Objectant Seeks Order Dismissing Probate Proceeding

October 27, 2014,

A New York Probate Lawyer said that, in this contested probate proceeding, petitioner seeks a declaration that the proceeding was commenced on December 8, 2005, before the commencement of a probate proceeding in Arizona. Objectant seeks an order dismissing the probate proceeding on the grounds that this court lacks subject matter jurisdiction (CPLR 3211 [a] [2]) and that there is a prior proceeding pending in Arizona (CPLR 3211 [a] [4]).

A New York Estate Lawyer said that, the decedent died on December 4, 2005, survived by two grandchildren. The decedent was born and raised in Brooklyn. For many years, the decedent and his wife lived in Florida, where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona, where his grandson lived. They were living in Phoenix when the decedent's wife died. The decedent remained in Phoenix until moving to New York in late September 2005. While living in Phoenix, the decedent executed a will, dated April 2, 2004, which left his estate to the trustee revocable trust. On the same day, he executed a trust agreement creating a revocable inter vivos trust. Under the terms of the trust, the estate passes to one of the grand children upon the decedent's death.

A Brooklyn Probate Lawyer said that, in 2005, the decedent called his sister, and told her he wanted to return to Brooklyn to live with her. she and her daughter visited the decedent on September 27, 2005. At that time, the decedent was 95 years old and suffering from cardiac problems. He asked his sister to take him back to Brooklyn to live with her. According to the said sister, the decedent told her that he wanted to change his will, revocable trust and health care proxy before boarding the plane. On September 30, 2005, the day they were to travel to New York, he visited the offices of the law firm in Arizona and asked her to change the beneficiaries of the 2004 will and trust. The decedent executed a new will, an amendment of the 2004 trust and a health care proxy in the office. The 2004 trust was amended to provide that, upon the decedent's death, his sister receives one half of the trust principal, his granddaughter receives three eighths of the trust principal and his grandson receives one eighth. The decedent then left immediately for the airport, without stopping to get his glasses, clothes or medicine. They traveled back to New York that day, September 30, 2005.

A Bronx Probate Lawyer said that, on the same day, the grandchild filed an emergency petition for his appointment as conservator and guardian of the decedent. He alleged that the decedent had been taken from his house by church members on September 28, 2005. The proceeding was ex parte. Based upon his testimony, the Arizona court granted his petition, appointed him temporary guardian of the decedent, pending a hearing on whether a permanent guardian should be appointed shortly after arriving in New York, the decedent was hospitalized for surgery for a blood clot on his leg. The sister’s daughter had a petition prepared for the appointment of a guardian. Meanwhile, the Arizona attorney who drafted the 2005 will was served with a petition demanding that she deliver the decedent to Arizona. In response to the turnover petition, the decedent submitted an affidavit, dated October 25, 2005, stating that he was domiciled in Brooklyn and listing the sister’s address as his domicile.

A Bronx Estate Lawyer said that the Mental Hygiene Law article 81 petition was filed on October 27, 2005 in Supreme Court, Kings County. A court evaluator was appointed and interviewed the decedent. The decedent died on December 4, 2005, before either proceeding could be concluded. According to the affidavit in support of petitioner's motion, the petitioner's attorney filed a petition to probate the 2005 will, accompanied by a check for $1,250, on December 6, 2005. The petition stated that the decedent was domiciled in New York. The probate clerk accepted the petition and filing fee and made an entry in the minute book. No file number was issued, pending review of the petition. On December 8, 2005, the attorney was notified in writing that the petition was not accepted for filing because there was insufficient proof of New York domicile. The check for the filing fee was also returned on the ground that the check had alterations. On December 14, 2005, the attorney submitted a replacement check for the filing, a copy of the decedent's affidavit of domicile filed in the Arizona conservatorship proceeding, stating that his domicile was 2418 Cortelyou Street, Brooklyn, New York, and an attorney's affirmation on domicile.

