The Issue in this Case is Whether Attorneys Fees Should be Granted

July 23, 2014,

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent's real property.

A New York Will Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent's estate. In addition, the court must release the administrator from the surety bond.

Westchester County Probate Lawyers said the issue in this case is whether the attorney’s fee should be granted by the court.

Suffolk County Probate Lawyers said that regarding the fee of the attorney for the estate, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, and as re-enunciated in Matter of Freeman. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services.

The Public Administrator has petitioned the court for approval of the payment of $2,798.75 to the attorney for the Public Administrator in connection with the administration of the estate. This amount has been paid in full. The court has carefully reviewed the affirmation of services and the time records submitted to the court. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. The record shows that the attorney devoted more than 51 hours to this matter through August 2009. The services provided by the attorney included preparing and filing a petition for removal of limitations on letters of administration and accompanying affidavits; commencing a surplus money proceeding in Nassau County Supreme Court; participating in multiple telephone conferences with a foreclosure referee; collecting surplus funds from the Nassau County Treasurer; and reviewing information concerning the identity and whereabouts of decedent's distributees. In addition, the attorney for the Public Administrator prepared the final account and the accompanying documentation. In view of the exiguous balance that would remain if the attorney were to bill for the full amount of services provided, which would amount to $8,971.25, the attorney has offered to accept as a total fee the amount paid to date, $2,798.75. The court commends the attorney for his skillful representation of the Public Administrator and for voluntarily reducing his fee by $6,172.50, a reduction of 69%. The fee is approved in the amount requested.

The court has also been asked to review the accountant's fees. Typically, an accountant's services are not compensable from estate assets unless there exist unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. The purpose of this rule is to avoid duplication. "Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee".

The accountant has submitted an affidavit of services requesting a fee of $575.00 for preparation of the estate's final return. The work to be performed by the accountant is not duplicative of the services rendered by the estate attorney, and the requested amount for these services is reasonable. The court approves the fee in the amount $575.00, all of which remains unpaid.

The commission of the administrator is approved subject to audit. The decree shall discharge the surety and shall authorize the Public Administrator to distribute the balance of the net estate to the Nassau County Department of Social Services.

If you have issues regarding the accounting fees of the estate, seek the help of a Nassau Estate Attorney and Nassau Probate Attorney at Stephen Bilkis and Associates.

Court Decides a Case Regarding Kinship Issues

July 10, 2014,

A New York Probate Lawyer said this is a case of accounting of the Public Administrator, where the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence, and the arguments made by the attorneys for the claimants and the guardian ad litem representing the interests of unknown distributees.

A New York Will Lawyer said that the decedent died intestate, a resident of Nassau County, in May 2006. Letters of administration issued to the Public Administrator in January 2007. The account filed by the Public Administrator shows the receipt of $354,397.29 of estate assets. There are three alleged maternal cousins of the decedent and seven alleged paternal first cousins of the decedent.

Long Island Probate Lawyers said that in order to establish their rights as distributees, claimants in a kinship proceeding must prove: (1) their relationship to the decedent; (2) the absence of any person with a closer degree of consanguinity to the decedent; and (3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take. Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence.

Brooklyn Probate Lawyers said the record reflects a diligent and exhaustive search was rendered to discover evidence of other possible distributees. As three years have elapsed since the decedent's death, the known heirs are entitled to the benefit of the presumption of SCPA 2225. Therefore, based upon the evidence before the court, it is held that the decedent is survived by ten (10) distributees, three maternal first cousins, and seven paternal first cousins.
Pursuant to EPTL 4-1.1(a)(6), one-half of the decedent's property passes to the issue of paternal grandparents, by representation, and one-half to the issue of maternal grandparents, by representation.

With respect to the issue of attorneys' fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate.
In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, and as re-enunciated in Matter of Freeman. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.

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

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

With respect to disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter, the court discussed the allowance of charges for photocopies, telephone calls, postage, messengers and couriers, express deliveries and computer-assisted legal research.

The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in previous case. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

With respect to accountants' fees, normally, an accountant's services are not compensable out of estate assets unless there exist unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. "[T]he purpose of this rule is to avoid duplication. Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee.

Considering all of the factors used to determine the reasonableness of fees, the court fixes the fee of counsel for the Public Administrator in the amount of $22,407.50, all of which has been paid, as fair and reasonable compensation for services rendered.

Concerning the accountant's fee, the accountant has submitted an affidavit of services requesting a fee of $4,125.00, of which $2,975.00 has been paid and $1,150.00 remains unpaid. The affidavit indicates that the accountant prepared the decedent's personal income tax return returns and fiduciary income tax returns for the estate through 2010. The work performed by the accountant was not duplicative of the services rendered by the estate attorney and the requested amount of these services is reasonable. Thus, the court approves the fee in the amount of $4,125.00, of which $1,150.00 remains unpaid.

The guardian ad litem has supplied the court with an affidavit of services, and it shows that he rendered approximately 23.20 hours of legal services. The guardian ad item reviewed the account, the petition and family trees. The guardian ad litem requested additional documentary evidence and received and reviewed such documents. He attended the kinship hearing on two separate dates and prepared his report. Considering all of these factors, the court believes the sum of $6,000.00 is fair and proper compensation for the services rendered by the guardian ad litem.

Here in Stephen Bilkis and Associates, our Nassau County Estate attorneys will help you draft your last will and testament so that when the time that there will be no difficulty when the said document will be presented for probate. We also have Nassau County Probate lawyers, who will represent your executor before the courts when a probate petition was already filed.

Court Determines Legal Fees in Probate Case

July 9, 2014,

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent's real property.

A Nassau Estate Litigation Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent's estate. In addition, the court must release the administrator from the surety bond.
The issue in this case is whether the attorney’s fee should be granted by the court.

A New York Will Lawyer said regarding the fee of the attorney for the estate, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, and as re-enunciated in Matter of Freeman. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services.

Westchester County Probate Lawyers said the Public Administrator has petitioned the court for approval of the payment of $2,798.75 to the attorney for the Public Administrator in connection with the administration of the estate. This amount has been paid in full. The court has carefully reviewed the affirmation of services and the time records submitted to the court. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. The record shows that the attorney devoted more than 51 hours to this matter through August 2009. The services provided by the attorney included preparing and filing a petition for removal of limitations on letters of administration and accompanying affidavits; commencing a surplus money proceeding in Nassau County Supreme Court; participating in multiple telephone conferences with a foreclosure referee; collecting surplus funds from the Nassau County Treasurer; and reviewing information concerning the identity and whereabouts of decedent's distributees. In addition, the attorney for the Public Administrator prepared the final account and the accompanying documentation. In view of the exiguous balance that would remain if the attorney were to bill for the full amount of services provided, which would amount to $8,971.25, the attorney has offered to accept as a total fee the amount paid to date, $2,798.75. The court commends the attorney for his skillful representation of the Public Administrator and for voluntarily reducing his fee by $6,172.50, a reduction of 69%. The fee is approved in the amount requested.

Suffolk County Probate Lawyers said the court has also been asked to review the accountant's fees. Typically, an accountant's services are not compensable from estate assets unless there exist unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. The purpose of this rule is to avoid duplication. "Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee".

The accountant has submitted an affidavit of services requesting a fee of $575.00 for preparation of the estate's final return. The work to be performed by the accountant is not duplicative of the services rendered by the estate attorney, and the requested amount for these services is reasonable. The court approves the fee in the amount $575.00, all of which remains unpaid.

The commission of the administrator is approved subject to audit. The decree shall discharge the surety and shall authorize the Public Administrator to distribute the balance of the net estate to the Nassau County Department of Social Services.

If you have issues regarding the accounting fees of the estate, seek the help of a Nassau Estate Attorney and Nassau Probate Attorney at Stephen Bilkis and Associates.

