April 3, 2014

Petitioner Seeks to have Will Codicil Admitted into Probate

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

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

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 It is established that the will has not been revoked, and 2.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

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

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

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

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

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

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

March 28, 2014

Court Decides Disposition of Family Business in Estate Case

A New York Probate Lawyer said the decedent died a resident of Nassau County in December 2010, survived by his sister, the petitioner; and by his brothers, respondent and movant herein. The decedent's last will and testament executed in May 2000 was offered for probate by the petitioner, who is named as the sole beneficiary of the decedent's residuary estate, as well as the executrix in the propounded instrument. Preliminary letters testamentary issued to the petitioner by order of the court. The objectants have filed objections to probate of the will.

A Nassau County Estate lawyer said that the disputes presently before the court all relate to a supermarket, which was run by the decedent and his brother. The supermarket is comprised of three separate closely held corporations.

A New York Will Lawyer said the other respondents named in the proceedings brought by the sister are: the accountant for decedent, as well as for the brother and the various corporate entities involved in these disputes; and the replacement of the decedent replacement on the board of directors.

The sister commenced a SCPA 2103 discovery proceeding against respondents as the accountant for the supermarket, in order to, inter alia, prevent the brother's interference with the operation and to compel him to turn over the cash receipts from the date of the decedent's death to the present; to prevent the brother's interference with the petitioner's right to take part in the management of the other companies and to gain full access to the records of those corporations; to compel the brother to make available to the petitioner the books and records of the decedent.
In response to the petitioner's discovery request, the brother had the technical director of the company which provides all computer related services for the supermarket‘s clone all of the cash registers at the supermarket. A hard drive containing a clone of the cash registers was provided to the petitioner's counsel. Petitioner's counsel was also apparently provided with three CD ROM disks, one each for the companies, which purportedly contain each corporation's Quick Books history, including sales and banking records. It is unclear from the papers submitted to the court whether counsel for the petitioner has reviewed the three CD ROMS or the cloned records2 and whether they contain the material sought by the petitioner. At this juncture, there is no evidence that the cloning performed was improper or incomplete.

Bronx Probate Lawyers said in the absence of proof that a party intentionally destroyed or withheld evidence, the court should not direct the cloning of that party's hard drives. Until the petitioner is able to review the cloned computer records and the CD ROMS, and demonstrate that the information provided by the respondents is incomplete, it would be precipitous of this court to order that the computers be cloned again. Therefore, so much of the petitioner's order to show cause in the discovery proceeding as seeks to clone all of the computers at John's Farms is denied at this time, with leave to renew. However, the respondents are ordered to refrain from removing or altering any data contained within the hard drives of the computers at John's Farms, pending further order of this court.

Brooklyn Probate Lawyers said with regard to the petitioner's request that her forensic accountants be given access to supermarket, such request is also denied at this time, with leave to renew, upon a showing that the respondents have failed to provide the petitioner with the documentation and data requested.

The petitioner also seeks a discovery conference in this matter, a request which the court deems reasonable, given the difficulties being encountered by the parties in completing discovery herein. A conference is therefore scheduled before a member of the law department for the purpose of scheduling all further discovery in this matter.

Regarding the petitioner's request for costs and sanctions, the court declines to grant this request at this time. However, the court is disturbed by the cavalier attitude that the brother and his counsel have taken with regard to the court-ordered production of the home computer removed from the decedent's home after his death. If after reviewing the information on the invoice provided by the petitioner as "Exhibit B" of her order to show cause and conducting a renewed search for the computer identified therein, the brother still cannot produce such computer, then he is ordered to provide the petitioner and this court with a detailed statement, under oath, by someone with direct knowledge of the facts, setting forth the means and methods used to conduct the search for the decedent's home computer. Such affidavit must be submitted to the court before the date of the conference scheduled herein.

"[W]here the business of the decedent is a corporation, authority from the court is unnecessary". "While SCPA 2108 has been held not to apply to a corporate business, the application may nevertheless be treated as one for advice and direction under SCPA 2107".

Under SCPA 2107, a fiduciary may ask the court for advice and direction regarding the sale of estate property and in other "extraordinary circumstances." In following the advice and direction, the fiduciary will be protected from liability. Generally, the property for which advice and direction is sought would be owned by the estate directly and not through corporate shares, but in practice, courts will give advice and direction where an estate owns all of the corporate shares, as opposed to owning a partial interest.

"[W]here the fiduciaries, through the medium of ownership of all of the shares of stock, control a close corporation, the Surrogate possesses the equitable power to disregard the corporate entity and may proceed to treat the estate fiduciaries and their corporate problems with respect to disposition of the corporate assets, and its effect upon the estate, upon the realistic basis that the fiduciaries and the management of the corporation are one and the same."

The Court thus held that so much of the petition of the sister pursuant to SCPA 2103 to permit cloning all of the computers at the supermarket is denied with leave to renew, as is the request that her forensic accountants be given access to John's Farms. Her request for a discovery conference is granted; the request for costs and sanctions is denied.

The petition of the sister seeking authorization to continue is granted; the application for specific authority to hire an employee is denied. The application for an order directing the brother to stop interfering with the management of the companies, to turn over all cash receipts that are in his possession, to stop taking, transferring or disposing of cash receipts, and to make available, deliver or turn over the books and records of the companies and the decedent to the sister as preliminary executor of decedent's estate, is granted, except as to those records previously provided to petitioner.

A testator is free to divide his estate according to his desire. However, when a right of an heir was impaired, an opposition for the probate of a will must be filed. Here in Stephen Bilkis and Associates, we have Nassau County Probate lawyers who will represent you in court in opposing the distribution or division of the will. For a proper division of a will, you can consult our Nassau County Estate attorneys. They will advise you on the portion which you can dispose and which portion shall be accorded to your compulsory heirs. Contact us now for a proper advice..

March 20, 2014

Court Listens to Probate and Discovery Proceeding

A New York Probate Lawyer said that, before the court are a probate proceeding and a discovery proceeding. The decedent, died on June 14, 2008 a resident of Nassau County, survived by her four adult children. Decedent had been married for fifty (50) years. They divorced in April 2001. At the time of her death, decedent resided in property located at 55 Chestnut Hill, Roslyn, New York.

A New York Will Lawyer said that, these proceedings arise out of the same facts and involve four (4) documents. Decedent and her husband executed a joint will dated December 20, 1993. The joint will provided in relevant part the following: SECOND. Upon the death of one of us, leaving the other of us surviving, the entire estate of the one dying first and all property of which she or he has power of disposal, whether owned jointly or severally, is hereby given to the survivor, upon the condition, however, that whatever remains of the above estate after the death of the survivor shall be given as set forth herein Paragraph Fourth hereof. Paragraph FOURTH created a trust for the benefit of the testator's grandchildren and an outright bequest. The will further provided: FIFTH: We have mutually agreed upon the foregoing disposition of our property, and, in consideration thereof, it is further mutually agreed by both of us that this Will shall be forever binding upon both of us and upon the estate of each of us, and shall bind our legatees, distributes (sic) and representatives. We further mutually agree that this Will shall be irrevocable and shall not be modified or revoked by either of us or by the survivor of us, except that it may be revoked or modified only by a writing subscribed by both of us and executed by both of us with the formality of a Will. SEVENTH: Upon the death of one of us leaving the other surviving, the survivor is hereby appointed executor or executrix of the estate of the one dying first; and upon the death of both of us.

A Bronx Probate Lawyer said that, decedent and her husband entered into a Marital Settlement Agreement in January 2001 which provided, in part, that: 7. The Husband and Wife have heretofore executed a Joint Irrevocable Last Will and Testament in New York, which is again reaffirmed by the parties as their Last Will and Testament, and both parties agree to maintain and support the obligation and covenants made therein and further agree not to attempt to Revoke such Last Will and Testament. Decedent and her husband owned two residences; one was a condominium in Boca Raton, Florida, the other, a condominium in Roslyn, New York. The Marital Settlement Agreement provided that Jerome acquired title to the Florida property and the decedent acquired the Roslyn property.

A Manhattan Probate Lawyer said that, on June 2, 2006, decedent established the Sandra Murray 2006 Irrevocable Trust. Decedent and her son-in-law, Ivan Kline, served as co-trustees of the trust. Upon creating the trust, decedent transferred to it some of her property, including the Roslyn property.


The husband, as nominated executor, filed a petition propounding the December 20, 1993 joint will for admission to probate. Objections to the husband serving as executor were filed. Preliminary letters issued to Jerome on July 15, 2008. The husband commenced a discovery proceeding pursuant to SCPA 2103 seeking, among other things, a direction that Ivan, as trustee of the trust, convey the Roslyn property back to the estate. The objectants filed an answer to the petition asserting the decedent "exercised her unfettered authority to dispose of her property during her lifetime, by irrevocably transferring a portion thereof to the Trust and making gifts to her children."

A Nassau Estate Litigation Lawyer said that, there are two motions before the court involving the four (4) referenced documents. The objectants move for an order under CPLR 3212 (1) dismissing the SCPA 2103 proceeding as against them; (2) dismissing the objections to the petition for probate of the September 5, 2007 will; and, (3) granting a decree admitting to probate the September 5, 2007 instrument. The husband moves for an order under CPLR 3212 (a) dismissing the petition seeking probate of the September 5, 2007 instrument; (b) dismissing the objections to his appointment as executor of the decedent's estate; and, (c) under SCPA 2103, granting the relief sought in the turnover proceeding commenced by him.

The husband contends that pursuant to Article "SECOND" of the will, the property that decedent placed into the Trust should pass to him. He asserts that under Article "SECOND", two categories of property passed to the survivor of Jerome and the decedent: (1) "the entire estate of the one dying first" and, (2) "all property of which she (decedent) or he has power of disposal, whether owned jointly or severally." He asserts that even if the Roslyn property was transferred to the Trust and not part of decedent's probate estate, decedent retained at the time of her death the "power of disposal" as contemplated by Article "SECOND" of the joint will.

The issue in this case is whether the transfer of certain property, including the Roslyn property, into the 2006 trust created by the decedent, which then passes to the decedent's and the husband’s four children by decedent's exercise of the power of appointment retained by her in the September 2007 will, is violative of the terms of the joint will.

It is a fundamental proposition that a will is ambulatory in nature and is ordinarily revocable during the life of the testator. Even after due execution of a will, testators retain unfettered authority to dispose of all property during their lifetimes. Testators may surrender the power of revocation by agreement.

It is established law in New York that two persons may contractually agree to dispose of their estates in a particular manner and that such an agreement may find expression in a joint or mutual will. Such surrender of the right to revoke a prior will is scrutinized carefully and there must be a clear and unambiguous exhibition of that intent in the joint will under review. An agreement not to revoke a joint will "can be established only by an express statement in the will that the instrument is a joint will and that the provisions thereof are intended to constitute a contract between the parties". A perusal of the December 20, 1993 joint will establishes that Jerome and the decedent jointly and individually agreed to abide by the testamentary plan contained in the will. The will expressly states that Jerome and decedent executed the document "as an agreement binding upon both of us, and upon the survivor of us." As to what Jerome and decedent agreed to do, a specific testamentary plan for the disposition of property upon the death of both of them was set forth in the will. Article "FOURTH (A)" provides that all estate property of the survivor is to be given to the husband and decedent's surviving grandchildren in trust divided into as many separate shares as surviving grandchildren and one additional share to the objectants. Pursuant to Article "SECOND," upon the death of one of them, the entire estate of the one dying first and all property of which she or he has the "power of disposal" is given to the survivor upon condition that whatever remains of the estate after the death of the survivor should be given as set forth in Article "FOURTH." The use of the provision "we" throughout the will is additional evidence that the decedent and Jerome intended the will to be a binding contract. These factors, taken together, establish an agreement between the testators to dispose of their respective estates in the manner specified in the joint will.

Decedent's daughter commenced a plenary action in which she sought a declaratory judgment that the creation of the Totten trusts by decedent violated the terms of the 1971 settlement agreement by changing the terms of decedent's 1969 will. In determining that the decedent did not violate the settlement agreement, the court noted that "the agreement itself is silent as to the Totten trusts or any other testamentary like forms of disposition of property". The court stated that while the decedent agreed to leave in place the 1969 will, decedent did not agree to leave any particular property or any amount of money to her children and the settlement agreement did not preclude decedent from disposing of any or all of her assets by gift or Totten trust, or in their wills, from which it can be fairly inferred that the decedent relinquished her right to dispose of assets not specifically referenced in either the agreement in the wills during her lifetime.
The objectants contend that decedent never agreed to preserve for the benefit of the husband any or all of her property and that neither the will nor the Marital Settlement Agreement prevented decedent from disposing of her property, in any manner, during her lifetime. They assert that the decedent transferred her interest in the Roslyn property to the Trust in the 2006 Trust and retained no incidents of ownership.

The husband acknowledges, as noted hereinabove, that neither he nor the decedent were precluded under the Last Will and Testament from making transfers of their property during their lifetime. He concedes that had decedent deeded or gifted the Roslyn property outright to her and his four children, the holding in Blackmon would be applicable. Jerome asserts, however, that since decedent retained at her death the "power of disposal" over the property she put in the Trust through the exercise of the power of appointment in the 2007 will, that property should pass to him pursuant to Article "SECOND" of the Will. Indeed, the Blackmon court pointedly stated that in the line of cases governing joint wills, "the court has held that where two people sign joint or mutual wills and one of them dies, the survivor is bound to the terms of the will and may not make a different testamentary disposition or inter vivos gift that would defeat the purpose of the joint will agreement".

Here, regardless of any ownership interest, decedent retained the power of appointment and the "power of disposal" of property by exercise thereof in the 2007 will. Under the circumstances, decedent could not convey title to the Roslyn property as decedent is bound by the terms of the joint will that no property which comprised her estate or over which she had the "power of disposal" could pass other than as provided under Article "SECOND" of the will. Here, in effect, decedent made a different testamentary disposition violative of the terms of the joint will. Accordingly, the husband is entitled to summary judgment in the turnover proceeding to the extent of a direction that Ivan as co-trustee reconvey the property to the estate. The husband is further entitled to summary judgment admitting the 1993 will to probate and dismissing Ivan's petition seeking probate of the 2007 instrument. The objections to his appointment as executor are dismissed.

Accordingly, the court held that the objectants motion for summary judgment is denied in accordance with the foregoing. The matter is scheduled for a conference with a member of the court's law department on April 8, 2009.

If you will to contest the probate of a will seek the representation of a Nassau Will Contest Attorney and Nassau Estate Litigation Attorney at Stephen Bilkis and Associates.


March 15, 2014

Court Hears Estate Case Regarding Foreclosure Action

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

A New York Will Lawyer said that, this action emanates from a foreclosure proceeding involving property located at 198-200 Wellesley Street, Hempstead, New York. That property was owned by the decedent who died intestate on July 13, 1986. Her brother, administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that her brother was the decedent’s sole distributee and that the subject property vested in him immediately upon his sister's death. The brother then died testate on June 9, 1994. An administrator was appointed the voluntary administrator of his estate. The court's file contains his original will which devises and bequeaths all of his property to his cousin. He died August 1, 2000. There was no deed executed from the estate of the decedents, nor was there a deed from the estate of the brother. Although the brother original will was filed in the court by Calhoun incident to the voluntary administration of the estate of the decedent, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the decedent, the administrators of his estate, and claim to be his only distributees.

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

A Brooklyn Probate Lawyers said that, defendant Countrywide now moves to dismiss the complaint as against Countrywide on two grounds. First, Countrywide contends that it has not been established that plaintiffs are the distributees of the decedent and thus have no standing to bring the Supreme Court action; the court disagrees. Plaintiffs were appointed the administrators of the estate by decree of this court and letters of administration issued to them on November 13, 2002. "Letters granted by the court are conclusive evidence of the authority of the persons to whom they are granted until the decree granting them is reversed or modified upon appeal or the letters are suspended, modified or revoked by the court granting them". The plaintiffs thus clearly have standing to commence and maintain the action in their capacities as the administrators of the estate.

The issue in this case is whether the compliant should be dismissed.

Countrywide also contends that plaintiffs have made claim to the surplus monies from the tax lien foreclosure sale and that they have therefore "ratified" the tax foreclosure sale they are seeking to vacate. Countrywide cites one 1932 case for that proposition which is clearly distinguishable on the facts because, unlike the case now before this court, in Flatbush the claimant had consented to the distribution of some of the surplus monies to other persons claiming an interest in the surplus fund. Countrywide's motion is therefore denied.

With regard to the plaintiffs' cross-motion for summary judgment dismissing Countrywide's answer, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.

Here, plaintiffs have failed to establish that they are entitled to judgment, let alone judgment as a matter of law. Even assuming that either the plaintiffs, individually, or the estate of the decedent were, at the time of the foreclosure action, the fee owners of the property, the issue is whether the notice given to the administrator of the estate of the decedent was "reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections". Nassau County Administrative Code § 5-51.0 requires that notice be sent to, among others, "the occupant, owner in fee and the heirs, legal representatives and assigns of any of either of them appearing of record on the premises affected by such sale. The words appearing on record' shall be construed to refer to any person on whom a notice is hereby required to be served, the nature and degree of whose interest appears from the records kept by the County Clerk, County Treasurer, Surrogate of the County and receiver of taxes for the town or city in which the property is located."

At the time the foreclosure action was commenced, the records of the County Clerk indicated that the last deed of record affecting the property named Rose Rainey as the owner and there is no dispute that the Public Administrator of Nassau County, as the administrator of the estate of Rose Rainey, was properly served with notice of the foreclosure action. The records of this court are less clear regarding who the owner of the property was and whether the notice sent by the decedent was adequate. As indicated above, died intestate. Her brother, was appointed voluntary administrator of her estate. He identified himself in the affidavit submitted in connection with his appointment as voluntary administrator as the sole distributee of decedent. Also as indicated above, the court's file contains the original will which bequeaths and devises all his property to his cousin. Although the will has not been admitted to probate, it appears to have been drafted by an attorney, witnessed by two people, and contains an attestation clause, which may be sufficient to constitute a valid devise even absent the will's admission to probate.

Nevertheless, neither of the plaintiffs had petitioned for appointment as administrator of the estate until June 2002, two months after the commencement of the foreclosure action and nearly two years after the decedent’s death. Also, it does not appear that either of the plaintiffs notified the County Treasurer of their claim of ownership or directed that the Treasurer send future tax bills to them. Thus, it is entirely unclear whether the Treasurer had any knowledge of the plaintiffs' claims, their identities, or their whereabouts. "Where the names and addresses of interested parties are known, due process requires notice reasonably calculated, under all the circumstances, to apprise that party of the foreclosure action, so that the party may have an opportunity to appear and be heard. The key word is reasonably,' which balances the interests of the State against the rights of the parties".

The plaintiffs have also cross-moved to dismiss Countrywide's fourth affirmative defense to the extent that the plaintiffs' claim to the surplus monies be deemed a ratification of the foreclosure sale. As indicated above, the court concludes that their claim to the surplus monies does not constitute a ratification of the tax lien foreclosure sale and the cross-motion is therefore granted to that extent.

The plaintiffs have also cross-moved to dismiss Countrywide's seventh affirmative defense that the plaintiffs do not have standing to prosecute this action. The court has already concluded that plaintiffs have standing, at least in their capacity as administrators of the estate of the decedent to prosecute the action. To that extent, the motion is granted. It is denied with respect to whether plaintiffs have standing to prosecute the action in their individual capacities.

If you have issues regarding the administration of the estate, seek the Nassau Estate Litigation Attorney and Nassau Probate Attorney at Stephen Bilkis and Associates.