A Bronx Probate Lawyer said that, on December 16, 2005, the grandchild filed a petition to probate the 2004 instrument in the Maricopa County Court of Arizona, claiming that the decedent was domiciled in Arizona. On December 20, 2005, the attorney's affirmation on domicile was rejected because it was based upon information and belief. On January 23, 2006, petitioner filed a copy of the court evaluator's report, stating that the decedent told the evaluator that he was happy to be back in New York and did not want to return to Phoenix, Arizona. On January 31, 2006, the probate clerk issued a file number for the probate proceeding. On February 1, 2006, the grandchild filed objections to probate of the 2005 instruments. The objections deny that the will was executed in accordance with the formalities of law, that the decedent lacked testamentary capacity, that the will was executed by mistake and that the execution was not freely made but the result of undue influence, duress and fraud. In addition, the objections claimed that there was a prior proceeding pending in Arizona to probate the 2004 will and that this court lacks subject matter jurisdiction.

A Bronx Estate Litigation Lawyer said that, petitioner moved for preliminary letters testamentary and a determination on the petition to probate the 2005 will filed in the Surrogate's Court of Kings County on December 6, 2005. The grandchild filed an affidavit in opposition which claims that the court should dismiss the motion (and presumably, the proceeding) on the grounds that (1) this court lacks subject matter jurisdiction (CPLR 3211 [a] [2]), and (2) there is a prior pending proceeding in Arizona (CPLR 3211 [a] [4]).

The issue in this case is whether the motion for dismissing the probate proceeding on the grounds that this court lacks subject matter jurisdiction (CPLR 3211 [a] [2]) and that there is a prior proceeding pending in Arizona (CPLR 3211 [a] [4]) should be granted.

CPLR 3211 (a) (4) provides that a party may move for a judgment dismissing one or more causes of action against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States. The court need not dismiss upon this ground but may make such order as justice requires.

In Surrogate's Court, all proceedings are special proceedings commenced by the filing of a petition. In addition, SCPA 301 (a) provides that a proceeding is commenced with the filing of a petition, provided process is issued and service on all respondents is completed within 120 days. While SCPA 301 expressly provides that the date a petition is filed is used for purposes of statute of limitations questions, the date a petition was filed has been used to determine when a proceeding was commenced in other situations.

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

Whether the Arizona proceeding was filed first depends on whether the New York proceeding was initiated upon filing the petition on December 6, 2005 or upon being accepted by the probate clerk on January 31, 2006. This, in turn, depends on whether the requirement that petitioner establish domicile by the supplemental documents was jurisdictional. The analysis starts with the fact that the petition filed on December 6, 2005 conformed to the requirements of the SCPA and was in proper form. The allegations in the verified petition are prima facie proof of the facts asserted until denied by an answer, objection or other proof. Therefore, for purposes of obtaining subject matter jurisdiction, the allegation that the decedent was domiciled in New York creates a prima facie showing of subject matter jurisdiction, subject, of course, to rebuttal.

This result is not affected by the fact that the probate clerk required a supplemental proof of domicile. Whatever the basis for the requirement of additional proof of domicile, furnishing such proof is not required by the SCPA or CPLR. Therefore, the requirement is not jurisdictional and does not affect the filing date.

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

SCPA 301 has no corresponding provision. The SCPA does provide that, upon filing a petition for probate, the clerk shall charge and receive a fee as determined in SCPA 2402. Upon receiving the petition and fee, the clerk accepts the papers for filing and issues a file number. Therefore, it is not clear whether the tender of the filing fee is jurisdictional.

In the instant case, the court need not determine whether the improper tender rendered the filing void. A replacement check was accepted on December 14, 2005. This cured the defect. Using either date, December 8, 2005 or December 14, 2005, the New York proceeding was filed before the filing of the probate petition in Arizona on December 16, 2005. Based on the above, the court determines that the New York probate proceeding was initiated by December 14, 2005.

Accordingly, objectant's application to dismiss this proceeding on the ground that there was a prior proceeding pending in Arizona is denied.

The claim that this court lacks subject matter jurisdiction depends on whether the decedent established domicile here. This requires a hearing. Since the probate proceeding in New York was filed first, principles of orderly administration of justice and conservation of judicial resources mandate that the New York court should hold the hearing on domicile. Since the probate proceeding in New York was filed before the one in Arizona, this court should hear and determine the decedent's domicile.

Accordingly, the court held that the application to dismiss the proceeding on the ground of lack of subject matter jurisdiction is held in abeyance pending a determination of domicile.

The rule provides that a party may move for a judgment dismissing one or more causes of action against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States. If there has been a violation of this rule, seek the help of a Bronx Estate Attorney and Bronx Probate Attorney at Stephen Bilkis and Associates. Call us.