Heirs Bring Action Because they were Left Out of Mother's Will

June 22, 2014,

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

A New York Will Lawyer said the decedent's one surviving sister and the ten distributees left out of the Petition for Probate, six nieces and nephews and four great-nieces and nephews of the decedent (Objectants), jointly retained their counsel and conducted an investigation that ultimately determined that the April 17, 1996 will probated by the Executor was not the decedent's Last Will and Testament. Evidence was adduced that the decedent had executed a Last Will and Testament on July 11, 2000 and subsequently intentionally destroyed it. As the July 11, 2000 will revoked all prior wills of the decedent, its destruction would, in the absence of a subsequent will, result in the decedent's property passing pursuant to the laws of intestacy and the Executor not being named as executor. Accordingly, on December 1, 2009, the Objectants filed a Verified Answer to the Executor's Petition for Probate and Objections to the Probate of the April 17, 1996 Will.

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

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

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

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

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

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

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

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

Based on the circumstances, the Court has no choice but to find the ninth hour discovery of the decedent's final Will by the Executor to be suspicious. An entire year of estate litigation preceded that discovery, during which the Executor made numerous claims that the decedent lacked testamentary capacity, even attempting to obtain medical records to support that claim. However, a will drafted more than five years later, when the decedent was 89 years old raised no such issues with the Executor. The Executor's self-serving actions raised justifiable doubt in the eyes of the Objectants, and they acted to the benefit of the Estate as a whole.

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

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

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

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

Estate litigation or any kind of litigation is lengthy and financially draining. If you are contemplating in pursuing a probate proceeding, the Bronx County Probate Lawyer can be of great help in winning your case. Stephen Bilkis and Associates also offer the services of the Bronx County Estate Administration Attorney and Bronx County Estate Litigation Lawyer.

Will Challenged on the Grounds of Undue Influence

June 21, 2014,

A New York Probate Lawyer said this is a proceeding where JPM Bank (JPM), co-executor, moved pursuant to CPLR §5015(a)(2) to vacate the decree admitting to probate the decedent's will dated 24 June 2005 (2005 Will) due to newly discovered evidence. Several charities, the residuary legatees under a prior instrument that are adversely affected by the 2005 Will, join in the application; and, movants seek removal of JPM's co-executors and appointment of JPM as sole preliminary executor.
The following are the pertinent events that took place:

On 12 September 2005, the decedent died at the age of 93 years. He was survived by two nephews, MF and SF, and the issue of a predeceased nephew. On 21 February 2006, the 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to JPM, MF and ME.

A New York Will Lawyer said sometime in August 2006, AL, a legatee of a small bequest, discovered that the decedent's testamentary plan had been revised significantly from her penultimate will and that the decedent's long-time attorney, LS, had not supervised the 2005 Will's execution.
According to AL, as the decedent's friend and investment advisor, he had almost daily conversations with the decedent and her home attendants in the months preceding the execution of the 2005 Will; as he worked on an active trading floor, these telephone calls were recorded; he recalled having had several conversations between March 2005 and May 2005, in the months after the decedent had suffered a stroke and preceding execution of the 2005 Will, in which it seemed MF and SF were assuming increased control over decedent's finances and were pressuring the decedent to change her will; he requisitioned the tapes of those calls and brought the transcripts to the attention of JPM; and, the transcripts, including conversations directly with the decedent, depict behavior by MF and SF that supports the alleged undue influence.

In November of 2006, upon reviewing the transcripts, JPM interviewed LS, who revealed that he too had concerns about the family members' undue influence.

Nassau County Probate Lawyers said that according to LS, he had consulted outside counsel after meetings with MF and SF led him to believe that they were unduly pressuring the decedent to change her 2001 Will, which LS had drafted and which the decedent had executed under his supervision. LS's files, thereafter produced, provide some of the strongest evidence of undue influence and corroborate the transcripts provided by AL.
In January 2005, the decedent suffered a stroke that affected her physical, but allegedly not her mental, faculties.

Suffolk County Probate Lawyers said that according to LS, after the decedent suffered a stroke, he began to receive repeated calls from MF and SF who suggested that the decedent wanted to modify her will to increase dispositions to them and to ME. Thus, LS made four separate visits to the decedent to discuss the said potential changes but each time the decedent stated unequivocally that she had no intention of changing her will. LS, concerned that the decedent's nephews had been "browbeating" her to make changes she did not desire, cautioned MF and SF that their actions could constitute undue influence.
On 23 May 2005, LS again visited the decedent. This is LS's fifth visit to the decedent to discuss the subject. At this time, the decedent indicated that she now wanted to change her will. Despite his grave concern about the issue of undue influence, LS drafted a new will and mailed a copy to the decedent. However, when LS visited the decedent on three subsequent occasions between 23 May 2005 and 24 June 2005, he determined that the decedent was not able to freely execute the will.

As MF and SF were anxious to have the new will executed, they contacted a new attorney, JK, and arranged to have her preside over the execution of the new will drafted by LS. On 24 June 2005, JK supervised the will execution.

On 12 September 2005, the decedent died.

Consequently, JPM filed the application at bar seeking to vacate the probate decree. As stated, the Charities have joined in this application.
MF, SF and ME opposed.

In the responsive papers are LS's files and an affidavit dated 16 August 2007, filed by MF, in which he acknowledges his attempts to influence decedent's testamentary plan. Stating that he felt "insulted" by the bequest to him under the 2001 Will, MF concedes his repeated entreaties that decedent increase his share.

According to the respondents, JPM does not have standing to seek vacatur as it would not be entitled to file objections to probate under SCPA 1410.

According to JPM, it has the obligation as fiduciary to ensure that only valid wills are offered for probate.

The Charities, as residuary beneficiaries of the 2001 Will adversely affected by the probate of the 2005 Will, have subsequently joined in as co-movants in the proceeding at bar. Thus, the issue of standing is moot.

Under the rules, an application to vacate a probate decree must present a satisfactory showing of a substantial basis for contesting the will and a reasonable probability of success.

According to the movants, the basis for contesting the will is the discovery of new evidence, pursuant to CPLR 5015(a)(2), which suggests a strong probability that the respondents exerted undue influence on the decedent, causing her to change her will; and, that such evidence could not have been found with due diligence prior to the will being admitted to probate.

According to the respondents, the recorded phone conversations with AL do not constitute newly discovered evidence because AL's knowledge of the recorded telephone conversations suggesting undue influence should be imputed to JP; both JPM and AL failed to act in a timely manner in seeking vacatur; and, inasmuch as the Charities possessed information alleging a pattern of misbehavior, as described in their supporting affidavits, and failed to file timely objections to probate, they are precluded from challenging the probate decree at this late date, the institution of the proceeding at bar.

Knowledge acquired by an agent acting within the scope of his agency is imputed to his principal, and the latter is bound thereby, even though the information is never actually communicated to it.

First, JPM is not charged with knowledge of the nephews' alleged undue influence for two reasons: JPM Securities, Inc. and JPM are separate corporate entities and no evidence has been presented to suggest that an agency relationship exists between AL, an investment advisor for JPM Securities, Inc. and JPM; and, even if AL was an agent of JPM, the relevant conversations between AL and the decedent and her health care providers were clearly personal in nature and did not relate in any way to the investment services offered by the securities arm of the bank. At the time the 2005 Will was offered for probate, there was nothing to suggest that JPM, as nominated executor, knew or should have known about the special relationship that had developed over time between the decedent and her broker, or the existence of the recorded conversations that catalog the deeply personal concerns of the decedent and her attendants about the pressure being brought to bear on the decedent by her nephews. In brief, the knowledge gained by AL falls outside of the scope of his agency as an investment advisor for JPM Securities, Inc.

Second, JPM was not dilatory in bringing the new evidence to the Court's attention. It was only after the transcripts of the phone conversations came to light that JPM had reason to question the attorney-draftsman, LS, who confirmed his suspicions of undue influence. Within days after LS filed the 2001 Will, when JPM verified the dramatic changes in decedent's testamentary dispositions, it sought the drastic remedy of vacating the probate decree.