November 18, 2013

Petitioner Files Motion to Compel Production of a Will

The proponent, A, in this probate proceeding is a devisee and nominated co-executor under the propounded instrument dated 16 February 1994. A moves for summary judgment admitting the will to probate, dismissing the joint objections filed by B, the decedent's cousin, who is the beneficiary of a larger bequest under an earlier testamentary instrument, and C, the decedent's brother and distributee; and dismissing the brother's petition for letters of administration.

A New York Probate Lawyer said the objectants oppose the motion and cross move to dismiss the proponent's application for letters testamentary and for the appointment of either or both of them as the fiduciary of the estate. They allege that the 1994 instrument is invalid due to lack of due execution, lack of testamentary capacity, forgery, undue influence and fraud. They further assert that the petitioner's prior felony convictions render him ineligible to be appointed a fiduciary of the estate.

On 23 October 2003, the decedent, a widow, died at the age of 77.

A New York Will Lawyer said the decedent, a widow, died on 23 October 2003, at the age of 77. Although the decedent referred to both the proponent, A, and the objectant, B, as her sons in the propounded instrument, neither one of them is actually her son. Her distributees are the objectant brother and a sister. The multi-family dwelling, where the decedent, the proponent, A, and B all resided, is devised to the proponent, A, under the propounded instrument and the remainder of her estate, including real property located in North Carolina, is bequeathed to B. The proponent and B are the nominated co-executors.

A Manhattan Probate Lawyer said the court, based upon the above determinations, grants the motion for summary judgment, requesting the dismissal of the objections, the dismissal of the brother's petition for letters of administration and the admission of the propounded instrument to probate.
However, there still remains to be determined the cross-motion contending that the proponent is ineligible to be appointed the executor of the estate. Although the decedent's brother no longer has status to pursue this motion because the dismissal of the objections to probate results in his not having any financial interest in the estate, B, as the beneficiary under the will of the entire estate other than the Bronx real property, has standing to request that he be appointed as the sole executor of the estate instead of as a co-executor with the proponent as provided in the will.

A admits that he has been convicted of possession of narcotics, assault, burglary and possession of stolen property; that some of the convictions were felonies and that he has served time in several prisons, Rikers Island, Ossining, Attica and Napanoch. A Bronx Probate Lawyer said that although these felony convictions would ordinarily render the proponent ineligible to receive letters testamentary based on SCPA 707[1][b], he asserts that he should be permitted to serve as executor because he obtained a certificate of relief from civil disabilities dated 31 August 1986.

A certificate of relief from civil disabilities permits the court, in its discretion, to appoint a person who was previously convicted of a felony as a fiduciary of the estate, but the court should not exercise such discretion where there is a concern that the person requesting the letters might be ineligible under SCPA 707(1)(e) by reason of dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office as in Matter of Pullman. Notwithstanding that the court is cognizant of the fact that it does not appear that the proponent has been involved in any criminal activity for more than a quarter of a century and that the selection of a fiduciary by the testator is entitled to great deference as held in Matter of Duke and Matter of Leland.

Under the unique facts of this case, the court finds that B should be appointed as the sole executor of the estate.

Here, the proponent's interest in the estate is limited to the specifically devised Bronx real property. Upon the admission of the will to probate, the real property vests in the proponent as of the date of the decedent's death subject only to the executor's right to sell the property should it be necessary to meet estate obligations akin to the precedents Waxson Realty Corporation v. Rothschild and Matter of Seviroli. Thus, the proponent does not need letters to assume ownership of the property. On the other hand, B is the sole person who has a financial interest in any other property that passes pursuant to the will. The sole subject upon which the proponent and B appear to agree is that there is a significant amount of hostility between them. Usually, hostility between a nominated executor and a beneficiary, standing by itself, is not a sufficient reason to deny letters to the nominated executor. However, there are instances where the hostility coupled with other factors warrant the denial of letters to a person who would otherwise have priority as was held in the analogous case of Matter of Rad.

The court exercises its discretion in favor of granting letters only to B and denying letters to the proponent, A, for the following reasons that the hostility between the proponent and B portends problems with their agreeing upon the manner in which the estate should be administered, the proponent has been convicted of crimes, albeit many years ago, such as burglary and receipt of stolen property, which reflect dishonesty there is an allegation that the proponent improperly obtained some of the decedent's assets shortly prior to her death and, consequently, the proponent as a co-executor could not simultaneously be the petitioner and respondent in a discovery proceeding to recover assets from himself based on SCPA 702[8][9] and the ruling in Matter of Teah and the proponent does not need letters to become the owner of the real property devised to him under the will.

Accordingly, the court grants the cross-motion to the extent that the proponent's application for letters testamentary is denied and letters testamentary shall issue solely to B.

Bronx County Last Will and Testament Lawyers, Bronx County Probate Lawyers and Stephen Bilkis & Associates are experts in cases like the ones discussed above. If you have questions or comments regarding last will and testament and probate cases, please do not hesitate to call our toll free number or visit our firm. We have experts willing to extend their assistance.

November 11, 2013

Plaintiffs Seek to Set Aside Deed

The plaintiffs seek to set aside a deed executed by the decedent's sister, in October 2000, transferring to the decedent her 50% interest in real property in the Bronx. The complaint, alleges, inter alia, that decedent, as a result of undue influence exerted upon her by the decedent’s sister, conveyed to her 50% interest in the Bronx realty. A New York Probate Lawyer said the complaint also contains a cause of action alleging that the decedent converted funds held in a joint bank account with decedent. The plaintiffs in the action are decedent and a niece and nephew of the decedent who allege that they own the remaining 50% interest in the realty.

A Bronx County Estate Litigation attorney said that in February 2005, the plaintiffs attempted to serve the decedent by substituted service while he was a patient at a hospital, by delivering the summons and complaint to a person who allegedly agreed to accept service on the decedent's behalf, and mailing a copy to the decedent at that facility on the following day. The decedent died at the hospital, leaving five distributees including decedent and the other two plaintiffs.

A New York Will Lawyer said the non-relative, is the sole beneficiary under a testamentary instrument purportedly executed by the decedent. That instrument is the subject of a will contest and, upon a motion by the plaintiffs in the transferred action, the court consented to receive the transferred action for trial and, because the action could not proceed until a fiduciary was appointed in the decedent's estate, the court invited the plaintiffs to "seek the appointment of a temporary administrator in the event that the proponent does not seek preliminary letters.

Thereafter, Long Island Probate Lawyers said preliminary letters testamentary issued to the proponent and the plaintiffs and the preliminary executor stipulated and agreed, to: (1) transfer the Supreme Court action to this court; (2) substitute the proponent, in his capacity as preliminary executor, as a party defendant in the transferred action; and, (3) extend the time for the preliminary executor to appear, answer or otherwise plead in the action to 30 days from the date that the action was transferred to this court. By order, that stipulation was "so-ordered" by the Supreme Court, Bronx County.
In his CPLR 3211(a)(8) motion, the preliminary executor asserts that service upon the decedent in the hospital was ineffective, as the person who accepted service was not the decedent's authorized representative, substituted service to a person of suitable age and discretion did not occur at the decedent's actual place of business, dwelling or usual place of abode, and the mailing was not made to the decedent's last known residence, as required by CPLR 308(2). In further support, the preliminary executor notes that while he was at the Hospital, the decedent was not ambulatory, was incommunicative and was heavily sedated, so he lacked the capacity to understand any legal papers handed to him. In any event, the preliminary executor notes that he never saw any legal papers in the decedent's room.

In response to the motion the plaintiffs cross-move, pursuant to CPLR 306-b, to extend the time to serve the summons and complaint.

In support of their motion, the plaintiffs annex an affidavit by the process server who states that while he does not recall the specifics of service on the decedent at the hospital, his usual custom and practice when effectuating service at a hospital is to identify himself as a process server, ask who will accept service on behalf of the patient, hand that person the summons and complaint and take identifying information, and then mail the summons and complaint to the patient at the hospital. The preliminary executor did not file any opposition to the cross motion.

Brooklyn Probate Lawyers said with respect to whether personal jurisdiction was obtained over the decedent, CPLR 308(2) permits substituted service by delivery of the summons and complaint to a person of suitable age and discretion at "the actual place of business, dwelling place or usual place of abode of the person to be served" and by mailing a copy by first class mail to, inter alia, the person's "last known residence". The affidavit of the process server submitted by the plaintiffs clearly establishes that substituted service on a person of suitable age and discretion at the hospital did not comport with that statute, as the hospital did not constitute the decedent's actual place of business, dwelling place, or usual place of abode. Even assuming, arguendo, that a hospice such as the hospital can constitute a person's actual dwelling place or usual place of abode, for purposes of the follow-up mailing, the hospital did not constitute the decedent's last known residence. As a result, the service effectuated by the plaintiffs during the decedent's lifetime failed to obtain personal jurisdiction over him.

Nonetheless, CPLR 306-b allows the court, upon motion and either "good cause shown" or "in the interest of justice," to extend the time for service where service is not made within 120 days after the filing of the summons and complaint. Even assuming, arguendo, that the "good cause shown" test was not met by the plaintiffs' single attempt at service, the plaintiff's cross motion should nevertheless be granted "in the interest of justice" under CPLR 306-b. The "interest of justice" standard is broader than the "good cause shown" test and permits the court to consider many factors, including the statute of limitations, the meritorious nature of the cause of action, due diligence in service or the lack thereof, the length of delay in service, the promptness of the plaintiffs' request for the extension of time, and prejudice to the defendants. Factors favoring an extension under the interest of justice standard are timely service within the 120-day period allowed by CPLR 306-b, which service was later found to be defective, and the defendants' actual notice of the claim and/or the action.
Here, service and the filing of proof of service was attempted and apparently in good faith believed to have been made within the 120-day period of CPLR 306-b, although the service was defective. Based upon the present state of the record it appears that the six-year statute of limitations period for undue influence accrued and commenced on the date the deed was given by plaintiff to the decedent and the summons and complaint were filed prior to the expiration of the limitations period. It is undisputed that the preliminary executor was aware of the pendency of the action, and the delay in making the cross motion for an extension of time to serve was the result of the decedent's death and the need to obtain the appointment of, and substitute, the personal representative of the estate as a party defendant. Moreover, it would be inequitable to permit the proponent's delay of approximately 18 months in applying for preliminary letters testamentary in the probate proceeding to result in the dismissal of the complaint and to thereafter permit the preliminary executor to rely upon a statute of limitations defense in the event that a new action had to be commenced.

Accordingly, the branch of the plaintiffs' cross motion seeking an extension of time to serve the complaint on the personal representative of the estate in the interest of justice is granted. Such service shall occur within 120 days of the order to be entered hereon. In view of this determination, the preliminary executor's motion to dismiss is denied, as academic.

Here in Stephen Bilkis and Associates, we have the experienced and skilled Bronx County Estate attorneys who will advice you in dividing your estate upon execution of a will. We also have our Bronx County Probate lawyers who will assist your appointed executor in making the provisions effective during the proceedings in court.

November 3, 2013

Family Contends Mothers Will is Invalid Due to Lack of Capacity

A New York Probate Lawyer said a last will was executed approximately one year prior to the owner's death at the age of 89. Her successors are her three post-deceased children and her two daughters. But, the probate petition was not filed more than twenty years after the woman's death.

All of the parties agree that the deceased woman suffered a stroke previously which resulted in her partial paralysis, and she required the assistance of an aide for the rest of her life. A New York Will Lawyer said all of the testimony also indicates that after her stroke, the woman's children assisted her in her daily affairs and she enjoyed close relationships with all of them as well as with her grandchildren. Until her death, she resided on the top floor of her two-family house, and her first son lived in the downstairs apartment where he remained until his death. Sources revealed that the deceased woman’s first son was a paraplegic after being shot.

At the trial, the attorney/draftsman testified that he had been an attorney for 52 years. During those years, the attorney drafted and supervised the completion of over 1,000 last wills.

Bronx Probate Lawyers said on the day prior to the execution of the woman’s proposed last will, the woman’s first son called the attorney based on the recommendation and gave him instructions which he followed when drafting the last will. The attorney and his wife, who was also his secretary, went to the woman's home to serve as the attesting witnesses, admittedly without any knowledge of the woman's competency. Upon their arrival, they went to the second floor bedroom where the woman was propped up in her bed. The attorney testified that he read and explained each provision of the last will, then asked if she understood it and the woman responded that she did.

After the attorney reviewed the last will with the woman, he asked her why was she favoring her first son over her other children. Brooklyn Probate Lawyers said the woman, who had her left hand under a blanket raised that hand, and with a clenched fist and some emotion, indicated she favored her first son because he is crippled.

The attorney recollected that the woman had difficulty signing the last will, but did so with her right hand to the best of her ability. Thereafter, the attorney, his wife and the woman's aide were requested to, and did, sign as attesting witnesses. The last will contain an attestation clause. The attorney stated that the execution ceremony was in compliance with the law and that the woman understood the provisions of the will and possessed capabilities to perform it.

However, the attorney did not ask the woman any specific questions to ascertain her knowledge of the date or time, her assets or her relationship to family members other than her first son. The witness explained that he did not question the woman concerning the nature and extent of her property because the son told him that the house was her sole property. The attorney then charged $75 for his services.

According to the attorney, the woman’s first son supplied the $5,000 figure that was to be paid to the woman's other children upon the sale of the realty. Although the attorney had no idea about the value of the house, sometime thereafter he learned that the house was originally purchased for $25,000. The attorney agreed on cross examination that it was highly unusual for him to receive drafting instructions solely from the principal beneficiary.

After the woman's death, the first son called the attorney and indicated that he wanted the last will be validated, and the attorney sent a copy of it to the woman's other children and advised them that it would be offered for validation.

Subsequently, the first son told him that he no longer wanted to probate the will, as its provisions were causing a family dispute. Shortly before the first son's death, he again told the attorney that he was interested in validating the last will. But, no action was taken as another son had recently died.
The attorney had never met the woman’s first son prior to the completion of the last will, but the son subsequently retained him in connection with a landlord-tenant proceeding.

The testimony of the attorney's wife with respect to the execution ceremony was essentially the same as her husband's. The third witness, the woman's aide, did not testify presumably because, at the time of the trial, none of the parties knew her whereabouts.

The woman's daughter testified about a subsequent last will allegedly executed by her mother. The opponent called two of the woman's grandchildren as witnesses.

The first grandchild opined that her grandmother had absolutely no knowledge about her assets and never left her second floor apartment after her stroke. The woman's children took care of her shopping and finances. The woman did not have her own checking or other bank account, and did not know what a mortgage was. Further, most of her conversations with the woman were spiritual in nature.

At some point, the woman's long-time aide was fired by the woman’s first son, without consultation with any of the family members, and the woman's condition markedly deteriorated after the aide left.
The second granddaughter testified that after her grandmother's stroke she regularly visited the woman, usually accompanied by her mother. At some point, they no longer were able to have any long conversations with the woman. Although she believed that her grandmother generally understood what was said to her, the woman's responses were usually limited to yes or no. She had to guess what her grandmother might want and then would ask whether she wanted that particular thing. The witness also agreed with her cousin that the woman's condition worsened after her aide left, and thereafter, she hardly spoke.

Based on records, the opponent has the burden of proving the evidence that, at the time of the completion of the last will, the woman possessed good mental capabilities, and must demonstrate that the woman understood the nature and consequences of executing a will, knew the nature and extent of the property that she was disposing of and knew the natural objects of her bounty and her relations with them.

Based on all of the evidence presented in court, the court finds that the opponent failed to meet his burden of proof on the issue of testamentary capacity. The court also finds that the opponent established the existence of a confidential relationship between the woman and her first son and that the confidential relationship, coupled with the facts and circumstances surrounding the preparation and execution of the last will favoring the first son and his estate, create the inference that the instrument was a product of undue influence exerted by the first son over his mother. Furthermore, the opponent failed to present evidence to overcome the inference of undue influence.

As a result, the decision constitutes the decree of the court that denies validating the woman’s last will. The chief clerk is ordered to mail a copy of the decision and decree to all attorneys. The court lastly ordered that all attorneys and the members of the family who so desire shall appear at the court to discuss the future administration of the estate.

Last wills that are offered for probate usually flames dispute in the family. If you need help with such kind of situation, you can approach the Bronx County Probate Lawyer or Bronx County Estate Attorney. You can also seek legal assistance of the Bronx County Estate Administration Lawyer at Stephen Bilkis and Associates.

October 31, 2013

Court Settles Real Property Dispute

A New York Probate Lawyer said that, plaintiff asserts that summary judgment should be granted in his favor. He was married to his wife in January of 1995. On January 30, 1995, property was purchased at 2426 St. Raymond Avenue in Bronx County and title was held by defendant his wife and, her husband. Plaintiff asserts that his wife passed away on December 16, 2000 and since plaintiff and his wife held the property as tenants by the entirety, upon the death of his wife, her interest transferred to plaintiff as a matter of law.

A New York Will Lawyer said that, defendants oppose the motion by plaintiff and assert that plaintiff's deceased wife, in her Last Will and Testament, bequeathed her half share of the property equally to her husband, the plaintiff, and defendant. Moreover, her will provided that defendant must approve, in writing, any decision to sell said property. Therefore, defendants contend that plaintiff is entitled to a 3/8 share of the value of the property as is defendant. In addition, defendant provided all of the money for the down payment on the property including closing costs in the sum of $27,000 and she paid for all renovations made to the property in the approximate sum of $7,000. Defendants assert that if the property is partitioned and sold, she should receive credit for those payments. Defendants further contend that there is a probate proceeding pending in

A New York Wills Lawyer said that, Surrogate Court in Bronx County as to the same issues raised in plaintiff's cause of action herein and Surrogate Court is the proper forum in which to determine this matter. Therefore, defendants assert that the instant matter should be dismissed in the interest of judicial economy.

A Bronx Probate Attorney said that, defendants also cross-move for an order restraining plaintiff from the commission of further waste on the subject property during the pendency of this action. Specifically, defendants assert that said property is a two-family house. Plaintiff lives in one apartment and the other apartment is vacant. Defendants assert that plaintiff has not allowed the defendants’ access to the vacant unit since June 2007 to repair and renovate it so that it can be rented out and generate an income. They argue that only plaintiff is benefitting from ownership of the premises and plaintiff's actions are a financial detriment to the defendants. Defendants further reiterate their position that the pending Surrogate's Court proceeding is the proper forum in which to determine this matter and, therefore, the instant action should be dismissed. Defendants would withdraw their application if this court determines that Surrogate's Court is the proper forum. Plaintiff did not submit any papers in opposition to defendants' cross-motion or their request that the instant action be dismissed.
The issue in this case is whether plaintiff’s motion for summary judgment should be granted; on the ground that Surrogate's Court proceeding is the proper forum in which to determine this matter.
The court in deciding the case said that, plaintiff has not demonstrated his entitlement to summary judgment as a matter of law in that his deceased wife's last will and testament provided for a different apportionment of her share of the property upon her death. Since that is a matter currently being litigated in Surrogate's Court and it is the proper forum for determining the apportionment of the property, the motion and cross-motion are hereby denied and plaintiff's cause of action is hereby dismissed without prejudice as Surrogate's Court is the proper forum for this action. Defendants are directed to serve a copy of this order with notice of entry upon the plaintiff and file proof thereof with the clerk's office.

Accordingly, a Brooklyn Probate Lawyer said the court held that, the motion by plaintiff for partial summary judgment establishing his right to a 50% interest in the subject property is denied. The cross-motion by defendants for an order pursuant to RPAPL § 211 restraining plaintiff from the commission of any further waste upon the property located at 2426 St. Raymond Avenue in Bronx County is, likewise, denied. This constitutes the decision and order of the court.

If you are involved in a similar facts and case, seek the assistance of a Bronx Will Contest Attorney and/or Bronx Estate Administration Attorney at Stephen Bilkis and Associates in order to help you with your case. Call us for free legal consultation.

