but none of the said business made money. During the course of the lifetime of the decedent when they were together, the special friend controlled the affairs of the decedent and made decisions apparently with the permission of the decedent.

A New York Probate Lawyer said the special friend during this time tried to be close to the family of the decedent with the brother in particular who manages the business but to no avail. He was not able to earn the good graces of the brothers of the decedent and this disappointed him as evidenced by letters that he made to the decedent and presented to the court during the proceedings.

When the will was presented to the court for settlement of the estate of the decedent, it was opposed by the brothers of the latter on the ground that the will is dubious with its content having been changed several times to favour the appellant. There were allegations that the special friend had a hand in its writing considering that he had allegedly complete control of the affairs of the decedent while alive. This allegation was bolstered by the testimonies of their employees who were able to make that impression while they were working for the decedent and the said special friend. Long Island Probate Lawyers said that they testified that the special friend was the one who directed the affairs of the house as well as the business of the decedent.

The special friend who is the appellant in this case, denied any hand in the affairs of the business of the decedent particular with regards to the making of the will. He even denied that the existence of the last will purportedly executed by the decedent came to his knowledge only when it was presented for probate in the lower court. Despite the claims of the herein appellant, two of the juries ruled that there was undue influence hence the proceedings for estate administration was stopped. The special friend appealed and a divided appellate court reversed the order of the lower court and ordered a new trial.

On appeal to the Supreme Court, the appellant claimed that there was no clear proof for the existence of undue influence on his part and that the will is in order. The higher court looked at the estate litigation from all possible angles, all the circumstances of the relationship between the appellant and decedent, the testimonies given by both parties, as well as the documentary evidence presented, the court ruled that there was indeed undue influence exercised by the appellant over the decedent . New York City Probate Lawyers reported that the decree denying probate of the will by the lower court is affirmed.

The construction of a will needs to be done by an skilled attorney to make sure that it is in order. When the will is presented in court, there is also a need to be assisted by legal counsel. These matters are unavoidable and almost always come sooner or later. Stephen Bilkins and Associates have lawyers who can help in matters of wills and other property settlements. Call them and know your rights.

Posted On: March 11, 2012

Court Decides Will Contest Between Siblings

A 91 year old man died in a nursing home in Westchester County on December 10, 2003. He was survived by his three children: a daughter and two sons. His will provided that his real property in Suffolk County be devised to his daughter; he bequeathed the amount of $50,000 to his youngest son and lastly he bequeathed his residuary estate and personal properties to all his children in equal shares. He also provided that his bank accounts which were held jointly by the 91 year old man and his children shall form part of the estate assets and shall not pass to his surviving co-depositor.

The will was executed before the testator’s long-time lawyer and his office assistant. Both the lawyer and his office assistant were attesting witnesses to the will.

In 2004, the eldest son objected to the probate of his father’s will on the ground that the will was procured by his sister with fraud and undue influence on their father. He also testified that the letters testamentary issued to his sister be revoked as she had caused around $300,000 to be withdrawn from their father’s account and transferred to her own personal account.
Both the sister and the older brother applied for the issuance of letters testamentary. A New York Probate Lawyer said that the Surrogate’s Court urged the parties to stipulate to the temporary appointment of a public administrator.

The older brother asked that he be allowed to examine the attesting witnesses to the will to determine the due execution of the will. According to Westchester County Probate Lawyers he also asked that the lawyer who prepared the will be required to produce certain documents that will prove the extent and value of his father’s estate at or around the execution of the will. He also asked that his sister and her husband be summoned to produce documents referring to the transfer of funds from their father’s estate to his sister.
The lawyer and the brother-in-law refused to appear and be examined and they also refused to bring certain documents. The lawyer claims that attorney-client privilege prevents him from disclosing documents and transactions of the testator. The brother –in-law refused to comply because he was not a party to the probate petition and cannot be made to appear and participate in the proceedings.

The Court held that disclosure of information is required when the information sought is material and necessary to the issue in the case. Disclosure in probate proceedings is broad and it allows the court to inquire into matters which form the basis of an objection to a will.

In this case, the older brother has shown that there are special circumstances not only to examine witnesses but also to require the production of documents relating to the properties and assets of the estate. NY Probate Lawyers said the lawyer and the older sister cannot claim refuse since they enjoyed a confidential relationship with the testator. This confidential relationship is what is claimed to have been abused by them to thwart the wishes of the testator. As things stand, the documents and information sought to be obtained are not only relevant and necessary, but they are also cannot be obtained from any other source. For this reason, the lawyer, the older sister and her spouse are ordered to comply with the disclosure requirements and to bring to the Court the documents enumerated in the subpoena issued to them.

The job of an attorney in contesting the probate of a will requires an interested person to obtain information through documents and through testimony regarding the testamentary capacity of the testator. A attorney can also help find documents that will prove the extent of the estate and its properties. Contact Stephen Bilkis and Associates for guidance and a free consultation.

Posted On: March 11, 2012

Court Determines if Bequest to Lawyer is Allowable

An old bachelor in New York died. In his will, he named eleven cousins of his as his distributees. As he had no children of his own, he bequeathed his entire estate to his tax lawyer. The tax lawyer was a resident of New York but he had relocated to the state of Georgia.

Prior to leaving New York, he had been doing the taxes for the old bachelor and they had cultivated a friendship. This friendship lasted for forty years. Even when the tax lawyer was already living in Georgia, he still did the taxes for the New York bachelor and kept in touch with him.

The tax lawyer testified that his friend and client called him up in Georgia to inform him that he was leaving his entire estate to him. The tax lawyer then advised his friend to find a lawyer who will draft the will for him. The old New York bachelor found a lawyer in New York who drafted the will for him. This lawyer has also died. A New York Probate Lawyer reported that the tax lawyer testified that he did not recommend the lawyer to his friend and that he did not personally know the lawyer who drafted the will nor has he had professional dealings with the lawyer who drafted his friend’s will.

The tax lawyer also testified that he had no part in the preparation of the will; that he had no part in the execution of the will; and was not even present when it was executed by his friend.
The tax lawyer asks that the will of the New York bachelor be admitted to probate. Not one of the eleven cousins of the old New York bachelor objected to the probate. Some of these cousins cannot be located. The Surrogate’s Court had appointed a guardian for these distributees.

The guardian for the distributees who cannot yet be located is also a lawyer. He asks that he be awarded payment for his services as guardian. He interposed a claim for $4,000.00. A Staten Island Probate Lawyer said he claims that he gets paid an hourly rate of $250 and he has spent 16 hours in working on this case as guardian for the distributees whom he is still trying to locate.

The only questions before the Supreme Court are: whether or not the guardian should be paid for his services; and, whether or not the bequest of the entire estate of the New York bachelor to his tax lawyer is proper.

The Supreme Court ruled that when a beneficiary of a will is a lawyer of the testator, the lawyer must explain why and how the bequest was made to him. This will put to rest and question as to undue influence which may have been exerted by the lawyer. Bronx Probate Lawyers said the Court ruled that the lawyer-client relationship is a confidential relationship and the law demands that the lawyer explain why the bequest was made.

Since it is clear that the bequest was made by reason of the long friendship between the testator and the tax lawyer; and that the tax lawyer had no participation at all in the preparation of the will or its execution, then the bequest has been explained to the Court’s satisfaction.
As for the guardian’s claim for fees for its services, the Court finds that it is reasonable. There is no specific rule to calculate the compensation due to the lawyer, the circumstance of the case must be viewed. Since the estate is sizeable and the guardian’s claim is what most lawyers claim for this type of legal services, the Court found the guardian’s claims reasonable and ordered that he be paid the $4,000 he had claimed.

Even when there is no objection to the probate of a will, the person seeking the probate of the will must still present evidence on three matters: the due execution of the will in compliance with the legal requirements; the testamentary capacity of the testator at the time of the execution of the will; and the lack of undue influence or fraud in the execution of the will. A lawyer can present testimonial and documentary evidence on these matters. An attorney can show that the will should be admitted into probate and that the estate should be distributed in accordance with the wishes of the testator. At Stephen Bilkis and Associates, our legal team available and willing to help present your evidence. They can argue in your behalf to make sure that the valid will can be probated. Call Stephen Bilkis and Associates and schedule a free consultation today.

Posted On: March 10, 2012

Court Rules on Will involving Same Sex Marriage

A man married his same-sex partner in Canada in June 2008. He then executed a last will and testament two months later on August 12, 2008. In that will, he made three bequests to his three brothers and he also made a bequest to his goddaughter. He left the residue of his estate to his same-sex partner. He named his same-sex spouse as the executor of his estate.

In December 2008, the testator died. His same-sex spouse, who was also named executor of his will filed the petition for probate of his deceased spouse’s will. He served the three brothers and the goddaughter with notice of probate. In his petition, he claimed that he is the surviving spouse of the testator and the sole distribute.

Three days after filing the petition for probate, the Surrogate’s Court of New York granted the petition for probate without issuing citations.

In its ruling dated January 26, 2009, a New York Probate Lawyer said the Surrogate’s Court granted the petition for probate and also issued an opinion where it named the same-sex spouse as the testator’s surviving spouse and sole distributee. The Surrogate’s Court opined further that since the person petitioning for probate of the will is the surviving spouse and sole distributee, the Surrogate’s Court does not need to issue a citation to anyone else. In that opinion as well, the Surrogate’s Court found that the testator’s marriage to his same-sex spouse is considered valid in New York because it is a valid marriage in Canada. The Surrogate’s Court then recognized the same-sex marriage as a valid marriage for the purpose of distributing the estate to the surviving spouse of the testator.
Five months after this ruling was issued by the Surrogate’s Court, the brother of the testator appealed this opinion and ruling of the Surrogate’s Court. He asked that the ruling admitting the will into probate be vacated and that he be allowed to file objections. He asserted that the Surrogate’s Court had no jurisdiction to grant probate without issuing citations to the testator’s surviving brothers. He also asserted that the Surrogate’s Court has no jurisdiction to recognize the same-sex marriage of the testator to the executor as a valid marriage because same-sex marriages violate public policy.

The Supreme Court upheld the Surrogate’s Court’s ruling. Westchester County Probate Lawyers said it ruled that since the will’s only distributee is the same person who prayed for the admission of the will into probate that alone is sufficient to admit the will into probate. And further, the same-sex spouse of the testator was correctly declared to be the surviving spouse.

The laws of New York recognize marriages which are celebrated in other states: if a marriage is valid in the state where it was celebrated then it shall be recognized as valid in New York. The only two exceptions to this are: that the marriage is contrary to the prohibitions of natural law or the express prohibition of a statute. New York City Probate Lawyers said that since the same-sex marriage is not prohibited by natural law ( as when the marriage is incestuous) and there is no express prohibition of same-sex marriage in New York (no law in New York prohibits same-sex marriage), then the Surrogate’s Court was correct in holding that since the same-sex marriage celebrated by and between the testator and the executor in Canada is considered by Canada as a valid marriage, then New York must also consider it as a valid marriage. Accordingly, the ruling of the Surrogate’s Court admitting the will into probate is upheld by the Supreme Court.

Contesting a will is difficult and it may involve the application of the rules on marriage as in this case. You need a lawyer who can help you contest a will on all available grounds. Stephen Bilkis and Associates are available for consultation. They can inform you of your legal options so that you can make an informed choice.

Posted On: March 10, 2012

Court Decides Jurisdiction Issue in Will Contest

A citizen of the United States had been residing in Mexico City. She had substantial properties in New York and in Mexico. In May 1965, she executed a will in New York disposing of all her properties wherever they may be found. She also provided that it is her intention that her will be probated in New York and that he estate by conducted under the jurisdiction of the State of New York. The residuary estate was bequeathed share and share alike to two friends in Brooklyn and in Texas. The will also stated that all taxes and penalties which the executor shall be required to pay should be paid out of her residuary estate without apportionment.

Eight months after the testator executed her New York will she executed a notarial will in Mexico in January 1966. And then in August 1966, she executed a second notarial will in Mexico.

The first will in Mexico provided for general legacies expressed in Mexican pesos and then she instituted as her sole heirs, three residents of Mexico City who all get one-third share in her estate after deducting the legacies. The second will in Mexico was a codicil. It revoked one general legacy. A New York Probate Lawyer said the naming of the three sole heirs was changed: only one was sole heir, the rest were heirs in equal parts. Both Mexican wills were silent about the New York properties and both were silent about the liability of the properties in Mexico to answer for estate taxes in the US.
The testator died in April 1967. Her New York will and the two Mexican wills were offered for probate in New York in accordance with the wishes of the testator. English translations of the wills written in Spanish were also offered as accurate translations of the original wills executed in Mexico. The probate court of New York admitted all the wills into probate, ruling that all three wills constituted the last will and testament of the testator.

After this, letters testamentary were issued to a bank which was named the executor of her estate. The executor paid all the taxes due to the Internal Revenue Service from the New York residuary estate as it is provided for in the will.

The friend of the testator from El Paso, Texas who was named as a beneficiary in the New York will objected to the executor’s payment of taxes in full to the IRS. He contends that the taxes to the IRS should have been paid in equal shares from the properties of the Mexican as well as New York estate. He claims that it is unfair that his share in the residuary estate will be reduced by so much to pay for all the taxes when the estate in Mexico passes to the heirs in Mexico tax-free.