Court Rules on Holdover Proceeding

October 26, 2014,

A New York Probate Lawyer said this is a probate proceeding where the decedent's son, who is the sole distributee and the sole income beneficiary of a testamentary trust consisting of the entire residuary estate, seeks to revoke his waiver and consent to probate so that he may conduct SCPA 1404 examinations and file objections to probate, if appropriate; and, seeks for an order directing the preliminary executors to discontinue a pending landlord/tenant holdover proceeding they commenced against him in connection with his occupancy of a portion of real property that appears to be the sole asset available to fund the trust. The movant's four sons, two of whom are infants for whom a guardian ad litem was appointed, are the contingent remaindermen of the trust.

The relevant facts are the following:

A New York Estate Lawyer offered for probate is the will dated 30 January 2000 along with a codicil dated 20 July 2009. The codicil amended the will to include a newborn grandson. Both the will and codicil were drafted by an attorney and their execution was attorney-supervised; both were witnessed by three witnesses who also executed self-proving affidavits; it leaves all tangible personal property to the son; in paragraph FOURTH (A) and (C), the entire residuary estate is placed in trust, with all net income, payable to the son quarter-annually or at more frequent intervals if necessary during his lifetime, with the remainder divided equally among the decedent's grandchildren; and, in paragraph FOURTH (B), the "sole and absolute discretion" is vested in the trustees to invade the corpus of the trust in such amounts and at such times as they shall deem appropriate and necessary for the health, welfare, support and maintenance of the son, and directs that such invasion "shall" be made "without considering the effect such invasion may have upon any third persons, including the remaindermen."

A Queens Probate Lawyer said the jurisdiction in the probate proceeding is complete. The son and the two adult grandchildren filed waivers and consents to probate. Preliminary letters testamentary, limited by SCPA 805 (3), issued to the proponents who are also the nominated trustees.
The estate’s only asset appears to be a two-family home in the Bronx, valued at $450,000 in the probate petition. The upstairs apartment is occupied by the son, his wife and the youngest grandchild, and a tenant rents the downstairs apartment.

A Long Island Probate Lawyer said that soon after obtaining preliminary letters, the preliminary co-executors commenced separate holdover proceedings in the Civil Court of Bronx County, one against the son, and the other against the former downstairs tenant who allegedly was paying less than fair market value rent to the son who, in turn, failed to turn it over to the fiduciaries. At that time, the preliminary executors contended that the annual cost to maintain the property exceeded all liquid estate assets because the son kept the money paid by the downstairs tenant and simultaneously failed to pay fair market use and occupancy for the upstairs apartment that he occupies.

Consequently, in response to the holdover proceeding, the son commenced the proceeding at bar. Pending the further order of the court, the preliminary executors were temporarily restrained from proceeding with the holdover proceeding against the son.

The parties entered into a stipulation in open court. Apparently, a portion of the stipulation relating to use and occupancy payments by the son was extended by the parties. In other words, the stipulation provides that the temporary restraining order prohibiting the preliminary executors from continuing the holdover proceeding against the son would remain in effect in order to preserve the status quo pending a determination of the merits of the son's application, and the son would pay the preliminary executors the sum of $900 per month. While the parties were supposed to make further attempts to resolve the matter with the assistance of the guardian ad litem, no resolution has been achieved. Rather, the situation has deteriorated as, instead of paying $900 per month to the preliminary executors, at least, for October and November of 2010, the son only paid Con Edison bills. According to the son, he was justified in withholding the rent because the preliminary executors failed to pay those bills as agreed.

The parties continue to dispute the actual monthly and annual cost to maintain the property.
The court’s ruling on the matters at issue:

First, the question is whether the son should be permitted to withdraw his waiver and consent to probate so that he may pursue discovery, and, thus, decide if he should file objections to probate. To revoke or withdraw his waiver and consent to probate in this pre-probate context, the son must demonstrate the merits of his application and a reasonable probability of success, notwithstanding that more relaxed proof of "good cause" is allowed before a decree is entered.
Here, on 25 September 2009, the son executed a waiver and consent to probate. On 14 April 2010, the son filed an application to revoke that waiver and consent on the ground that he lacked independent counsel and was not served with the propounded instrument at the time he executed it, and the decedent had difficulty reading and writing the English language.