October 26, 2013

Executor Moves to Preclude Decent's Grandchildren from Will

In this probate proceeding the proponent, the decedent's son who is the nominated executor and sole beneficiary under the propounded instrument moves to preclude the objectant, the guardian of the property of one of the decedent's grandchildren who is an infant, from offering any evidence or testimony in this proceeding on the grounds that the objectant's bill of particulars was untimely served (81 days after the demand instead of 30 days) and 15 days after all disclosure was to be completed, and that the responses therein are not in conformity with the specificity requirement set forth in Uniform Rules for the Surrogate's Court.

A New York Probate Lawyer said the decedent died at the age of 73. The decedent's only distributees are the petitioner, the infant grandson for whom a guardian ad litem (court appointed) was appointed and another grandson who consents to the probate of the propounded instrument. Although the guardian ad litem for the infant filed a report indicating that he found no basis to object to the admission of the will to probate, the infant's father disagrees. After some delay caused in part by the necessity of obtaining guardianship of the infant's property, the father eventually filed objections on the infant's behalf.

A conference was held with the court in which the guardian ad litem participated and indicated that he would favor settlement of the issues raised. A New York Wills Lawyer said as no settlement was reached, the court rendered a decision relieving the guardian ad litem of his representation of the infant unless he was needed for any subsequent settlement discussions, inasmuch as the infant was represented by counsel retained by the guardian of his property who would vigorously prosecute the objections.

Counsel for the objectant sets forth excuses for the delay that vex his adversary and might strain credibility, especially after the initial delay in filing the objections, the counsel's alleged inability to respond to the demand for a full month due to a trial in Rockland County, delayed review of medical records by a doctor who, rather than being furnished with copies, could only review them at the court one morning a week. Nevertheless, Brooklyn Probate Lawyers said that instead of seeking summary judgment based upon proof establishing a legitimate case and that the objectant failed to raise any triable issue of fact, the proponent, in effect, seeks to deprive an infant interested party of his day in court based upon delay and an alleged lack of specificity in his bill of particulars. Notwithstanding that no party should expect that a failure to meet a deadline will be without consequences, the court, in the exercise of its discretion, will review the bill of particulars, and if it is found in any way to be deficient, make such order as may be just.

The proponent argues that the delay and lack of specificity merit preclusion of evidence with respect to all of the objections, while the objectant glosses over the delay and relies on his alleged likelihood of success on the merits, primarily on the issues of lack of testamentary capacity because the decedent was suffering from a terminal illness at the time the will was executed and undue influence due to the circumstances under which the objectant claims the will was executed.

Long Island Probate Lawyers said the object of a demand for particulars is to amplify the pleadings so as to eliminate surprise at trial, and not to serve as a further disclosure device. A party is not obligated to respond to particulars on any issue that the party does not have the burden of proving at trial.

Against this backdrop it is clear that no proof should be taken solely for the purpose of submitting Objection 1 to the jury, and consequently, this objection is stricken without in any way precluding the proof that the objectant may adduce in support of any other valid objection. Briefly, Objection No. 1, “that the will is not the last will of the decedent in that it did not express her true wishes and intent,” is not a cognizable independent objection where, as here, there is no allegation of a forgery and there are objections alleging lack of testamentary capacity, undue influence and fraud.

Objection 2 contains the usual allegation of lack of testamentary capacity at the time the instrument was executed. As the proponent has the burden of proof on this issue, the objectant is not required to provide any further amplification of this objection. Nonetheless, in light of the fact that the objectant indicated in opposition to the instant motion that they were in the process of both obtaining an expert opinion on the issue of testamentary capacity and additional medical records, the branch of the proponent's motion seeking to preclude objectant from using any material not supplied to the proponent prior to the date that disclosure was to be completed is granted with respect to expert testimony and additional medical records unless, within 45 days of the date of the order to be entered hereon, the objectant furnishes to the proponent the information required with regard to the expert's testimony and any additional medical records have been delivered to the court or otherwise made available to the proponent.

Objection 3 alleges both fraud and undue influence, two separate objections. With respect to undue influence, the objectant claims that the proponent or his girlfriend exerted undue influence on the decedent to procure the instrument at issue. It is frequently said that direct evidence of undue influence is seldom available. Accordingly, the law permits undue influence to be shown by facts and circumstances leading up to and surrounding execution of a will. The objectant alleges that it was not natural for the decedent to devise her house solely to the proponent as the infant objectant had lived there with the decedent, and at the time the will was executed the decedent suffered from physical and mental distress because she was in the final stage of a protracted battle with cancer and because her daughter, the mother of the objectant, had committed suicide approximately one month prior to the will execution ceremony. The objectant also avers that the proponent and his girlfriend exerted undue influence is demonstrated by the fact that the proponent arranged for the decedent and the attorney drafter to meet, and the $50,000 bequest in the propounded instrument to the proponent's girlfriend in the event that the proponent predeceased the decedent is at the expense of the decedent's grandchildren with whom the decedent had a close relationship. Inasmuch as the response sufficiently appraises the proponent that the objectant will rely upon the facts and circumstances surrounding the execution of the instrument and the medical evidence and expert testimony concerning the decedent's condition in meeting his burden on the undue influence objection, the response on that issue is sufficient.

As the objectant has the burden of proof on the issue of fraud and admits that he is unaware of any specifics about any false statement that constitute the alleged fraud, preclusion is granted with respect to that branch of Objection 3 alleging fraud.

Objection 4 alleges that the decedent was not of the physical ability to understand and/or appreciate the provisions of the will. As was the case with Objection 1, the objectant is not precluded from establishing the facts stated therein in support of his other valid objections, however, as these allegations do not support any objection independent of other valid objections, this objection is stricken.

Finally, Objection 5 deals with “such other and further objections as may become apparent upon the production of discovery to be conducted in connection with this proceeding.” The proponent correctly notes that the time for the objectant to interpose additional objections has long since passed, and he is precluded from doing so.

Any party who seeks summary judgment shall make the motion returnable no later than September 5, 2012. Thereafter, or following the court's determination of any summary judgment motion, the probate proceeding may be placed upon the court's ready for trial calendar upon compliance with Uniform Rules for Surrogate's Court.

When parties in a will related proceedings disagree, the longer the time it would take them to enjoy the things that they would get from the will. If someone is trying to jeopardize a probate proceeding, the Bronx County Probate Lawyer or the Bronx County Will Contest Attorneys from Stephen Bilkis and Associates are the best persons to approach.

October 24, 2013

Court Determines if Bequest to Decedents Friend is Void

A New York Probate Lawyer said that, in this uncontested proceeding to probate a will dated December 2, 1991, the issue presented is whether the bequest to decedent's friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent's son, whose legacy under the will is less than his intestate share as one of decedent's six surviving children, was also one of the attesting witnesses. The third attesting witness does not receive any disposition or appointment under the will.

The issue in this case is whether the bequest to decedent's friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent's son, whose legacy under the will is less than his intestate share as one of decedent's six surviving children, was also one of the attesting witnesses.

A New York Wills Lawyer said the court in deciding the case said that, EPTL 3-3.2(a)(1) provides that an attesting witness to a will to whom a beneficial disposition is made is a competent witness who can be compelled to testify with respect to the execution of such will but that the disposition to the attesting witness is void "unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder." The purpose of the statute is to preserve the maker's testamentary scheme to at least some extent by making all attesting witnesses competent while preserving the integrity of the process of will executions by removing the possibility that attesting witnesses who receive a disposition under the will might give false testimony in support of the will to protect their legacies.

Brooklyn Probate Lawyers said the Legislature, in effect, has concluded that the public good is served by requiring that a few innocent attesting witnesses forfeit their legacies so that the validity of a greater number of wills might not be suspect by dint of a beneficiary under the will being one of the attesting witnesses whose testimony is required to probate the will. New York's law on this subject has been criticized as creating "a most unfortunate conclusive presumption that a beneficiary under a will who also served as an attesting witness should be dramatically and summarily punished". This "conclusive presumption" is not the law in those states that have enacted the Uniform Probate Code nor is it the law in most jurisdictions.

Here, decedent's son, does not forfeit his legacy as a result of being both an attesting witness and a beneficiary because EPTL 3-3.2(a)(3) permits him, as a distributee, to receive the lesser of his intestate share or his legacy under the will. However, since the attesting witness, is not a distributee of the decedent, it must be determined whether the bequest to him of one-eighth of decedent's tangible personal property "that is not otherwise disposed through Paragraph Second" is void under EPTL 3-3.2.

Long Island Probate Lawyers said in light of the policy that statutes are to be construed to carry out the overall legislative intent and to avoid injustice or hardship, neither the spirit nor the letter of EPTL 3-3.2 requires that the friend forfeit, through no fault of his own, the legacy that decedent wanted him to receive. The objective of EPTL 3-3.2 that there be at least two attesting witnesses who have nothing to gain by the admission of the will to probate is fulfilled in this matter by the one witness who receives no disposition or appointment and by decedent's son, who, although he received a bequest under the will, is actually adversely affected by the admission of the will to probate because his intestate share would be greater than his bequest. Considering that the first definition of the word "beneficial" in Webster's Dictionary (New Twentieth Century Unabridged Second Edition) is "advantageous", it is concluded that, although Kevin received a disposition under the will, it was not beneficial to him to the extent that he would have received a larger inheritance if he testified against the validity of the will and the instrument were denied probate. Consequently, the disposition to the friend is not void under EPTL 3-3.2(a)(1) because there are at least two other witnesses to the will who receive no beneficial disposition thereunder. That this interpretation is consistent with the overall legislative intent is also reflected by the provisions of EPTL 3-3.2(a)(3) which permit a distributee who is an attesting witness to receive the legacy whenever its value is less than the intestate share of the witness.

In conclusion, regardless of whether one agrees with New York's minority rule mandating that a legacy to an attesting witness is void in the absence of two disinterested witnesses, there is no need to stretch that rule to fit the facts of this case. Inasmuch as the court is satisfied that the will was duly executed in accordance with the statutory formalities and that the testatrix at the time of executing it was in all respects competent to make a will and not under any restraint, a decree has been entered admitting the will to probate as a will valid to pass property, including the legacy to the decedent’s friend.

If you wish to contest the will of the decedent in order to protect your legacy, seek the representation of a Bronx Will Contest Attorney and Bronx Estate Litigation Attorney at Stephen Bilkis and Associates. Call us for free legal advice.

October 21, 2013

Two Sons File for Accounting Proceeding

This is an accounting proceeding wherein objections were filed by one of the two sons of the decedent who have equal shares in the residuary estate.

A New York Probate Lawyer said the issues presented before the court arise from a situation where an attorney-draftsman and his partner petitioned in the probate or will contest proceeding to be appointed co-executors, no objections to their serving in that capacity were filed in the probate proceeding and they continued to serve as co-executors without objection until the final accounting, at which time objections are raised to their request for two full executors' commissions as well as attorneys' fees. The objections to executors' commissions and legal fees raise significant questions which no reported case has fully answered. The result hinges on the applicability of the precedents of Matter of Weinstock, Matter of Laflin and Matter of Harris to the facts of this case.

On 19 February 1985, the decedent died in his early nineties. He executed on 14 June 1983. A, a lawyer who had represented the decedent, was nominated as the primary executor. A New York Will Lawyer said the attorneys who are the accountants in this proceeding were named alternate co-executors. The will was admitted to probate on the waivers and consents of both of decedent's sons. The primary executor renounced and both of the alternates, who are the sole partners of their law firm, qualified as co-executors of the estate. These attorneys have served as co-executors from the inception of the estate and have performed all of the legal services in the probate, tax and accounting proceedings.

Long Island Probate Lawyers said the testimony of the attorney-draftsman co-executor who appears to have performed the lion's share of the executorial and legal services for the estate served as the proof at the hearing. He testified, without objection, to the circumstances surrounding the drafting and execution of the will. He admitted that he had broached the subject of the appointment of an alternate executor in the event that A should, for any reason, be unable to serve. It was his contention that it was the decedent's idea that both the witness and his partner should be named as alternate co-executors. He further claimed that he had advised the decedent that two commissions would be payable in the event that both he and his partner served. His recollection of this conversation, which occurred approximately five years ago, was that decedent responded to the effect that he liked both the attorneys and wanted them both to serve anyway. He inquired about the assets but decedent refused to reveal the size of his estate and, in effect, told him that it was none of his business. The account reflects that the commissionable assets total $147,289, which results in each co-executor receiving statutory commissions in the sum of $6,891, making their combined commissions the sum of $13,782. In addition, their firm originally requested $11,018 in legal fees. At the hearing, counsel said that he had spent twenty hours on this estate since the account was filed and that he should receive additional compensation for this time.

Brooklyn Probate Lawyers said that although the counsel stated that he kept no contemporaneous time records, he claimed that he could reconstruct the amount of time spent on various items with a high degree of accuracy by looking at his file. Based on this, he claimed that he had spent almost $15,000 worth of billable time on this estate, billing his time at $150 per hour, and that $11,018 is a reduced charge. It was his allegation that, for the past decade, he has been charging at the same rate. The court observes that his testimony on this subject was surprising to the extent that he indicated that he was able to keep his charges constant over the past ten years. The court opines that cousel is apparently one of the fortunate few who has escaped the impact of inflation upon office overhead.

Counsel stated that he had been in practice for thirty years and had handled four or five estates a year and he is not claiming to be an expert in estate law. However, he testified that, in his opinion, regardless of the size of the estate, he and his partner would both be entitled to full statutory commissions.

The court finds that his opinion is incorrect. It finds it clear that he was unaware of the holdings in Matter of Weinstock, Matter of Laflin and Matter of Harris prior to the instant proceeding.

Counsel paid himself $2,235 on account of commissions without a court order as shown in his entry schedule. To the court, this exhibited counsel’s lack of expertise. This act is improper. If executors wanted to receive a payment on account of commissions, they have to make an appropriate application. Inasmuch as the attorneys and the fiduciaries were one and the same in this matter, even if petitioners had denominated the payment as being made on account of legal fees, a court order was required in accordance with SCPA 2111.

The court concludes that counsel intentionally misstated the facts which led to the nomination of both himself and his partner as alternate executors in the will. However, the court would have to be gullible not to conclude that counsel, at least subconsciously, engaged in revisionary history when he implied that decedent knew that his estate would have to pay twice as much in commissions in the event that both partners in the law firm served as executors.

Counsel's apparent lack of knowledge about the holding in Matter of Weinstock, supra, indicates that he did not know that an attorney had an obligation to make a full disclosure to a client before he permitted himself and another attorney in his firm to be written into the will as co-executor.

Counsel conceded that he did not have even an inkling as to the size of decedent's estate and that, even if he had, he was unaware that the commissions would be doubled only if the estate reached a certain value. If petitioners' present request for legal fees and commissions were to be granted, they would receive in excess of $25,000.

The court finds it incredible that assuming that the decedent was aware of these charges as well as other estate administration expenses and debts, one would lead to the conclusion that he sanctioned a distribution of his estate which leaves each of his sons approximately $21,000 in satisfaction of his residuary legacy while counsel receives $25,000.

The court concludes in viewing the credible testimony in the light most favorable to counsel, after he had initiated the discussion as to the need to nominate an alternate executor, decedent, without any improper prompting from counsel, but also without any meaningful knowledge or disclosure as to the financial impact upon his estate, selected counsel and his partner as the alternate co-executors.
The implications which can be drawn from the holdings in Matter of Weinstock, Matter of Laflin and Matter of Harris can be used as a guide in determining the instant matter. In Matter of Weinstock, where an attorney-draftsman and a partner are named in a will as executors, without having had any prior relationship to the client and without having advised the client that double commissions are payable, they may be barred from serving because the overreaching is held to constitute constructive fraud. Inasmuch as Weinstock involved a father and son team of attorneys unknown to the elderly testator prior to the will conference and execution ceremony, the overreaching was particularly egregious. In the instant case, the uncontroverted testimony was that the attorneys had had some dealings with the decedent for a few years prior to his death and that it was not unreasonable that he would appoint one of them as an alternate executor of his estate. The decedent apparently did not wish to appoint a member of his family. However, it is highly suspect that both attorneys were named. Counsel candidly admitted that there was no conceivable benefit to the estate by so doing, and decedent's desire to benefit the attorneys was obviously not paramount since they would receive nothing in the event that the primary executor served.

Weinstock is distinguished from the case at bar in the sense that there is no evidence that the attorneys actively induced the decedent to name both of them as fiduciaries or that they purposely deceived the decedent into believing that it would make no difference whether one or both members of the firm were named. However, it is equally clear that there was no meaningful, full disclosure as to the double commissions that would flow from multiple fiduciaries serving. Consequently, the client was deceived.

Without endorsing this rule and with knowledge that the Weinstock court stated that the mere naming of one attorney as the fiduciary does not of itself constitute overreaching, one cannot reasonably contest that such disclosures in some manner should be made to the client. The existence of such an affidavit or similar statements in the will would clearly serve as a preventive measure to avoid future problems for counsel. Where two attorneys from the same firm are nominated as co-executors, they should be able to present compelling proof that the client made this selection with full knowledge as to its ramifications.

Since no objections were filed in the probate proceeding to the assumption of the role of co-executors by the attorney-draftsman and his partner, the court does not have to consider whether such objections would have resulted in one or both of the attorneys being denied the right to serve as an executor. However, counsel conceded that he had not advised the beneficiaries of the estate that double commissions would be charged when he and his partner qualified as alternate executors. Consequently, his reliance on their waivers in the probate proceeding, when it appears that they were not represented by independent counsel, is unfounded and cannot be the basis upon which to hold that decedent's son is estopped from raising the objections he now pursues in the accounting proceeding.

The court finds that counsel was guilty of passive malpractice in his failure to adequately advise the decedent of the consequences of appointing both attorneys as executors. Matter of Laflin and Matter of Harris hold that in the absence of an estoppel, multiple attorney-fiduciaries who have not complied with the Canons of Ethics by making a full disclosure must suffer the consequences in the accounting proceeding, even though no objections to their serving were raised in the probate proceeding.

Statutory commissions should be denied to those who are guilty of serious misconduct, breach of trust, or mismanagement In the case at bar, it is clear that counsel's failure to adequately explain to the testator the impact upon his estate in the event that both partners served as co-executors should bar the co-executors from receiving two statutory commissions. The next issue is whether the two executors should automatically be permitted to share in one statutory commission and receive the customary legal fee. If they do, they would be receiving exactly the same amount as they would have had they acted in accordance with the highest standards of the legal profession and either

discouraged the decedent from appointing both of them as executors or had only one of them served. This result does not commend itself to the court.

The court concludes that the proper remedy is to allow combined executors' commissions and attorneys' fees on a quantum meruit basis. The amount to be awarded should in no event exceed one commission and the legal fee that would be allowed, taking into consideration that there is an overlapping of executorial and legal services which results in a reduction of the legal fee where counsel is also the executor as held in the cases of Matter of Moore, Estate of Schilling, Estate of Ketcham, Estate of Gillett, Estate of Sherwood, Estate of Smith, N.Y.L.J., Will of Deguire and Estate of Orza, N.Y.L.J.

Accordingly, the court sustains objections to schedule C-1 and schedule I.