Third, the Charities were not dilatory in failing to file objections when the 2005 Will was offered for probate. At that time, the 2001 Will, under which they received significantly larger bequests, had not been filed with the Court. Only after LS filed the 2001 Will on 1 June 2007, a year after letters testamentary were issued, were the Charities aware of the extent to which their bequests had been reduced by the 2005 Will.

In Matter of Musso, 227 AD2d 404 [2d Dept 1996], several charities had been notified only days before a will was admitted to probate that a penultimate will provided them substantially larger bequests. Eight months later, they moved to vacate the probate decree and alleged undue influence and lack of testamentary capacity. In granting the motion, the court observed that "while vacatur disrupts the orderly process of" estate "administration and creates xxx uncertainty and nonfinality xxx the Court should also be slow to say that an injustice may not be corrected."

Here, JPM and the Charities bear the burden of proving a probability that undue influence can be established by a preponderance of the evidence.

Under the law, proof of undue influence requires (1) motive, (2) opportunity and (3) actual undue influence such that the testator acts contrary to her wishes because she cannot refuse or is too weak to resist. The mere fact that a new will alters the testamentary scheme contained in a prior will does not by itself raise a presumption of invalidity. A departure, however, from a previously expressed intention along with other suspicious facts may raise an inference of moral coercion that amounts to undue influence.

First, the taped conversations, along with the corroborating notes by LS, provide sufficient evidence of motive, opportunity and actual undue influence to suggest a probability of success. Sadly, the facts presented here paint a picture of a 93 year old woman who believed she "had no choice" but to change her will to accord with the unremitting demands of her closest family members.

Second, the fact that the will was executed under the supervision of an attorney who affirmed the decedent's capacity does not overcome the evidence presented of undue influence.

Third, while JK, the presiding attorney, memorialized her 24 June 2005 meeting with the decedent in a memorandum concluding that the decedent possessed the requisite testamentary competency, JK possessed few facts that would have caused her to question whether the decedent was making a new will of her own volition. Indeed, she may not have known of the nature and extent of the changes to the 2001 Will, including the significant reduction of bequests made to the Charities; she could not have known of the multiple visits made by LS to the decedent in which the latter declined to make further changes to her 2001 Will; and, she could not have known of LS's conclusion that the decedent's nephews had sought to unduly pressure the decedent to do so. JK may have been confident as to the decedent's testamentary capacity, but the inquiry does not end there. A determination of testamentary capacity should not preclude an independent determination that a testator succumbed to undue influence.

All told, there is clearly a reasonable probability that if the subject evidence had been produced in the form of objections to the probate of the 2005 Will, it would have resulted in a finding of undue influence.

Even were the parties unable to show compliance with CPLR 5105(a)(2), a determination to grant a motion to vacate a probate decree rests in the sound discretion of the court. "It is well established that, independent of statutory provisions, the court rendering a judgment, in its inherent power and control over its own proceedings, may vacate that judgment where it appears that substantial justice will be served and injustice prevented thereby."

Accordingly, under both the Weingarten standard and the court's inherent power, the decree dated 21 February 2006 admitting the will to probate was vacated. Objections to probate of the 2005 instrument, if any, was ordered filed within thirty days of notice of entry of the order. Upon vacatur of the probate decree, letters testamentary issued to JPM, MF and ME were ipso facto revoked. As the probate proceeding is to be reopened, the question arises as to which parties might be eligible for preliminary letters testamentary. Based upon a bona fide allegation of undue influence or other wrongdoing, the court may deny the issuance of preliminary letters pursuant to SCPA 707. The allegations against MF are sufficient to deny him preliminary letters testamentary. There is, however, little evidence to support an allegation of undue influence by ME. Although ME may very well have acted to thwart efforts of co-executor JPM by refusing to consent to the release of LS's files, this does not in and of itself meet the standard required to deny preliminary letters. The courts should nullify a testator's choice of executor only upon a "clear showing of serious misconduct that endangers the safety of the estate." Thus, preliminary letters testamentary shall issue to JPM and ME upon duly qualifying.
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Court Decides if Former Counsel is Entitled to Legal Fees

June 20, 2014,

A New York Probate Lawyer said that, in this estate, there are two separate proceedings to fix legal fees. In the first, the executor, the decedent's nephew, petitions to fix and determine the reasonable legal fee and disbursements to be awarded to his former counsel, at an amount less than the $14,200 in legal fees and $1,415.37 in disbursements billed and sought by the said counsel. The counsel cross petition for an order fixing his fees and disbursements in the billed amount. The second proceeding pursuant to SCPA 2110, commenced by him, seeks an award of $9,590, including $340 in disbursements, for legal services rendered to a former client, the decedent's daughter-in-law. The latter opposes the petition and cross-petitions to fix and determine his reasonable attorney's fees and disbursements contending, inter alia, that the legal fees, to the extent valid, should be borne by the estate. The parties agreed to submit the issues in each proceeding on the papers, without a hearing.

A New York Will Lawyer said that, the decedent died on August 4, 2006. Letters testamentary issued on October 30, 2006. The decedent’s daughter-in-law and the decedent's two grandchildren, the decedent's only distributees, each receive one-third of the residuary estate. The share of each grandchild is to be held in trust until that grandchild reaches the age of 30 years. Although the counsel’s representation of the executor in connection with this estate commenced on or about August 11, 2006 upon the filing of the petition for letters testamentary, the executor did not execute a retainer agreement, setting an hourly rate of $250, until January 14, 2007. The probate petition indicated that the estate consisted of personal property valued at $137,000 and certain Bronx realty valued at $500,000. Thereafter, the executor filed an affidavit increasing the value of the personal property to $154,360.56 and the realty to $569,000.
A Bronx Estate Administration Lawyer said that, the counsel’s legal bills reveal that as of the date of the filing of the probate petition, he was in possession of a deed of the Bronx realty which was executed by the decedent on May 21, 2000, over six years prior to her death. The deed conveyed the realty to the decedent’s daughter-in-law while reserving to the decedent a life estate. Upon learning of the decedent's death, the attorney who prepared and oversaw the execution of the deed provided it to him, who included the value of the realty in the probate petition. Following the admission of the will to probate, the executor and the counsel began collecting assets; in particular, they sought a date of death appraisal of the Bronx realty and personal property contained therein, and contacted brokers in order to sell the realty. The counsel’s bill reflects his involvement in meetings at the Bronx realty with the executor and appraisers, in obtaining brokers and receiving proposals from interested buyers and in drafting contracts of sale, although no closing ever occurred. During this time, it appears that disputes arose between the executor and the decedent’s daughter-in-law or her children concerning the sale of certain personal property, and the sales price of the Bronx realty. In addition, when the decedent's granddaughter reached the age of 30, she requested through her mother a $10,000 distribution and, in response, the executor sent $6,000 instead of the $10,000 requested. These events prompted a January 3, 2008 letter from the counsel to the executor stating, inter alia, that he concurred with her recent rejection of an offer on the Bronx realty, and the executor should issue a check in the requested amount to the granddaughter and provide him and her with an accounting and cancelled checks for all expenses.

Westchester County Probate Lawyers said that, the executor commenced an SCPA 2103 turnover proceeding seeking all estate documents in the counsel’s possession. Upon the cessation of his representation of the executor, he began representing the decedent’s, who signed a retainer agreement in April, 2008. On May 21, 2008, while represented by the counsel, she commenced an SCPA 711 proceeding seeking an order removing the executor and directing the turnover of all estate documents in his possession. In the said proceeding, the executor successfully moved to disqualify him as her counsel based on a conflict of interest. Thereafter, the executor withdrew his SCPA 2103 proceeding and all parties stipulated to discontinue the SCPA 711 proceeding commenced by her, she commenced an SCPA 2103 proceeding seeking a decree directing the counsel to turn over the deed dated May 21, 2000 to her new counsel. A decision dated April 1, 2009 reflects that this court ruled from the bench that he should turn over that deed to her, and the executor was restrained from distributing $25,000 of estate assets until Brady's claims for legal fees were fixed. The executor executed a Real Property Transfer report, reflecting a transfer and sale of the Bronx realty, as of May 21, 2000, to Lauren Harris.