NYC Probate Lawyers said the Court however made these observations: it is common for Americans who have properties in different countries to make several wills. Each will, executed in a different country disposes only of the properties found in that particular country. The testator’s intent in all of the documents is clear: the New York will disposed of the estate’s properties which are found in New York and included the provision as to where to find the funds to pay for the estate taxes. The Mexican wills both disposed of the properties of the estate in Mexico.
Although the New York will stated that that will disposed of all the properties of her estate wherever these may be found, the provisions of the New York will only speak of and disposed of her properties located in New York. Manhattan Probate Lawyers said this only means that while in making her will the testator was fully aware that she had properties in Mexico, she meant the New York will only to dispose of her properties found in New York.

As far as the objection about the greater tax burden on the New York estate, it is clear that the testator has laid the tax burden on her properties in New York. The testator was free to distribute her properties in any way she saw fit, and this includes giving the distributees and heirs in Mexico the benefit of receiving bequests without a tax burden. Although it is indeed unfair, it is the testator’s wishes that the taxes be paid out of her residuary estate properties in New York only. She specifically stated that the New York residuary estate shall be responsible for paying the taxes and that the tax burden shall not be apportioned.

Getting a will admitted into probate is just the first step in securing the rights of a beneficiary in a will. The executor’s acts in collating the properties and in paying the expenses of administration may be questioned by any beneficiary especially when it reduces or diminishes the value of the estate. A skilled lawyer can ensure that the value of the legacy or bequest you inherit will remain intact. At Stephen Bilkis and Associates, our legal team is ready and able to pour through the accounting made by executors to ensure that your legacy or bequest is intact.

Posted On: March 9, 2012

Authenticity of Will Questioned

A postal worker had written and signed his will and testament. Two competent witnesses attested the document. He named his niece by marriage the only heir of his estate. The will was brought to an estate litigation court for probate.

One of his relatives by blood objected the will on reasons that the will was done without comprehending what the meaning of his words in the will was. In denoting his niece by mother, he was without any distinction of the exact piece of possession to be transferred to her.
The Estate Administration courts nominated his wife’s niece as the person who will receive his properties subject of the will.

A New York Probate Lawyer said that the court appointee who wanted to protect an unknown ward opposed the court’s action and asked the court to withdraw its decision. He further questioned the nomination of the wife’s niece. He claimed that testator have not acted full employment of his faculties when he named his wife’s niece his only heir where in fact no blood relationship bind them. His estranged use of legal terms such as heirs, legatees and distribute showed personality changed showing lucid intervals which stopped him of writing the will. The appointee asked for summary judgment on reasons that the decedent lacked testamentary capacity on the basis that he demonstrated a deficient grasp of his entire bounty when he assigned his estate to a person not his biological children.

However, the truth was established that indeed his misused legal words to identify family relationship did not constitute a deficiency of his ability to understand the general meaning of the contested will. The period of familiarity involved deepens the relationship and devotion to each other. There were the presence of reciprocal admiration of love, care, and comfort between the decedent and his wife’s niece. The decedent's intention was to provide them mutual affection even though they were not his real children.

The named heir, their witnesses and with the help of estate administration lawyers proved their cause and refused to admit the allegations as true against the decedent. Nassau County Probate Lawyers said that even if it was specified that decedent was affected by old age, physical infirmity, and progressive deterioration of intellectual faculties such as memory, concentration, and judgment resulting from an organic disease or a disorder of the brain did not make it possible to found out that the decedent was emotionally disturbed.

The estate administration courts established that all the relevant times, and those shared by the witnesses including the time when the will was executed, the decedent possessed the capacity required to make a will. Estate litigation court firmly believed that the testator was of sound mind and memory when he executed the will. The probate court transcript was devoid of any proof that at the date of the execution of the propounded instrument, decedent was incapable of handling his own affairs or lacked the requisite capacity to make a will.
The motion for summary judgment dismissing the objection based upon a lack of testamentary capacity was granted by the probate court.

Another issue raised by the court appointee against the decedent was the authenticity of his will in litigation for it is seemingly different from prescribed legal procedure when he wrote his signature on the contested will on mistake. Due execution required that the proposed will be signed, a signature to be affixed on the will in the presence of the attesting witnesses, and the testator should make a public announcement on the presence of witnesses that he indeed executed his own will. The open gesture of the testator supported his willingness to follow a prescribed course of action of state regulated customs and rules. It was supported by affidavit that the will was executed in compliance with statutory formalities.

No factual basis had been offered for questioned due execution of the will, the estate lawyer’s supervision of decedent’s will sign ceremony created a presumption that the decedent properly executed his last will and testament.

Queens Probate Lawyers said that an attempt to remove a designated legatee on the issue of Lack of testamentary Capacity of a decedent and Undue execution of a will may disregard the true intention of the testator and harm a rightful heir.

Litigation lawyers were trained overtime to make sure you would win your case on their hands. They will move with high force all the faculties just to defend your cause. You will always be satisfied of their services. They make it sure that they have served their client beyond what is being expected.

Contact Stephen Bilkis & Associates for advice and a free consultation today.

Posted On: March 9, 2012

Court Decides Will Jurisdiction Issue

An 89-year old woman had retired and had been living in Florida. But, she executed a will in New York in front of witnesses who were from New York. Seven months after executing her will, she died in New York and was buried in New York.

The will contained about 50 legacies and the establishment of several trusts. Although the will was executed in New York, it was drafted by a lawyer from Florida. The will named four executors: one of her sons who lives in Arizona, her accountant who lives in Florida, a niece by marriage who lives in New York and the son of the niece who lives in New Hampshire. A New York Probate Lawyer said the will did not specifically include her desire to have her will probated or her estate administered in New York or under its laws.

The estate of the testator consisted of 100% ownership in a corporation in New York and her residence (house and lot) in Westchester County. Her estate is valued at $28,000,000.
In December 2004, probate proceedings were already begun in Florida. The testator’s son, her accountant and her niece by marriage and the niece’s son all applied to be executors of the estate. A New York Probate Lawyer said the grandson of the testator also filed an objection to the probate of the will challenging certain legacies and trusts for vagueness, indefiniteness and for undue influence. A week later, the Florida Probate Court issued preliminary letters testamentary to the son and to the accountant for them to make an inventory of the assets and pay administration expenses.

Notwithstanding the existing probate proceeding in Florida, the niece by marriage and the niece’s son both filed probate proceedings in New York. They claim that the Surrogate Court of New York has a better right to hear the probate petition since the will was executed in New York before witnesses who reside in New York; the testator died and was buried in New York; the assets of the estate are all in New York; some beneficiaries under the will are located in New York; and more importantly, the probate laws of Florida discriminate against the niece by marriage and the niece’s son. They claim that they were not allowed to act as executors by the Florida probate court because they were not related by blood to the testator and they are not Florida residents.

The only question before the Supreme Court is whether or not the Surrogate’s Court of New York should take jurisdiction over this petition for probate.

The Supreme Court explained that the Surrogate Court of New York has jurisdiction to admit to original probate a will executed by a non-resident of New York if at the time of the death, the properties of the estate are physically located in New York. According to a Staten Island Probate Lawyer, when the state where the testator was a resident has already admitted the will into probate, the Surrogate’s Court of New York cannot admit that same will into probate except if the Surrogate’s Court of New York is satisfied that the probate in another state is expensive, inconvenient or impossible; where the testator has directed in her will that her will be probated in New York; and where the laws of the state where the testator was a resident discriminates against residents of New York and prevents them from acting as fiduciaries (executors) or beneficiaries.

The Supreme Court resolves that the Surrogate’s Court’s acceptance of an application for original probate of a will of a non-resident of New York is entirely discretionary on the part of the Surrogate’s Court. That is to say, the Surrogate’s Court is free to decide, at its discretion, whether to proceed with the probate proceedings.

But the Supreme Court also ruled that in this case, New York should not hear the probate application on the grounds asserted by the niece by marriage and the niece’s son. The Court ruled that even if they are denied the nomination as executors, there are still two executors named in the will who are allowed to be named as executors. Also, the Florida Probate Court has already entertained a probate proceeding; objections have been filed; and discovery demands have already been filed in Florida. Suffolk County Probate Lawyers said it would be too costly and too cumbersome to all the parties to litigate these same objections in two courts. An anomalous condition will result if the Florida Court and the New York court will have two different findings. Most importantly, the niece by marriage and the niece’s son have not been able to demonstrate that they have been denied by the Florida Court of their right to defend against the objections filed in Florida.

For these reasons, the New York Court declined to hear the petition for probate of the will.
Admitting a will in probate requires meticulous presentation of evidence. A probate Lawyer is trained to present all necessary facts on the due execution of the will, on the testamentary capacity of the testator and lack of fraud and undue influence. The legal team at Stephen Bilkis and Associates is ready to assist you in presenting the evidence to ensure that a will is admitted to probate. Come for a free consultation at any of the offices of Stephen Bilkis and Associates in the New York area.


Posted On: March 8, 2012

Court Decides Trust Income Issue

An uncle who lived in Connecticut died in March 1936 and in his will which was probated in Connecticut he created a trust for his nephew who lived in New York. The uncle deposited a certain amount of money with a bank. From this trust account, the bank will pay one-third of the income or interest earned by the trust fund to the nephew until he died.
The uncle’s will provided that the trust agreement between his estate and the trustee bank gives the trustee bank the right to pay itself a commission each time it makes a payment of income to the nephew.

The trustee bank made several payments of interest income from the trust fund to the nephew over the years. But several times, it had made payments of income without reserving a small amount corresponding to its commissions.

A New York Probate Lawyer said that periodically during the term of the trust, the trustee bank made accountings of the payments of interest income to the nephew. It reported that although payments had been made, it failed to deduct from the interest income the amount corresponding to commissions for the trustee bank which was allowed under the trust agreement between the trustee bank and the uncle’s estate.

From the accounting that was submitted to the Connecticut court, it showed that in December 1974, all of the trust fund and the income of the trust fund had already been paid to the nephew. In effect, there was no more source of cash in the hands of the trustee to pay out the commissions which were allowed. In its final account, the amount of commissions that the trustee bank wanted collect from the nephew was $1918.00. This represents the commissions it should have deducted from the interest income payment paid to the nephew.

The Connecticut court made the findings that the trustee bank had a right under the uncle’s will to deduct commissions for itself whenever it makes interest income payments. The Connecticut court also made a finding on the amount of commissions claimed. It also found that the commissions should be claimed from the nephew as overpaid interest income.
Manhattan Probate Lawyers said that the problem was that the Connecticut court’s decision ordered the filing of the accounting submitted by the trustee bank to be filed with the Connecticut court. The nephew was not ordered to pay although the Connecticut found that he was liable to return the amount of interest income that was overpaid.

The nephew died in January 14, 1976. During the probate proceedings in New York for the nephew’s will, the trustee bank came and asserted its claim against the estate of the nephew. It is the trustee’s assertion that its right to commissions that was granted in the will of the uncle was recognized by the Connecticut probate court. The amount of payments made to the nephew was also determined by the Connecticut probate court and the corresponding amount of commissions it was entitled to.

At the New York probate proceedings for the will of the nephew, the trustee bank wanted that the Connecticut Probate Court’s decision be enforced as a lien against the estate.
The New York Surrogate’s Court refused to enforce the Connecticut Probate Court’s Order because the Order of the Connecticut Probate Court did not order the nephew or the estate of the nephew to pay the commissions owing to the trustee bank. The only “order” contained in the Order of the Connecticut Probate Court was for the accounting document to be recorded and kept in file with the Connecticut Probate Court. The New York Surrogate’s Court found that there was no order for the payment of commissions from the estate of the nephew.

The Supreme Court now asserts that the Constitution of the United States calls on all states to give full faith and credit to all public acts, records and judicial proceedings in all other states. The State of New York enacted a statute that establishes the procedure for proving and enforcing orders of other courts in other states in the State of New York.

The Uniform Foreign Judgment Acts provides that a foreign order or decree may be filed within 90 days of its authentication in any county clerk in the state of New York. Queens Probate Lawyers said that the party seeking to authenticate the foreign judgment must also execute an affidavit that the foreign judgment or decree was not obtained by default of confession of judgment and is still unsatisfied and its enforcement has not yet been stayed; the affidavit must also state the last known address of the judgment debtor.

The Supreme Court found that when the Connecticut Probate Court heard the trustee bank’s claim for unpaid commissions, the executor of the estate of the nephew was not given notice of that hearing so the executor failed to attend the hearing. It turns out then that the Connecticut Probate Court’s order which is now sought to be enforced within the state of New York was obtained by a default. As such, it cannot be enforced as is in New York.

The Court upheld the Surrogate Court’s ruling to allow the parties to submit a stipulation of facts and proceeded to decide the question on the basis of the stipulation of facts. The Court resolved to apply the laws of New York to the question of the unpaid commissions.

Under New York laws, when the trustee has paid out all the interest income of a trust fund, it is deemed to have waived its right to be paid a commission. When the trustee paid out all of the amounts in the trust fund itself without deducting from the proceeds of the trust fund the commissions it should have earned, the trustee is deemed to have waived its right to be paid the commissions.

Probate proceedings often become complicated when income from trust funds form part of the properties of the estate. A lawyer must navigate through the legal issues using statutes that deal with conflict of laws. The lawyer you choose must be trained in knowing which statutes to apply. At Stephen Bilkis and Associates, our legal team is willing to help you determine which statutes favor your claim.