Bearing in mind that the instrument and codicil were drafted by an attorney, their execution was attorney-supervised, the self-proving affidavits, the absence of any evidence or allegation of undue influence or lack of testamentary capacity, and that there are no other interested persons, the son's allegations as to his potential basis for filing objections are conclusory. What’s more, the son did not dispute the allegations that prior to executing the waiver and consent, he met with the preliminary executors' attorney who informed him about the probate process and the terms of the will. Clearly, it was only when the preliminary executors would not allow the son to operate the realty as he pleased that he questioned the validity of the will.

Accordingly, that branch of the application seeking to revoke the waiver and consent is denied. The son failed to demonstrate any merit to or reasonable probability of success on his potential objections to probate.

Second, the question is with regard to the holdover proceeding against the son which is more problematic.

Here, just after the commencement of the probate proceeding, the relationship between the son and the preliminary executors deteriorated; on the one hand, the fiduciaries and their counsel believed that the son was required to pay fair market value for his use and occupancy of the property in order to maintain the property and possibly increase the value of the potential trust estate for the remaindermen while, on the other hand, the son believed he could live at and maintain and manage the property himself, in any manner he saw appropriate.

Neither position is entirely correct. As a rule, when construing or reviewing the terms of a will or trust instrument, the prime consideration is the intention of the testator as expressed therein. In this regard, a review of paragraph FOURTH would reveal that the primary concern of the decedent was to place the economic interests of the son first, even to the exclusion of the remaindermen, assuming that, in the trustees' sole discretion, such exclusion is appropriate and necessary for the health, welfare, support and maintenance of the son. Obviously, the son is entitled to all of the trust income. It appears that if the realty was sold for approximately its appraised value, the sum paid to the trustees would be in the $400,000 to $425,000 range. It also appears that the son is willing to accept a reduction in the rent for the apartment that he is occupying in lieu of income from the trust. Based upon the intent of the testator, as gleaned from the testamentary trust provisions, it appears that the fiduciaries would be in violation of their obligation to carry out the testator's intent should they insist upon selling the realty, unless the reduced rent that the son is willing to pay plus the fair market rent paid by the tenant of the other apartment is insufficient to cover the projected administration expenses of the estate and trust as well as the cost of maintaining the property.

The son and the preliminary executors seem to agree, at least in principle, with the foregoing analysis of the circumstances under which the son's family could continue to occupy one of the apartments instead of selling the property with the concomitant result of evicting the son's family. Unfortunately, the parties have been unable to agree both upon the reasonableness of the expenses and legal fees incurred by the preliminary executors to date and upon the terms of the interim stipulation entered into on the record in open court. While it would clearly be a breach of their fiduciary duty for the fiduciaries to insist upon a sale for the sole reason that retention of the property would result in their receiving a smaller commission, it is equally clear that the trustees, and not the son, have the right to manage the property. In addition, it is also clear that it is not feasible for the son to occupy the apartment rent-free or to agree to pay a reduced rent and then not honor that agreement. In fact, the guardian ad litem is concerned that the son is not willing to agree to any feasible plan that would allow his continued occupancy of the apartment.

Accordingly, the temporary restraining order previously entered with regard to the holdover proceeding against the son is lifted as of 1 April 2011, unless by 25 March 2011, the son submits to the court, the guardian ad litem and the preliminary executors' attorney proof that he has paid a total of at least $5,400 to either the preliminary executors or Con Edison for his use and occupancy of the apartment for the six-month period from October 2010 through March 2011; in case that the son has not paid that amount for that time period, he may pay the entire amount or any outstanding balance thereon at any time up to 25 March 2011; and, in case that the son timely establishes that he has paid the sum of $5,400 for the six-month period, the court will render a supplemental decision and order further extending the temporary stay and directing all parties, their respective counsel and the guardian ad litem to appear at a conference dealing with all of the issues relating to the realty and to produce certain documents at that time.

In a nutshell, that branch of the son's application seeking to revoke or withdraw his waiver and consent to probate is denied, subject to modification in the event that the son establishes that he paid $5,400 as directed; and, that branch of the son's application seeking for an order directing the preliminary executors to discontinue the holdover proceeding as well as lifting the temporary restraining order as to the holdover proceeding against the son as of 1 April 2011 is also denied.
The court is satisfied that the testator executed the will dated 30 January 2000 and codicil dated 20 July 2009 in compliance with the statutory requirements and that, at the time of their execution, the testator was competent to make a will and was free from restraint.