A Suffolk County Probate Lawyers said that, the proceeding by the executor and cross petition by the counsel seeking to fix his fees and disbursements in connection with his representation of the executor ensued. In addition, he commenced the separate proceeding to fix the legal fees and disbursements owed to him by the decedent’s daughter-in-law.

The issue in this case is whether former counsel is entitled to his legal fees.

It is well settled that a client has an absolute right to discharge an attorney at any time", with or without cause. If the discharge is with cause, the attorney has no right to compensation or to a retaining lien, notwithstanding a specific retainer agreement; however, if the discharge is without cause before the completion of services, then the amount of the attorney's compensation must be determined on a quantum meruit basis.
The Surrogate's Court has broad discretion to determine what constitutes a reasonable attorney's fee after consideration of various factors including the time and money involved, the degree of difficulty of the matter in which services were rendered, the extent of the attorney's experience and the results obtained. Services which are wholly executorial in nature, that is, those capable of being performed by a layperson, are not recoverable from the estate.
Here, there is no evidence that the counsel was terminated by the executor for cause and, therefore, he is entitled to be compensated on a quantum meruit basis for his services rendered to the executor. Nonetheless, the executor claims that the estate was damaged when he included the realty as an asset of the estate and assumed the representation of the decedent’s daughter-in-law, and that those actions resulted in damages consisting of an increased filing fee and legal fees stemming from the motion to disqualify Brady or other inappropriate billing.
At the time of the filing of the probate petition, it appears that the counsel, in good faith, believed that the real estate should be included as an asset of the estate. While the parties continue to debate the legal merits of that position, the record clearly indicates that the executor and the distributees acquiesced in this course of action up to the time that the executor consulted and retained new counsel and terminated his services. As a result, the difference in the filing fee incurred by the estate as a result of the inclusion of the realty will not be deducted from his legal fees, and he is entitled to reasonable compensation for time he spent drafting contracts for the sale of the realty.
Nonetheless, once the executor terminated his representation while simultaneously indicating he no longer wished to follow his advice with respect to the realty and other matters, he could not, in good faith, independently pursue a course of action contrary to that desired by his former client and, in the process, place himself in a conflict of interest with that former client, the executor. As a result, all legal fees incurred in connection with the motion to disqualify Brady based on that conflict of interest and breach of fiduciary duty are deducted from the reasonable compensation payable to him.
His submissions indicate that he billed for services that are executorial in nature and could be performed by a layperson. His time breakdown reveals legal fees charged for, inter alia, going online to obtain a form and faxing a form, conversing with appraisers, traveling time to personally deliver documents, going to the realty and taking photographs, discussions with brokers and realtors generally and not in relation to offers to purchase, conversing with clients for unidentified reasons, and discussions concerning the sale of the personal property at the realty. Such acts and functions cannot be charged to the estate as legal fees. Furthermore, he spent more time than necessary on some issues because he failed to recognize that he represented the executor of the estate, and not the estate itself or the beneficiaries of the estate.
Accordingly, based upon a consideration of all of the relevant factors, including the retainer hourly rate, the executor's petition and the cross petition by the counsel are granted only to the extent that after deducting the legal fees incurred in the application to disqualify him, the court fixes the legal fee to be paid to him in the amount of $8,000, and fixes disbursements of $1,415.37 and, otherwise, the applications are denied. As he has no interest in this estate, his request for an order directing the executor to account is denied.
In his SCPA 2110 petition and supporting papers seeking a legal fee for services performed, the counsel’s asserts that he is entitled to all fees and disbursements requested because, solely as a result of his prior efforts to revoke the letters testamentary that issued to the executor, his former client, and to substitute the decedent’s daughter-in-law as administratrix c.t.a., those parties quickly "made a deal among themselves" and settled all proceedings pending at that time. In support, he notes that the parties withdrew a prior SCPA 2103 turnover proceeding by the executor against him, discontinued her prior SCPA 711 proceeding to remove the executor, without costs to either party, and decided not to pursue his and her prior demands for an accounting by the executor.
Notwithstanding that her retainer agreement with the said counsel is dated April, 2008, his bill for legal services to her encompass the period from February 5, 2008 through August 29, 2008. Those legal services are billed at a rate of $250 per hour and total $9,250. Disbursements total $340, consisting of a filing fee for the petition to revoke the letters testamentary that issued to the executor ($75), and the service of three citations in connection with that petition ($265).
Here, he should have known there was a conflict of interest in his representation of the decedent’s daughter-in-law in a proceeding seeking to remove the executor, his former client. The disqualification of the said counsel as attorney due to his contravention of the duty of loyalty to his former client, the executor, is tantamount to a discharge for cause. As the serious misconduct and conflict of interest relate to the representation at issue, he forfeited his right to seek any legal fee from her. Nonetheless, he may recoup from her the disbursements of $340 that he expended during the course of that representation.
Accordingly, the court held that the counsel’s SCPA 2110 petition against the decedent’s daughter-in-law and her cross petition are granted only to the extent of awarding him $340 in disbursements and, otherwise, are denied.
If you are having problems with the legal fees of your counsel in a probate proceeding, seek the assistance of a Bronx Estate Litigation Attorney and Bronx Estate Administration Attorney at Stephen Bilkis and Associates.

Court Decides Motion for Summary Judgment

June 19, 2014,

A New York Probate Lawyer said the decedent died and her only distributee, other than the proponent and the objectant, is her daughter. The testamentary assets are valued at $6,000,000. The propounded instrument establishes a trust for the benefit of the proponent equal to the unified credit. It also contains legacies of $25,000 for each of the decedent's seven grandchildren, including the objectant's three children. The residuary estate is bequeathed outright to the proponent and the remainder interest in the unified credit trust is bequeathed to the decedent's daughter or, if she does not survive the proponent, to the daughter's four children. Paragraph Seventh of the instrument explains that no greater provisions have been made for the objectant because the decedent had provided for his children during her lifetime and because he will receive benefits in the future in the practice of the law commenced by the decedent’s husband in 1947. The propounded instrument contains an attestation clause and its execution was supervised by the proponent, an attorney.

Nassau County Probate Lawyers said in support of the motion, the proponent has submitted an affidavit from his attorney, an affidavit from the sole surviving attesting witness indicating that the instrument was executed with the required statutory formalities, and the deposition of the witness. The attesting witnesses couple who lived in the same apartment house as the decedent and the proponent and had been their friends for many years. The witness husband predeceased the decedent. The witness wife was 84 years of age when she was deposed. Understandably, she did not recall all of the particulars of the execution ceremony that had occurred more than a decade prior to the deposition. However, she did recollect that the execution ceremony took place in either her own apartment or the decedent's apartment; that the only people who were present were herself, her husband, the decedent and the proponent; and that she knew that the decedent was executing a will and that she was acting as an attesting witness.

Here, a Staten Island Probate Lawyer said the motion for summary judgment is predicated upon the deposition which occurred prior to the filing of objections and, thus, prior to the provisions of Surrogate Court’s Procedure Act (SCPA) coming into play. Moreover, the two primary beneficiaries under the will support the instant motion. Thus, the only beneficiaries who could conceivably be prejudiced by not having received formal notice of the objections pursuant to SCPA are the grandchildren, who each receive a $25,000 legacy. One of the grandchildren is a minor. If jurisdiction had been obtained over him pursuant to SCPA, it would appear that the proceeding would be burdened with the expense of having a guardian ad litem appointed for him. However, it does not appear that either the objectant or any of the grandchildren will be prejudiced by the court's entertaining this motion prior to the service of the SCPA citation upon the grandchildren notifying them that objections have been filed. To the extent that the motion is granted, the determination will inure to the grandchildren's benefit. To the extent that the motion is denied, they would still have the right to participate in all future pretrial procedures or proceedings, including a motion for summary judgment based upon evidence adduced at such procedures. Considering these facts, the court, in the exercise of its discretion, concludes that it may entertain the instant motion notwithstanding the fact that SCPA jurisdiction has yet to be obtained over the grandchildren. Of course, if the objectant were the party who was seeking summary judgment, the court would not entertain the motion until SCPA jurisdiction had been completed. This is so because SCPA provides that beneficiaries who were not served with the SCPA citation would not be bound by the determination denying probate to the propounded instrument.