Posted On: March 8, 2012

Petitioner Disputes Will Jurisdiction

The deceased was a French national who became a citizen of the United States. She stayed in New York for thirty years. Brooklyn Probate Lawyers said that during such time, she was employed as a secretary in a law firm. She returned to France as indicated in her residence card. The deceased left assets in New York which consisted of bank and brokerage accounts. She also had real properties in France consisted of an apartment and the personal properties therein. The estate administration was granted to the persons named in the will of the deceased.

The estate litigation in this case sprung from the provisions contained in the two wills, namely, the “French will” and the “New York will” recited that the deceased elected that her will be admitted to original probate in accordance with the laws of New York. Among the dispositions included, among others, the deceased’s life interest in her apartment in France, including the personal and household effects therein. The beneficiaries were her adopted son and friends, and a “mutual aid society.”

The adopted son had a will contest, disputing the jurisdiction of the New York court to allow the will, asserting the question concerning the conflicting laws as to which must govern in the disposition of the properties of the deceased.

A New York Probate Lawyers said that according to the court, the will of a non-resident may be allowed when it operates upon properties in New York. However, a will which has been admitted at the home of origin, will not thereafter be admitted in New York. The exception to such exception is where the deceased directed in the will that it shall be offered in New York. In the case at bar, the will of the deceased was admitted at her home of origin but it may also be in New York considering that she has directed such provision in her will. She left assets located in New York which constituted a substantial portion of her assets. This is an important factor bearing on the exercise of New York court’s discretion to entertain jurisdiction over a non-resident.

In the case at bar, the adopted son was from California and a citizen of the United States. The only interest attributable to France which concerned him would be an interest in his protection presumably stemming from his claimed French citizenship. Such interest is subordinate to the interest of New York in effectuating the intention of the deceased and in implementing the statutory provision which permits a testator to invoke New York law to govern the effect of his will.

The deceased had a substantial connection with New York where she lived for thirty years. She was employed in New York and when she moved back to France, she left her assets in New York, where they remained during the seven years before she died. Nassau County Probate Lawyers said that in eminent authority in the field of law suggested that in a situation where both jurisdiction, that is New York and France, have an interest in the application of their local law, the law of the place of the court where the case is being decided should prevail. Said authority made it at least possible that the decedent's evident intent to bar her son and to have the courts of New York pass upon the efficacy of her attempt to do so must be served to the maximum degree possible. No inconvenience was occasioned to the parties since the son resided in California not in France. To decline jurisdiction and thus postpone to French law the administration of the assets which decedent deliberately left here in New York disserves her evident desire to have a New York lawyer and a New York corporate custodian administer her estate, since the person responsible for would presumably have no authority to act under French law. Thus, the motion filed by the son was denied.

Being confronted with issues as in the case at bar is indeed a challenging endeavor. Several cases decided upon by the court would reveal that cases involving the conflict of several laws entail complicated facts and issues, thus, it is indispensable to hire the expertise of a lawyer who has a wide experience on the field of lawsuit. Stephen Bilkis and Associates is always on the go to provide you with utmost assistance with all your litigation needs. It can offer you a seasoned New York probate lawyer or a New York will contest lawyer perhaps, to defend your case before the court. Rights must always be upheld against all costs and the rule of law must be complied with at all times. This is the mandate that Stephen Bilkis and Associates is always espousing of.

Posted On: March 7, 2012

Court Determines Authenticity of Will

Testator in his lifetime had written a will and testament. Upon his death, nine loved ones who he intended to divide his assets to them outlived him. In the instrument, he named his wife and eight children as heirs of his bounty. The instrument was brought to court for litigation. Estate litigation lawyers represented all parties. It was the surviving spouse who brought the will to court for probate proceeding. Attorneys acting in lieu of decedents children questioned the contested will. They alleged failure of the wife to prove due execution and genuineness of the will. The contents of the instrument displayed fraud, intentional representation of material existing fact, and an outside pressure was used which negate the free will of the testator so that the maker of the will lack the necessary mental capacity in making said instrument valid.
Witnesses to the will in favor of the children testified, that in their control were duplicates of the will and testament. The said instrument was attested in the presence of eligible witnesses and their estate lawyers. They testified that the instrument under which they safe kept was an identical copy of the original will made by the decedent. The instrument then was submitted for examination and was granted by the probate court.

New York Probate Lawyer said the eight children of the decedent, represented by their estate lawyers then filed a motion for summary judgment before the estate administration courts wherein they seek an order denying probate of the supposed last will and testaments submitted by the wife. In support of the motion, affirmations from other witnesses were also forwarded to estate litigation courts such as additional memorandum of law and reply memorandum.

In opposition to the motion for summary judgment, the surviving wife of the decedent had filed affidavits, and brought to estate litigation courts a forensic document examiner to prove that she submitted an authentic will. Her lawyers firmly believed that the submitted motion was improper because there was no question of fact that required resolution by courts. Brooklyn Probate Lawyers said they attested that to succeed on a motion for summary judgment, the decedent’s children had to make the complaint legitimate. The issue had to show an entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the matter was admissible in form and sufficient in substance to establish the existence of a material issues of fact then a trail of action will proceed.

Decedent’s wife had the burden of proof to display in court due execution of the last will and testament of her husband. According to a provision of law, at least two of the attesting witnesses must be produced before the courts examine the written will admitted to probate.
The self-proving affidavit of witnesses for the wife did not recite all the elements necessary to establish due execution.

All the witnesses for the children testified that the assumed will presented by the wife were in a font not used in their law office, that the font did not match the attestation, and that the documents submitted for probate were not the will prepared and executed by the testator in their law firm. They also affirmed that the contested will was not the document they witnessed and attested. The witnesses of the decedent’s children certified that the document submitted for probate were not the document they prepared and witnessed to be the true will and testament of the testator.

The court noted that the attestation clause contained not the true intentions and writings of the testator. Bronx Probate Lawyers said the estate administration courts found out that the lawyers for the decedent’s children had properly convinced them that there was prima facie burden to believe, so that as a matter of law they were entitled to judgment denying probate.

The wife of the testator was not able to convince the court on the authenticity of a will assumed to be prepared and written by her husband.

Stephen Bilkis and Associates have all the intellectual faculties to aid you, assist you in to the fullest, will not stop on working with you and your case until your true.

Posted On: March 7, 2012

Court Decide Status of Guarden ad Litem

The probate courts have reviewed an agreement between parties regarding settlement of estates, which was skillfully done by a highly trained court appointee to take care the personal and property interest of one of decedent’s sister who was sick.

Decedent had written a will. In his will, he named his heirs and also named his properties to be freely disposed. He had four siblings still leaving that will receive his bounty and become his beneficiaries to enjoy the continues use, possession and enjoyment of his estate.

The instrument has given all of decedent’s property to his sisters in three equal shares, two of which pass to decedent’s sisters. The will directed that the third equal share be paid over to decedent’s niece. The sick sister rejected this, because as decedent’s sister she had to her share from her brother’s estate. A New York Probate Lawyer said when the formal application was presented to institute an appeal regarding the share of decedent’s surviving sick sister, the court have taken its course.

Estate administrator courts were satisfied with the accomplishment of the guardian ad litem toward his ward. Appointed probate lawyers discovered that one of the siblings had established joints accounts using a power of attorney executed by decedent. He furthered learned that the contents of the will had been prepared based on telephone instructions from an attorney, and that a lawyer had not supervised the will execution. Additionally, based upon information discovered by the guardian ad litem, which included medical records, serious question were raised concerning decedent’s competency at the time the will was executed.

The appointed guardian ad litem on behalf of his ward communicated his potential objections to the of the estate layers of other three siblings who attempted to defraud the true intention of the testator as provided in the wills and testament submitted to probate courts. Both lawyers sit down and discussed matters of negotiation. At the end of the meeting, the two estate lawyers agreed. A Staten Island Probate Lawyer said the stipulation provided that the three other siblings would pay his ward out of their own personal money. The so-called documents would be admitted to probate courts without any effect on distributions to be made under the will. The guardian ad litem calculations reflected that the settlement amount payable to his ward closely mirrors her intestate expenses which would have been incurred by the estate had the matter not been successfully settled. A settlement was set and was approved by the courts.

Because of the guardian ad litem intellectual devotion to his profession, he won the case and received positive remarks. He rendered his services at par. The estate litigation courts named his ward in the letters testamentary.

Estate administration courts were satisfied of the professionalism of their appointees in probate proceedings. They take responsibility on approving fees charged to an estate. They have the good judgment to determine what composed reasonable payment for legal services rendered in the course of the administration trial of an estate.

The estate administration courts have fixed the fee of the guardian ad litem. The parties involved have consented for the fee. While there were no hard and fast rule to calculate reasonable compensation to an attorney in every case, the estate litigation courts were required to exercise their authority “with reason, proper discretion and not arbitrarily”.

In evaluating the cost of legal services, the probate courts considered number of factors. Included were the following: the time spent, the complexity of the questions involved, the nature of the services provided, the amounts involved, and the benefit resulting from the execution for such services, the lawyer’s experience and reputation, and the customary fee charged by the Bar to similar services.

In discharging the duty to review fees, the estate litigation courts cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set first by law. Also, the legal fee must bear a reasonable relationship of the size of the estate and to the interest of the ward of the guardian ad litem. Moreover, it was well settled that time spent was, in fact, the least important factor considered by probate courts in fixing reasonable compensation. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem was in additional consideration, the fee of a guardian ad litem was an administration expenses of an estate and was paid from the estate assets.

In addition, the legal fee must bear a reasonable relationship to the size of the estate and the interest of the reward of the guardian ad litem. Suffolk County Probate Lawyers said it is well settled that time spent was, in fact, the least important factor considered by a court in fixing reasonable compensation.

A sizeable estate permits adequate compensation. The burden in establishing the reasonable value of legal services performed rests on the attorney performing those services.
The fee was fixed in the amount requested by the guardian ad litem, which have to be paid out of the general assets of the estate within several days of the issuance of full letters of administration to petitioner. The court thanks the guardian ad litem for his fine work and the outstanding result achieved on behalf of his ward.

Cheating when discovered may harm a person’s integrity and cost his finances to pay back what he was withholding.

Stephen Bilkis and Associates are experienced in the field of court estate litigations. They have high caliber set of lawyers who will help you and take care of your case. The can keep your resources intact. Their high caliber profiles will surely bring you to the right track.

Posted On: March 6, 2012

Decedents Claim Fraudulent Will Contest

A will was written, signed, attested, to conform to the legal requirements of law on probate. The testator’s intention to give his estate to his heirs was set. The presence of competent witnesses to a Notary Public was noted.

Children of the decedent who acted as respondents moved to force the surviving spouse, the lawyer-drafter of the will and the accountant of the decedent to reproduce the original and/or photocopies of earlier wills. Original photocopies of the letters between decedent and the attorney-drafter and the unrevised photocopies of notes taken by the lawyer during two separate in-private meetings with the decedent was subject of the probate.

A New York Probate Lawyer said th decedent’s children believed that those documents controlled by decedent’s wife were material pieces of proof. Testator’s wife was unwilling to disclose the true and original wills and testament. Children alleged that the agenda of several private meetings held and organized by decedent’s wife, probate lawyers and the accounts have something to do with the fraudulent wills contested in the estate litigation courts. The party attempted to collaborate the outcome of estate proceedings in their favor.

In opposition to decedent’s children motion, decedent’s wife, his lawyer, and accountant alleged that they were unable to find any previous will even after exhaustive search. Decedent’s wife promised respondents that they would provide them a copy if the same will be available in the near future. They assured them of continued careful search.

In responding to the allegation of private meetings to defraud the estate the estate administration courts in bringing in false wills and testaments, decedent’s lawyer-drafter, the surviving wife hereby make a plain and clear statements that those meetings were indeed business meetings of her exclusive properties, as she also hired the services of the drafter for her. There existed lawyer and client relationship with her and the lawyer. It was proper to hold several important meetings to plan the possible valid action they take in case decedent property right was injured. Executors contended that the lawyer who drafted the will represented both decedent and surviving spouse, in connection with their arrangement on estate disposal plan. They proved to have confidential communications concerning plans of disposing the estate of the wife.

The children further alleged that those communications concerning wife’s plan and estate plans and assets were the subjects of revision of documents in question. The contents of those communications concerning wife’s plan and assets were the subject of the edited materials and were therefore, privileged, pursuant to the attorney-client privilege afforded by law, and not to be find out by third parties.

The wife’s party moves for a protective order of the law concerning the alleged privileged redactions.

Although children further argue that the executors’ response to their discovery demands was untimely, service of a notice of motion for a protective order suspends disclosure of the particular matter in dispute.

The time limitations of law did not apply where the material sought were claimed to be privileged or where discovery would be palpably improper.

The documents sought in this matter were alleged to be privileged, and thus children’s reference to law was misplaced and the executor’s motion for a protective order was timely and proper.

In actions involving the probate, validity, or construction of a will, an attorney or his employee were required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but they were not allowed to disclose any communication privileged under which would tend to disregard the memory of the decedent.

Decedent’s children contended in their motion that these documents were not privileged as they contain information pertaining to decedent and his will that the executors were required to disclose. Westchester County Probate Lawyers said that ordinarily if a party objects to a discovery demand, that party was to serve a response which states with reasonable particularly the reasons to each objection. If objection was made to part of an item or category, the part was to be specified.