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October 19, 2013

Court Decides if Respondent was Able to Distribute Money via a Power of Attorney

A New York Probate Lawyer said that, in this SCPA 2103 proceeding, the respondent moved to vacate her default and for other relief. The branch of the motion seeking to vacate the respondent's default is now academic as a result of the court's decision and order dated February 1, 2008. In that decision and order, the petitioner's application to strike the respondent's pleadings and to enter a default judgment in the sum of $173,000 was denied, provided that the respondent both paid the sum of $400 to cover the cost and fees for her failure to appear at a deposition and, thereafter, appeared to be deposed as directed.
A Bronx Estate Lawyer said that, in her affidavit in support of the motion, the respondent's request for "other relief" is: (1) dismissal of the petition on the ground "that no asset of the estate" was ever removed by her; (2) dismissal of the petition on the ground that the "Stipulation of Settlement" filed in the probate proceeding was intended to cover "all matters and claims," including any claim that the respondent removed estate assets; and (3) the imposition of sanctions on the petitioner's attorney for knowingly filing a "frivolous" petition. In the alternative, the respondent requests that the proceeding be scheduled for a hearing.

A New York Will Lawyer said the issue in this case is whether the respondent was authorized to distribute monies from the decedent's bank account to herself pursuant to a power of attorney.

The court in deciding the case said that, neither of the grounds advanced by the respondent supports dismissal of the petition. A Brooklyn Probate Lawyer said the issue of whether the respondent was authorized to distribute monies from the decedent's bank account to herself pursuant to a power of attorney raises factual issues that can only be determined after a hearing. With respect to the respondent's contention that the written stipulation filed in the contested probate proceeding in this estate released her from liability for any claims that the estate had against her, it is well settled that a stipulation of settlement, as is the case with other contracts, is to be enforced according to its terms and without resort to extrinsic evidence where the language is clear and unambiguous on its face. Furthermore, "stipulations of settlement are favored by the courts and not lightly set aside".

Here, Long Island Probate Lawyers said the stipulation of settlement filed in the probate proceeding contained, inter alia, the following whereas clauses indicating that: (1) objections to the propounded instrument were filed by the decedent's sole distributee; (2) the respondent was to receive one-half of the net proceeds from the sale of certain real property pursuant to the terms of the propounded instrument; and (3) "the parties to this agreement wish to resolve all claims and disputes with regard to the will of the decedent and the pending probate proceeding." After the whereas clauses, the parties to the stipulation, including the respondent, agreed, in pertinent part, that the propounded instrument would be admitted to probate, that the respondent would receive 41% of the net proceeds of the sale of the realty and that the entire residuary estate would be paid to the objectant. Inasmuch as the stipulation expressly states that it resolves all claims and disputes with regard to the decedent's will and the probate proceeding, and makes no reference to any claims that the estate might have against the respondent, the respondent's contention that the stipulation also encompasses estate claims against her contradicts the clear and unambiguous terms of the stipulation and may not be considered by the court.

For the reasons stated above, the court held that the branches of the motion seeking to dismiss the SCPA 2103 petition are denied. Moreover, in light of the respondent's failure to establish that the proceeding should be dismissed, there is no basis to impose sanctions against the petitioner's counsel for commencing a frivolous proceeding. Consequently, the branch of the motion seeking sanctions is also denied. This proceeding shall be placed upon the ready-for-trial calendar of the court upon compliance with Uniform Rules for Surrogate's Court (22 NYCRR) §§ 207.29 and 207.30. The Chief Clerk shall mail a copy of this decision and order to all counsel.

If you have issues concerning the validity of a will or with the probate proceedings, seek the help of a Bronx Probate Attorney or Bronx Estate Litigation Attorney at Stephen Bilkis and Associates.

October 12, 2013

Court Discusses the Rule of Perpetuities

A New York Probate Lawyer said that a woman died on March 1, 1968 and her will dated October 8, 1958 was admitted to probate on March 20, 1968. On August 29, 1968, the appellee filed his petition for construction and revocation wherein he renounced any disposition and bequest made to him under said will and wherein he petitioned that paragraph FIFTH of the will be revoked and declared invalid. On September 18, 1968, the appellant as respondent filed his answer to said petition;

On December 19, 1968, the appellant filed his amendment to said answer which amendment embraced a revocable designation by a man of those relatives and corporations which were to take the principal of the trust at its termination. A New York Will Lawyer said this designation was executed on September 3, 1968.

On October 22, 1969, the distinguished probate judge entered his order adjudicating paragraph FIFTH to be null and void as violating the rule against perpetuities. The said order also held that the power of appointment given to the man could not be exercised until the death of the brother and that man's attempt to do so was void. The trial court found it unnecessary to decide the question of whether the power was impossible of performance because of ill-defined, vague and ambiguous classes of recipients described therein. This latter question formed the basis of the appellee's petition; the rule against perpetuities not being raised therein.

The questions herein to be decided are is whether paragraph FIFTH violated the rule against perpetuities. Bronx Probate Lawyers said it is to be known if the designation by the man is valid and is the description of the classes of recipients named in the power of appointment ill-defined, vague and ambiguous?

The trial court found that paragraph FIFTH was an attempt by the decedent to convey a power of appointment to the man and that this was subject to a condition precedent, to-wit: the death of a young man and that the power does not exist until such death. The court further found that since the man might die before the young man, there would be no one to exercise the power and it violated the rule against perpetuities.

Bronx Probate Lawyers said the trial court was correct in holding that the power was a special power only exercisable by the man. However, the fact that the man may die before the young man and therefore the power would never be exercised, is not violative of the rule. If the man died first, without exercising the power, the trust residue would pass by intestacy at the death of the young man. The rule provides that no interest is good unless it must vest, if at all, not later than 21 years after lives in being at the creation of the interest. In this case, the interest must vest within the lifetime of the young man plus 21 years if it is going to vest at all.

The order appealed correctly states that one of the essential elements of the Rule against Perpetuities is that at the time the future interest is created it must appear that the condition precedent to vesting must necessarily happen, if it happens at all, within the period described by the rule.

As long as the man makes a valid designation the interest can and must vest within the time prescribed by the rule. The court cannot void a power where the vesting must happen, if at all, within the rule. 'If at all' are the life-giving words to an interest, where the only possible way it can vest falls within the rule and the only alternative is that it can never vest. In this event it would vest by intestacy. The power granted herein does not violate the rule against perpetuities.
The power of appointment was set forth in the Will of the deceased and it came into existence upon her death and can be exercised by the donee from the date of said death subject to the terms of the grant of said power and applicable law.

The wording of the grant of power (Paragraph Fifth clearly states that the trust shall terminate upon the death of the testatrix's brother and the trustees thereupon to distribute the principal to those beneficiaries (within the designated classification), as the man shall designate. It does not say as the man shall thereupon designate, or at that time designate. The court does not construe the said paragraph to mean that the man must await the death of the young man to exercise his power of appointment but he may do so. If two constructions are possible, the one must be followed which gives effect to the intent of the testatrix. Here such intent was that the man should designate the contingent beneficiaries. To say that the power did not exist or could not be exercised before the death of the young man would defeat or curtail such intent.

If the will is acceptable of two constructions, one of which would turn it into an illegal perpetuity and the other make it valid and operative, the latter should be adopted. Every presumption should be indulged in favor of validity. It should be upheld unless it clearly violates some rule of law or public policy and, if possible, give effect to the intent of the testator.

A testamentary power is not exercisable before the time intended by the donor; and it may be exercised only at such time or within such period as may be prescribed by the will created and conferring it. In the absence, however, of any restrictions, express or implied, in the donor's will, as to the time of exercise, a power is exercisable at any time during its existence and continuance. A power granted a life tenant may be exercised before the estate is settled and the property delivered to the life tenant; but it has been held that the life tenant of a residuary estate may not exercise a power of disposal until the estate is settled, even though he is the executor. A power to appoint a remainder may be exercised before the termination of the precedent estates.

In this case the only time limitation for the exercise of the testamentary power is upon the death of the young man, the trustees must forthwith make distribution and the man must have already exercised his power or must immediately do so. He could not wait any protracted time to act but would have to proceed forthwith in order that the will of the testatrix be carried out. The designation by the man is valid.

The classes of eligible recipients are adequately defined. The description of the relatives who survived the brother is specific and clear. The same is true of the three types of corporations. The fact that the number of such corporations is extremely high does not render the description vague or uncertain.

There can be a trust of which the beneficiaries are relatives of a designated person among whom the trustee is authorized to select who shall take and in what proportions.

A testator may devise or bequeath property in trust for charitable purposes without designating the particular purposes to which he wishes the property to be applied. He may leave the property to trustees for such charitable purposes as they may select. Such a disposition is valid according to the great weight of authority. If the trustee is ready and willing to make the selection, there is no reason why he should not be permitted to do so. This is true where the testator designates the general nature of the charitable purposes to which he desires the property to be applied. It is true also where the trustee is left free to devote the property to any charitable purpose he may select.

The order appealed is reversed.

When someone trusted you with a will and you want to make sure that it is a valid one, ask the assistance of the Bronx County Probate Attorney. A Bronx County Will Contest Lawyer together with a Bronx County Estate Administration Attorney from Stephen Bilkis and Associates can help you on your will-related problems.

September 28, 2013

Brother Battles Sister Over Father's Estate

A man died at the age of 71 years and his wife, who had been battling cancer, also died the day before his own death. The deceased man's successors are his children.

A New York Probate Lawyer said at the examination, the ten passbooks, the deceased man's hospital records, the deceased man's spouse's hospital records, and the man's daughter’s examination in the contested probate proceeding were admitted in evidence. Almost the entire balance in eight of the accounts had been withdrawn shortly prior to the death of the deceased man and the entire balance had been withdrawn from two accounts.

The accounts were payable as to either the deceased man or his spouse or the survivor in trust for the man’s daughter, to either the deceased man or his spouse or the survivor in trust for their granddaughter, to either the deceased man or his spouse or the survivor in trust for the son of the deceased man and to the deceased man or his spouse or the survivor.

A New York Will Lawyer said the man’s daughter conceded that she took the money and put it into a personal account in Florida. However, she contended that it was done at the direction of her parents. She further testified that she obtain all of the necessary withdrawal slips from either or both of her parents at a time when they were both in the hospital.

The man’s daughter did not remember exactly when she obtained the withdrawal slips or whether she collected the proceeds in person or by arranging for collection from Florida banks.

A Brooklyn Probate Lawyer said based upon the default of the man’s daughter, her brother uncontroverted allegations of fact, including the allegations as to the specific sums at issue and the dates of the wrongful withdrawals from the specified accounts, must be accepted as due proof.

Moreover, the man’s daughter claimed that she was the recipient of the gifts. Inasmuch as the deceased man can no longer give his version of the transactions, the man’s daughter had the burden of establishing all of the elements of each gift by clear and convincing evidence.

A Bronx Probate Lawyer said sources revealed that the huge hospital records support the contention that both the deceased man and his predeceased spouse is incapable to make valid donations during the last hospital stays of either of them. Therefore, even if the man's daughter’s pleadings had not been stricken, it would have to be concluded that she failed to come forward with any proof to deny the records and to meet her burden of establishing that either the deceased man or his spouse had sufficient mental capacity to form the requisite donation intent to make a valid gift.

Subsequently, as to the five accounts payable to either the deceased man or his spouse or the survivor, the man’s daughter has wholly failed to sustain her burden of proof to establish that she was the receiver of a valid gift and her brother is entitled to recover the sum of $125,149.76 that was withdrawn from the said accounts together with interest from the date of each withdrawal.

Based on records, different issues are presented with regard to the withdrawals from the accounts which were in the deceased man's name in trust for designated beneficiaries. In addition, there does not appear to be any authority directly in point as to whether the estate is entitled to pursue a claim for a wrongful withdrawal from those type of account where, as in the proceeding, there is no allegation that the recovery is needed to pay administration expenses, debts or for any other specific estate purposes.

With regard to the three accounts in trust for beneficiaries other than the man’s daughter, it would have been appropriate to add the said beneficiaries as parties to the proceeding so that they could have the opportunity to assert a claim to the proceeds wrongfully withdrawn from the accounts. However, in the absence of an application by any party, including the man’s daughter, to add the beneficiaries as parties, the issue is whether the assets should be denied any relief because they were not joined as parties.

Sources revealed that while the deceased man was alive the beneficiaries only had a mere expectancy and, consequently, during the period that the deceased man was the only party who could have asserted a claim based upon the withdrawals.

Consequently, the man’s son is entitled to recover the sum of $43,675.11 together with interest from the date of each withdrawal from the accounts which were in trust for two persons. However, the beneficiaries of the said accounts shall be necessary parties to an accounting proceeding or other appropriate proceeding in the event that the man’s son collects any portion of the funds withdrawn from the accounts.

The court remains to be decided whether the estate is entitled to recover for the withdrawals from the two accounts in trust for the man’s sister.

Based on records, a trust account differs from a joint account in that the beneficiary of the trust account cannot make any withdrawals during the depositor's lifetime while each joint tenant has the power to make withdrawals from the account. As a result, there is a surreptitious element to an unauthorized excessive withdrawal from a joint account which is not present with regard to withdrawals from the trust accounts in the absence of a forgery or some other type of chicanery. Moreover, there is no rule that a beneficiary under a prior last will forfeits her legacy because she has offered for probate a later will, leaving the entire estate to her, which was denied to validate on the ground that it was not established that the deceased man had testamentary capacity. Similarly, it can forcefully be argued that the man’s daughter should not forfeit her rights under the trust accounts merely because the deceased man signed a withdrawal slip at a time when his daughter has not established that he had sufficient capacity to make a gift. The court states that if that’s all the man’s daughter had done, they might very well have denied the man's son’s claim to the funds which apparently would have passed to the man’s daughter in approximately one month even if she had not made the withdrawals.

However, the evidence indicates that the man’s daughter's withdrawals essentially left the deceased man bankrupt and deprived from other designated beneficiaries of the trust accounts of the funds that should have passed to them by operation of law. Moreover, the court states that it must be inferred from the man's daughter’s default that she could not present any evidence which, even when viewed charitably, might have supported a conclusion that the deceased man was competent when he completed the withdrawal slips. Lastly, it appears that the man’s daughter took control of all of the deceased man's assets without the knowledge of the deceased man's other children. The said conduct makes all of the withdrawals, including the ones from the accounts of which she was the designated beneficiary as unconscionable and excessive as to hold that she forfeited any rights that she had in the said accounts as the surviving beneficiary of the trust account.

Consequently, the man’s son is entitled to recover the sum of $33,325.89, together with interest from the date of each withdrawal, from the two accounts of his sister.

When you want to execute a last will, you can seek legal assistance from the Bronx County Estate Lawyer or Bronx County Estate Administration Lawyer. On the other hand, if you were chosen to be an estate administrator and you want to offer for probate someone’s last will, you can have the Bronx County Probate Attorney at Stephen Bilkis and Associates.

September 24, 2013

Court Rules on Setting Fees for Legal Counsel of the Executor

A New York Family Lawyer said in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant's fees and reimbursements to the executor of sums advanced by the counsel.

A woman died as resident of Massapequa, New York. She was survived by her son, the petitioner and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate and letters testamentary were issued to the petitioner. A codicil is a document that amends, rather than replaces, a previously executed will. The decedent’s will provides that the residuary estate be divided equally between the two children but the daughter, if unmarried, will be given a two year right to occupy the decedent woman's Massapequa home provided she pay real estate taxes. The decedent’s daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

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

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

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

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

In this estate, the executor originally retained the counsel at a fixed fee of $12,000.00 for 40 hours of professional time with an understanding that provided for compensation for additional unanticipated services. The counsel billed and was paid for $1,000.00 in additional services. The counsel primarily handled the probate proceeding, negotiating with the daughter's attorney regarding a possible purchase of the decedent's home by the daughter and qualified the decedent’s son as the appointed fiduciary. The son obtained a waiver and renunciation from the drafting attorney nominated as a co-fiduciary. The decedent’s son also reminded the decedent’s daughter of her duty to vacate the premises and handled the sale of the premises. He filed an inventory with the court and communicated with the firm of the counsel who handled the preparation and filing of this account.

A firm was retained by the counsel and the executor on or about July 22, 2005. Their fees include 24.51 hours of various partners’ time and 46.48 hours of paralegal time for a total of $14,573 plus disbursements of $747.18 for a total fee of $15,320.18 which has been voluntarily discounted to $13,172.50 of which $3,677.75 has already been paid and $9,494.75 remains outstanding.

Total charges in this estate are $419,975.94 according to the summary statement of the account plus $6,461.66 in interest income earned until January, 2007. Total legal fees are $25,172.50 which amounts to approximately 6% of the estate.

The counsel sheparded a probate proceeding through the court in circumstances where there was a possibility of a co-executor-attorney claiming a right to serve and where the daughter of the decedent, through her counsel was considering objections to her brother's nomination based upon his qualifications. Animus between these siblings generated some of these additional fees. The counsel also handled the closing on decedent's home and preparation of the inventory. To the extent that the counsel relies upon time expended by him, he has failed to produce contemporaneously-maintained time records of the amounts of time allegedly expended and describing with particularity the precise services rendered. Therefore, it is difficult for the court to correlate the tasks performed to the alleged time in excess of forty (40) hours. However, no objection to the fee has been raised and the amount is not unconscionable. Therefore, the legal fee requested by the counsel is allowed.

With respect to the firm, there was an apparent effort to minimize fees by the use of a paralegal. Nevertheless, an excessive amount of time appears to have been devoted to duplicative services of consultations between the firm’s partners and the counsel, in telephone conferences with the counsel and in reviewing his emails and responding thereto. Additionally, several hours in November and December of 2006, which are not precisely ascertainable, were expended in the preparation of both attorneys' affidavits of services. Finally, disbursements for UPS, priority mail, postage and photocopying are disallowed. However, as set forth above, the firm has already discounted its fees and therefore the reduced amount requested is reasonable and allowed as are the disbursements in the sum of $625.00 through entry of a decree in this proceeding. Accounting services of $550.00 for preparation of Federal and state fiduciary income tax returns are allowed.

The executor also seeks reimbursement for $3,324.81 plus an additional $262.18 since the account was filed, for funeral expenses, travel related expenses and miscellaneous postage, film, landscaping and other costs. Of these expenses $2,454.18 are for travel from the executor's home in Ohio to New York for food, gas and lodging. When it can be inferred that the testator knew that travel by a representative she nominated, such as her son who resides in Ohio, would be required, reimbursement of such travel expenses in permissible. Thus reimbursement of $2,454.18 in travel expenses is approved. Reimbursement of $100.00 paid to a landscaper and funeral expenses of $810.00 for the minister, florist and funeral luncheon are also allowed. Other expenses for postage, film, bulbs, duct tape and signs are deemed to be costs of performing routine fiduciary duties and are deemed absorbed by commissions (in this case $16,599.28) whether the fiduciary is a resident or non resident of the state.

Executing a will requires you to hire experts and with it comes financial obligations. If you want to make sure that you are able to perform your duty as an executor of a will, you can seek the advice of a Nassau County Probate Lawyer or a Nassau County Will Contest Attorney from Stephen Bilkis and Associates.

September 7, 2013

Court Reviews Details of Final Accounting

Before the court is the first and final account of A as ancillary executor of the estate of B; an estate litigation. The court is asked to approve attorney's fees, commissions, reimbursement of expenses for the estate administration and the settlement of the account.

A New York Probate Lawyer said on 3 May 2004, the decedent, B, died. B left a will dated 13 February 2001. At the time of her death, the decedent was domiciled in Florida. Ancillary letters testamentary issued to A on 18 July 2005. The accounting covers the period 3 May 2004 to 21 April 2009. An amended accounting covering the period 3 May 2004 to 22 December 2009 was filed on 5 February 2010. The amended accounting shows principal charges to the accounting party of $829,804.35. C, a $10,000.00 legatee and the beneficiary of fifty percent (50%) of the residuary estate filed objections to the accounting and the amended accounting. The ancillary executor is the beneficiary of the other fifty percent (50%) share of the residuary estate. By instrument dated 2 December 2010, C withdrew his objections to both the first account and the amended account.