The objectant's inconsistent position with respect to the 2003 will is not tenable. If the objectant is contending that the 2003 instrument is invalid because it was not duly executed in accordance with the statutory formalities, this would result in a determination that its revocatory provisions are also invalid. This is so because Estates, Powers and Trusts Law (EPTL) wisely requires that a revocatory instrument be executed with the same formalities as those needed to make a valid will. Similarly, if the objectant is contending that the 2003 instrument is invalid because the decedent lacked testamentary capacity at the time of execution, this would result in holding that as the testator was incompetent to make the dispository provisions of the will, he was equally incompetent to make its revocatory provisions.
For the reasons stated above, the objectant's concession that the 2003 instrument is not a valid will precludes granting his contention that its revocatory provisions are somehow effective. Consequently, the court holds that the existence of the 2003 instrument, which no interested party seeks to prove is valid, is not an impediment to admitting the 1992 instrument to probate. Therefore, summary judgment is awarded in favor of the proponent, dismissing objection first, alleging that the 2003 instrument revoked the propounded instrument.
The objectant's contention that the proponent has not established a prima facie case of due execution is based primarily upon the inability of the sole surviving attesting witness to recall all of the particulars of the execution ceremony. The objectant has not asserted that any of the signatures on the instrument are forgeries. The 84-year-old attesting witness did not give any testimony which would indicate the will was not validly executed. She testified that she doesn't remember the dialogue really, but she assumes her friend told her to sign to bear witness to the will and that's what she did. The imperfect memory of this attesting cannot be the basis to deny probate of the will. To the contrary, the proponent has met his burden of proof on the issue of due execution where, as here, the testimony of the attesting witness is buttressed both by the inference of due execution that arises from the supervision of the execution ceremony by an attorney and the presumption of due execution that arises when there is an attestation clause coupled with evidence of the signatures of the testator and the witnesses. Notwithstanding the objectant's contention that the proponent's memory and ability to perform legal services has greatly diminished over the past few years, he appears to question why the proponent has not given his detailed version of the execution ceremony that he supervised. In any event, the objectant has not cited any example that would lead to even an inference that in 1992, when the proponent and the objectant were law partners, the proponent did not know the requirements for the due execution of a will. Furthermore, the objectant has failed to offer any evidence to rebut the proponent's prima facie case of due execution. Consequently, the motion to dismiss objection second is granted.
The affidavit and testimony of the attesting witness coupled with the provisions of the will suffice to establish that, when the propounded instrument was executed, the decedent possessed testamentary capacity, (she understood the nature and consequences of executing her will) she knew the nature and extent of the property of which she was disposing; and she knew the natural objects of her bounty and her relations with them. It would appear that if the objectant, upon information and belief were of the opinion that his mother lacked testamentary capacity, he would be able to provide some proof to support this contention. Instead, by parsing words, he attempts to show that some of the provisions in the instrument, which he does not like, reflect the decedent's lack of testamentary capacity. Moreover, the objectant has not offered any explanation as to how the information contained in the gift tax returns that he requested would, standing alone, raise an issue of fact with respect to whether his mother had testamentary capacity when the propounded instrument was executed. Lastly, it is noted that the objectant's contention that the motion is supported solely by the affidavit of an attorney, who did not witness any of the relevant facts, is simply not accurate. The motion is supported by the affidavit and deposition of the attesting witness. It is appropriate for counsel to make reference to those documents in his affidavit. Accordingly, the motion to dismiss objection third is granted. The motion for summary judgment is granted in its entirety.
Most of the time, a will is made to safeguard the interest and the better future of younger family members. If you want to probate a will for your children’s sake, consult the Bronx County Probate Lawyer together with the Bronx County Will Contest Attorney from Stephen Bilkis and Associates.

Petitioner Contends Undue Influence

June 18, 2014,

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

Queens Probate Lawyers said that the proponent filed the petition for probate in June 2006 and jurisdiction was obtained over all necessary parties in August 2006. The propounded will leaves nothing to objectant, allegedly because the decedent believed that she had converted assets worth $3 million from him and from the wife by use of a power of attorney they had given her. In fact, he pressed criminal charges against her which resulted in her plea of guilty to a Class A misdemeanor. The objectant filed objections to probate; however, she never appeared for her deposition in this proceeding, nor did she ever produce any documents demanded by petitioner. Her initial reason for seeking to delay her deposition was that doing so would violate her Fifth Amendment right against self-incrimination. However, she never appeared for deposition even after the conclusion of the criminal matter when she no longer had a claim of constitutional privilege. She then averred that she was suffering from a psychological condition which prevented her from being deposed. Being unconvinced of that contention, the court, by decision and order, granted the summary judgment motion to the extent that objectant’s objections of fraud and undue influence, upon which the objectant bears the burden of proof, were dismissed.

A New York Will lawyer said regarding petitioner's motion for summary judgment, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in contested probate proceedings is appropriate where a contestant fails to raise any issues of fact regarding execution of the Will, testamentary capacity, undue influence or fraud.

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

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

The proponent also has the burden of proving testamentary capacity. It is essential that a testator understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property and his relation to the persons who ordinarily would be the natural objects of his bounty. A testator must understand the plan and effect of the will and, as noted, less mental faculty is required to execute a will than any other instrument. Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and do not preclude a finding thereof as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made.
Here, again the evidence clearly establishes that at the time of the execution of the propounded instrument, the testator was of sound mind and memory and fully competent to execute a will. The testator advised the attorney draftsman that he was disinheriting the objectant in favor of the proponent. He also described his substantial financial assets and how those assets were titled from memory without prompting, notes, or other documentation. Objectant’s affidavit, and the others submitted in support thereof, does not raise a triable issue of fact regarding the testator's capacity on the date the will was executed.

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

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

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

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

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

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

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

The provisions of a last will and testament of a decedent becomes effective only upon the allowance by the court through probate. Here in Stephen Bilkis and Associates, the named executor in the last will and testament will be represented by our New York Probate attorneys in order to make the last wishes of the testator granted. Also, our New York Estate lawyers will help you divide your property in accordance with law.

Action Stems from Plaintiff's Attempt to Purchase Real Property

June 17, 2014,

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

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

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

Bronx Probate Lawyers said that although there was no Trust was established and funded in accordance with Article Sixth of the Will with regards to the subject property, a contract for sale of said property was executed, between plaintiff and allegedly the four family members. Although a closing date on the sale of the property was scheduled, and attended by signatories on the contract, the closing did not occur, because it was alleged that one of the daughters did not have proper identification.