Here, the executors objected to certain disclosures, by use of redactions, but failed to state the reason for such; providing materials in redacted form with a brief mention that documents attached were redacted does not constitute as a valid reason for an objection.

The executor’s opposition to decedent’s children’ motion was supported by the drafter of the will’s sworn statement, affirming that his correspondences and notes were redacted to preserve the confidential communications between the drafter and decedent’s wife, and between the drafter and decedent wife’s estate plans and assets. Probate lawyer’s affirmation substantiated the existence of facts upon which the motion was based, as it was the drafter’s own writings that was redacted.

When a claim of privileged were presented, it may be advisable to conduct an in camera review of documents claimed privileged. New York City Probate Lawyers said the court may deferred determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it does not affect substantial rights.

Surrogate courts based their judgment on the weight of proof substantiated. As this will be used in determining by the surrogate judge proof and material grounds for belief that the same conveyed reasons set, as in camera review of said materials, in un-redacted from, is necessary.
The law established the requirements for a privileged document log when a party seek to claim an attorney-client privilege. The estate administration courts have recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, to aid the courts in its assessment of a privilege claim and enable it to undertake in care review of documents claimed to be privileged.
Estate litigation courts deferred determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it did not affect substantial rights. They established the requirements for privileged document log when a party seek to claim an attorney-client privilege.

The probate courts have recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, to aid the courts in their assessments of the privileged claim and be able them to undertake in camera review.

The executors failed to provide a privilege log to explain the redaction. Merely responding with boilerplate claims of privilege, without a privilege log as required by law was sufficient as a matter of law. Although estate courts privilege claimed without further explanation by the executors as the redacted material, which may be accomplished through an in camera review of said materials.

Respondents argued that the attorney-client privilege did apply because the correspondence was addressed solely to decedent, regarding his estate plan, and the meetings between decedent and drafter-lawyer to take place in the presence of their parties. The executors alleged that the redaction to each documents were made in order to preserve the confidential communicational between the drafter-lawyer and wife.

Concerning wife’s estate plan and assets, redaction were made on the correspondence and attorney notes. The two-piece of correspondence consisted of letters addressed solely to the decedent and signed by drafter-lawyer. The letters were marked personal/confidential. The first sentence of each letters stated, “the following was a summary of estate plan which had been revised”. The contents of the letters seem to relate directly to decedent’s testamentary plan.
The estate administration courts cannot decipher the unknown, and an in camera review of these letters in un-redacted form was required to determine whether wife’s estate plan and assets were discussed in either letter and if the attorney-client privilege attached.

Decedent’s children argued that the presence of decedent, and nominated trustee, accountant to decedent, waived the attorney-client privilege. The attorney-client privilege attached to confidential communications between an executor and an attorney, to the exclusion of third persons, including beneficiaries of the estate. The presence of a third party during the communication between the attorney and the client indicated that the communication was not confidential. In such a case, the privilege did not attach.

However, when the court deemed the third person to be an agent of the attorney or the client, the communications remain privileged. Here there had been no claim by wife that co-trustee were wife’s agents.

Drafter-lawyer indicated that the decedent and wife were present at the meeting. The executors contended that wife was a client of drafter-lawyer and that any communications made during the probate meetings were confidential in respect to both clients present at the meeting. The attorney-client privilege seek to ensure that one needing legal advice would be able to confide fully and freely in his attorney, secured in the knowledge that his or her confidences will not later be exposed to his or her legal detriment. The attorney-client privileged had been arranged, which bars disclosure of any confidential communications between a client and his/her attorney. Again, an in camera review was necessary to determine whether wife’s estate plan and assets were the subject matter of drafter-lawyer notes.

Because of the determination of whether documents were privileged was fact-specific, an in camera review of such documents have to be undertaken before resolving the issue. The burden of proving that all the requisites of the privilege were present falls on the person asserting the privilege.

The estate administration courts were aware that the attorney client privilege was of the oldest among cannon law evidentiary privileges, fostering the open dialogue between lawyer and client that was deemed essential to effective representations and will remain mindful of this throughout an in camera review.

A final determination on the motion to compel un-redacted copies of particular disclosure was held abeyance pending an in camera review of the documents in un-redacted form. Un-redacted copies of the documents submitted to the court within several days.

Heirs of the decedent in a probate cannot speculate on the true intention of the testator in drafting his wills and testament. Neither can they make additional provisions to the will. Stephen Bilkis and Associates will intellectually fight for you, stay by you and assist to help you get your case done.

Posted On: March 6, 2012

Court Rules on Will Contest between Brothers

A testator in her lifetime made a will. Her husband and three children outlived her. The will was brought to a probate court for legal procedure. Named in the instrument were the three adult children as co-executor with full power over the estate of the decedent. Not mentioned in the will was the name of her living disabled husband. After a thorough study of the contested will, the court found that the interest of the physically impaired husband needed to be taken care of. Thereby the court appointed a guardian ad litem to make necessary action to protect the interest of the ward.

The court appointee filed his report wherein he indicated that he had no objection to the will subject of probate proceeding. He mentioned in his report the unfriendly action of the three adult children of the decedent. He was hopeful that the best interest of the estate would be served by an appointment of an independent part to administer the estate under litigation.
One of the adult children did not object the contents of the recommendation. Suffolk County Probate Lawyers said the mentioned beneficiary son had been living in the decedent’s residence since the time of the testator’s death. He maintained the tear and wear of the dwelling place even if heat and electricity were brought to an untimely end. He believed that his action toward the care of the decedent’s dwelling should be recognized by the probate court and assigned him a letter testamentary as the suited fiduciary of his mother’s bounty.

An attorney has filed objections to the report of the guardian ad litem in which he asked the estate administration courts to speed up the probate proceeding and stopped the assignment of a person to whom testator’s property should be entrusted for the benefits of the heirs. He pointed out in his opposition that, the appointment of an independent fiduciary might only threaten the estate’s funds. He further asserted that he needed to file a contest in court to cause to cease the naming of an independent administrator.

A New York Probate Lawyer said that one of the siblings was removed from the court’s conference room by a court officer because of his extremely abusive and hostile manner directed toward his brothers and towards an officer of the court. However, he made a meaningful argument in opposition to the guardian ad litem’s request for permission to file a notice of lection on behalf of his ward.

The ward represented by the court’s appointee believed that an unfavorable money judgment against him needed to be paid out from the estate’s money. It was not allowed by the estate litigation courts and denied the recommendation of the guardian ad litem favoring husband of the decedent.

After thorough study and considerations of all facts and documents submitted to the estate litigation courts, the will was admitted to probate without the heirs’ objection. Courts recognized the fact that all three of the decedent’s son was generally to be given courteous respect yielding to the wishes of the testator, nevertheless, the court had the power to deny letters testamentary to one of the siblings who showed disrespect to his two brothers and even to those officers of the court. He needed to be reprimanded by not assigning him to do the office of an executor. His action would affect the proper and efficient administration of the estate subject of the litigation. Upon the will’s admission to probate, letters testamentary named one of the siblings the only executor of the decedent’s estate.

Long Island Probate Lawyers said that lthough the guardian ad litem action to defend the disabled husband was a failed, the Estate administration courts recognized the appointee’s substantial effort in trying to resolve the contested will in the interest of the ward. His compensation was fixed by the court to be paid by the estate of the decedent.

When the courts found out that the intention of the ward is to damage the estate of the true heirs, the same will the courts deny his cause.

Contact Stephen Bilkis and Associates for advice and a free consultation today. We have offices conveniently located throughout New York.

Posted On: March 5, 2012

Petitioner Claims Will was not Duly Executed

Decedent died, survived by four children. Testator had written, signed and attested his will and named his sister as the executor of the will. Only the daughter objected the probate proceeding. In his will, decedent directed his sister to distribute his entire estate. The document reflected that the attesting witnesses were the draftsperson for the will and who represented the decedent in his divorce proceeding. The court also extended her office as executor.

The estate litigation courts received a motion for summary judgment designating decedent’s sister as executor in the letter testamentary. The only daughter of decedent objected. She opposed the extended office of decedent’s sister. For the reasons set forth by law, the motion was denied, and summary judgment was granted to decedent’s sister on the issue of due execution.

Daughter filed multiple objections to the will, focusing primarily on an alleged lack of due execution which were testified by two attesting witnesses for her favor.

A New York Probate Lawyer said that the present motion for summary judgment upon objections to probate and dismissal of the proceeding followed a lengthy delay in which a settlement was reached concerning of defendant’s nonprobate death benefits. No settlements were reached in connection with the distribution of decedent’s probate property, despite extensive efforts.

In decedent’s daughter affidavit annexed to the motion, daughter alleged that decedent’s sister cannot appropriately demonstrate due execution of the purported last will and testament. In support of this statement, daughter offers the following: one witness that cannot recall the will signing ceremony, other witness, despite her memory of decedent, did not testify based upon her recall of the specific action but relied instead on her personal knowledge of the usual office practice in the recognition of the signatures, and the execution of a self-proving affidavit. The self-proving affidavit was improperly notarized.

Daughter noted that drafter-lawyer testified that his usual practice was to have his secretary take the executed self-proving affidavit down the hall to another attorney’s office, where a notary public who was familiar with their individual signatures, would notarize the affidavit, after which the executed will would be returned to the office and be given to the client.

It was the notary public notarization which appears on the self-proving affidavit with two signatures. Manhattan Probate Lawyers said that the notarized affidavit were improper. Accordingly, she argued, that the self-proving affidavit affixed to the propounded will could not substitute for an actual or refreshed recollection of due execution of a purported testamentary instrument.

Daughter added that the invalidation of the self-proving affidavit due to alleged notary misconduct, when combined with the inability of witness to recall the will execution, leaves the drafter as the sole witness to the will. On this basis, daughter asserted that the probate courts should refuse to admit the propounded will to probate.

Testator failed to initial each page of his will. Daughter referenced of witness testimony that it was drafter practice to have the testator initial on each page of his will, and that decedent’s will only initiate on the first page, without explanation for departure from usual office practice.
The decedent sister’s counsel did not produce her for examination. Daughter claimed that drafter refused to produce the decedent’s sister for examination and that sister had made admissions to decadent children that raised the possibility of another the will having been executed by the decadent.

Summary was a drastic remedy, and only when there are clearly no triable issues of fact presented. In a proper case, the court’s granting of a summary judgment motions was not only appropriate, but denial of such a motion was reversible error, even in a probate proceeding. To prevail on a motion for summary judgment, decedent’s daughter must establish his or her fight to a directed verdict as a matter of law. If the daughter had meet these thresholds, the burden then shifts decedent’s sister to move against to bare his or her proof in opposition in evidentially form. Decedent’s daughter must not successfully rely merely on conjecture or surmise; a mere hope that somehow or other the daughter will be able to substantiate her allegations at trial was insufficient to deny summary judgment to a proponent who has made out a prima facie case.
The motion for summary judgment presently before the estate litigation court raised the following issues: no affirming witnesses on the self-proving affidavit; deny probate for lack of actual recollection of attesting witnesses in the ceremony, testator only signed the first page of the will, and drafter –lawyer failed to produced decedents sister for examination.

The estate administration court, in their intellectual opinion had penned the following analysis: witness to will execution may make an affidavit before any officer authorized to administer the oath stating such facts as would, if contradicted established the genuiness of the will and the validity of its execution.

The officer authorized to administer oaths or a notary public, certified that the subscriber appeared before her and swore to the truth of the contents by affixing a clause. Queens Probate Lawyers said that the jurat defined as a certificate added to an affidavit stating when, before whom and where it was made. The jurat on the self-proving affidavit affixed to decedents will stated: “severally subscribed and sworn to before me this day, the month and year”. The signature of the notary public follows and a log with her notary stamp.

Drafter testified that his office procedure as follows: drafter and witness to signed the affidavit as attesting witness; the office secretary to bring the attested will to the Notary Public office who then become familiar of drafter signature. He further testified that he has no reason to believe that there was anything done in a probate case which varied from usual procedure.

An out of court affidavit may be used to prove a will that passed the statutory requirements. A will was presumed to have been properly executed where the will was accompanied by a self-executing affidavit of the attesting witnesses.

The testimony of drafter as an attesting witness and as the supervising attorney, and witness as an attesting witness, established that the statutory requirements of the self-proving affidavit were not met. The affidavit was not made or sworn to by both affiants before the notary public. This was in accord with decedent’s daughter allegation contained in the jurat of the affidavit.
Estate litigation courts were in accord with decedent’s daughter first assertions, namely , the self-proving affidavit affixed to decedent will was a nullity for lack of statutory compliance.
The law had provided that a self-proving affidavit may serve as evidentiary proof of a will’s genuiness. The validity of the will’s execution, the competency of the testator to make a will and that the testator was not under restraint.

A self-proving affidavit cannot be accepted by the court if apart with standing raised an objection and such other reason the court determined that the witnesses to the will should be examined.
Daughter noted that witness has not actual recollection of decedent will ceremony, and asserts that the will cannot be admitted to probate on the basis of drafters testimony alone. Where a witness to a will no longer remembered the will execution, but at least one other witness to the will have been examined and remembered the occurrences, the court many admit the will to probate on the testimony of the witness who did remember the will signing ceremony and such other facts as would be sufficient to proved the will.