A New York Wills Lawyer said with respect to the issue of attorneys' fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate as held in Matter of Stortecky v Mazzone, Matter of Vitole and Matter of Phelan. 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 as was also held in Matter of Brehm and Matter of Wilhelm.

In evaluating the cost of legal services, the court may consider a number of factors. A Bronx Probate Attorney said these include: the time spent (Matter of Kelly); the complexity of the questions involved (Matter of Coughlin); the nature of the services provided (Matter of Von Hofe); the amount of litigation required (Matter of Sabatino); the amounts involved and the benefit resulting from the execution of such services (Matter of Shalman); the lawyer's experience and reputation (Matter of Brehm); and the customary fee charged by the Bar for similar services (Matter of Potts, Matter of Freeman). In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, and as re-enunciated in Matter of Freeman. Also, the legal fee must bear a reasonable relationship to the size of the estate (Matter of Kaufmann). A sizeable estate permits adequate compensation, but nothing beyond that (Martin v Phipps). Moreover, the size of the estate can operate as a limitation on the fees payable (Matter of McCranor) without constituting an adverse reflection on the services provided.

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

Brooklyn Probate Lawyers said with respect to disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter. This court discussed the allowance of charges for photocopies, telephone calls, postage, messengers and couriers, express deliveries and computer-assisted legal research. The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in Matter of Herlinger. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

The attorney has submitted an affirmation of legal services, without contemporaneous time records. According to the attorney's affirmation, he spent 171.1 hours on this matter at the hourly rate of $275.00 per hour for a total fee of $47,052.56, $25,435.00 of which has been paid and $22,117.00 of which remains unpaid. The attorney also charged a $500.00 flat fee to handle and supervise the delivery and inspection of oil paintings. The attorney also seeks $45.00 for expenses, but has not provided any detail as to the nature of the expenses.

It has consistently been held that the court has the discretion to review the reasonableness of an attorney's fee on an accounting whether or not anyone objects to the fee as held in the case of Matter of Stortecky v. Mazzone.

In this case, the services performed by counsel as recited in his affirmation include time spent on the preparation of his affirmation of legal services. Time spent by counsel supporting his fee is not compensable as was held in Matter of Gallagher. In addition, the court finds that the time spent on some services appears excessive.

It is a general rule that an attorney will not be allowed legal fees for performing executorial services as held in Matter of Jones. Accordingly, for the above reasons, the court fixes the fee of counsel in the amount of $35,000.00. The request for $45.00 in expenses is disallowed since counsel has failed to identify the nature of the expense.

The accounting also includes a request for reimbursement to the ancillary executor for expenses and mileage for trips to the Bayville property in an amount in excess of $3,000.00 (12/30/2006-"estate expense reimbursement" $1,290.50; 04/18/2005-"estate expense reimbursement, mileage for trips to Bayville to maintain and sell house and other estate administration matters" $1,032.00; 12/31/2005-"estate expense reimbursement, mileage for trips to Bayville to maintain and sell house and other administration matters" $1,035.66). The court notes that the objectant was represented by counsel and voluntarily withdrew his objections to these expenses.

Nevertheless, the court declines to approve these expenses, which appear excessive and for which no supporting documentation is provided.

It also appears from Schedule C of the account that the ancillary executor took an advance payment of commissions in the amount of $12,594.50 without prior court approval. The objections filed sought the denial of commissions to the ancillary executor in their entirety for mismanagement of the estate and did not include a specific objection to the advance payment.

Commissions are not ordinarily payable until the entry of a decree settling a fiduciary's account. Taking a commission prior to the settlement of an account without securing court approval pursuant to SCPA 2310 or SCPA 2311 exposes the fiduciary to the danger of being surcharged. Usually the court allows the commissions but surcharges the fiduciary the amount of interest the estate lost because of payment, most commonly the statutory interest rate under CPLR 5004, from the date the unauthorized commissions were taken until the entry of the decree settling the account.

There is some division between the Surrogates on the issue of whether there must be an interest surcharge on the advance payment of commissions even where all of the beneficiaries consent to approval of the advance in a nunc pro tunc order. Where the Surrogates took the position that while commissions are allowable, the executor must pay interest at the legal rate reckoning from the time of the taking, Matter of Conroy holds that SCPA does not provide for nunc pro tunc approval of advanced commissions as contrasted in Matter of Schmitt that held if no one objects, the court may waive such interest.

The court has generally taken the position that the taking of advance commissions without prior court approval is grounds for automatic surcharge at the statutory rate of interest of 9% as held in Matter of Moro.

Considering all the circumstances in this case and the above principles, the court surcharges the ancillary executor 9% statutory interest on the amount paid of $12,594.50 from the date taken of January 3, 2006 until the date of the decree. The surcharge shall be charged against the balance of the commissions due the ancillary executor.

In all other respects, the accounting is approved. A proposed decree has been submitted to the court and will be signed if found to be in proper form. This is the decision and order of the court.
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August 31, 2013

Court Discusses Conflict of Creditor Acting as an Administrator

In this Estate Litigation action, a creditor of the deceased filed a petition. Petitioner asks the court to issue limited letters of administration to the Public Administrator of Nassau County so that he can defend the estate against creditor’s mortgage foreclosure action against decedent's residential real property. The petition avers that the outstanding mortgage is in the amount of $373,954.81 and that there are no other outstanding debts or funeral expenses.

A New York Probate Lawyer said that deceased died sometime in September 2007 while visiting El Salvador. According to the petition before the court, decedent was survived by his wife and two minor children, all of whom are citizens and residents of El Salvador. The petition does not contain street addresses for these non-resident distributees. The petition further reflects that decedent was also survived by one adult child, who resides in decedent's home, which is the subject of the foreclosure action underlying this petition.
Citation issued listing the wife and the Public Administrator, and was returnable. Affidavits filed with the court indicate that the citation was served. An affirmation in support of amending the petition and dispensing with service on wife was filed by counsel on behalf of the Bank one day prior to the return date of the citation. Counsel for petitioner affirms that the daughter advised his office that the wife lives in El Salvador but that the child was unable to provide the wife's address. Counsel avers that wife's residency in El Salvador was confirmed by the process server's unsuccessful attempt to serve citation on the wife at decedent's home. Attached to counsel's affirmation is an affidavit of due diligence that reflects that in addition to attempting to serve the wife at decedent's last address, counsel's staff also ran a computer search for the wife using the on-line telephone directory for El Salvador, but did not find a listing for the wife's name. The affidavit concludes by stating that "deponent duly exhausted all efforts to obtain jurisdiction over the defendant"

A New York Will Lawyer said that appearing before the court on the citation return date were counsel for petitioner, counsel for the Public Administrator, and the child. At a conference held before a court attorney-referee, the child advised the court and counsel for the other parties that decedent was also survived by a fourth child who is five years of age, and who is not listed under 7(b) of the petition for letters of administration. The child requested additional time to consult an attorney to determine her rights, if any, in connection with decedent's home and whether she should apply for letters of administration. Counsel for the Public Administrator advised the court that the Public Administrator intended to ask the court to excuse him from serving as administrator of decedent's estate.

Brooklyn Probate Lawyers said that a supplemental citation was issued and made returnable. The citation lists only the wife, and the record does not indicate that it was served. Accordingly, prior to consideration of the relief requested in the petition, the court must determine whether jurisdiction has been obtained over the non-appearing parties.

Jurisdiction in an administration proceeding requires that notice of the petition be given to those individuals who have a right to letters of administration equal or prior to that of petitioner. A Bronx Probate Attorney said the petitioner served the child and the Public Administrator with citation, but did not serve decedent's wife or minor children. Petitioner asked the court to dispense with service upon the wife on the basis that counsel has been unable to ascertain wife's whereabouts. While it is clear that the SCPA permits the court to dispense with service in the event that a distributee's whereabouts cannot be ascertained with due diligence, it is substantially less clear whether petitioner has in fact exercised the requisite due diligence.

Generally, the due diligence standard "requires a thorough search and includes inquiries at such places as offices of vital statistics, armed services, voting polls, motor vehicle departments, banks, utilities, schools, churches, the census bureau, police missing persons bureaus, and telephone directories" Of course, only some of the above examples of due diligence would be apposite when the individual being sought lives outside of the United States, but the court need not rule on the adequacy of petitioner's due diligence; the court may dispense with service based upon Gloria's status as a non-domiciliary, irrespective of the ascertainability of her whereabouts. An "eligible petitioner may receive letters of administration without being required under SCPA 1003 (2) to serve process upon any nondomiciliary alien distributee unless such a distributee has both requested and received permission from the court to act as a fiduciary". On the same basis, and because their infancy renders them ineligible to receive letters, service upon decedent's minor children is unnecessary. The court therefore dispenses with the issuance and service of process on all four of these distributees, but directs that process must issue to Gloria and to decedent's minor children, and the guardians of these minors, at the time of the judicial accounting proceeding. Jurisdiction in connection with this petition is thus complete.

The court must next consider the relief requested by petitioner for the issuance of limited letters to the Public Administrator and the responsive filing of the Public Administrator. Petitioner has asked the court to appoint the Public Administrator so that he can represent the estate in petitioner's foreclosure proceeding. In his answer and objection, the Public Administrator advised the court that decedent's residential property has an estimated market value of $382,200.00, according to the Nassau County Department of Assessment, or $338,000.00. Since the outstanding mortgage lien is $373,954.81, the value of the property is insufficient to yield the total payoff amount required to stop foreclosure, which is $412,201.41, according to the payoff letter. The estate appears to be insolvent.

"When no eligible distributee can be located or no one takes the necessary steps to qualify the court will issue letters to the public administrator". A Public Administrator who is reluctant to accept a fiduciary appointment is not empowered by statute to unilaterally reject letters issued by the court.
"Letters may be issued to another person or persons in the discretion of the court only when the Public Administrator has been excused from acting. As the Public Administrator cannot renounce his right to letters and can be relieved from his duty to administer such an estate only by order from the court there can be no such thing as a de facto renunciation by the Public Administrator"
In the proceeding before the court, the Public Administrator has asked to be excused from the issuance of letters of administration on the basis of good cause pursuant to SCPA 1003 (3), and because the Public Administrator avers that during the court conference held on February 18, 2009, a distributee, the child, indicated her willingness to serve. As an alternative to his own appointment, the Public Administrator asks that the court consider issuing letters to petitioner as a creditor of the estate. According to the Public Administrator, each of these two parties, the child and petitioner, has a tangible interest in the foreclosure action. The Public Administrator cites two decisions issued by this court in which letters could have been issued to the Public Administrator but were not, and instead were issued to the party best able to proceed and expend the necessary funds.

Before the court can consider granting the relief requested by petitioner or the alternative relief requested by the Public Administrator, it must first consider whether another eligible person would be available and willing to serve as administrator. Decedent's adult daughter has priority to receive letters. In fact, "if there is any eligible person entitled to share in decedent's estate who will accept the appointment, the public administrator has no rights". Although the child appeared at the conference, which was held on the first return date for this matter, and indicated to those present that she would consider serving as administrator of her father's estate, she did not file a petition for letters, despite being given ample time to consult with legal counsel and qualify.

Petitioner, as a creditor of the estate, is also an interested party who can receive letters at the discretion of the court pursuant to SCPA 1001 (8) (b), but a creditor will not be issued letters of administration where next of kin is available and willing to serve. Petitioner's right to receive letters is subordinate to that of the adult child and the Public Administrator. However, in the event that the child abjures her right to letters and the Public Administrator is excused from serving, the court may grant letters to petitioner or to any other person.

In a case decided by this court in 2002, letters of administration were granted to a creditor of the estate where the surviving spouse, who was the only distributee able to qualify, renounced her appointment as executrix. The court addressed the potential conflict of interest faced by a creditor serving as administrator, but noted that a conflict of interest is not grounds for ineligibility to receive letters. A "court can grant limited letters to a fiduciary who has a conflict of interests with the estate".
The court grants the child thirty days from the date of this decision in which to petition to qualify for letters; if the child does not petition to qualify within that time period, the court will proceed on the assumption that child has chosen not to qualify and serve. In that event, the Public Administrator would have priority to receive letters of administration, but has asked to be excused.

The court declines to appoint the Public Administrator to administer this possibly insolvent estate when there are two interested parties who can serve as administrator. Therefore, the court grants the request of the Public Administrator and excuses him from serving.

An estate of a person should be divided in accordance with law. Here in Stephen Bilkis and Associates, through our Nassau County Estate attorneys, we will determine the amount of estate which will be entitled to an heir. Our Nassau County Probate lawyers will present the will of a testator to the court for proper division of the estate.

August 20, 2013

Court Decides Property Ownership in Light of Two Separate Wills

A New York Probate Lawyer said in an action transferred to this court from Supreme Court, Nassau County, defendant moves for an order directing the County Clerk of Nassau County to cancel a notice of pendency filed in connection with the action and for an order quieting title in the defendant and for such other relief as to the court seems just.
A Nassau County Estate lawyer said that defendant is the grandson of plaintiff, the decedent in the probate proceedings currently pending before this court. Decedent's daughter is representing the estate in the Supreme Court action in her capacity as preliminary executor. A brief recitation of the essential allegations in the pending proceedings and the identities of the parties involved may facilitate an understanding of the court's decision on the instant motion.

The decedent and her husband took title to the subject premises in New York by deed. The deed identifies the grantees as the spouses thus presumptively creating a tenancy by the entirety. The husband died in November 1996. A New York Will Lawyer said that assuming the validity of the tenancy by the entirety, the decedent became the sole owner of the premises upon the husband's death.

In March 1999, decedent executed a deed conveying title of the property to herself and her grandson, the defendant herein, as joint tenants with right of survivorship. Thereafter, a Brooklyn Probate Lawyer said the decedent executed a deed, conveying her remaining interest in the property to her daughter, reserving a life estate. Another deed was executed by decedent whereby decedent purportedly again conveyed her remaining interest in the property, this time outright to the grandson. The Supreme Court action transferred to this court seeks to vacate both deeds conveying an interest in the property to the grandson. The notice of pendency now sought to be canceled was filed in 2008.
In addition to the grandchildren, the decedent was survived by another daughter, and by four other grandchildren. One of those grandchildren is an infant and her interests are being represented by a court-appointed guardian ad litem.

In addition to the Supreme Court action, there are also two probate petitions which have been filed regarding the decedent's estate. A Bronx Probate Lawyer said there are two Wills, the first will bequeaths decedent's entire estate to the grandson, to the exclusion of all other distributees. A later will, bequeaths decedent's entire estate to the daughter, also to the exclusion of all other distributees.

To be successful in her effort to attain ownership of the subject property, the daughter must prevail in the probate of the later will, and successfully vacate both deeds in favor of the grandson, executed five years apart. To complicate matters, there is evidently a $250,000.00 mortgage on the property which he has been paying, but which he claims he is no longer able to carry.

Furthermore, the daughter’ sister, who has been appointed the administrator of the estate of their father, alleges that the marriage between their parents appears to have been invalid as their mother, the decedent, was still married to another man at the time of their purported marriage. If that is true, then when the property was purchased in 1958, The spouses most likely took title as tenants in common, although even that is not entirely clear, the statutory provision creating a joint tenancy with right of survivorship in such circumstances not having been enacted until 1975. Thus, whether the daughter will ultimately prevail in her pursuit of full title to the subject property is, at best, questionable at this point. What is clear is that, assuming arguendo that the property is an estate asset, the only asset of the estate is encumbered by a large mortgage which none of the parties are evidently willing or able to pay. Regardless of her contention that the mortgage was obtained by the grandson and the obligation to satisfy the mortgage should also be grandson's, the fact remains that unless the property is sold, there will likely be a foreclosure before all of the various lawsuits in this case have been either resolved or adjudicated, and foreclosure will be in no one's interest. Although the daughter complains that the contract sales price of $450,000 does not reflect fair market value, she fails to provide any evidence whatever of that contention. The sister, as administrator of the estate of her father has indicated her support of the instant motion to cancel the notice of pendency, as has the guardian ad litem appointed to represent the interests of the infant distributee.

CPLR 6514(b), relied upon movant, permits the court to cancel a notice of pendency where the action was either brought in bad faith or is not being diligently prosecuted. Movant's counsel has had great difficulty deposing Joann in this action and that might itself justify the canceling of the notice of pendency. CPLR 6515 provides additional grounds upon which to cancel a notice of pendency, and, even though not pled by the movant, that does not prevent the court from that granting relief. Specifically, CPLR 6515 authorizes the court in its discretion to cancel a notice of pendency upon such terms as are just, which generally means the moving party will give an undertaking in a sum fixed by the court.

Here, the court is satisfied that the undertaking proposed by grandson's counsel that his firm will retain the entire net proceeds of sale in an interest-bearing escrow account until further order of this court, provides sufficient security to the plaintiff, considering the likelihood of her ultimate success on the merits, and all the other considerations extant in this case.

Accordingly, the motion is granted. The court directs the Nassau County Clerk to cancel the notice of pendency filed in connection with the instant action and determines that the grandson may convey good and marketable title to the subject premises pursuant to the terms of the contract of sale annexed to the moving papers.
Upon person’s death, the relationship of the heirs may deteriorate by reason of the properties left by the decedent. Here in Stephen Bilkis and Associates, our Nassau County Estate lawyers will make an effort to harmonize the strained relationship of the heirs by determining the amount each heir is entitled, in accordance with law. We also have our New York Will Contest attorneys who will help an heir who wants to question the will submitted for probate once deprived of what he is entitled to.

August 2, 2013

Petitioner Challenges Validity of Tax Assessment

In this estate case, New York Probate Lawyer said that a hybrid proceeding pursuant to CPLR article 78, inter alia, to review real property tax assessments for tax year 2008 and action for a judgment declaring that certain undeveloped parcels of real property owned by the petitioner/plaintiff were unlawfully assessed at nine times their values, the petitioner/plaintiff appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Orange County, dated July 15, 2009, as granted the motion of the respondents/defendants, as Assessor for the Town of Goshen, and the Town of Goshen, in which the respondent/defendant School District joined, pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition/complaint insofar as asserted against each of those respondents/defendants, and dismissed the proceeding and action insofar as asserted against each of them.

A New York Will Lawyer said that, also in an action pursuant to General Municipal Law § 205-e to recover damages for personal injuries, the defendant 1299 Eastern, LLC, appeals from so much of an order of the Supreme Court, as granted that branch of the plaintiff's motion which was for leave to renew his opposition to its prior motion for summary judgment dismissing the complaint insofar as asserted against it, which had been determined in a prior order dated August 11, 2006, and upon renewal, vacated the order dated August 11, 2006, and denied the motion for summary judgment.

Long Island Probate Lawyers said the issue in this case is whether the subject property of the estate were unlawfully assessed.

Ordinarily, the proper method for challenging real property tax assessments on the grounds that they are illegal, irregular, excessive, or unequal is by the commencement of a tax certiorari proceeding pursuant to article 7 of the Real Property Tax Law. Where the challenge, however, is based upon the method employed in the assessment of several properties rather than the overvaluation or undervaluation of specific properties, a taxpayer may forego the statutory certiorari procedure and mount a collateral attack on the taxing authority's determination through either a declaratory judgment action or a proceeding pursuant to CPLR article 78. Although the petitioner/plaintiff (hereinafter the petitioner) styles its challenge as one regarding the method of assessment, it is, in actuality, a claim that its property was over assessed. Accordingly, the petitioner is required to pursue any remedy it may have in a proceeding pursuant to RPTL article 7, and the Supreme Court properly dismissed the hybrid CPLR article 78 proceeding and declaratory judgment action insofar as asserted against respondents/defendants, as Assessor for the Town of Goshen, the Town of Goshen, and Goshen Central School District.