Accordingly, a decree is settled admitting the will dated 30 January 2000 and codicil dated 20 July 2009 to probate, without prejudice to any party taking any position in an appropriate proceeding with regard to whether the estate expenses incurred to date were necessary or reasonable, or whether there is any basis for not allowing the proponents to serve either as executors or trustees.

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petitioners Move to Withdraw Petition for Probate

October 25, 2014,

A New York Probate Lawyer said this is a proceeding where petitioners move to withdraw their petition to probate a copy of a testamentary instrument as a lost will pursuant to SCPA 1407and have letters of administration issue instead.

The pertinent facts are as follows:

A New York Estate Lawyer said on 26 October 2000, J, the decedent died. He left a will apparently executed on 23 March 1995. Under the instrument, the decedent left her estate to her two sisters, JB and AB, or the survivor. She named JB as executor and AB as successor. JB predeceased the decedent without issue. As a result, the entire estate passed to AB.
In 2005, AB petitioned for the appointment of a guardian of her property. The court, finding that AB had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, RL, a niece, and GMR, Esq., as guardians of AB's property.

Sometime in May of 2007, a judge authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will pursuant to SCPA 1407. In support of the petition, the affidavit of RL was submitted which states that she located the copy among J’s important papers after her death. While J must have had the original will, J’s house had been sold and the purchaser threw away all of J's papers. The affirmation of GMR states that after J's death, her home was taken over by a former handyman of AB, who threw away all of J's papers.

The propounded instrument was prepared by an attorney who supervised its execution, was a subscribing witness and has filed an affirmation of due execution.

The propounded instrument’s second subscribing witness cannot be located.

A Nassau County Probate Lawyer said that the petitioners moved to withdraw their probate petition and ask that the Court issue letters of administration to them on the ground that they are unable to probate the instrument because of the unavailability of the second subscribing witness. The distributees have executed agreements waiving their intestate rights "so as to mirror the testamentary plan set forth in her Last Will & Testament dated 23 March 1995."

The decision of the court on the issue:

A Staten Island Probate Lawyer said if there is an apparently valid testamentary instrument on file, the Court is under obligation, as much as possible, to try to respect the testamentary wishes expressed therein. As held in Matter of Moyer, 97 Misc 512, 516 (Sur Ct, Monroe County 1916), the Surrogate stated: “If I could consider first and only the wishes of all of the parties directly interested herein, I would be inclined to accede to their wishes and deny probate of this instrument against which they have opposition and admit the prior instrument. The law, however, gives to every person a right to dispose of his property in any manner that best suits him, and, so long as he was possessed of sufficient mental capacity and observed in the execution of the instrument the required legal formality and acted freely, it is his wishes which must be respected, and his testamentary disposition given effect, regardless of the contrary wishes of his heirs at law and next of kin or beneficiaries respecting his property.”

The Court's obligation is a matter of public policy. This is reflected in the authority reposed in the Surrogate's Court to ensure the validity of instruments offered for probate and case law requiring the Surrogate to pass on the validity of testamentary instruments offered for probate. This duty is not relieved by the parties’ agreement to arbitrate the dispute or consent to probate.

Ordinarily, it is the duty of the nominated executor to "take diligent and active steps to procure its probate and to protect the will from an attack from any source." In case the nominated fiduciaries have died or are under a disability, any person designated in the will as a legatee or devisee, or guardian for such person, may petition to probate the instrument. However, the courts have recognized exceptions to this duty where probate would be futile or otherwise unwarranted. Hence, an executor who believes that the instrument is not a valid testamentary instrument is under no obligation to offer it for probate. Also, probate will not be required where the will has become ineffective because the legacies had lapsed and the named executor had died or was unwilling to act. Even an otherwise valid instrument need not be offered for probate where its proof is doubtful or would entail undue time and expense, particularly where the results would be similar to intestacy.

Even where the distribution in intestacy differs from that provided in the instrument, the Court will grant letters of administration where there has been unreasonable delay in probate, where all the legatees are adults and either consent, default or appear but do not file objections. "Where all the parties interested in an estate, either under testacy or intestacy, agree that a will shall not be offered or admitted to probate, it is not within the power of a surrogate to enforce its admission."
Here, however, none of the exceptions to excuse probate are presented. The sole beneficiary under the instrument is alive and the petitioners are expressly authorized by the Supreme Court to initiate probate proceedings on her behalf. Probate does not seem to present insurmountable difficulties.