A will can be admitted to an estate administration courts notwithstanding attesting witness failed or possessed imperfect memory. Memories fade over time and witnesses become unavailable. In addition a will may be admitted to probate even if both witnesses cannot recall the will execution. Sufficient other facts may be presented to convince the probate court that the estate has been satisfied.

While witness did not specifically recall decedent’s execution of his will, both drafter and witness were personally familiar with the testator in connection with his representation by drafter firm in testator diverse preceding. Drafter and witness were also available to independently identify the signatures on the will. Both testified to the usual procedures of drafter’s law firm except as to the office practice in connection with the notarization of self-proving affidavits. Where a will includes a valid attestation clause, it provided prima facie evidence that the will was executed properly. Where the execution of a will was supervised by counsel, there were presumption of due execution in accordance with law. The court found that all elements, combined with drafter testimony of his recollection of the will signing ceremony and witness convincing testimony concerning usual office practice, were sufficient to establish that the will was executed in accordance with the law.

To rebut the presumption and raise a material issue of fact, daughter would have to offer evidence in admissible form, not hearsay, speculation and concluded allegations.
Daughter had failed to do so. There being no issue of fact concerning due execution, summary judgment was granted to decedent’s sister.

Probate courts will base their decision and judgment on facts offered as evidences not hearsay, speculations and gestures.

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Stephen Bilkis & Associates with its skilled legal team, have reachable legal offices throughout the New York Metropolitan area.

Posted On: March 5, 2012

Court Decides Will Contest Case

The testator before his death had written a will. He freely gave all his estate to his living heirs except for his erring daughter. Upon his death, his living wife who then was suffering from a disease brought the will and testament to an estate administration court. Her cousin and an estate attorney represented decedent’s wife. The court appointed her guardians who have appeared for her in the probate proceedings. Estate lawyers and wife’s cousin filed a respectful consideration of election as executor to be named on her behalf.

Upon learning that a notice of election was filed for her mother’s favor, the erring daughter filed to the estate litigation courts her objections. She particularly stated that the document was malicious because testator did not give her any property. The document also mentioned of her evil past actions, the reason of testator’s disinheriting her. While testator was in existence, said daughter sold some properties owned by the family. She forged her parent’s signatures, and used falsified power of attorney. She also converted some of her father’s estate to her name. Testator and his wife acted steadily and filed criminal actions against the erring daughter that resulted in her plea of guilty to a class A demeanor.

A New York Probate Lawyer said that though she filed objections to the estate administration courts, she never appeared and proved her sworn statement true. She presented her dissentient before the trial held out of estate administration court without any judge present. Nor did the erring daughter produce any document to prove the court that as testator’s daughter she was entitled to the estate. It was found out that her fundamental intention was to delay the probate proceedings. She filed a manifestation to the probate court that she was suffering from a psychological condition that prevented her from appearing in court.

The estate litigation courts unconvinced of that contention, by decision and order granted decedent’s wife summary judgment. The contention of the erring daughter that the contested will was based on fraud and undue influence, upon which the erring daughter bears the burden of proof were dismissed.

Thereafter, decedent’s wife moved for summary judgment dismissing the remaining objections of lack of testamentary capacity and due execution. Erring daughter failed to oppose the motion and it was submitted for decision.

A written application was made by the husband of the erring daughter to the estate administration courts to obtain some acts to be done in favor of the grandchildren of the decedent. Included in his plea was to ask the estate courts appointment of guardianship in his name for the property of his infant children. Further asked for permission to file late objections to the summary judgment.

Before the estate litigation courts, husband of the erring daughter mentioned in his objections, that decedent had written his wills and testament. Nassau Probate Lawyers said that the documents actually made mention of giving some properties to his erring daughter and would be grandchildren as possible beneficiary of the estate. By decision and order, the probate courts directed the issuance of additional proof to validate husband’s claim. An additional order of service upon the children and any other persons named in the former contested wills who would have been adversely effected by the admission to probate court of the propounded instrument were also requested by the court.

After jurisdiction was properly obtained over all necessary parties enjoined, the estate administration courts appointed an independent guardian ad litem to represent the interests of decedent’s grandchildren. The guardian ad litem investigated the case, reviewed the entire typed copy documents, examined attesting witnesses, and interviewed several parties and non-parties, including representatives of the district attorney’s office involved in erring daughter’s criminal matter. He continued protecting the ward by negotiating with decedent’s wife probates lawyers upon which they have given their approval. The probate court’s appointed guardian ad litem by dedicated negotiations was able to propose a settlement between decedent’s wife. He offered to the probate courts the agreement and further asked the court to allow admission to probate of the alleged old version of the will and testament of the testator, specifying the mention of giving by the testator part of his properties to his grandchildren. He further requested payments of the wards from the estate proceeds. He further recommended approval of the proposed agreement with the decedent wife party. He particularly opposed the motion by erring daughter’s husband permission to file objection on behalf of the grandchildren.

However, probate lawyers for the husband objected the recommendation of the guardian ad litem. They believe that the contents of the reports were less impressive.

The estate administration courts did not share the view of estate lawyers for the husband. They considered the objection and asked the husband party to furnish them with affidavits to support their cause.

Regarding petitioner’s motion for summary judgment, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers.

The burden shifts to the party opposing the motion of summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, which required a trial of the action. Brooklyn Probate Lawyers said that summary judgment in contested probate proceedings was appropriate when a contestant failed to raise any issues of fact regarding execution of the will, testamentary capacity, undue influence, or fraud.

The proponent of a will offered for probate had the burden of proving, by a fair preponderance of the credible evidence, that the instrument was properly executed and that the testator was mentally competent. All testators enjoyed a presumption of competence and the mental capacity required for wills was less than that required for any other legal instrument. The supervision of a will’s execution by an estate attorney will give rise to an inference of due execution. Elements of due execution were: testator’s signature would be at the end of the will, attesting witnesses must know that the signature was the testator’s, attesting witnesses must know that it was the testator’s will and the attesting witnesses must sign within a thirty-day period. Testimony of the attesting witnesses and the attorney drafter unequivocally establish that the execution of the instrument was in conformity with the statutory requirements and there was no evidence to the contrary.

Proponent also had the burden of proving testamentary capacity. Testator had to understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property and his relation to the persons who ordinarily would be the natural objects of his bounty. A testator must understand the plan and effect of the will and, as noted, less mental faculty was required to execute a will than any instrument. Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia was not necessarily inconsistent with testamentary capacity and do not preclude a finding thereof as the relevant inquiry was whether the decedent was lucid and rational at the time the will was made.
Evidence clearly established that at the time of the execution of the propounded instrument, the testator was of sound mind and memory and fully competent to execute a will. Testator advised the attorney drafters that he was disinheriting elder daughter in favor of his wife. He also described his substantial financial assets and how those assets were titled from memory without prompting, notes, or other documentations.

Erring daughter’s husband affidavit were submitted in support of his claim, but did not raise a triable issue of fact regarding the testator’s capacity on the date the will was executed.
The objectant in a probate proceeding had to bear the burden of proof on the issues of fraud and undue influence. To prove fraud, the contestants must show by clear and convincing evidence that a false statement was made to the tester that induced him to make a will disposing of his property differently than he would have if he had not heard the fraudulent statement. There was simply no evidence adduced that the will was the product of a fraudulent conduct.

In order to prove undue influence, an objectant must show: existence and exertion of an influence; effective operation to subvert the mind of the testator at the time of the execution of the will, and execution of a will was for undue influence.

The will would not have been executed showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed was sufficient.
Mere speculation was an apt characterization of the extent of objecant husbands evidence that petition was any way influenced the decedent to execute the propounded instrument. As petitioner counsel observed, it was objectant’s conduct which most directly influenced the testator to disinherit her branch of the family from his estate plan.

Based on the foregoing, the estate administration courts found the best interests of the dececent’s estate was protected and the infant grandchildren were promoted by approving the settlement negotiated by the petitioners counsel and the guardian ad litem; the guardian ad litem’s request for permission to enter into the settlement on behalf of his wards was granted.
The petitioner’s motion to dismiss objectant’s remaining objection to the will’s admission to probate was granted. As the court had determined that there were no triable issues of fact, objectant’s husband motion for permission to file objection on behalf of his children was denied.
The estate litigation courts had also reviewed the affirmation and supplemental affirmation of legal services submitted by the guardian ad litem.

With respect to the issue of attorney fees, the court bears the ultimate responsibility to approving legal fees that were charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there was no hard and fast rule to calculate, reasonable compensation to an attorney in every case, the surrogate was required to exercise his or her authority with reason, proper discretion and of arbitrarily.

In evaluating the cost of legal services, the court considered number of factors. They were: time spent, complexity of the questions involved, nature of the services provided, amount of litigation required, amount involved and the benefit resulting from the execution of such services, lawyer’s experience and reputation; and the customary fee charge by the Bar for similar services.

In discharging the duty to review fees, probate courts cannot apply a selected few factors which might be more favorable to one position or another but must striked a balance by considering all of the elements set forth by law. In addition, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting and adverse reflection on the services provided.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent were reasonable for the various tasks performed.

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

Here, the guardian ad litem was directly responsible for the ultimate resolution of probate cases. His efforts included review of the probate file and the transcript of the examination of the attesting witnesses and the attorney drafter. In addition, he interviewed at least eight parties and non-party witnesses before concluding there was no good-faith basis upon which to oppose the will’s admission to probate and recommending the resolution negotiated on behalf of his ward’s with the petitioner’s counsel. Considering all of the foregoing, the probate courts fixed the fee of the guardian ad litem, payable from the general estate within days of entry of the probate decrees.

Estate Administration courts will always recognize the testator’s wishes and his freedom to give his bounty to heirs who have satisfactorily given him honor and respect during his lifetime.

New York will contest lawyers can go on top over probate case that seems difficult to solve. Stephen Bilkis & Associates with its legal team, have company throughout the New York Metropolitan area. Call us today for a free consultation.

Posted On: March 4, 2012

Court Discusses No Contest Clauses in Wills

A will executor petitioned in Court to probate the will and the recovery of property alleged asset of the estate. The examinations of the attorney-draftsman, the nominated executor and the attesting witnesses have been completed. Respondents are children of the deceased and grandchildren from a predeceased son.

In support of the motion which seeks a stay of this proceeding pending a construction of the will offered for validation, the petitioners allege that the no-contest clause violates public policy. An issue as to whether a provision of the last will and testament violates public policy must be resolved by construction of the will to determine the person who made the will’s intent and the effect of the provisions on the persons to be influenced. However, the court has no authority to define a will before its admission to validation. That branch of the motion is denied.

The respondents also seek an order permitting the deposition of the nominated successor executor and the attorney-draftsman of a prior will. In opposition, the petitioner argues that respondents are attempting to avoid the no-contest clause by obtaining a court order directing discovery.

No-contest clauses, while valid and enforceable, are not favored by the court and will be strictly analyze. A New York Probate Lawyer said that the law provides that the preliminary examination of the attesting witnesses, the person who drafted the will, the nominated executors and the proponents in a validation proceeding will not result in the forfeiture of any benefit under the will. Neither the nominated successor executor nor the drafter of a prior will of the person who made the will are among those within the so-called statutory safe harbor of persons who may be deposed without fear of triggering a no-contest clause.

However, the Court of Appeals has recently held that the safe harbor provisions of the law are not exhaustive, apparently opening the door to permit any number of depositions outside the confines of the law which would previously have been considered in-violation of a no-contest clause.

The deceased person’s will and lifetime trust substantially favored the daughter over the son. The will contained two no-contest clauses, one aimed specifically at the son, and the other at any beneficiary. The second of the two clauses provided that if any beneficiary shall, in any manner, directly or indirectly, contest, object to or oppose, or attempt to contest, object to or oppose, the validity of the Will or the revocable trust agreement created, or any part of the property plan or any gifts made, or any of the provisions of the Will or of the revocable trust agreement created, in any court; or if any beneficiary commence or prosecute any legal proceeding of any kind in any court to set aside the Will or the revocable trust agreement created or any part of the property plan or any gifts made; then in that event, such beneficiary and all of such beneficiary's issue, shall forfeit and cease to have any right or interest whatsoever under the Will or under the revocable trust agreement created, or in any portion of the property; and in such event, it is hereby directed that the property and the trust property under such revocable trust agreement shall be disposed of in all respects as if such beneficiary had predeceased without issue.

The son, without ever filing objections, noticed for deposition an attorney who had drafted several prior wills for the deceased, but not the one offered for validation. Brooklyn Probate Lawyers said that despite an admonition from the daughter/proponent's attorney that conducting such a deposition could result in the forfeiture of the son's bequest, he insisted the deposition go forward. After learning at the deposition that the deceased person’s immediate prior will also contain a no-contest clause, he indicated that he would not object to the will's admission to validate. After the will was admitted to validation, the daughter brought a construction proceeding for a determination whether or not her brother's conduct violated the no-contest clause, thus resulting in forfeiture. It is noted that an attorney who prepared a prior will of the deceased is not identified as a person whose deposition may be taken without fear of triggering the no-contest clause and held that. by conducting the deposition, the son violated the no-contest clause and forfeited his bequest. A four-judge panel of the Appellate Division, Second Department, affirmed.