Long Island Probate Lawyers said in general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must set forth a reasonable justification for the failure to present such facts on the prior motion. A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion. Here, in support of that branch of his motion which was for leave to renew, the plaintiff submitted additional facts known to him at the time of the prior motion without demonstrating a reasonable justification for failing to submit them on the earlier motion. Thus, that branch of the motion should have been denied.

Accordingly, Brooklyn Probate Lawyers said the court ordered that the order and judgment is affirmed insofar as appealed from, with costs to the respondents/defendants, as Assessor for the Town of Goshen, and the Town of Goshen. The court further, ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was for leave to renew his opposition to the prior motion of the defendant 1299 Eastern, LLC, for summary judgment dismissing the complaint insofar as asserted against it is denied, and the order dated August 11, 2006 is reinstated.

If you wish to challenge the validity of tax assessment on your property, you will need the help of a New York Estate Litigation Attorney or New York Estate Attorney at Stephen Bilkis and Associates, Call us.

July 7, 2013

Court Discusses Criminal Intention in Will Forgery Case

This was a certiorari case filed before the court by the petitioner, a former war veteran, who was charged and indicted for conversion of government property.

A New York Probate Lawyer said the large tract of Michigan land was used by government for practice bombing range where the Air Force dropped simulated bombs at the ground targets. The range was also known for extensive hunting of deer. The used bomb casings were cleared from the targets and were piled up and dumped in heaps for several years and was exposed to weather conditions and became rusted.

The petitioner went deer hunting in the area and salvaged some of the casings as a means to lessen his expenses for the trip. He loaded three tons of the used bomb casings into his truck and flattened them by a tractor at a nearby farm. He sold the flattened casings to a market. He was a fruit stand operator and a trucker and scrap iron collector.

A New York Will Lawyer said the investigation was conducted and the former war veteran disclosed his activities to the authorities and said that he had no intention of stealing the abandoned and unwanted used bomb casings being and deemed worthless. He was indicted and charged in violation of the statute for stealing government property, which is punishable by fine and imprisonment. The accused was then convicted and sentence to imprisonment of two months or to pay a fine of $200.

The defendant asserted that the casings were cast-off and abandoned, as such; he had no intention to steal the property and took them without wrongful intent. But the Court of Appeals sustained that conviction since the offense committed does not require criminal intent as an element of the crime.
As appraised by a former Chief Justice of the Supreme Court “as a rule there can be no crime without a criminal intent, but this is not by any means a universal rule. * * * Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.” There are several statutes passed by the Congress that do not require criminal intent as one of the elements of the crime being punished. These are considered regulatory measures to promote social betterment as opposed to the punishment of the crimes considered as mala in se. This was also referred in a jurisprudence, which recognized another type of legislation “whereby penalties serve as effective means of regulation,” and “such legislation dispenses with the conventional requirement for criminal conduct awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.”

However, a Brooklyn Probate Lawyer said crimes pertaining to stealing, larceny, and its variants and equivalents are considered as violations of rights of property that imply criminal intent. As source revealed that “the argument does not contest that criminal intent is retained in the offenses of embezzlement, stealing and purloining, as incorporated into this section.” Thus, the court construed that criminal intent is required for the crime to which the defendant was charged with. Such intent must not be presumed but rather must be established with sufficient evidence during conduct of the trial and submitted to the jury. Before a person can be convicted of a crime and to constitute guilt, there must be showing of not only a wrongful act, but also of criminal intention. Proof must be submitted during the hearing before the court and the jury to be able to establish such facts.

A Bronx Probate Lawyer said every person accused of a crime has the constitutional right of being presumed innocent until proven guilty. If you are experiencing false accusation and wrongful charge of a criminal offense, you will need the assistance of a criminal lawyer to help clear your name and dismiss your case in court. Stephen Bilkis and Associates have grand larceny attorneys that could render legal service to assist you with any of your legal dilemmas.

December 25, 2012

Court Discusses Liberal Interpretation of Lien Law

Defendant Neptune Estates, LLC ("Neptune"), owner of 380 Neptune Avenue, Brooklyn,, NY ("Property"), entered a contractor's agreement with defendant Big Poll Construction, Inc. ("Big Poll") whereby Big Poll would act as the general contractor on a construction project on the Property ("Project"). In February 2009, plaintiff entered two subcontractor agreements with Big Poll whereby plaintiff agreed to perform the structural steel work, masonry, and concrete slabs on the Project.

A New York Probate Lawyer said that Neptune alleges that on or about February 22, 2009, Neptune removed Big Poll for cause and hired non-party Future City Plus, Inc. ("Future City") to act as the new general contractor on the Project. A construction contract between Neptune and Future City was executed. On March 15, 2009, plaintiff entered two subcontractor agreements with Future City whereby plaintiff was to be paid $181,000 and $191,000, respectively, for the structural steel and masonry and concrete slabs on the Project. Neptune alleges that Future City subsequently terminated these subcontracts with plaintiff for cause on December 15, 2009.

A Kings Estate Litigation lawyer said that, exactly nine months after Future City entered the contractor agreement with Neptune, plaintiff filed a mechanic's lien ("January Lien") against the Property and, pursuant to Lien Law § 9(3), plaintiff identified the person with whom the contract was made as "Big Poll & Son Construction, LLC and Future City Plus, Inc.". After Neptune moved to discharge the January Lien, Justice Bunyan vacated the January Lien without prejudice in a short form order with the consent of the parties. The order indicated that "a new Mechanic's Lien may be filed in a timely manner. This is without costs to any party." On April 1, 2010, plaintiff filed a second mechanic's lien ("Lien") and identified the person with whom the contract was made as "Big Poll & Son Construction, LLC. There may be a claim against the successor on the project, Future City Plus, Inc., if this company agreed to assume the obligation of its predecessor." This is the only substantive change from the January Lien other than the identity of the plaintiff's attorney and the signatories to the Lien.

A Kings Estate Litigation Lawyer said that defendant Neptune Estates, LLC moves for summary judgment pursuant to CPLR 3212(b) to dismiss the complaint, discharge the plaintiff's mechanic's lien and cancel the notice of pendency.

Neptune argues that the mechanic's lien should be discharged and this mechanic's lien foreclosure action should be dismissed for four reasons: 1) The Lien is invalid pursuant to Lien Law § 4(1) as Neptune did not owe an amount to Big Poll when the Lien was filed; 2) The existence of an express written contract between Big Poll and IVM precludes recovery against Neptune on an implied or quasi-contract theory; 3) The Lien is invalid pursuant to Lien Law § 10(1) because the Lien was filed more than eight months after last furnishing materials or performing work for Big Poll; 4) The Lien is invalid pursuant to Lien Law § 9(4) because the Lien fails to separately identify the amounts allegedly due under the two subcontracts with Big Poll and Future City and plaintiff waived and released Neptune from all liens.

The issue in this case is whether defendant Neptune Estates is entitled to their summary judgment.

Bronx Probate Lawyers said the Court said that, in order to obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of. Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action. The parties' competing contentions are viewed in the light most favorable to the party opposing the motion.

Defendant's motion for summary judgment pursuant to Lien Law § 4(1) is denied as there are issues of fact as to whether Neptune owed funds to Big Poll when the Lien was filed. Pursuant to Lien Law §§ 3 and 4(1), a subcontractor may file a mechanic's lien on the improved property for a sum not "greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon." While it appears that the plaintiff and Neptune did not enter into any direct contracts, and the plaintiff would not be able to maintain a direct breach of contract cause of action against Neptune, the mechanic's lien is "valid only to the extent that there was a sum due and owing" from Neptune to the general contractor named in the Lien at the time of the filing of the notice of lien.

In this action, there are issues of fact as to whether Neptune owed funds to Big Poll when the Lien was filed. Brooklyn Probate Lawyers said that Neptune provided a final lien waiver, signed by the president of Big Poll, which stated that Big Poll was not owed any money by Neptune and Big Poll did not have any claims against Neptune. However, although Neptune claims that the waiver was signed the waiver is undated. Further, plaintiff provided a copy of an affidavit in a related matter signed by the president of Big Poll claiming that Big Poll was not paid in full and if it "did not sign the document, the project could not continue." Neptune also provided a July 23, 2009 document titled "FINAL RELEASE" and "FINAL WAIVER OF CLAIMS AND LIENS AND RELEASE OF RIGHTS" signed by the president of plaintiff, on July 27, 2009 "waiving and releasing Neptune from any and all claims and liens and rights of liens upon the Property. This release also notes a "contract date" of 12/1/2008 and a "contract price" of $1,204, 901.00. However, the date and amount of the contract price do not correspond to the February 2009 contracts between Big Poll and the plaintiff. Further, the release does not reference Big Poll. As there are issues of fact as to whether Big Poll was owed sums by Neptune at the time of the filing of the notice of the Lien, defendant's motion for summary judgment pursuant to Lien Law § 4(1) is denied.

Defendant's motion for summary judgment pursuant to Lien Law § 10(1) is denied as there are issues of fact as to when plaintiff finished performing work under its contracts with Big Poll. Pursuant to Lien Law § 10(1), notice of lien may be filed "within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished." Neptune argues that plaintiff last performed work for Big Poll on February 22, 2009, the date that Big Poll was purportedly removed from the Project. However, it is uncontested that plaintiff continued to work on the Project with Future City as the general contractor until at least December 15, 2009. While Big Poll was purportedly removed from the Project on February 22, 2009, there are issues of fact as to when Big Poll actually completed their contract and when the plaintiff last performed work on the Project.

Pursuant to Lien Law § 9(3), a mechanic's lien by a subcontractor must identify the "person with whom the contract was made." The January Lien improperly listed two general contractors and identified the person with whom the contract was made as "Big Poll & Son Construction, LLC and Future City Plus, Inc." Pursuant to an order to show cause in an earlier matter before Justice Bunyan, upon consent of the parties, Justice Bunyan vacated the January Lien on March 20, 2010, without prejudice, and granted IVM leave to re-file the lien "in a timely manner." On April 1, 2010, plaintiff re-filed the Lien. The Lien modified the person with whom the contract was made to "Big Poll & Son Construction, LLC" and indicated that "[t]here may be a claim against the successor on the project, Future City Plus, Inc., if this company agreed to assume the obligation of its predecessor."

The Lien only applies to plaintiff's claim for sums earned and unpaid with respect to the work performed under the contracts for Big Poll as of the original filing date, January 4, 2010. Lien Law § 9(3) provides for the listing of a singular "person by whom the lienor was employed" and does not provide for a lienor to include multiple employers in a lien. Although plaintiff improperly referenced Future City in the Lien, the misdescription of the entity by whom the lienor was employed does not invalidate the. As paragraph "(3)" of the Lien clearly refers to a claim with respect to the plaintiff's contracts with Big Poll, the statement substantially complies with Lien Law § 9(3). To the extent that plaintiff seeks to foreclose upon a lien for sums unpaid by Future City under plaintiff's separate contracts with Future City, that claim would necessitate a separate lien. As it is uncontested that plaintiff last performed work for Future City on December 15, 2009, if plaintiff has not filed a separate lien against Future City, it's time to do so has expired pursuant to Lien Law § 10.

Although Neptune contends that plaintiff's time to file a lien expired on October 22, 2009, eight months after Big Poll was removed from the Project on February 22, 2009, there are issues of fact as to when Big Poll stopped completing the terms of the contracts with plaintiff. Based on the documents submitted in support of the motion, it appears that plaintiff entered its subcontracts with Future City on March 15, 2009 which was before Future City entered its contractor agreement with Neptune on April 4, 2009. Therefore, there are issues of fact as to the date the plaintiff stopped working on its contracts with Big Poll, under what contracts, if any, the plaintiff was performing after Big Poll was removed from the Project, and when plaintiff commenced work under its contracts with Future City. Further, in opposition to the motion, plaintiff provided a $2000 check from Big Poll, dated May 28, 2009, for plaintiff's work on the Project. Therefore, Big Poll was still issuing payments to plaintiff under the terms of their contracts, less than eight months before the January 4, 2010 Lien filing date. As there is an issue of fact as to the date of the completion of the contracts between plaintiff and Big Poll, the court cannot grant summary judgment for Neptune at this early stage of the litigation. While it is noted that the final performance date under the plaintiff's contracts with Big Poll was not extended due to the performance of their subsequent contracts with Future, that date cannot be affirmatively established at this stage of the litigation and remains an issue of fact. Accordingly, Neptune's motion for summary judgment pursuant to Lien Law §10(1) is denied.

Defendant's motion for summary judgment pursuant to Lien Law § 9(4) is denied as the plaintiff substantially complied with the requirements of Lien Law § 9(4). Pursuant to Lien Law § 23, the Lien Law is to be "construed liberally" and "substantial compliance with its several provisions shall be sufficient for the validity of a lien." Lien Law § 9(4) requires the lienor to identify the "labor performed or materials furnished and the agreed price or value thereof." The Lien identifies the labor performed and materials furnished as "steel, masonry and concrete," and the value of the labor performed and materials furnished as "$2,126, 900.00." Neptune's argument that the Lien is invalid because it fails to distinguish the amount claimed in each of the two subcontracts between Big Poll, is unavailing as that matter is distinguished from the present action. In re Flushing Asphalt Corp. dealt with three separate contracts with respect to three separate public improvement projects at "scattered locations". In the present matter, the contracts between plaintiff and Big Poll were entered for the same project at one location.

As defendant's motion is denied, plaintiff's remaining contentions are moot. However, it is noted that to the extent that plaintiff argues that res judicata and collateral estoppel preclude the relief sought by defendant due to a prior order regarding the Lien, that argument is unavailing as Justice Rivera's May 7, 2010 decision was decided on other procedural grounds that are now cured with the commencement of the present lien foreclosure action. Plaintiff's contention that the motion should also be denied due to Neptune's failure to serve all defendants is also unavailing as Neptune complied with this court's order to show cause and, pursuant to CPLR 2103(e), service of this motion was not required on the remaining defendants as they have not appeared in this action.

Plaintiff is directed to file a complete copy of the complaint with the county clerk and serve it on all parties within 20 days. All parties are granted leave to file an answer or amended answer, with respect to the complete complaint, within thirty days of service of the entire complaint.
Accordingly, defendant's motion for summary judgment is denied. Defendant's motion for an undertaking is granted and plaintiff shall post an undertaking in the sum of $100,000 on or before December 31, 2010.

If you have estate issues or a lien claims, seeks the advice of a Kings Estate Administration Attorney and/or Kings Estate Litigation Attorney. At Stephen Bilkis and Associates, we can provide you with all the possible remedies applicable to your case.

December 23, 2012

Court Rules on Complex Estate Litigation Matter

The plaintiff, an undocumented alien from Ecuador, immigrated to the United States in 2000, and was hired as a construction worker by the third-party defendant, City Wide Building Corp. Plaintiff was working on a construction project in which town houses were being built by the defendant Wildflower Estate Developers, Inc., the owner of the property, which acted as its own general contractor. Wildflower had hired City Wide to do carpentry work, and had hired the defendant Classic Construction to do roofing work. A New York Probate Lawyer said the plaintiff was performing his work while standing on a makeshift scaffold, which consisted of two layers of 2-inch-by-10-inch boards, supported at the ends by beams which were part of the structure being built. A bundle of shingles weighing roughly 80 pounds, which had been left on the sloped roof near an opening that had been created for a skylight, fell through the opening and struck the plaintiff in the back. The impact caused the boards on which the plaintiff was standing to break, and the plaintiff fell approximately 25 feet to the basement floor. The plaintiff sustained severe injuries, which rendered him a paraplegic.

A New York Estate Litigation Lawyer said that, the plaintiff commenced this action against Wildflower and Classic, asserting causes of action based on common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). The defendants asserted cross claims for indemnification against each other. Wildflower commenced a third-party action for indemnification against City Wide, and City Wide asserted a counterclaim against Wildflower and a cross claim against Classic.

Brooklyn Probate Lawyers said the plaintiff moved for summary judgment on the issue of the defendants' liability pursuant to Labor Law § 240 (1). Wildflower cross-moved for summary judgment on its cross claims against Classic, on its third-party cause of action against City Wide, and dismissing the complaint insofar as it sought damages for lost wages.

A New York Estate Litigation Lawyer said that, the Supreme Court granted the plaintiff's motion as to both defendants, and granted those branches of Wildflower's cross motion which were for summary judgment on its cross claims and its third-party cause of action. On appeal, this Court modified the Supreme Court's order by denying that branch of the plaintiff's motion which was for summary judgment on the issue of Classic's liability pursuant to Labor Law § 240 (1), searching the record and awarding Classic summary judgment dismissing the causes of action alleging a violation of Labor Law § 240 (1), and denying those branches of Wildflower's cross motion which were for summary judgment on its cross claims and its third-party cause of action seeking contractual and common-law indemnification
.
Meanwhile, Long Island Probate Lawyers said the matter proceeded to trial. The jury was informed that it would be determining who was at fault for the accident, as between Classic and City Wide, and that Wildflower had been found not negligent as a matter of law. During his testimony, the plaintiff admitted that he was undocumented, and that he had submitted a fraudulent Social Security card to City Wide at the time he was hired. The plaintiff further testified that City Wide paid him for 35 hours of work per week, by check, and for approximately 17 hours of overtime per week, in cash. The plaintiff's supervisor testified that the plaintiff worked a normal 35-hour week and that City Wide employees almost never worked overtime, but this testimony was contradicted by that of the plaintiff's brother, also an employee of City Wide, who testified that he worked every Saturday.

The plaintiff presented medical evidence demonstrating that his injuries were permanent, that he required constant assistance with the activities of daily living and extensive physical, occupational, and psychological therapy, and that it would be extremely difficult for him to become self-sufficient. There was some medical evidence, which was sharply disputed by the defendants, that the plaintiff suffered traumatic brain injury, which diminished his cognitive functioning to the point where it would be difficult to live independently or maintain employment. According to the plaintiff, his family in Ecuador would be incapable of tending to his needs, and his only opportunity for non-institutional living in the United States was to move into his brother's home, which was impractical since his brother lived with his wife and children.

At the conclusion of the trial, the jury found that both Classic and City Wide were negligent, but that only Classic's negligence was a proximate cause of the plaintiff's injuries. The jury found that the plaintiff sustained damages in the sums of $42,000 for past lost wages, $60,000 for future lost wages over a period of five years, $500,000 for past pain and suffering, $1,250,000 for future pain and suffering over a period of 42.7 years, and $863,000 for future medical expenses over a period of 22 years, and the parties stipulated that the plaintiff had incurred past medical expenses in the sum of $585,354.

A New York Estate Litigation Attorney said that, the plaintiff moved pursuant to CPLR 4404 (a), inter alia, to set aside the damages verdict as inadequate. Classic made an oral application pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of liability as against the weight of the evidence and for a new trial, and renewed its application for a directed verdict on its indemnification claim against City Wide. The Supreme Court denied these motions.
After this Court modified the orders determining the summary judgment motions of the plaintiff and Wildflower, Classic moved in the Supreme Court to set aside the jury verdict on the issue of liability and for a new trial on the issue of liability pursuant to CPLR 4404 (a), since the jury had been instructed, contrary to this Court's later determination, that Classic was liable to the plaintiff under Labor Law § 240 (1) and that Wildflower was not negligent as a matter of law. Classic further requested that the proposed judgments submitted by Wildflower and City Wide not be entered. In an order entered January 10, 2007, the Supreme Court denied Classic's motion, reasoning that this Court's decision had no effect on the trial of the case and that the verdict was proper. Classic appealed from that order.