It is true that the failure to locate the original creates a presumption of revocation by the decedent. However, this presumption may be rebutted where, as here, there is a natural explanation for the failure to locate the original and the copy is found among the decedent's important papers.

It must be noted that the drafter of the instrument, an attorney who supervised the execution of the instrument and is a subscribing witness, submitted his affirmation giving rise to a presumption of due execution. The inability to locate the second subscribing witness will not bar probate since the testimony may be dispensed with upon a showing of a diligent search to locate the witness, without success.

As a final point, all of the distributees agree that the decedent's testamentary wishes should be adhered to. Under these circumstances, the Court cannot agree to the abandonment of the probate proceeding. Nonetheless, the Court cannot force the petitioners to pursue probate if they chose not to do so. Thus, if the petitioners are unwilling to proceed with the probate proceeding, the Court authorizes the Public Administrator of Kings County to do so.

Accordingly, the petitioners' motion to withdraw the probate petition is denied. The petitioners are directed to complete their papers in support of the petition, including an affidavit showing diligent search for the second subscribing witness by 3 September 2009. If they fail to do so, the Public Administrator shall be directed to file a petition to probate the propounded instrument in their place.

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Decedent's Granddaughter Alleges Failure of Due Execution, Fraud

October 24, 2014,

New York Probate Lawyer said that on 20 March 2012, the decedent at the age of 107 years old died and left a will dated 1 August 1991. She was survived by three distributees, her daughter and the nominated executrix, OJ, and two grandchildren, AC and CC, children of decedent's predeceased son, AKC.

A New York Estate Lawyer said that under the propounded instrument, after several pre-residuary cash bequests, the decedent left her real property to her daughter, and if her daughter predeceased her, to her son, the sole residuary beneficiary. On 30 September 1997, the first codicil to the propounded instrument was executed which added a few small pre-residuary cash bequests. On 3 September 1999, the second codicil was executed which again left the decedent's real property to her daughter but in the event that her daughter predeceased her, such property was to be divided equally among her daughter's three children subject to a life estate in decedent's son-in-law, KJ.

Westchester County Probate Lawyers said that consequently, after the decedent's death, the nominated fiduciary filed the probate petition.

The decedent's distributee and granddaughter, CC, objected on the ground of failure of due execution, fraud and undue influence.

A Suffolk County Probate Lawyer said that after SCPA 1404 examinations were completed and some document discovery exchanged, the proposed executrix, the nominated fiduciary, filed a motion for summary judgment and seeks to dismiss CC's objections.
CC filed a cross-motion to dismiss the probate petition.

The petitioner's motion for summary judgment was granted, the objections are dismissed and the objectant's cross-motion was denied in its entirety. The reasons for this ruling are discussed below.

First, on review of objectant CC's cross-motion and responsive papers, it is apparent that she has abandoned all the objections she initially asserted sounding in fraud, undue influence and lack of testamentary capacity. What remained relates to the alleged failure of the decedent to subscribe her signature or acknowledge the execution of the instrument in the presence of the subscribing witnesses and to the alleged lack of any publication of the instrument as a will.

EPTL 3-2.1 (a) sets forth the formal requirements for the execution and attestation of wills. This provision states that the will must be in writing, signed at the end thereof by the testatrix, the signature must be affixed in the presence of each of the attesting witnesses or acknowledged by the testatrix to each such witness to have been affixed by her, she must declare to each attesting witness that the instrument is her will, there shall be two witnesses whose attestations shall be within a 30-day period, and the witnesses must sign at the testator's request.

The proponent has the burden of demonstrating, by a preponderance of the evidence, that the purported will was duly executed.

While in situations where the attorney-draftsperson supervises the execution of a will, a presumption of regularity arises that the will was properly executed in all respects, there is no such presumption here as it is undisputed that there was no attorney present at the execution ceremony. However, it is also uncontroverted that despite the decedent's failure to procure self-proving affidavits, the witnesses to the testamentary instruments executed affidavits of attesting witnesses except for the witness to the first codicil, ME, and the Court issued an order dispensing with his testimony.

The proponent here has established, and it is undisputed that the decedent's will and both codicils were drafted by an attorney who is now deceased and contain attestation clauses. Well settled is the rule that a presumption of regularity or validity arises where the propounded instrument contains an attestation clause preceding the genuine signature of the attesting witnesses, and is prima facie proof of the facts recited therein.