After granting leave to appeal, a unanimous Court of Appeals reversed the order of the Appellate Division and held that the son's conduct did not violate the no-contest clause. The Court stated that both the purpose of person who made the no-contest clause and the general public policy were satisfied, since the son’s investigation led him to the conclusion that there was no basis upon which to file objections or to contest the will. A broader construction of these clauses as manifesting the intent to disqualify the examination of the witness would essentially cut off all other persons from being asked for information, no matter the potential value or relevance of that information — even as to the medical or psychological condition of the person who made the will at the time the will was executed. Interpreting the clauses narrowly will allow the Court to address on a case-by-case basis whether the conduct undertaken is in keeping with the deceased person’s intent.

Bronx Probate Lawyers said that since the court must, of course, follow the holdings of the Court of Appeals, the branches of the motion seeking the depositions of the nominated successor executor and the drafter of the deceased person’s prior will are granted. However, since this court is also constrained to follow the holdings of the Appellate Division, there can be no determination by this court prior to the will's admission to validate whether the conducting of these examinations violates the no-contest clause in the will. Thus, while the motion to conduct the examinations is granted, the respondents will conduct them at their own liability.

The respondents also seek to stay the validation proceeding pending a determination in a related discovery proceeding pending in court wherein the preliminary executor is seeking the turnover of at least $19.5 million from the respondent’s closely-held family corporation. The moving papers indicate that 40 percent of the residuary property passes under her will to 18 grandchildren, 6 of whom are minors. The aforementioned no-contest clause contains a provision whereby if any beneficiary, or any beneficiary's parent, directly or indirectly objects to the admission to validate the will such beneficiary's legacy under the will is forfeited. If the no-contest clause is valid, the decision by one of the children to object to the will could have severe repercussions for the objecting person's own child or children, especially if the discovery proceeding is successful and the residuary property is enhanced by nearly $20 million. The preliminary executor has failed to show any substantial prejudice to the property by the court's granting of the application. However, granting a stay of the proceeding, as sought by the respondents, would effectively stay the examinations discussed above. Therefore, the application is granted to the extent that the respondent’s objections to the propounded instrument, if any, shall be filed within 30 days of this court's determination of the discovery proceeding, or until further order of the court.

Each of us intends to protect what we worked hard for so our family can benefit from them. In the event that we have to assign someone to facilitate its distribution, things sometimes go wrong. If you find yourselves in this situation, make sure to consult with Stephen Bilkis and Associates.

Posted On: March 4, 2012

Court Hears Complex Estate Litigation Matter

Surrogate's Court, entered and admitted the document to probate as the last will and testament of testator.

The decedent, a physician, married his first wife who died before probate of the will.
Testator’s daughters from his first wife petition the court for probate the will testators have written in their favor.

First wife died, the decedent married his second wife. She also died leaving children of the second marriage intestate.

Children of the second marriage object the application for probate on the will presented by the children of the first wife. After having found a four page documents. Having thought that the documents that have found were the true will and testament of the decedent doctor, children of the second wife offered the document for probate.

A New York Probate Lawyer said there were three witnesses signed the will: decedent’s attorney and two other witnesses who worked in the medical office. All three of the witnesses' signatures appear at the end of the will, underneath an attestation clause.

Will did name made a number of minor bequests to relatives and charitable organizations. The eldest daughter from the first marriage was mentioned in the will that was found by the second wife’s children.

The second wife’ children submitted a petition for admission of the will to probate. Only surviving attesting witness, was deposed.

First wife’s children filed objections to probate, asserting that the will was not duly executed.
Second wife’s children moved for summary judgment to admit the will to probate, and the first wife’s children cross-moved for summary judgment as well. Estate litigation courts held a hearing and concluded that there was no material issue of fact as to the due execution of the will. The first wife’s children appealed from the decree admitting the will to probate.
Before admitting a will to probate, estate Courts must be satisfied that the execution of the will was valid.

The second wife’s children had the burden of demonstrating, by a preponderance of the evidence, that a purported will was duly executed. If an attorney-drafter supervised the execution of a will, there was a presumption of regularity that the will was properly executed. In addition, a valid attestation clause raised a presumption of a will's validity, although it was incumbent upon estate administration Courts to examine all of the circumstances surrounding the execution of the document to ascertain its validity.

The determination whether to dismiss objections and admit a will to probate was within the discretion of Will contest Courts, and its determination will not be overturned absent a showing of an abuse thereof.

A Staten Island Probate Lawyer said the decedent's lawyer, prepared the will, served as an attesting witness, and billed the decedent, on the date of the execution of the instrument, for services rendered with respect to its preparation attorney's presence at signing of will constituted prima facie evidence of will's due execution.

The cover page of the will also contained decedent’s lawyer letterhead. Witness identified her signature and address on the document, and a handwriting expert verified the signatures of the decedent and other witnesses.

Estate Litigation Courts correctly concluded that the proponents demonstrated a prima facie showing of due execution of the will, as it contained a valid attestation clause and was executed under an attorney's supervision, despite the fact that the sole surviving witness, witness, testified that she did not remember the will's execution.

Upon the presumption of due execution, the burden then shifted to the first wife’s children to produce evidentiary proof in admissible form to rebut the presumption and raise a material issue of fact .

The formal requirements for the execution and attestation of a will, were; the signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction; the testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately; the testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed was his will. These formalities have been required to prove due execution of a will.

Will contest courts, before admitting a will to probate, must be satisfied that the execution of the will was valid, even if no interested party files an objection to its validity, and the burden of demonstrating that the purported will was duly executed laid squarely with the proponent, who must prove such by a preponderance of the evidence.

Although due execution may be shown by evidence other than the testimony of the attesting witnesses, it cannot be presumed in opposition to positive testimony, upon the ground that the attestation clause was in due form and states that all things were done which are required to be done to make the instrument valid as a will.

Although it was true that presumption of regularity was raised that the will was properly executed when an attorney drafted it and supervised its execution, and that presumption cannot be overcome merely because the attesting witnesses were not able to specifically recall the will execution

The estate litigation courts relied on testimony from the attesting witnesses in finding that the evidence warranted conclusion that the instrument was not subscribed by the decedent in the presence of the witnesses; that the paper was so folded that the witnesses did not see the subscription, and that the only declaration or acknowledgment of the party was in substance. The Court found insufficient to comply with the statutory requirements.

The formalities prescribed by statute must be observed, and Suffolk County Probate Lawyers said the attesting witnesses must be informed at the time and by the testator, or in his presence and with his assent, and have knowledge of all the facts necessary to a due execution and publication of the will, and to which they are called to attest. If the party does not subscribe in their presence, then the signature must be shown to them and identified and recognized by the party, and in some apt and proper manner acknowledged by him as his signature. The statute was explicit, and will not be satisfied with anything short of a substantial compliance with its terms.

Probate courts reiterated the requirement that the definite formalities of the statute, one of them being publication of the document as a will, be complied with in order for a will to be admitted to probate.

Summary judgment in a contested probate proceeding was rare, and should only be granted where the petitioner sufficiently establishes a prima facie case for probate and the respondent fails to raise any genuine issue of fact.

Estate litigations court relied on both the attestation clause and attorney-supervision presumptions, neither was applicable. Witnesses testimony raised material questions of fact with respect to whether the decedent declared the document she signed to be his will, whether the attorney-drafter supervised the execution, and whether any will ceremony ever had occurred witness acknowledged that she could not be certain given the passage of time, she testified both that there was never an occasion in which she signed a document in the presence of a lawyer and the decedent and that she was confident that such an event had not occurred.
Witness provided specific and credible reasons why she would remember a will ceremony if one had occurred. As she explained, she thought she would remember if the decedent had asked her to sign a document that he had declared to be his last will and testament. Similarly, witness gave a specific and credible explanation for why her signature nonetheless might appear on the will underneath the attestation.

A will ceremony was an unusual event was a matter of common experience. For this reason, will contest courts could conclude that, even 50 years later, a person might well remember participating in it. As the probate courts explained, embedding the will ceremony in the memory of the attesting witnesses was one of the very reasons for the statutory requirements. And estate courts were impressed by the demeanor and overall mental state of the person, that conclusion would be all the more reasonable.

Estate administration courts concluded that no estate courts reasonably could conclude that witness was correct that she remember a will signing ceremony if it had occurred. Although this startling conclusion was left unstated in the majority's writing, it nonetheless was implicit in the will contest court’s ruling.

The key to this appeal was that the inference that witness would have remembered a will ceremony was one to which the first wife’s children was entitled.

By affirming, the estate courts vitiated the principle that the court's function on a motion for summary judgment was issue finding, not issue determination. Although the will contest did not acknowledge that it was weighing the evidence and finding that the better conclusion was that the decedent executed the will in accordance with the statutory requirements, that was precisely what the majority does. Accordingly, summary judgment was granted.

Credible witnesses are what the law provides for witnesses attesting the wills and testament of a decedent. Their manifestations may injure or protect surviving heirs.

Stephen Bilkis & Associates with its skilled lawyers have easy access law companies throughout the New York Metropolitan area. Our lawyers can supply you with advocacy to direct you through life changing moments where your estate disappear because of another’s person stealing.


Posted On: March 3, 2012

Court Hears Case Regarding Family Dispute Over Will

The appeal concerns a family dispute over the last Will and testament of the mother. The court is asked to determine whether various actions undertaken by the respondent sons in relation to the validation of the Will violated the apprehensive clause contained in the ninth paragraph of the Will. Based on the intent of the mother who made the Will, the respondents' actions violated the apprehensive clause and therefore the respondents have forfeited their right to take under the Will. Indeed, the apprehensive clause at issue was included in the subject Will in response to deteriorating family relations, and was both in anticipation of, and a forceful attempt to prevent, the very type of conduct at issue, conduct by the respondents that would delay the validation of the will, place the Will in jeopardy and harass the petitioner.

A New York Probate Lawyer said that the mother died in 1994. Under her last will and testament, the petitioner daughter, was named as the executor of the Will and was given the bulk of the real property and personal effects, and one-half of the remaining estate. The respondents are the sons and were each given one quarter of the remaining property. The children were not always treated unequally under the Wills, of which there were several. For example, in a Will dated September 22, 1986, the children were to take essentially in equal shares. A change started to occur in the late 1980's, after the husband died. The period saw a marked deterioration in the relationships between the siblings, and between the mother and her sons, while the bond between the mother and her daughter strengthened. These changing relationships were evidenced by, among other things a letter sent to the mother her son. In the letter, her son accused her of engaging in an elaborate scheme to isolate and alienate her from her sons. The son demanded that the mother revoke her then-latest will (which was very favorable to the daughter); reinstate a prior Will which divided the property essentially equally among the children, and stop aiding the daughter financially unless she could prove need. If his demands were met, the son promised to keep the matter within the family. However, if his demands were not met, he threatened to take immediate legal action to nullify his mother’s then-latest Will as a product of fraud and undue influence and obtain the appointment of a conservator for the mother. He also intended to publicize the matter, an act loathsome to the mother’s sense of privacy. In an undated note in the mother’s handwriting, the mother wrote that her other son had stated that the property would be in court so long that the daughter would never see any of the money. Finally, in a Will dated May 25, 1990, the mother noted that the more favorable treatment of the daughter under the Will was based on the loving care and attention she had shown both her mother and her late husband during his long illness as contrasted with the less than exemplary behavior of her sons. Further, the mother expressly stated that the Will was the product of long and careful thought and her deeply held feelings toward her children and was not in any way the product of any undue influence by her daughter.

Westchester County Probate Lawyers said that in June 1993 the mother met with a new lawyer to discuss the drafting of a new Will, the subject Will. The mother stated that her continuing desire was to leave the bulk of her property to her daughter, but that she feared that her sons would try to cause trouble for her daughter. Accordingly, the subject Will included the apprehensive clause stating that if any beneficiary under the Will in any manner, directly or indirectly, contests the Will or any of its provisions, any share or interest in the property given to the contesting beneficiary, or to such beneficiary's issue, under the Will is revoked and shall be disposed of by adding such share or interest proportionately to the shares of the remaining beneficiaries who have not so contested the Will.

In June 1994 the mother died and the subject Will was offered for validation. Preliminary letters testamentary were issued to the daughter in July 1994.

The respondents served a verified answer to the petition for validation. The respondents objected to their mother’s nomination of the daughter as executor on the grounds of dishonesty, improvidence and substance abuse. The verified bill of particulars set forth the basic allegations that were to be repeated and amplified throughout various proceedings. The respondents set forth detailed factual scenarios indicating a course of conduct by the daughter spanning several years wherein she allegedly employed lies, deceit, subterfuge, sabotage, and even acts of a criminal nature to isolate her mother from persons and places familiar to her, to alienate her affections from the respondents and those she trusted, and which threatened her mother’s health and life. The alleged goal of the scheme, which the respondents asserted was highly successful, was to defraud the mother out of substantial assets while she was still living and to exert undue influence on her testamentary intent. The bill of particulars was verified by both respondents as being, unless otherwise indicated, based on personal knowledge. Pretrial activity during the period included the testimonies of the draftsman of the Will and the two subscribing witnesses, the service of various notices of testimony and subpoenas on parties and nonparties, and court appearances and conferences.