On December 22, 2006, prior to its denial of Classic's motion, the Supreme Court entered judgment for the plaintiff and against Wildflower and Classic. The court also entered judgment against Classic on Wildflower's cross claims for indemnification, and dismissed the third-party actions. The plaintiff appeals from the judgment on the ground of inadequacy, seeking a new trial on damages. Classic cross-appeals from the judgment seeking a new trial on the issue of liability and vacatur of the awards for past and future lost wages, or to dismiss the complaint in its entirety

The issue in this case is whether an undocumented alien who submitted a fraudulent Social Security card when applying for a job is barred, by virtue of that fact alone, from recovering damages for lost wages when he is injured in the performance of that job.

The Court holds that a worker's submission of false documentation is sufficient to bar recovery of damages for lost wages only where that conduct actually induces the employer to hire the worker, and that this circumstance is not present where the employer knew or should have known of the worker's undocumented status or failed to verify the worker's eligibility for employment as required by federal legislation.
Relying on Balbuena v IDR Realty LLC, the defendants contend that, because the plaintiff, an undocumented alien who is ineligible for employment in this country, submitted false documentation when he was hired by City Wide, he was not entitled to any damages for lost wages. Indeed, the defendants suggest that the plaintiff's fraudulent conduct should result in the dismissal of the complaint. A careful reading of the Court of Appeals' decision in Balbuena convinces the Court that the defendants' argument must be rejected.
The Immigration Reform and Control Act of 1986 (8 USC § 1324a; hereinafter the IRCA) makes it unlawful to employ aliens who are not authorized to work in the United States. The statute requires that every employer, before hiring any person, verify that the person is not an unauthorized alien by examining specified documents that establish the person's identity and eligibility for employment in the United States and completing Form I-9, which evidences that examination. An employer that fails to verify an employee's eligibility is subject to civil and criminal penalties. Furthermore, an employee who submits false or fraudulent documents in order to satisfy the verification requirements is subject to criminal prosecution.
In Balbuena, the New York Court of Appeals held, in two consolidated appeals, that an award of damages for lost wages to an undocumented alien who is injured on the job is not preempted by federal immigration policy, as expressed in the IRCA and construed in Hoffman. The Court reasoned that, while the federal Constitution grants Congress exclusive control over immigration and naturalization, the States have always had the power to legislate in areas of local concern, including the enactment of "`laws affecting occupational health and safety'". Indeed, the legislative history of the IRCA included a statement that the statute was "not intended `to undermine or diminish in any way labor protections in existing law', and nothing in the IRCA or in the Hoffman decision purports to limit a state court's power to award damages to an undocumented worker who is injured in the workplace. The Court of Appeals recognized that limiting the ability of such workers to recover damages would not only undermine the protections afforded by New York's Labor Law, but would fail to advance federal immigration policy and, in fact, would thwart that policy by minimizing employers' potential liability to undocumented aliens and thus providing an incentive for unscrupulous employers to hire them.
The Court further noted that, although it was not lawful for the plaintiffs to be employed in this country, this was not the type of illegality that would preclude them from recovering damages for their lost earnings as a matter of New York law, since the work they were performing was itself legal, and no statute makes it a crime to be employed without proper documentation. In addition, the Court observed that the plaintiffs' inability to mitigate damages did not preclude recovery, since both of them allegedly had sustained injuries that would preclude them from being employed at any time in the future and, in any event, the jury could take the plaintiffs' immigration status into account in determining the award of damages for lost wages, if any, to which the plaintiffs were entitled. Accordingly, the Court concluded that federal immigration policy did not bar awards of damages to the plaintiffs for lost wages.
Although the Court of Appeals emphasized that there was no evidence that the plaintiffs in the cases before it had submitted false documentation at the time they were hired, the Court had no occasion to specify what the consequences of such conduct would have been. At one point, the Court appeared to indicate that the submission of false documentation was but one factor to be considered in determining whether an award of damages for lost wages would be barred by federal immigration policy (see Balbuena, 6 NY3d at 360 ["Aside from the compatibility of federal immigration law and our state Labor Law, plaintiffs here unlike the alien in Hoffman did not commit a criminal act under IRCA".
The Court does not believe that the Balbuena decision should be read so broadly as to stand for the proposition that a worker forfeits his or her right to recover lost earnings merely by virtue of submitting a false document at the time he or she is hired. Rather, the false document must actually induce the employer to offer employment to the plaintiff.
Similarly, in our decision on the prior appeal in this matter, we noted that "an undocumented alien may be precluded from recovering damages for lost wages if he or she obtained employment by submitting false documentation to the employer". Contrary to the defendants' contention, this statement does not support their position. If the employer hires the employee with knowledge of the employee's undocumented status, or without verifying the employee's eligibility for employment, the employer has not been induced by the false document to hire the employee and, thus, the employee has not "obtained employment by" submitting the false document. Indeed, the Balbuena Court suggested that the plaintiff's right to recover damages for lost wages is affected by the employer's knowledge of (or willful blindness to) the plaintiff's undocumented status.
Thus, the Court concludes that where an employer violates the IRCA in hiring an employee, such as by failing to properly verify the employee's eligibility for work, the employee is not precluded, by virtue of his submission of a fraudulent document to the employer, from recovering damages for lost wages as a result of a workplace accident. Undocumented alien who submits false documentation to employer at time of hiring is not precluded from obtaining workers' compensation benefits, regardless of whether employer violated the IRCA in hiring employee. Accordingly, the jury's award of damages for lost wages in this case should not be disturbed.
The Court will now turn to the other issues raised on these appeals. Classic argues that the jury's verdict on the issue of liability was "invalidated" by this Court's decision on the prior appeal in this matter, which relieved Classic of liability under Labor Law § 240 (1) and found triable issues of fact as to whether Wildflower was negligent. Contrary to Classic's contentions, the jury was not informed that Classic had already been found liable, and Classic was permitted to present evidence that Wildflower was negligent. Nonetheless, because the trial occurred prior to this Court's determination, the parties did not fully litigate Wildflower's possible negligence. This Court's subsequent determination that Wildflower may have had notice of the shingles being stacked on the roof in dangerous proximity to the skylight opening and, thus, may have been actively negligent, does not affect the validity of the jury's finding that Classic was negligent, but it does mean that Wildflower may have shared responsibility for the accident with Classic. Accordingly, we modify the judgment as against Classic, and remit the matter for a new trial, not on the issue of Classic's liability, but only on the issues of Wildflower's liability and the apportionment of liability between Classic and Wildflower. Further, since there remains a factual issue as to Wildflower's possible negligence, we vacate the portion of the judgment which was against Classic on Wildflower's cross claims for common-law and contractual indemnification.
In light of the foregoing determinations, the appeal from so much of the order entered January 10, 2007, as denied those branches of Classic's motion which were for a new trial on the issues of fault-based liability of Wildflower for the plaintiff's injuries and the apportionment of fault between Wildflower and Classic, and to reject for entry certain proposed judgments, has been rendered academic.
The awards of damages for future medical expenses and past and future pain and suffering deviate materially from what would be reasonable compensation to the extent indicated. The remarks of the trial judge challenged by the plaintiff on appeal, though improper, were not sufficiently prejudicial or pervasive to deprive the plaintiff of a fair trial. The plaintiff's remaining contentions either are unpreserved for appellate review, are without merit, or otherwise do not warrant a new trial on the issue of damages.
Accordingly, the Court modifies the judgment by (1) deleting the provisions thereof awarding the plaintiff damages as against Classic and awarding Wildflower judgment against Classic on its cross claims for common-law and contractual indemnification, and (2) deleting the provisions thereof awarding the plaintiff damages for future medical expenses and past and future pain and suffering. As so modified, we affirm the judgment insofar as appealed and cross-appealed from, and remit the matter to the Supreme Court, Queens County, for a new trial on (1) the issues of Wildflower's fault-based liability for the plaintiff's injuries and the apportionment of fault between Wildflower and Classic, and (2) the issue of damages for future medical expenses and past and future pain and suffering only, unless within 30 days after service upon the defendants of a copy of this decision and order, the defendants shall serve and file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to increase the verdict as to damages for future medical expenses from the sum of $863,000 to the sum of $2,500,000, and for past pain and suffering from the sum of $500,000 to the sum of $800,000, and for future pain and suffering from the sum of $1,250,000 to the sum of $3,500,000, and to entry of an appropriate amended judgment accordingly. In the event that the defendants so stipulate, then the judgment, as so modified, increased, and amended, is affirmed insofar as appealed and cross-appealed from, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issues of Wildflower's fault-based liability for the plaintiff's injuries and the apportionment of fault between Wildflower and Classic only. The Court dismissed, as academic, the appeal from so much of the order as denied those branches of Classic's motion which were for a new trial on the issues of Wildflower's fault-based liability for the plaintiff's injuries and the apportionment of fault between Wildflower and Classic, and to reject for entry certain proposed judgments, and we affirm the order insofar as reviewed.
The rule on Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful to employ aliens who are not authorized to work in the United States. If you have a claim against an estate company who violates the abovementioned rule, you need the legal advice of a New York Estate Litigation Attorney and/or New York Estate Administration Attorney in order to know the possible claims that you may avail for injuries sustained. Call us at Stephen Bilkis and Associates for free consultation.

December 5, 2012

Court Determines Motion for Summary Judgment is Premature

This matter is being heard in the Second Department, Appellate Division of the Supreme Court of the State of New York. This is a contested probate proceeding involving the deceased. The appellant, is appealing an order that was made by the Surrogates Court of Westchester County. The order was dated the 24th of July, 2009 and denied his motion for summary judgment as premature. A New York Probate Lawyer said the order dismissed his objections to admit the will for probate. He was also imposed with costs and sanctions.

Court Discussion

When a summary judgment is denied the party is entitled to further discovery when it is apparent that there may be facts to support the opposing party’s position, but they cannot be stated at that particular point in time.

When the motion was filed for summary judgment the court order for completion of depositions had not expired and the objectant was not given an appropriate amount of time to complete her depositions for non party witnesses. All documents had not been received at the time of the motion. For this reason Brooklyn Probate Lawyers said it is felt that denying the summary judgment as premature was the correct course of action.

Court Decision

When reviewing the facts of the case the court is affirming the original order made by the Surrogates Court in Westchester County. It is found that it was the appropriate decision as the motion was made prematurely. The costs of the proceedings will be paid by the estate.

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November 27, 2012

Court Questions Validity of Will

This case is being heard in the Surrogate’s Court of Kings County. The case before the court is a proceeding to probate a copy of a testamentary instrument as a lost will. The petitioners have moved to withdraw their petition and have letters of administration issued instead.

Case Background

The decedent passed away in October of 2000. The propounded instrument was executed in March of 1995. In the instrument the decedent left her estate to her two sisters or the survivor. Her older sister was named as the executor and her younger sister was named as the successor. Her older sister passed away and as a result the entire estate passed to her younger sister in its entirety.

A New York Probate Lawyer said the sister petitioned for an appointment of a guardian of her property in 2005. The court finding that she had a history of poor judgment in regard to her real and personal property appointed the petitioners as the guardians of her property.

In May of 2007, the petitioners were authorized to petition to probate the will from 1995. At this time the original will could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. An affidavit was provided to support this action. In the affidavit the witness states that she went through all of the important papers of the decedent after her death. While the original will must have been with the decedent, the house had now been sold and the new owners had thrown away all of the decedent’s papers.

The instrument in question was prepared by an attorney who supervised the execution and was a subscribing witness. Brooklyn Probate Lawyers said he has filed an affirmation with the court. The second subscribing witness cannot be found. The petitioners are now moving to withdraw their probate petition and ask the court to issue letters of administration to them. They allege that they are unable to probate the instrument because they cannot find the second witness.

The distributees have executed agreements to waive their intestate rights to mirror the plan that was set forth in the last will and testament.

Case Discussion and Decision

Bronx Probate Lawyers said when there is apparently a valid testamentary instrument on file it is the obligation of the court to try and respect the testamentary wishes that have been expressed if at all possible.

In this particular case there are no exceptions to excuse probate. The only beneficiary of the will is alive and the petitioners are authorized by the Supreme Court to begin probate proceedings on her behalf. Probate in this case does not seem to present any difficulties.

All of the distributees in the case have agreed that the last wishes of the decedent should be adhered to. Under these particular circumstances the court cannot agree to abandon probate. However, the court cannot force the petitioners to continue with probate either.

The court is directing the petitioners to complete their papers to support the petition and to present an affidavit showing that they have conducted a diligent search for the second subscribing witness. If they fail to locate the witness the Public Administrator is directed to file a petition for using the said instrument in their place.

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November 26, 2012

Court Makes Ruling When Original Will Missing

This is a matter dealing with a last will and testament. The case is being heard in the Surrogate’s Court of Queens County. The decedent passed away on the 17th of March, 1956. The decedent was survived by four adult children. A copy of a will was found among her affects and is alleged to be written by the decedent on the 26th of July, 1938.

The will that was found left the amount of $200 to a priest for the masses to be performed for her and her deceased husband. The rest of the estate was to be divided between the four children.

Probate Proceeding

A New York Probate Lawyer said the attorney and draftsman of the will testified that he prepared the will and supervised the execution of the document. He stated that he acted with another who is now deceased as the attesting witnesses. Both of them signed the will below the testatrix. Brooklyn Probate Lawyers said he further stated that the original was made by him at the time of the execution and kept in his care. However, he has since moved offices and has failed to turn up the original.

The attorney and draftsman have offered enough evidence in the matter to show that the propounded instrument is the intended will. This will be admitted for probate.

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November 24, 2012

Court Looks at Proper Jurisdiction for Estate Administration Issue

The case is being heard in the Surrogates Court of New York County. The motion before the court is made on behalf of the widow and minor child of the testator to dismiss the petition for probate in the interest of justice on the ground that a French forum would be convenient and a New York probate would be inconvenient.

In the petition for probate it is stated that the assets of the estate are between $200,000 and $300,000. However, during oral argument for the estate the estate is said to be worth between one and two million dollars.

Case Discussion

A New York Probate Lawyer said the issue before the court is whether probate jurisdiction should be exercised in New York or if the original jurisdiction of probate should be dismissed so that proceedings to administer the estate may be conducted in either Switzerland or France where the bulk of the decedent’s assets are located.

The intestate distributees of the decedent under the laws of the state of New York are his widow and their 7 year old child. The decedent passed away on the 28th of May, 1972, and executed a will in New York City on the 16th of October, 1970. This will is offered for probate by two individuals who are not distributees of the will.

The petitioner is nominated in the will as a co-executor and has filed a renunciation. In the propounded instrument the testator stated that he lived in New York, New York. While it is clear that the decedent was born in the United States and therefore an American citizen, it is also clear that he no longer maintained a home in the United States and that is home at the time he passed away was in France.

When the testator passed away he had a substantial amount of real and personal property in France and also had personal property in the form of Swiss money in amounts well over a million dollars located in Swiss banks. Bronx Probate Lawyers said the total estate resources in the state of New York consist of less than a thousand dollars in an account in a branch of a Chase Manhattan Bank located in Queens, County.

Court Decision

The petitioners for probate in this case contend that the decedent did not ever intend to change his domicile to France. However, this contention directly contradicts the probate petition that alleges that domicile is in fact in France.

Brooklyn Probate Lawyers said it is quite clear that although the decedent maintained an apartment in New York to be used for business matters and also maintained a bank account in the states, it is quite evident that the decedent was domiciled in France with his wife and son.

After reviewing all of the facts and evidence that have been provided in this case, it is quite evident that the petition for probate should be dismissed. The matter shall be moved for probate in a forum that is more appropriate either in France or Switzerland where the majority of the assets of the estate are held.

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November 19, 2012

Defendanat Seeks Declaratory Judgment to Quiet Title

The plaintiffs have started this action seeking a declaration that they are the rightful owners of a premise. They further seek a declaration that they gained the title of the premise by an adverse possession and they permanently enjoin the defendant from evicting them from the premises. A temporary restraining order was issued by this court enjoining the defendant from proceeding with their previous holdover proceeding pending a hearing in this matter.

Plaintiffs Argument

A New York Probate Lawyer said to support their case the plaintiffs submit an affidavit that contains the following allegations: all of the alleged property was bequeathed to the plaintiffs and the plaintiffs have lived at the subject premises for more than 40 years. They have paid all of the taxes for the property, as well as all other charges as well as the insurance for the premises.

In further support of their case the plaintiffs issue a mortgage memorandum and closing statement from Home Title Insurance Company from 1932, as well as the last will and testament of the previous owners that left the premises to them.

Defendants Argument

The defendant opposed this order stating that they were only served with a summons and complaint and were not served with an order to show cause in the matter. The defendant further argues that the deed has been passed through several heirs and that a warranty deed from the 11th of January, 2005 shows the premises are partially owned by them.

The defendant has also issued a verified answer seeking a declaratory judgment quieting the title to the premises, a judgment of eviction, damages for trespass, and a judgment to permanently enjoy the plaintiffs or their successors from interfering with the defendants use and enjoyment of the property.

Court Discussion and Decision

The plaintiffs have clearly explained their relationship with the decedent who left the property to them in his will. The deed provided by the defendant shows that half of the property was owned by another decedent and that there was no right to survivorship for the property.

Brooklyn Probate Lawyers said it is not disputed by the plaintiffs that the will of the decedent that left them the property has not been through probate. In cases where real property is left it is necessary to admit a will to probate in order for the property to be fully handed over to the benefactors.

Long Island Probate Lawyers said based upon all of the evidence that has been submitted in this case the court is ordering the plaintiffs to show cause for an order to remove the holdover proceeding taking place in another court. The holdover proceeding will be moved to this court for a joint trial in the matter. The clerk of the civil court of Queens County is directed to deliver the papers from that proceeding to the clerk of this court. The order to show cause by the plaintiffs for an order to enjoin the defendant from prosecuting the holdover proceeding pending a determination of this action is granted. The plaintiffs are directed to pay $500 within 45 days of being delivered this order.

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November 12, 2012

Appellant Claims Undue Influence

This is a case being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. The case involves a contested probate proceeding. The proponent in the case is appealing a decree made in the Surrogates Court of Queens County made on the 25th of May, 1962. The decree denied probate to the written instrument as the last will and testament of the decedent. It was adjudged that the will was executed under undue influence and fraud exerted upon her by the proponent.

Court Discussion and Decision

A New York Probate Lawyer said the proponent in this case is the son of the decedent and a lawyer. The two contestants in the case are the children of another son who is deceased. The proponent prepared the propounded instrument that bequeaths the estate in equal shares to him and his three sisters, but excludes the two contestants from any share of the estate.

In a prior will written by the decedent left her estate to her five children in equal shares. Brooklyn Probate Lawyers said the will stated that the contestants were to receive their father’s share.

The jury found that the decedent possessed the testamentary capacity and that the propounded instrument was executed in due form. A Bronx Probate Lawyer said the jury also found that the decedent was free from restraint, but that execution of the will was caused by undue influence and fraud exerted upon the decedent by the proponent. Accordingly, probate was denied based on the findings made by the jury.

After reviewing the facts of the case and the jury verdict the court finds that the jury’s findings were erroneous as a matter of the law. There is no evidence provided to sustain them. For this reason the issue of fraud and undue influence can be reasonably withdrawn. The propounded instrument will be remitted for probate.

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November 9, 2012

Court Determines if Will is Valid

This case involves a probate proceeding and is being heard in the Surrogate’s Court of Kings County. A New York Probate Lawyer said he instrument that is offered for probate in this matter is written on a regular piece of notebook paper that has been folding in half to form four pages. The entire paper is written in the handwriting of the decedent all the way down to the signature. The words “my will and testament” appear near the bottom of the page. Brooklyn Probate Lawyers said there are two witness signatures on the paper as well, along with their addresses. However, both witnesses are now deceased and there is no attestation clause.

Case Background

It is shown at the time the will was executed the decedent was a notary republic. The decedent deposited the will with the Surrogates Court of Queens County for safekeeping in June of 1933. The will remained in the custody of the said court until it was released to this court when the decedent passed away in 1965.