Plaintiff filed a Notice of Pendency on the subject property after several failed attempts to close on it. Thereafter, he commenced this lawsuit in November 2005, seeking, among other things, specific performance of the contract for sale of the subject property. The contract provided, in relevant parts, that in the event that the seller was unable to remove any impediment to the conveyance of title, the contract would be cancelled and the downpayment returned to the seller. Therefore, the remedy available under the terms of the contract was the return of the $25,000.00 down payment to plaintiff, and that Sellers shall pay the net cost for the title examination not to exceed $250.00.
The husband died in February 2007, and no successor Letters of Executor and/or Trustee were issued to anyone. Thereafter, the son conveyed the subject property to himself and one of the daughters, by an Executor's Deed, for no consideration. The Deed was filed with New York City Department of Finance, Office of the City Register. Also, the intervener gave the daughters a mortgage on the property for $300,000.00, and, on the same day, filed it with New York City Department of Finance Office of the City Register. Under the terms of the promissory note, which named the intervener as the Nominee, the payments would commence in November 2008, and end on March 2009, with an interest rate of 14% pre annum, and a default rate of 16%. The title insurance company was Stewart Title Insurance Company. A Personal Guarantor for the $300,000.00 loan was co-defendant, whom the daughter claims gave her and the son, $90,000.00 (the total amount then received from both loans), and then demanded that a substantial portion of that loan be wire transferred to him for repairs to the property, which were never done.
In April 2010, the intervener had filed a motion seeking to amend the caption to include him as a party defendant, to permit him to intervene and for a declaratory judgment that he has a beneficial ownership interest in the subject premises. At the time of filing his motion to intervene had commenced a foreclosure proceeding against the daughters for defaulting on the mortgages. In an order dated June 28, 2010, Katz's motion to intervene was granted on default.
During the course of his investigation, the daughter was interviewed who told him that she and her father received $90,000.00 from co-defendant, whom she believed was involved with intervener.
The allegations of the various parties with regards to the subject property is infused with misrepresentations, fraud, undue influence, and conflict of interest, between the family and intervener, an attorney.
The Court has general original jurisdiction in law and equity and has concurrent jurisdiction with other courts, such as Surrogate Court, and is only limited in matters of exclusive jurisdiction conferred on the federal courts or in actions for money damages against the state which can only be heard in the Court of Claims.
Since the Estate of the deceased had been probated and an accounting was filed, the Co-Executors and Co-Trustees are deceased, and the only remaining issues stemming from the Estate is the Testamentary Trust of Article Sixth, which involves disputes amongst the living, the beneficiaries of the Trust situs, this Court will extend its jurisdiction over the testamentary Trust and the beneficiaries of the Trust.
Surrogate's Court Procedure Act § 1502(1) ("Appointment of trustee") allows this Court to appoint a trustee or successors, or co-trustees, when no trustee is able to act or one of the trustees is unable to act and a successor trustees is necessary to execute the trust or execute any power created by a will or lifetime trust. Here, both the nominated Co-Trustees are deceased. The nominated successor Trustee never obtained Letters of Trusteeship, and attempted to terminate the Trust without any Court Order or Decree, (based upon his action of executing the Executor's Deed, loan documents placing two mortgages on the property, and executing the Quitclaim Deed) in contravention of the Trust; he is therefore disqualified to serve as a Trustee.
The Court finds that a Trustee is needed, and hereby appoints the GAL as the Trustee; and notes that all interested parties agreed to his appointment, by their Stipulation. The parties agreed to his appointment as long as this Court determined that the mortgages and deeds are null and void, and that the Trustee should be appointed to fulfill the purpose of the Will and the Trust created for the subject property.
Estates, Powers and Trusts Law ("EPTL") § 7-9 provides the general rule that a trust can only be terminated upon the consent of all interested persons only during the grantor's lifetime and with her consent. EPTL 7-1.19 "Application for termination of uneconomical trust", passed in 2004, applies to trusts, whenever created, and provides that any trustee or beneficiary may make an application, upon notice as the court directs, to terminate the trust, before the Surrogate's Court having jurisdiction over the trust. The court may terminate the trust where the continuation of the trust is economically impracticable, the express terms of the disposing instrument do not prohibit its early termination, and such termination would not defeat the specified purpose of the trust and would be in the best interests of the beneficiaries. EPTL 7-1.19 is a narrow exception to general rule pursuant to EPTL § 7-9 that a trust is indestructible.
EPTL § 7-2.4 "Act of trustee in contravention of trust" makes voidable any sale, conveyance, or other action by the trustee that is in contravention of the trust.
Based upon the inspection and appraisal reports obtained by the GAL, it appears that it is not economical to expend money to administer the Trust, since the situs of the Trust, the property, has been abandoned for years, its value has significantly depreciated and no monies exist to do the needed repairs and renovations; and it is encumbered by a tax lien.
Likewise, the contract for the sale of the house to plaintiff cannot be enforced as any such sale is voidable, pursuant to EPTL § 7-2.4, because the purported Sellers did not have the power to sell the property, which was bequeathed pursuant to the testamentary Trust of Article Sixth of the Will. None of the family members were issued Letters of Trusteeship, which would have given them the authority to create, fund, convey title to the property, and terminate the Trust. It is noted that EPTL § 7-3.2 provides relief in certain circumstances to bona fide purchasers who do not have notice of a trust.
EPTL § 7-2.4 provides, in sum and substance, that if a trust is expressed in an instrument, such as a Will, creating the estate of the trustee, then every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by that Article and by any other provision of the law, is void. Herein, the Article Sixth Trust under decedent's Will created a irrevocable Trust, and, although there are limited exceptions to the termination of an irrevocable trust, none of those exceptions apply herein.
Because the Will created a Trust of the subject property, EPTL § 7-1.19 is controlling as to when the Trust can be terminated. None of the requirements of EPTL § 7-1.19 were met by the family in this case: letters of trusteeship were never sought and issued, a trust was never created, and no application to terminate the Trust was made to the Court, and no order or decree terminating the Trust was issued.
Therefore, the Court finds that no authority existed for any of the family to have engaged in the transactions regarding the property. Their attempts to deed, sell, and mortgage the real property are a nullity. Consequently, the lispendens is cancelled; and the mortgage foreclosure action is dismissed.
Accordingly, the branch of plaintiff's Order to Show Cause seeking to renew is granted. The branch seeking specific performance on the contract of sale is denied; and the lispendens is cancelled. However, the relief granted is that the subject mortgages and accompanying promissory notes, the Executor's Deed, and the Quitclaim Deed, are deemed null and void; and that plaintiff is entitled to reasonable attorneys' fees, costs, and sanctions, as set forth more fully herein. Further, this Court grants dismissal of the mortgage foreclosure action. The GAL is appointed as Trustee of the testamentary Trust under Article Sixth of the Will.
Here in Stephen Bilkis and associates, we have Bronx County Probate attorneys who will cater your needs in probate of a will of a testator. We will help you implement and make the provisions thereof effective. For proper distribution of the estate of a deceased, we also have Bronx Estate lawyers, who will inform you the fundamentals of the estate in so far as the properties which can be subject of succession and its proper distribution. For more inquiries, don’t hesitate to contact us now.

Wife Files Will Contest Action Over Real Property

June 16, 2014,

This action stems from plaintiff's attempt to purchase certain real property, located at Bronx County ("subject property"), in August 2005, from four members of a family.

New York Probate Lawyers said one of the members, a lady, died testate in February 1986. Under the terms of her Will, her husband had a life interest in certain properties, but not the subject property, only access to its garage. Article Sixth of the Last Will and Testament provided that their son had a life income interest in the subject property which was to be held in Trust by Trustees. The son’s daughters were allowed to occupy the first floor and second floor, respectively, and, upon the son’s death, the subject property was to be transferred jointly to the daughters, decedent’s granddaughters. The Will also provided that, upon the husband’s death, the son would substitute as Co-Executor and Co-Trustee in his place. The other Co-Executor and Co-Trustee attorney was never a party to the sale of the subject property. Further, the husband and the lawyer never obtained Letters of Co-Trusteeship for the Article Sixth Trust, and only the husband took action as an unauthorized Trustee with regards to the subject property.
A Bronx Conty Probate attorney said that Probate Petition and Notice of Probate were filed with the Surrogate's Court in April 1988, naming the husband and the lawyer as Co-Executors and Co-Trustees. It also requested that Letters of Testamentary be issued to them and that Letters of Trusteeship be issued to them under the Article Third and to the lawyer under the Article Eleventh. Thereafter, the Surrogate's Court issued Letters of Co-Testamentary and Co-Trusteeship to the Petitioners. However, the Letters of Trusteeship were limited to Articles Third and Eleventh Trusts. The Surrogate's Court provided a letter to the GAL stating that no application for Letters of Trusteeship was issued under Article Sixth of the Will.

A New York Will Lawyer said that although there was no Trust was established and funded in accordance with Article Sixth of the Will with regards to the subject property, a contract for sale of said property was executed, between plaintiff and allegedly the four family members. Although a closing date on the sale of the property was scheduled, and attended by signatories on the contract, the closing did not occur, because it was alleged that one of the daughters did not have proper identification.