The testimony of the attesting witnesses here is entitled to great weight even though the subscribing witnesses testify to the contrary or lack any recollection of the details of execution where there were gaps in the witnesses' recollections of the circumstances under which they witnessed the will but the will was admitted to probate.

It is undisputed here that decedent knew all of the witnesses to the propounded will and two codicils for many years prior to the signing of the instruments.

SM was a witness to all three instruments, and his former wife, DR, was the witness to the propounded will.

According to SM, in his testimony, he knew decedent for over twenty years; despite the significant passage of time between the date of the will of 1 August 1991 and the date of his SCPA 1404 examination on 30 January 2013, he recalled that he was asked to witness decedent's will and codicils and did, in fact, serve as a witness to all three instruments; he readily identified his signature and the signature of his former wife, and the other witness to the propounded instrument; and, he identified his signature on the first codicil, remembered sitting down at the table with decedent and going over her second codicil and specifically recalled decedent sitting next to him at the kitchen table requesting him to sign as a witness.

According to DR, in her testimony, she knew the decedent; she recalled that the decedent had been clear and coherent on 1 August 1991; at the time, the decedent recognized her and knew who she was; and, she was able to identify her signature on the 1991 instrument and that of her former husband, SM.

The other witness to the first codicil, ME, is now deceased.

The second codicil was witnessed by SM, AS and DS.

According to AS, in her testimony, she knew the testatrix for many years; her son married the decedent's granddaughter; she was asked to be a witness to the decedent's second codicil; when shown the second codicil, she identified her signature; the execution ceremony took place at decedent's home, and on the date in question, the decedent was jovial; the decedent recognized her and her husband, they spoke, and the decedent asked her to sign the codicil; and, the decedent's daughter was not present at the execution ceremony.

According to DS, the third witness to the second codicil, in his testimony, he knew the decedent well for a number of years; he identified his signature and his wife's signature on the instrument; he recalled being present at decedent's home on the date the instrument was signed but he did not recall who initially asked him to serve as a witness; on the date of the execution, the decedent was alert, and her general health seemed good; and, they spoke and observed the decedent sign the document on that day.

The court took note of the fact that although the recollections of the subscribing witnesses may be faulty as to the details of execution, the lack of any prior experience on the part of the subscribing witnesses rendered them unaware of the necessity of noting or recalling the essential formalities of execution. Further, in light of the passage of time which exceeded twenty-one years since the execution of the propounded instrument, an inflexible rule that the subscribing witnesses must remember in detail not only what they saw and heard but require them to recognize and identify the signature of decedent, could defeat the statute’s objective.
On the objectant's claim that proof of publication is lacking as the provisions of the propounded instrument were not read aloud during the execution ceremony, well settled is the rule that there is no requirement that the document be read aloud. "Substantial compliance is sufficient and no particular form of words is required, or is necessary, to effect publication." Some "meeting of the minds between the testator and the attesting witnesses that the instrument they were being asked to sign as witnesses was testamentary in character" is sufficient and a request to have the witnesses sign the will can be inferred from the circumstances surrounding the entire execution.
The surrounding circumstances here were sufficient to establish to the witnesses that the writing was a will. As the witnesses' testimony makes clear, they knew the purpose of their visit to the decedent at her home and that they were being asked to sign as witnesses. A request to sign is inferable from the circumstances and the testimony demonstrates substantial compliance with the minimum statutory prescription for execution of the testamentary instruments. What’s more, on all three occasions, the decedent conducted the execution ceremonies without an attorney at her home and not in the presence of any of the beneficiaries to the instruments.

As provided for under the rules, summary judgment in a contested probate proceeding is only proper where the proponent makes out a prima facie case for probate and the objectant fails to raise any genuine material issue of fact. in order to defeat summary judgment, the objectant must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact.

While it is true that the objectant's responsive papers in support of her cross-motion to dismiss the proponent's motion for summary judgment consist only of her attorney's affirmation, it is nevertheless incumbent upon the Surrogate Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity.

According to the decedent's daughter, OJ, in her testimony, her mother had lived for many years in New York City although she maintained real property in Rhinebeck, New York where she visited on the weekends until she relocated to the property in the 1980's.

It is undisputed that decedent, her daughter, son-in-law and their children resided in separate residences located on the property for many years, and her son-in-law made certain improvements to the property.