The respondents were successful in obtaining an order compelling the daughter to post a bond, contrary to the provisions of the Will. New York City Probate Lawyers said that the motion which resulted in that order sought additional disclosure. Later on, objections to the validation of the Will were served on the petitioner's attorney but were apparently never filed. It was alleged that the mother lacked mental capacity and that the will was a product of fraud and undue influence by the daughter. The bill of particulars served in support of these objections merely incorporated by reference the allegations made in the respondents' bill of particulars. Pretrial activity during the period included the initial testimony of the daughter, the testimony of each of the respondents, the service of notices of testimony and subpoenas on several nonparties, and various court conferences and orders. There were also attempts to settle the matter. However, by letter, counsel for the respondents noted that the respondents are unwilling to withdraw the objections at that time.

After being deposed, the respondents amended the bill of particulars to provide that the factual allegations therein were made upon information and belief, rather than upon personal knowledge as originally claimed, despite the fact that various events set forth in the bill of particulars were alleged to have been personally witnessed.

In 1995, one of the sons petitioned for temporary letters of administration in order to bring an action to recover damages for wrongful death and intentional tort against both the daughter and the hospital in which the mother died. He alleged that his sister, assisted by the hospital staff, had acted in a manner that hastened their mother’s death. Further, although not relevant to the allegations in his petition, he submitted an affidavit wherein he reiterated the allegations of fraud and undue influence by his sister. By decision in 1995, the court determined that the son was not entitled to such temporary letters because the proposed tort claims were time-barred. As to the new issues and new charges concerning fraud and undue influence by their sister as raised by the son in his affidavit, the court found that such allegations should be addressed in an accounting proceeding.

Just six days after being denied the temporary letters of administration, the son commenced an action against his sister and her husband in the Supreme Court. He simply recast the allegations set forth in, among other pleadings, the respondents' bill of particulars to claim that his sister and her husband had deprived him, and the property of valuable assets. The complaint also alleged that the subject Will was the product of fraud and undue influence by the daughter and her husband. By order, the complaint was dismissed by the Supreme Court upon motion by the daughter of the deceased and her husband. The Supreme Court held, inter alia, that all of the claims raised by the son were covered by the proceeding pending in Court, that the son lacked standing to enforce claims on behalf of the mother’s property, and that the court, in its decision, had already passed on and determined to dismiss the claims made in the complaint.

In early 1996 the respondents continued their deposition of the sister in the validation proceeding and there were several calendar status conferences. At one such conference, counsel for the sister noted that discovery would soon be completed and that she intended to file a motion for dismissal dismissing the respondents' answer and objections. Soon thereafter, a schedule for the completion of discovery was drafted and the deposition of the husband was noticed. At another conference, respective counsel again conferred on the possibility of a settlement. Further, it was noted by the court that the objections to validate could not be found in the court file and there was no indication that the requisite filing fee had been paid. However, upon assurances from counsel for the respondents that the objections had been filed and that inquiries would be made, disclosure continued. The next day, settlement discussions broke down and it was agreed that discovery should be completed. On July 24, 1996, the sister and the respondents were further deposed. In August, while inquiries were still being made concerning the filing of the objections to validate, there was continued contact between the parties and additional disclosure.

By letter dated September 3, 1996, counsel for the respondents informed the court that, although his clients were not interested in entering into a global settlement, they were not disputing that the objections to the Will had not been properly filed. Thus, counsel noted, although the respondents had no desire to proceed with respect to any Will contest, they saw no need to withdraw their objections, as they were never filed.

At a conference, the objections to the Will were withdrawn, but not the answer. On October 22, 1996, the Surrogate signed a decree admitting the Will to validate. On the court's own initiative, the words probate not having been contested were struck, and the words no objection having been filed were substituted.

By petition, the sister commenced the proceeding for construction of the apprehensive clause of the subject Will. She alleged that the extensive pretrial litigation of the Will by the respondents violated the clause, thereby resulting in forfeiture of their bequests under the Will. In the order and decree appealed from, the court found, that the clause had not been violated.
As a threshold issue, the respondents argue that all of the proceedings at issue, with the exception of the objections to validate, were either legitimate inquiries to determine the fitness of the sister to serve as executor and/or to aid the court in determining whether the proffered will should be admitted for validation, or concerned challenges to actions undertaken by her or her husband prior to the mother’s death which did not implicate the Will. Thus, the respondents argue, other than the objections to validate, none of the proceedings at issue even implicate the apprehensive clause of the Will. Further, they argue, because the objections to validate were never filed and the requisite fee never paid, such objections were a nullity and should not be considered. One of the sons also argues that, in any event, he should not suffer from the consequences arising from the objections to validate because he was not a named as the one who object. The arguments lack merit.

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Posted On: March 3, 2012

Court Addresses Executor Fee Dispute

A man from New York City executed a Will and its appendices and named a German Catholic Church his principal beneficiary in his last will and testament. The Will was challenged by the executors of a prior will executed in 1972. The appellant firm that represented the deceased man appealed an order from the Court that denied the appellant firm’s motion to dismiss the answer of the executor respondents of a prior Will. The executors of the prior Will were a bank and its legal firm. After an extensive litigation, the parties entered into a broad settlement agreement, pursuant to which the church received $3,000,000 together with a half-interest in a trust comprising the residuary property. The terms were incorporated into a decree.

The dispute arises out of the appellant firm’s application to fix its fee for legal services rendered to the preliminary executors of the Will. The executors of the prior will opposed the award of any fees on the grounds that the appellant firm knowingly presented an invalid Will and consequently committed other alleged wrongdoing. The appellant firm sought to dismiss the answer, asserting theories of inconsistency, bringing out matters already resolved and affirmative defense. The appellant firm further relied on the pronouncement in the court’s decree, to the effect that it appeared to the court that legitimate issues have been raised as to which of the Wills should be admitted for probate and that the compromise is made in good faith in the context of a legitimate will contest. The pronouncement is fair to the deceased in light of the circumstances and avoids any further litigation and unnecessary expense.

The court rejected the appellant firm's arguments, reasoning that the question of bad faith on the part of the counsel, asserted in the answer, had not been litigated in the course of the proceedings and the quoted preamble did not constitute a finding of fact and that issues bearing on the award of fees were expressly reserved in both the settlement agreement and the decree until the instant application.

The reversal of the order is imperative. The respondents who executed a prior Will assumed the flawed position that a Will possessing sufficient validity for the purpose of distributing millions of dollars to its principal beneficiary is nevertheless completely lacking in validity for the purpose of fixing the compensation of the attorneys for the executors under that Will.

New York Probate Lawyers said that the respondents' wide-ranging discourse on theories of raising matters already settled and why they might not be implicated by the settlement, does not improve the inconsistency inherent in their argument. Significantly, the respondents who executed the prior Will does not suggest that they were unaware of any material fact bearing on the invalidity of the 1988 Will at the time they entered into the stipulated settlement. Thus, they are unable to pursue the customary course of moving to vacate the stipulation on equitable grounds.

The reversal of the order is predicated less upon the operation of the various issues previously settled and more upon substantial public policy considerations favoring the enforcement of settlement agreements as a matter of contract. Long Island Probate Lawyers said at issue in the proceeding was the validity of the 1988 Will, to which the fixing of fees is a mere incident. By stipulating to disbursements from the estate to the Will's beneficiaries, the respondents have necessarily removed the issue of the Will's validity from the controversy. Moreover, to settle an issue resolved by stipulation, merely for the sake of deciding a collateral matter, would hinder any benefit obtained as a result of the expeditious resolution of the dispute by settlement.

The stipulations of settlement are favored by the courts and not lightly cast aside. Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation.
It is irrelevant that the appellant firm and was then counsel to the executors, was not a signatory to the settlement agreement. It is material, however, that it was signed by the executor, more so that it was reduced to an order and entered where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process. Having agreed to resolve the dispute as to the validity of the 1988 instrument in order to avoid the expense, delay and hazard attendant on continued litigation, the respondents may not now raise the same issue, thereby introducing expense, delay and hazard into the incidental matter of fixing counsel's fees.

The appellant firm should bear in mind that a stipulation of settlement limiting the issues, discontinuing a cause of action or withdrawing a claim is an agreement to which the courts are party and in the enforcement of which the courts have a particular interest. Whether or not counsel should be regarded as benefitted by a settlement agreement entered into by a client, as the parties contest, is not the issue; the essential consideration is the interest of the courts in enforcing agreements that facilitate the determination of a controversy. As the Court of Appeals observed, courts have long favored and encouraged the fashioning of stipulations as a means of expediting and simplifying the resolution of disputes.

The respondents place considerable reliance on language contained in the settlement agreement that nothing therein shall be construed to prevent them from objecting to payment of fees to the appellant firm, or seeking reimbursement of such fees, in connection with the firm's representation of the preliminary executors. However, the setting of legal fees always requires that counsel justify the sums charged, and the right of an interested party to contest whether the amount billed was reasonable does not entail the right to assert an issue that party has agreed to settle.

Thus, the decree provides for the setting of fees after the firm has filed its affidavit of services rendered. This provision preserves no more than the right of the executors to contest the reasonableness of the amount charged for representation; it does not operate to preserve their right to contest the very legitimacy of the representation provided by counsel.

A proceeding to set attorneys' fees is deemed to be a separate and distinct action, thereby implicating the doctrine of matters settled conclusively. An order of discontinuance effecting settlement on the merits is accorded the same effect as the entry of judgment on the merits.
The concept of adjudication embraces not only those matters which are actually litigated before a court but also those relevant issues which could have been litigated. The concept of affirmative defense is somewhat narrower, requiring two distinct elements: that an issue in the present proceeding must be identical to that necessarily decided in the prior proceedings and that in the prior proceeding, the party against whom anticipation is sought was accorded a full and fair opportunity to contest the issue.

Being properly utilized also serves to conserve the resources of courts and appellants. Suffolk County Probate Lawyers said that because the doctrine is based on general notions of fairness, there are few indisputable rules. As stated, the fundamental inquiry is whether re-litigation should be permitted in a particular case in light of what are often competing policy considerations, including fairness to the parties, conservation of resources of the court and the complainants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings.

Even entertaining the respondents' argument on the narrower basis of affirmative defense, the interest in upholding the integrity of the stipulated settlement and, thus, conserving the resources of the court and the complainants, and the societal interests in consistent and accurate results, militate against respondents' attempt to revisit the question of the validity of the 1988 Will. Claim preclusion operates to bar any claim arising out of the same transaction or series of transactions even if based upon different theories. The offering of the 1988 Will for validation and the services rendered by the appellant firm to the proponents in that proceedings are inseparable. Likewise, the validity of the Will is a question that could have been raised--and was actually raised--in the course of the proceeding. Thus, the respondents cannot implicitly concede the validity of the 1988 Will for the purpose of discontinuance and revive the issue for the purpose of challenging the counsel's fees.

Logically, either there is an arguable validity to the 1988 Will so as to warrant the payment to its beneficiaries and, collaterally, to warrant payment to the counsel for services rendered to its executors, or the instrument is so tainted by fraud that neither settlement nor payment of the counsel fees is warranted. If the stipulation was entered into as the result of fraud, collusion or mistake, the respondents' obvious remedy would be to seek cancellation. However, it appears that the respondents and Will executors were aware of the material facts surrounding the offering of the Will for validation, and any misgivings they may have entertained as the result of the knowledge were not sufficient to deter them from stipulating to the settlement. Therefore, the option of moving to vacate the stipulation is unavailable to them.

While there is no serious disagreement that the position taken by the appellant firm in favor of the admission of the 1988 Will to validate was filled with difficulty, it remains that the respondents consented to the distribution of a substantial portion of the property to the primary beneficiary under that instrument. It would be anomalous to punish the counsel for its success in exacting such concession by permitting a conceding party to revive the conceded issue to attack the counsel's right to collect its fee. The interpretation urged by the respondents would open the floodgates to collateral attack upon the counsel for any party who was successful in negotiating a favorable settlement.

To permit such litigation would have a chilling effect on the settlement of marginal cases, in contravention of the well-established policy of encouraging the settlement of disputes, and would embroil the courts in unnecessary litigation of ancillary issues. The Court declines to establish a doubtful precedent whereby a disaffected litigant is permitted to contest the propriety of maintaining the very action necessarily resolved against it by stipulation as a means of denying fees to the attorney for a successful party.

Accordingly, the order of the Surrogate's Court, entered February 2, 2001, which, to the extent appealed from as limited by the statement of the issues presented, denied the motion by petitioner- appellant to dismiss the answer of the respondents, should be reversed, on the law, without costs, the answer stricken, and the matter remanded to Surrogate's Court for further proceedings.

Everybody determined to safeguard what we worked hard for so whoever we intend to leave it with can benefit from them. Legal disputes can be inevitable if we are not around to anymore to implement our Will. If you find yourselves in this situation, make sure to consult with Stephen Bilkis and Associates.

Posted On: March 2, 2012

Court Decides on Jurisdictional Issues with Decedent Will

A New York resident executed a will in 1950 leaving one-third of his residuary property outright to a daughter of a previous marriage and the remainder in trust for his second wife. She was to receive the income for life and was given a power of appointment over the principal of the trust undistributed at her death. The will is silent with respect to the disposition of the principal trust in the event that she fails to exercise the power. However, it is clear that a default would result in the trust being distributed to the issue of the daughter of the first marriage. The surviving spouse moved to Ohio and executed a will in Ohio in which she exercised her power of appointment over the trust assets in favor of her son by a previous marriage and his wife. The son was also a resident of Ohio at the time.