Westchester County Probate Lawyers said the plaintiff filed a Notice of Pendency on the subject property after several failed attempts to close on it. Thereafter, he commenced this lawsuit in November 2005, seeking, among other things, specific performance of the contract for sale of the subject property. The contract provided, in relevant parts, that in the event that the seller was unable to remove any impediment to the conveyance of title, the contract would be cancelled and the downpayment returned to the seller. Therefore, the remedy available under the terms of the contract was the return of the $25,000.00 down payment to plaintiff, and that Sellers shall pay the net cost for the title examination not to exceed $250.00.

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

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

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

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

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

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

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

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

Estates, Powers and Trusts Law ("EPTL") § 7-9 provides the general rule that a trust can only be terminated upon the consent of all interested persons only during the grantor's lifetime and with her consent. EPTL 7-1.19 "Application for termination of uneconomical trust", passed in 2004, applies to trusts, whenever created, and provides that any trustee or beneficiary may make an application, upon notice as the court directs, to terminate the trust, before the Surrogate's Court having jurisdiction over the trust. The court may terminate the trust where the continuation of the trust is economically impracticable, the express terms of the disposing instrument do not prohibit its early termination, and such termination would not defeat the specified purpose of the trust and would be in the best interests of the beneficiaries. EPTL 7-1.19 is a narrow exception to general rule pursuant to EPTL § 7-9 that a trust is indestructible.
EPTL § 7-2.4 "Act of trustee in contravention of trust" makes voidable any sale, conveyance, or other action by the trustee that is in contravention of the trust.

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

Petitioner Files Probate Action Based on Will Contest

June 15, 2014,

A New York Probate Lawyer said on 17 June 2007, seven months after executing her will, the decedent, AB, died. Her husband predeceased her in 2001, and she never had any children, biological or adopted. The decedent was survived by six distributees: NK, GKH, and EKS (children of the decedent's predeceased brother, HK; and, DK, BK, and KK (the children of decedent's predeceased nephew, RK, and who apparently spell their surname differently, with a double last letter). The six distributees reside in Australia.

The proponent and executor, G, had been employed by the decedent as a full-time caregiver who lived in the decedent's home.

A New York Will Lawyer said on 21 September 2007, G filed a petition for probate, stating that the decedent left no distributees, surviving or deceased. Under Paragraph 6(a) of the petition, the "name and relationship" of all persons with a "legacy, devise or other interest, or nature of fiduciary status" is asked. In G's original probate petition, she stated that she was the decedent's live-in companion and the beneficiary of the decedent's entire estate, as well as the designated executor. The only other individual named by G as a person interested in the decedent's estate is G's sister, RG, a resident of Ukraine, who is listed as the successor beneficiary of the decedent's entire estate and the nominated successor executor. The petition reflects 23 Alexander Drive in Oyster Bay, which had been the decedent's home, as G's address. In response to question 8(a), which asks whether "any beneficiary under the propounded will, listed in Paragraph 6 or 7 above, had a confidential relationship to the decedent," G indicated that she, "petitioner," had a confidential relationship with the decedent.
On 25 September 2007, preliminary letters issued to G with the court directing the submission of a family tree. On 8 November 2007, G submitted an affidavit stating "I am not aware of any disinterested person capable of giving a Family Tree Affidavit xxx" and advised the court that the decedent spoke occasionally with someone named NK and was visited by someone named FR but that she did not know whether the decedent was related to these individuals.

A Staten Island Probate Lawyer said on 25 February 2008, counsel for various members of the decedent's family advised the court by letter that the decedent had executed a will in 2001 in which members of the decedent's family and the family members of her late husband were named as the beneficiaries and co-executors. A copy of the executed will was furnished to the court but counsel advised that the original signed document had not been located, that the family members intended to prove that the proffered 2006 will was procured by G by means of fraud and undue influence, that the decedent was not of sound mind or memory and was not capable of making a will in 2006, and that the will was not properly executed. The letter also accused G of committing perjury on the basis of the sworn statements made by G in her petition that the decedent left no distributes even though she had actual knowledge of the distributees’ existence and other extended family members. Counsel for the decedent's family demanded that the petition for probate be amended to reflect the decedent's distributees. A copy of the said letter was sent to counsel for G

G filed a consent to change attorney dated 25 February 2008. On 10 April 2008, G filed another consent to change attorney, dated 28 March 2008. On 18 April 2008, with the representation of the third attorney, G filed an amended petition. Under the amended petition, G is not listed as an interested person under paragraph 6(a), despite her interests under the will. This amended filing reflects that the decedent left an alleged nephew, NK, and two alleged nieces, GKH and EKS, all of whom are the children of the decedent's predeceased brother, HK. In reply to question 8(a) as to whether any beneficiary under the will had a confidential relationship with decedent, in this amended petition for probate, G checked "None."
On 13 June 2008, counsel for the family members, representing the three above-named alleged distributees and DK, BK and KK, children of the decedent's predeceased nephew, RK, filed a notice of appearance and family tree affidavits signed by EKS, the decedent's niece, and JA, a niece of the decedent's husband. According to the affidavits and the family tree, the decedent had three brothers who predeceased her: AK (who had no children), HK (who predeceased but was survived by four children, one of whom died leaving no children) and JK (whose only son, RK, died in 1991, leaving three children).

By letter dated 28 July 2008, G's attorney asked counsel for the family to "consent to the extension of Preliminary Letters, recognizing the fact that the Preliminary Executor is not permitted to distribute any moneys to estate beneficiaries until such time as full Letters are issued." G's attorney further indicated that he was trying to determine whether the family tree and the affidavit of heirship provided to the court by the decedent's family would be sufficient to establish heirship, and opined that a genealogist might be required. The family's attorney agreed to consent to the extension of preliminary letters.

On 18 September 2008, another amended petition was filed and in this last version, G acknowledged the existence of the six alleged distributees. The court did not require that a supplemental citation be served on the newly acknowledged distributees; a notice of appearance on their behalf had previously been filed. G's attorney did not provide counsel for the distributees with a copy of the second amended petition or advise him or his clients that it had been filed.

According to G's attorney, in his affirmation in opposition to the instant motion, sometime in September 2008, he telephoned an associate of opposing counsel with the intention of inquiring whether objections were going to be filed but despite the associate's assurance that she would call back the next day, the call was not returned; on 24 October 2008, he had a decree granting probate with notice of settlement served personally on the office of counsel for the distributes; and, no objections were filed within five days of the date of personal service.
On 31 October 2008, based on the second amended petition, the 2006 will proffered by G was admitted to probate and the issuance of full letters on 3 November 2008 followed.

The motion now before the court, also dated 31 October 2008, followed.

According to the movant’s counsel (family’s counsel), in his affirmation in support of the motion to vacate the decree, the motion should be granted as the objectants have previously indicated that they seek to avail themselves of the right to file objections to the probate of the will presented by the petitioner; proceedings pursuant to SCPA §1404 should take place prior to the court making any determination on the objections to be filed by objectants; this has not occurred as the objectants were unaware of the filing of the second amended complaint by the petitioner as the same was never served on their counsel; and, the objectant's counsel erroneously believed that the notice of settlement served by the petitioner was for the re-issuance of temporary letters of Probate.

According to G's attorney (opposing counsel), in opposition, the motion must be denied as it does not meet the standard established in 2008 by the Court of Appeals for vacatur of a probate decree, particularly, "a probate decree should be vacated only if petitioner can demonstrate facts constituting a substantial basis for challenging the proffered will and a reasonable probability of success on the merits of its undue influence claim;" and, the movants did not meet the requirements of CPLR 5015 for relief from a judgment or order, namely: excusable default; newly discovered evidence; fraud, misrepresentation or other misconduct; lack of jurisdiction or reversal; or, modification or vacatur of a prior judgment on which the order or judgment is based.