According to the proponent, the nominated fiduciary, in her testimony, she cared for the decedent by herself up until 2002; the decedent lived on her own without assistance but she brought her meals and performed other tasks; after the decedent fell and fractured her shoulder in 1997, the decedent was no longer as active as before; when the decedent underwent a major surgery in 2002, she was required to hire care givers; thereafter, the decedent suffered a slight stroke and the physician advised her that the decedent required 24-hour care; and, in 2007, in view of the doctor's instructions, the decedent was moved to a nursing home.

The decedent's estate plan here was remarkably consistent. Under the propounded instrument, the decedent gave all her personal and household possessions contained in her home to her son, divided all her tangible personal property including all insurance policies equally between her son and daughter, gave her daughter the real property, and her son was named the sole beneficiary of her residuary estate and if he predeceased decedent, then to his children. The first codicil merely provided for a few additional cash bequests to benefit decedent's after-born great-grandchildren. The second codicil which objectant's counsel deems "the least important of the three instruments" provided that following decedent's daughter's death, the real property be given to her daughter's children subject to a life estate in her son-in-law rather than her son.

Under the circumstances, it cannot be said that the decedent's daughter and her children were not the natural objects of a gift of her real property in light of the close proximity of their homes on the property for many years, the daughter's role as a care giver to decedent, their close relationship and the improvements they had made to such property. In addition, the objectant's contention that under the terms of the propounded instrument she was virtually disinherited is devoid of any merit. It is observed that decedent's son was the beneficiary of her personal property and the sole beneficiary of her residuary estate, and if he predeceased decedent, which he did, the objectant and her sibling became the sole residuary beneficiaries of the decedent's estate. Whether the objectant's share of the decedent's estate is not what she anticipated as her papers indicated, that claim cannot be properly addressed in the context of a contested probate proceeding and is thus not before the Court.

Last of all, the objectant's contention that the decedent's daughter, at her mother's behest, arranged for an attorney (now deceased) located in White Plains, New York to draft the decedent's will is more properly directed at an objection sounding in undue influence. As noted, this objection has been abandoned. Even so, as the decedent had not resided in Dutchess County but had been a long-term resident of New York County, it is not unusual that she would ask a family member for a recommendation as she knew few people in the area. Furthermore, it is undisputed the attorney performed other services for the decedent over the course of a decade.

As a rule, the determination whether to dismiss objections and admit a will to probate is within the sound discretion of the Surrogate Court and, absent a showing of an abuse thereof, its determination will not be overturned.

Here, the proponent has met her burden of proof with respect to due execution and the objectant failed to raise any issue of fact for trial. Thus, the proponent's motion for summary judgment was granted, the objections were dismissed and the objectant's cross-motion was denied. The genuineness of the Will and the validity of its execution have been established to the satisfaction of the Court and is therefore admitted to probate pursuant to SCPA 1408 and EPTL 3-2.1.

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Court Looks at Motion to Vacate

October 23, 2014,

A New York Probate Laywer 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 Estate Lawyer said that 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.

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."

A Westchester County Probate Lawyer said that 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).

A Suffolk County Probate Laywer said that 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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Court Decides Motion to Vacate Will

October 22, 2014,

A New York Probate Lawyer 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 Estate 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.

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.

A Nassau County Criminal Lawyer said on January 2005, the decedent suffered a stroke that affected her physical, but allegedly not her mental, faculties.

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.

A Staten Island Probate Lawyer 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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Summary Judgment Motion Filed Based on Testamentary Capacity

October 14, 2014,

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Respondent Allegedly Fails to Comply with Document Production Request

October 13, 2014,

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

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

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

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

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

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

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

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

For your needs regarding the probate of the will of your love ones, you can contact our New York Probate attorneys here in Stephen Bilkis and Associates. They will extensively discuss to you the legal implication of every step which will be done during the process. For other matters, you can contact our New York estate lawyers, who are always ready and eager to hear your legal problems. Contact us now for inquiries.

Court Determines Apportionment of Legal Fees in Estate Administration Case

October 13, 2014,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Second Wife Opposes Preliminary Letters Testamentary

October 12, 2014,

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

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

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

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

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

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

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

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

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

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

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

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

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Sons Battle for Right to Serve as Sole Preliminary Executor

October 11, 2014,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 10, 2014,

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

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

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

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

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

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

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

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

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

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