A New York Probate Lawyer said that the daughter of the deceased died in 1970 leaving her surviving four children. The surviving spouse died in Ohio and her 1981 will was filed for validation in that state. Ohio employs a modified common form of will validation, in which only a limited number of people must be notified that a will has been filed. This class does not include those who would be adversely affected by the exercise of a power of appointment included in the Ohio will. Therefore, no notice was sent to the grandchildren of the deceased who would take in default of the exercise of the power. The will was admitted for validation in Ohio. Ohio statutes provide for a four-month period, after a will is admitted for validation, for an interested party to contest the validity of the will. If not contested within this time limitation, the validation shall be forever binding. Such period has long expired and the will was not contested.

Upon the application of the trustee to settle its account in the proceeding, notice was given to the grandchildren. The petition prays that the court direct the principal of the trust be distributed to the son of the surviving spouse and his wife, in accordance with the will of his mother.

According to Manhattan Probate Lawyers, objections were thereafter filed by all four grandchildren, alleging that the surviving spouse was incompetent to make a will, that undue influence was exerted upon her by her son and that, in any event, she had indicated on several occasions on intent not to exercise the power of appointment. When confronted with the will of the surviving spouse apparently duly validated in Ohio and the finality of that proceeding, the issue for the court became the determination of its jurisdiction to determine the validity of the exercise of the power of appointment. Presented with the finality of the Ohio degree, New York is affirmed to hear and determine the undue influence exercised upon the surviving spouse, which would affect the validity of the disposition of property under the will of a man from New York being administered under its court's jurisdiction.

Certain principles of both constitutional and state law along with elements of the common law are relevant and must be considered. A decree or judgment of one state, validly entered, is entitled to full faith and credit in a sister state. Balancing the basic principle, the due process clause of the U.S. Constitution claims that no State shall deprive any person of life, liberty, or property, without due process of law. Significant is an additional language of the section which states that no State shall deny any person within its jurisdiction the equal protection of the laws. It is remembered that the people who object herein were neither residents of Ohio at the time of the validation of the surviving spouse's will, nor were they given notice of that proceeding and consequently did not appear therein thereby conferring jurisdiction on the Ohio court. The due process clause does not require such jurisdictional basis but applies to any person.

Having less force than the full faith and credit clause but still significant in dealings between the states is the common law doctrine of judicial comity which can be defined as the principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and mutual respect. Comity can be extended when the issue does not rise to the obligatory level of the full faith and credit clause, but nevertheless cries out for interstate recognition of local rules or customs.

As a general principle of New York law, the courts of the state will look to the law of the residence of the person who made the Will for the meaning and interpretation of language used by him in disposing of his personal property by Will. Furthermore, said Queens Probate Lawyers, a will disposing of personal property, wherever situated made within or without the state by a resident or nonresident thereof, is formally valid and admissible for validation in the state, if it is in writing and signed by the person who made the will, and otherwise executed and attested in accordance with the local law. It further states that the jurisdiction in which the will was executed, at the time of execution; or the jurisdiction in which the person who signed the will was resident of, either at the time of execution or of death.

With respect to the procedures employed by the judiciary in another state in validation proceedings, the state's highest court has ruled that if a probate court of a sister state otherwise has jurisdiction it may make a decree admitting a will for validation which is binding upon non-residents, even though notice has, by statute, been dispensed with on the original validation, and such validation becomes conclusive in the absence of will contest within such period as is provided by the laws of that state.

When considering trusts, the general rule in New York is that the construction and effect of the will of a non-resident beneficiary of a power of appointment in so far as it involves an exercise of the power of appointment conferred by the will of the donor, is governed by the law of the state, the residence of the donor in power, and the location of the property. It is the established law of the state that the courts of New York alone must determine the validity and effect of a Will, whether will or deed, which purports to exercise a power of appointment under the will of a New York donor. That principle applies, not only to the construction of the will of the beneficiary, but also extends to the jurisdiction to admit or reject it as a will under the criteria of the validation law.

The assignees of the trust estate located in Ohio argue that the courts of the state are bound by the Ohio decree and should extend to it the full faith and credit required by the United States Constitution. Cases cited by them, with one exception, however do not address the issue of the exercise of a power of appointment but are limited to the admission of a will in a foreign state and the recognition given to the decree entered in that jurisdiction.

In the validation of the will of the grantee of the power in Ohio, the grandchildren of the person who made the will never appeared; indeed they never received notice of it. It is the issue that most troubles the court. In a case involving the necessity of citing persons adversely affected by the exercise of a power of appointment in the will of a New York residency, the court refused to dispense with service on them. The court reasoned, only by requiring the service of process on such parties would the validation decree be binding on them and preclude them from later litigating the matter. Furthermore, it is a fundamental principle of equity concerning parties that all persons interested in the subject matter and the relief granted shall be made parties.

The appointees of the power argue that the beneficiary of the will is conclusive in determining the disposition of her property which necessarily includes the principal of the trust considered. The testamentary exercise of a power either in a manner that continues property in trust or in the form of outright inheritances creates in the executor of the beneficiary no interest whatsoever in the property so appointed. A beneficiary with a power to appoint by will is a mere agent of the donor. When the beneficiary exercised the power granted to her by her father, she was not disposing of her own assets but, by authority conferred upon her by her father, she was disposing of property which never lost its identity as part of the father’s property. Until absolute vesting the property remains subject to the jurisdiction and control of the courts of the residence of the donor.

Consistent with its view, the transfer of appointive assets of a trust having New York as its state of administration would be determined in an independent New York proceeding and the fundamental validity, effect, and interpretation of the will purporting to exercise the power would be governed by New York law. In the case of a nonresident beneficiary, no determination by the foreign residence court in its validation proceeding would affect the New York proceeding.
Finally, the question is posed whether the decisions affirming the jurisdiction of New York courts to determine the validity of the exercise of the power of appointment only go to the substantive issue of the trust disposition or operation. Was there a violation of the rule against perpetuities or rules governing accumulations? The court is of the opinion that the decisions should not be so narrowly construed. Consider the case where there is either an informal accounting (with no notice to those adversely affected by the exercise of the power) or a formal accounting in which the petition does not name those adversely affected but merely attaches the will of the non-resident beneficiary of the power of appointment and alleges that the will was properly admitted for validation in a sister state. Under either of the situations, parties who may have information concerning undue influence brought to bear on the beneficiary of the power in exercise of said power would never have the opportunity to bring the information to the court which retains jurisdiction of the property so appointed. It is patently inequitable and prejudicial. Not only does it open the door to possible collusion, but it deprives a person or persons of establishing their purported right to property, without due process of law.

For the foregoing reasons, the court determines that it has jurisdiction to inquire into the validity of the exercise of the power of appointment contained in the will of a non-resident beneficiary of said power admitted to jurisdiction in a sister state. All interested parties shall have an opportunity to present facts to the court which would assist it in determining whether the exercise of the power, as contained in said will, over property located in this state and subject to this court's jurisdiction, is valid and enforceable.

People move from one place to another, we may even acquire properties from a place that we’ve visited for a while. If you are caught in a situation wherein, your place of residence becomes a legal issue, feel free to contact Stephen Bilkis and Associates.

Posted On: March 1, 2012

Court Decides Case with Multiple Wills

A deceased man from Niagara County made five wills all of which have some beneficiaries who are different from Will to Will. The wills are dated March 2, 1993, July 15, 1992, April 24, 1992, March 15, 1989 and September 24, 1987. Two of these Wills have currently been offered for probate. The first Will offered for validation was the third most recently dated Will of April 24, 1992. A decree granting temporary letters of administration was issued on July 28, 1995, appointing the Niagara County Treasurer and Public Administrator, as Temporary Administrator of the state. The Public Administrator was charged with gathering, preserving and protecting the assets and to pay the deceased man’s debts and obligations to prevent the estate from being wasted. Thereafter, on October 25, 1995, the Public Administrator offered the third most recent Will dated April 24, 1992, for validation. The Public Administrator was required to notify everyone named in the two more recent wills as well as the deceased man’s heirs and those listed in the April 24, 1992 will. The return date for the citation on the petition was December 21, 1995. Thereafter, the deceased man’s most recent will dated March 2, 1993, was offered for validation on November 29, 1995. In addition, objections to the validation of the will dated April 24, 1992, were filed on December 6th, 1995. The validation petition filed November 29, 1995, was technically defective and was revised and re-filed on January 8, 1996. A citation has not yet been issued for the said petition given the intervening proceedings. None of the other three wills on file with the court have been offered for validation, nor have any other wills not on file with the Court been offered for validation.

A New York Probate Lawyer said that in a proceeding for the validation of a Will, process must be issued to any person designated as beneficiary, executor, trustee or guardian in any other Will of the same person who made the will filed in the Surrogate's Court of the County in which the proposed Will is filed, whose rights or interests are adversely affected by the instrument offered for validation.

The attorneys representing the various parties to the properties have suggested that the application of the section is capable of several different results, each of which would require the service of process on different parties given the five Wills of the deceased which are on file with the Court. The narrowest suggested application would require service only upon those interested parties in the Will being offered for validation and the next most recent Will. The broadest suggested application would require service of process upon all interested parties in all five Wills on file with the Court. Based upon the facts set forth above, the Court believes that neither proposed application of the section is correct.

Given that a petition for the validation of the Will dated April 24, 1992, has already been filed, it is clear that the second petition for the validation of the Will dated March 2, 1993, adversely affects the rights and interests of those beneficiaries and other interested parties. A Staten Island Probate Lawyer said that the petitioner has requested that the April 24, 1992 Will be admitted for validation, and the petition to validate the March 2, 1993 Will clearly adversely affects the petitioner and the interested parties of the April 24, 1992 Will. To hold otherwise would be inconsistent with the apparent intent to ensure that these parties have the standing to object to the validation of the Will being so offered. As it is clear that the issue of the validity of the most recent Will must be established first, before that issue can be addressed with respect to any other later Wills, to deny these interested parties the standing to object would be inconsistent with the apparent intent of to ensure that these parties have the standing to object to the validation of the Will being so offered.

Having stated, the court is not unaware that a similar argument could be raised with the beneficiaries and interested parties in all five Wills. Bronx Probate Lawyers said the court believes, however, that the intent is to ensure that the resolution of any issues concerning the validity of a proposed will be properly represented on both sides. Where there are clearly existing adverse parties, the interests of those differing beneficiaries and interested parties in the earlier Wills will be protected by the actions of the current persons to object. If the current persons who object are successful in preventing the validation of the most recent Will, then, before the next most recent Will may be admitted for validation, additional parties would necessarily be required to be served. In addition, any of the interested parties as set forth in these earlier Wills could petition for the validation of such Will if they wish to be joined as parties to the current proceedings.

Accordingly, the petitioner for the validation of the March 2, 1993 Will is directed to serve all beneficiaries and interested parties in the Wills dated March 2, 1993, July 15th, 1992, and April 24, 1992.

Legal issues arise when we are not aware of fact that we already violated the law. Wills are made with good intentions. Implementing such, however, is another thing. Having your name in someone else’s will can either benefit you or get you into a lawsuit. If you or anyone you know get into this kind of situation, call Stephen Bilkis and Associates.

Posted On: March 1, 2012

Court Decides Estate Litigation Case

On 28 October 2006, the decedent died leaving a will dated 27 April 2006. The will nominates two (2) executors. Thereafter, one of the executors renounced his appointment. The decedent was survived by his two adult children.

Under the will, the entire residuary estate is left to the decedent's companion and the decedent's children are disinherited. One of the named executors (petitioner) now petitions for preliminary letters testamentary.

The primordial issue (in the estate litigation) is whether or not the petition for preliminary letters should be granted.

The governing rule with regard to the issuance of preliminary letters testamentary was enacted to provide a form of letters to the named executor which would allow for the immediate administration of the estate when there may be a delay in probate (will contest). Its purpose was to honor the testator's preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest. Although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator's will. A person not named as an executor has no standing to seek preliminary letters. Moreover, a New York Probate Lawyer says that where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters is mandatory "upon due qualification". If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.

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

In the instant case, the decedent’s daughter has requested that preliminary letters issue to her as executor under an alleged 2004 will. She claimed that the petitioner/executor:
1. has failed to produce the 2004 will;
2. has failed to comply with discovery demands;
3. is unfit to serve because of alleged misstatements by the process server upon which the order for substituted service was based and the fact that the letter enclosing the waiver and consent were sent to the wrong address;
4. has set forth a questionable valuation of assets in the application for preliminary letters;
5. acted in collusion with the residuary legatee; and
6. thus, failed to demonstrate "good cause" or serious wrongdoing which would permit the court to nullify the decedent's choice of a fiduciary.

On the other hand, the petitioner/executor asserted that:
1. his counsel did not draw any will for the decedent in 2004 and has no knowledge of any 2004 will;
2. even if there is an earlier will naming another executor, the executor in the purported later will has a prior right to letters; and
3. preliminary letters must issue in the absence of good cause shown or serious misconduct which renders him unqualified.

The court has ruled that the 2006 will dispenses with the filing of a bond. Pursuant to the governing rules, even if the will dispenses with the filing of a bond, the court may require a bond if "extraordinary circumstances" exist. Suffolk County Probate Lawyers said that there are no such extraordinary circumstances here. Thus, preliminary letters testamentary shall issue to the petitioner/executor upon his duly qualifying under the law, to serve without bond.

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