According to the movant’s counsel, of the five categories of relief, the circumstances surrounding his failure to timely file objections to probate give rise to an excusable default; he pointed out that G’s attorney requested that he consent to an extension of temporary letters but then served him with a notice of settlement for full letters, without any prior notification of this change in strategy and neglected to send him a copy or give notice of the second amended petition filed with the court on 18 September 2008; he was away from the office when the notice of settlement was received and he reasonably assumed that the notice of settlement was for the previously agreed upon extension of preliminary letters, and therefore did not object; and, he was waiting for the second amended petition to be filed, after which he intended to proceed on behalf of his clients.

Here, the fact remains that the movants' counsel took no court action on behalf of his clients at any point prior to making the motion for vacatur; and, at no time did counsel file objections or seek discovery and merely stated an intent to do so. While movants' counsel is correct in saying that a copy of the second amended petition should have been sent to him, opposing counsel is equally correct in pointing out that the second amended petition contained no changes or information previously unknown to counsel, and movants' counsel had no reason to expect that it would. The opposing counsel’s failure to send a copy of the second amended petition to the movants' counsel is not a jurisdictional defect. Even if the court were to find that the above facts are sufficient to establish an excusable default, the movant's counsel failed to establish the second prong required for vacatur, namely, "a reasonable probability of success on the merits." The court is not taking the position that there are no facts to vacate the decree of probate, but rather, that the facts to support vacatur have not been properly presented to the court.

However, while the movants' attorney failed to meet the standard for vacatur, the court is troubled by many of the facts on record.

First, G's initial petition disclaimed any knowledge that the decedent left surviving distributes. G's alleged lack of knowledge is disputed by multiple documents. It appears that G submitted false information to the court and only when challenged did she change her sworn statements.
Second, in paragraph 6(a) of G's initial petition for probate, she accurately reflected her relationship with decedent as that of a "live-in companion." G then deleted this information from her amended petition and second amended petition, the latter of which was the basis for the admission of the will to probate.

Third, in response to item 8(a) of the petition, G stated on her original petition that she was in a confidential relationship with the decedent. However, in her amended petition and second amended petition, G checked the box indicating that no confidential relationship existed. A legatee who is the decedent's sole live-in caregiver and who is otherwise unrelated to the decedent is often found to have been in a confidential relationship with the decedent. Had this question been answered accurately by G, the court might have scheduled a hearing prior to the issuance of full letters.

Fourth, aside from G's own conduct, it must be noted that the 2006 will differs radically from the copy of the decedent's prior will submitted by the attorney for the distributees, in which the decedent bequeathed her estate to the members of her family and the family of her husband. There is no clear indication that anything occurred subsequent to 2001 that would have led the decedent to disinherit her entire family. What’s more, the 2001 will was prepared and its execution was supervised by an attorney whose office was located in Nassau County, where the decedent resided, whereas, the 2006 will was prepared and was supervised by an attorney in Brooklyn, New York. It is not shown how the decedent came to use this attorney and the affidavit of the attesting witnesses did not indicate the location where the subject instrument was executed.

Fifth, the 2006 will provides that in the event G predeceases the decedent, all of the decedent's property will pass to G's sister in the Ukraine. In Matter of Martinez (NYLJ, 19 September 2007 [Sur Ct, New York County]), the court addressed a will which left everything to a person who had been in a confidential relationship with the decedent. The court held that "when the person alleged to have benefitted by the exercise of undue influence is in a confidential of (sic) fiduciary relationship with testator, an inference arises that her influence was undue xxx requiring the beneficiary to explain the circumstances of the bequest xxx."

Standing alone, any one of the said facts might be insufficient to prove undue influence or fraud, particularly in view of the fact that no original copy of the 2001 will has been proffered.

Nonetheless, the combination of these factors casts doubt on the validity of the probated will.
It is the court's chief concern to admit only valid wills to probate and the court must be satisfied as to the genuineness of the will before admitting it to probate. Even after a will has been admitted to probate, the court may still examine "issues concerning its validity and effect."
Here, the court's admission of the 2006 will to probate was based, in part, on substantive omissions and misstatements by the proponent and upon review the court is not satisfied as to the genuineness of decedent's 2006 will.

Accordingly, the court vacates its decree dated 31 October 2008 which admitted to probate the decedent's will dated 8 November 2006; vacates letters testamentary issued to G; will reissue preliminary letters testamentary to G; and stays the executor from making distributions or expending any funds she may have already distributed to herself.

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Defendant Appeals Judgment from Foreclosure Proceeding

May 29, 2014,

A New York Probate Lawyer said in an action transferred to this court from Supreme Court, Nassau County, defendant, a house loan corporation, one of several defendants, moves the court for an order dismissing the complaint as against it. Plaintiffs oppose Countrywide's motion and cross-move for summary judgment dismissing Countrywide's answer, or, in the alternative, striking Countrywide's fourth and seventh affirmative defenses.

A Nassau County Estate attorney said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by an individual who died intestate in July 1986. Her brother administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that the sole distributee and that the subject property vested in him immediately upon his sister's death. The other then died testate on June 9, 1994. Th deceased was appointed the voluntary administrator of the estate.

A New York Will Lawyer said the court's file contains the original will which devises and bequeaths all of his property to his cousin who died in August 2000. There was no deed executed from the estate of the first decedent to the second, nor was there a deed from the estate to the deceased executor. Although the original will was filed in the court incident to the voluntary administration of the estate of the second decedent, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the decedent, the administrators of his estate, and claim to be his only distributees.

Long Island Probate Lawyers said the underlying action by plaintiffs is to vacate the tax lien foreclosure sale, the deed by which the current owners of record, defendants obtained title, and the mortgage placed on the property by the defendant Countrywide incident to the purchase of the property by defendants. Plaintiffs contend that as the fee owners of the subject property at the time the foreclosure action was commenced, they were entitled to notice of the proceeding and the failure to provide that notice requires the vacating of the judgment in the foreclosure action and all subsequent deeds and mortgages.

Queens Probate Lawyers said the defendant Corporation now moves to dismiss the complaint as against it on the ground that it has not been established that plaintiffs are the distributees and thus have no standing to bring the Supreme Court action; the court disagrees.
Plaintiffs were appointed the administrators of the estate by decree of this court and letters of administration issued to them in November 2002. "Letters granted by the court are conclusive evidence of the authority of the persons to whom they are granted until the decree granting them is reversed or modified upon appeal or the letters are suspended, modified or revoked by the court granting them". The plaintiffs thus clearly have standing to commence and maintain the action in their capacities as the administrators of the estate.
The corporation also contends that plaintiffs have made claim to the surplus monies from the tax lien foreclosure sale and that they have therefore "ratified" the tax foreclosure sale they are seeking to vacate.
With regard to the plaintiffs' cross-motion for summary judgment dismissing Corporation's answer, 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.
Here, plaintiffs have failed to establish that they are entitled to judgment, let alone judgment as a matter of law. Even assuming that either the plaintiffs, individually, or the estate were, at the time of the foreclosure action, the fee owners of the property, the issue is whether the notice given to the administrator of the estate of was "reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections"
Nassau County Administrative Code § 5-51.0 requires that notice be sent to, among others, "the occupant, owner in fee and the heirs, legal representatives and assigns of any of either of them appearing of record on the premises affected by such sale. The words appearing on record' shall be construed to refer to any person on whom a notice is hereby required to be served, the nature and degree of whose interest appears from the records kept by the County Clerk, County Treasurer, Surrogate of the County and receiver of taxes for the town or city in which the property is located."
The plaintiffs have also cross-moved to dismiss the corporation's fourth affirmative defense to the extent that the plaintiffs' claim to the surplus monies be deemed a ratification of the foreclosure sale. As indicated above, the court concludes that their claim to the surplus monies does not constitute a ratification of the tax lien foreclosure sale and the cross-motion is therefore granted to that extent.
The plaintiffs have also cross-moved to dismiss Countrywide's seventh affirmative defense that the plaintiffs do not have standing to prosecute this action. The court has already concluded that plaintiffs have standing, at least in their capacity as administrators of the estate to prosecute the action. To that extent, the motion is granted. It is denied with respect to whether plaintiffs have standing to prosecute the action in their individual capacities.
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