The signatures of the decedent and the two witnesses have been proven and the testamentary capacity of the decedent is not in question. Probate of the will is resisted on the ground that there is an insufficient amount of proof to show that the will was in compliance with the formalities required by the Decedent Estate Law.

Case Discussion and Decision

The Surrogate’s Court Act provides that if all of the subscribing witnesses to a will are dead, the will may be established upon proof of the handwriting of the testator and of the subscribing witnesses.

In this case there is internal evidence showing that the document is sufficient to permit. Bronx Probate Lawyers said it is determined that the subscribing witnesses who signed the instrument must have been aware that it was a will as it clearly states what the purpose of the document is.

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October 29, 2012

Court Revokes Commissions Collected by Executor

This is a decision made in the Surrogate’s Court of the State of New York in Nassau County after a bench trial of the accounting of the executor of the estate. Before the trial the objectant by an order to show cause sough the revocation of letters testamentary that were issued to the executor. The application has been held in abeyance pending the trial of the accounting of the estate.

Case Facts

The decedent passed away on the first of May, 2004 and left behind a will that was admitted for probate. The decedent was survived by four children. The will bequests pre-residuary cash payments in the amount of $45,000 to three of his children. The will divides the residuary estate equally among all four children. Letters testamentary were issued to the oldest child as he was named as the executor of the estate.

The executor filed a document of accounting that covered the first and final accounting of the estate from May of 2004 through January of 2008. The account was verified approximately one year after the first and final account.

A New York Probate Lawyer said one of the benefactors has filed objections to the accounting. First, it is contended that the executor took a cash advance of $10,000 for payment of commissions. Objectant seeks this money to be returned to the estate plus interest. It is further alleged that the executor made distributions to his company in June of 2005 in the amount of $100,000 and in the amount of $20,000 in January of 2006. The $100,000 was credited as a distribution to himself. The $20,000 was repaid to the estate without interest.

There were two witnesses called during the hearing, the other two siblings that are named in the estate. The witnesses stated at the time of the death of their father all of the children and their mother met at the home of their late father to go over the amounts that they currently owed their father. One child stated that she owed her father $5000. The other son stated that he owed his father $50,000. Each agreed that these amounts would come from their share of the estate.

There is a question of the amount owed by the objectant. Records indicate that he is to receive $66,285 less than his distributive share. However, Bronx Probate Lawyers said he objects to this amount stating that the executor took money from his share and paid it to himself.

Case Discussion and Decision

The court has reviewed the records of the account and comes the following conclusions. First, it is found that the executor withdrew $10,000 from the estate as payment of commissions to himself without approval. This amount is to be paid back to the estate plus 9% interest from the time it was taken to the date it is repaid. Additionally, it is found that he took $20,000 from the account and paid it to his business. This amount was repaid without interest. Brooklyn Probate Lawyers said the court orders that he repay the account in the amount of 9% interest for the duration of the loan. It is additionally found that he withdrew $66,000 as a repayment for a loan he made to his brother. This act was in bad faith.

For these reasons, the court is revoking all commissions from being paid to him. The letters will not be revoked.

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October 24, 2012

Appellants Bring Appeal Regarding Codicil

This is a matter dealing with the probate of a last will and testament. This case is being held in the Second Department, Appellate Division of the Supreme Court of the State of New York.

Appeal

The appellants are appealing and order that was made in the Surrogate’s Court of Queens County. The order is dated the 27th of March, 2007 and grants the motion made by the respondent for leave to file objections to the codicil. The order also denied their cross motion for a decree to admit the will and the codicil to probate and to direct the letters testamentary and letters of trusteeship to be issued to them. The were also denied the approval of a stipulation of a settlement that they made with the American Society for Technion-Israel Institute of Technology, Inc that was approved by the Attorney General of the State of New York.

Court Discussion

The respondent motioned for leave in order to file objections to the purported codicil to the last will and testament of the decedent should have been denied by the Surrogate’s Court of Queens County. a New York Probate Lawyer said the respondent provided speculative allegations regarding the decedent’s lack of testamentary capacity and susceptibility to undue influence when executing the codicil. His arguments lacked good cause to be provided with the leave to file objections.

The respondent offered a report from a neurologist as evidence for his case, but the neurologist had never examined the decedent. The information provided was all presumptive. The neurologist only used the medical records of the decedent to make his opinions in the matter. Additionally, Brooklyn Probate Lawyers said the statements made by the neurologists were in fact contradicted by the primary physician of the decedent. The treating physician of the decedent saw the decedent on a daily basis and testified that on the day the codicil was executed the decedent was alert, oriented, and had the capability to hold conversations. There were two attesting witnesses in the matter that also contradicted the testimony that was provided by the neurologist.

Court Decision

The court is ordering that the previous order made by the Surrogate’s Court of Queens County be reversed. The motion made by the respondent for leave to file objections to the codicil is denied. The portion of the cross motion made by the appellants that was for the approval of the stipulation of settlement is granted. Long Island Probate Lawyers said the case is remitted to the Surrogates Court of Queens County for the stipulation to be approved and the other branches of the cross motion to be settled where as the letters testamentary and letters of trusteeship will be granted to the appellants.

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October 12, 2012

Court Reviews Stipulations Made in Divorce Decree

This matter deals with the estate of Michael Pavese who is deceased. A New York Probate Lawyer said the main issue before the court is whether or not the stipulations that were made with his spouse Barbara Pavese during their divorce action are valid and enforceable. Barbara Pavese has petitioned for a determination that the stipulations of the divorce agreement be declared as void and ineffective and that all the funds that are held in specific United States Treasury Accounts be released to her immediately as the joint tenant with the right to survivorship or in the alternative that at least half of the funds be released to her immediately.

Case Facts

Barbara and Michael Pavese were married in April of 1981. In May of 2001, Michael Pavese moved out of the marital home located in Lloyd Harbor, New York, in Suffolk County. Michael moved in with his brother Peter in Massapequa, New York, in Nassau County.

In June of 2001, Michael Pavese began a divorce action against Barbara Pavese. There were three stipulations of the divorce with the last one being dated the 7th of August, 2001. When the couple separated they had over $10,000,000 in a direct account with the United States Treasury. This money was invested in a number of United States Treasury bills. The ownership was right of survivorship.

The first stipulation of the divorce agreed that $1,500,000 of the marital assets would be released to each of them. Another stipulation made on the 2nd of August provided that another $1,000,000 of the marital assets is paid to each after Michael Pavese was paid for his half of the marital residence. The final stipulation ordered that a further distribution of marital assets from the Treasury direct account in the sum of $1,750,000 for each of them.

Case Discussion

In August of 2001, Michael Pavese died. He was living with his brother Peter Pavese at the time. Peter Pavese offered Michael’s will for probate. Barbara Pavese has filed objections to the offered will and discovery has begun in the probate proceeding.

The account statements have been offered as exhibit A in this petition. The balance of the account shows $8,570,000 on the 3rd of August, 2001. The balance as of September 9th, 2001 was $5,570,000. From the records it appears that none of the funds of the account have been distributed to the decedent, the representatives of his estate, or to Barbara Pavese. Brooklyn Probate Lawyers said this account is restrained until the validity of the stipulations of the divorce action can be determined.

The court must determine whether the agreements that were entered into between the decedent and his spouse during their divorce are in fact valid and enforceable or if they simply died along with the decedent.

Case Decision

The court has reviewed the stipulations made in the divorce decree and finds that they are in fact valid. The balance of the account should be distributed equally among the petitioner and the estate of Michael Pavese. Bronx Probate Lawyers said the request made by Barbara Pavese for alternate relief has merit since under the agreement she is entitled to half of the funds in the treasury direct account. The amount of $1,750,000 should be paid within ten days of this decision. The rest of her remaining half share of the account, minus the credit to the estate for the share of equity in the marital home should be provided to her promptly.

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October 11, 2012

Court Discusses Cy Pres Doctrine

The Facts of the Case:

On 15 June 2004, the decedent died testate at the age of 74 years of old, without a spouse or issue. The decedent's last will and testament dated 21 November 1996 was admitted to probate, a will contest proceeding, by decree dated 29 September 2005. The will named a certain person as the nominated executor (for purposes of estate administration) who predeceased the decedent. Thus, letters testamentary issued to the nominated substitute executor, on 30 September 2005. The attorney who prepared the will filed a disclosure statement executed by the decedent on 21 November 1996, which complied with the statutory requirements as it then existed; filed with the court his affidavit that was sworn to on 6 October 2004 and his affidavit sworn to on 30 October 2004.

Thereafter, the attorney has filed his account as executor for the period from 15 April 2005 to 31 January 2009. The account shows total charges of $951,949.88, total credits of $534,915.54 and a balance on hand of $417,034.34. The petitioner is seeking a decree judicially settling the account, approving legal fees, accounting fees and commissions, relief under the doctrine of cy pres as to two charities named in the will that are no longer in existence and approval to deposit the remaining assets on hand with the New York State Comptroller on behalf of any unknown distributees of the decedent. The Attorney General of New York appeared and filed objections to certain legal fees requested by the petitioner's firm and to the amount of the executor's commissions as calculated. A New York Probate Lawyer said the Attorney General supports the petitioner's requests that the balance of the residuary estate be deposited with the New York State Comptroller and that the court direct that the bequests to the two charities no longer in existence be distributed to charities with substantially similar purposes.

The Ruling of the Court:
The law, specifically, EPTL 8-1.1, gives the court the authority to substitute another charitable beneficiary named in a decedent's will in place of the charitable legatee named in the will which no longer exists. Long Island Probate Lawyers said the power to prevent the failure of and to give effect to the dispositions for charitable purposes is not defeated by the circumstance that the beneficiary of any such disposition does not exist. Before the cy pres power may be applied, it must be shown that the testator's principal intent was a general charitable one rather than to benefit only the named charity.

Here, the doctrine need not be applied since the decedent directed that 10 percent of his gross estate be distributed in equal shares to 30 charities or to those that existed at the time the decedent died. Thus, the decedent anticipated the possibility that one or more of the named charities might no longer be in existence at the time of his death and provided that the bequest go to those in existence at the time of his death. Accordingly, 10 percent of the decedent's gross estate is to be distributed in equal shares to the 28 other charities in existence.
On the prayer to deposit the net assets of the estate with the New York State Comptroller, an exhaustive search for any distributees the decedent may have had was made and affidavits of due diligence were submitted thereto. As a result, the court is satisfied that the decedent's parents and grandparents predeceased the decedent and that the decedent never married and had no issue, natural or adopted; the court is satisfied that a diligent effort was made to locate any paternal or maternal aunts, uncles or cousins of the decedent and that the search yielded no known distributees. Nonetheless, the record does not support a definitive conclusion that no such people exist. Thus, the court directs the petitioner to deposit the balance of the residuary estate with the New York State Comptroller on behalf of any unknown distributees of the decedent.

On the cost of legal services, the court may consider a number of factors, including: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of estate litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors that might be more favorable to one position or another, but must strike a balance by considering all of the elements; and the legal fee must bear a reasonable relationship to the size of the estate. Brooklyn Probate Lawyers said as a rule, a sizeable estate permits adequate compensation, but nothing beyond that. The size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. 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.

Here, the court is aware of the monumental amount of work done by the petitioner in relation to the estate. However, a review of the time records provided shows that some of the services performed were executorial in nature, for which the petitioner will be compensated by the executor's commissions to which he is entitled. Thus, by reason of this, and due to the size of the estate, the fees of other attorneys and accountants who performed work for the petitioner and the fact that the petitioner's firm was paid $5,000.00 in relation to the personal injury action, the court approves the fees already paid, including the $5,000.00 to the law firm, and approves payment to petitioner of additional fees of $25,000.00. Although the petitioner has waived payment of most disbursements, he is seeking approval of the payment of court filing fees in the amount of $1,235.00, which the court hereby approves. In addition, the court also approves the payment for the legal services of another law firm hired by petitioner to defend the personal injury action in which the decedent was named a defendant. The amount of $150,000.00 was paid from the estate to settle the action and that the lawyer was paid $6,409.94 for his services.

On the payment of the accountants’ fees, normally, an accountant's services are not compensable from estate assets unless there are unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee.

Here, the petitioner retained the services of accountant-one, who was paid $6,000.00 for the accounting services he performed. The billing actually totaled $10,364.43 in fees and disbursements, but agreed to the reduced fee of $6,000.00min view of the complications that plagued the estate. The court finds that the work performed was necessary and not duplicative of other services for which fees were paid, thus, approves the reduced amount of $6,000.00. The petitioner also retained the services of accountant-two, an accounting firm, and is seeking approval of the $14,125.00 fee paid to that firm. However, the statement they provided did not contain any details at all about any of the services they rendered; plus, it contained multiple entries for data entry and copying, which are generally not billable to the client. For this reason, the court cannot approve any portion of the fee without being able to ascertain whether the services were necessary and reasonable. Thus, the petitioner is directed to obtain and file a detailed billing statement. Otherwise, the fees paid to that firm will be disallowed and will have to be refunded to the estate. Lastly, the petitioner also hired accountant-three in connection to preparing the estate account, and is seeking approval to pay $6,000.00. These fees are unpaid. The court finds that the bills provided do not appear to be duplicative of those performed by the petitioner or the other accountants, thus, the court approves its payment.

The executor's commissions are approved subject to audit.

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October 9, 2012

Plaintiff Brings Will Contest Action

This case deals with the plaintiffs Henry Rogers Benjamin Jr. individually and as the trustee of the trusts under article 13 of the will of Henry Rogers Benjamin, William E. Benjamin II, and William E. Benjamin III, Anne R. and Henry Rogers Barry, Douglas Benjamin, Gregory Benjamin, Theodore Benjamin, Christopher M. Benjamin, Alexandra Benjamin Vose, Beatrice Benjamin, Cynthia Barry Bidwell, and Anne E. Green. The defendants in this case are Morgan Guaranty Trust Company of New York and Morgan Guarantee Trust Company as the trustee of trusts under paragraphs a and b of article 13 of the will of Henry Rogers Benjamin and the Southampton Hospital Association and Memorial Hospital for Cancer and Allied Diseases.

Case Background

A New York Probate Lawyer said the decedent passed away on the 22nd of February, 1967. He left a will that was admitted for probate on the 13th of March, 1967. In the 13th article of his will the decedent devised and bequeathed half of his residuary estate in trust with the net income payable to his spouse during her lifetime. The trustees were given the discretionary power to invade the marital trust for the benefit of his spouse. He offered guidance to the trustees in the form of directing that his spouse receive a minimum of $1,000,000 per year utilizing the net income augmented by the principal. The spouse was given general power of appointment over the marital trust. If the spouse was to default on her power or exercise the power invalidly, the remaining principal of the marital trust would go to the decedent’s descendants, who are the plaintiffs in this case.

From 1967 through 1972, the trustees of the marital trust made distributions of the trusts principal to the spouse in excess of the minimum annual amount that was specified by the will. Around August of 1972, the corporate fiduciary of the marital trust contacted the lawyer of the spouse in order to express concern over the amounts that were being taken from the principal on behalf of the spouse. Specifically, the corporate fiduciary stated that if the rate continued to the same extent then releases would have to be obtained from the persons in whose favor she intended to exercise the power of appointment that had been granted to her under the will.

The spouse executed her will and used her power of appointment granted to her by the will. She continued to withdraw from the marital trust and consumed nearly 85% of the marital trust at the time of her demise.

Court Discussion

Long Island Probate Lawyers said the spouse passed away on December first, 1986. She left behind a will and the probate of her will is what is being contested by the plaintiffs. A summary judgment has granted a summary judgment stating that as a matter of the law the will of the spouse was executed appropriately and the will was not fraudulent or created under undue influence. The exercise of the power of appointment used by the spouse left the two hospitals as beneficiaries of the marital trust.

The complaints and relief sought by the plaintiffs is found to be without merit. Brooklyn Probate Lawyers said the court finds that there are no facts to support the fact that controversy exists in the validity of the exercise of the power of appointment as made by the spouse. For this reason, summary judgment is granted and the cause of action is dismissed.

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August 14, 2012

Court Looks at Construction of Will

This involves a case where the court uphold the principle that the intention of the testatrix is of paramount importance which must be respected after it has been presented and admitted to probate. If the executrix intends to dispose the subject property in the will, the court suggested that she may do so through application for the sale of the real property pursuant to sections 233 of the Surrogate's Court Act.

On October 28, 1931, decedent's holographic will was admitted to probate on September 25, 1956. In paragraph 'Third' of the will, testatrix provided in part as follows: 'I give to my daughter In trust for her god child and my grand son my home with all furnishings * * *. I positively wish no encumbrance such as a mortgage or lean (sic) to be placed upon this property * * *. This home is not to be rented or leaset for any business whatever. * * *. I give to my daughter * * * to make sure that she may have a home during her life time. At her death this property goes to her God-child * * *.' The grandson survived testatrix but has since died.

Petitioner seeks permission from the probate court to sell the real property described in the will.
A New York Probate Lawyer said in constructing the will of testatrix with respect to the intended disposition of certain real property, the probate court rejected the petition of the godson.

In the opinion of the Court, testatrix was primarily concerned with the welfare of petitioner, her daughter. Although she used the terminology 'in trust' in paragraph 'Third,' a careful analysis of the will as a whole reveals that it does not impose the duties of a trustee upon petitioner. The words were used with a layman's conception of their meaning.

In the absence of an express or implied direction for the payment of income by a trustee to another as beneficiary, no valid trust is created. Brooklyn Probate Lawyers said the testatrix gave to petitioner both the actual possession of the realty and the rents and profits. [22 Misc.2d 657] Under such facts, the statute creates a legal life estate with the same incidents of tenure as if the bequest had taken such form. Such a life estate is a freehold estate giving the beneficiary the full possession, use and enjoyment of the property for the duration of her natural life.

The Court holds that the true meaning, construction and effect of paragraph 'Third' of the will was to devise the described real property to the daughter for her life with remainder upon her death to testatrix' grandson. Manhattan Probate Lawyers said that since the latter survived testatrix but died before the life tenant and there being no words of survivorship in the will, he took a vested interest in the remainder upon the death of the testatrix. Upon the death of the life tenant the remainder interest of godson will pass to or be payable to his estate.

According to the court, inasmuch as the real property was specifically devised to testatrix' daughter, who is not an infant or incompetent, section 13 of the Decedent Estate Law does not become operative to confer a power of sale upon the executrix.

In the alternative, the probate court said that the executrix may however make appropriate application for the sale of the real property pursuant to sections 233 et seq. of the Surrogate's Court Act. The net proceeds derived upon such sale shall be held by the life tenant for her life in lieu of the realty.

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August 12, 2012

Court Looks at Intention Underlying Will Documents

The Facts:

On 27 December 1919, a testatrix died leaving a will dated 11 February 1905 which was duly admitted to probate on 18 June 1920. Except for the printed portions of the form used, the instrument was entirely written by pen and ink. After providing for the payment of her lawful debts, the said testatrix devised all her property, real and personal, to her friend who was also named as the sole executrix with the further proviso that after her friend dies, the balance or what is left shall go to her brothers or their heirs, naming them; that it shall be equally divided between her brothers or their heirs. However, upon testatrix' death, her friend took possession of all the real and personal property of the testatrix and made conveyances, transfers, assignments, sales, and alienations, individually and as executrix. The assets of the estate were disposed of among several persons.

Thereafter, the Public Administrator of the County of Kings filed an application for a construction of testatrix' will and other relief.

The Issue:

The sole issue to be resolved by the court is whether or not, by the testatrix' will, the friend took a fee or a life estate with the power of alienation or disposition.

The Ruling:

Under the rules, a New York Probate Lawyer said a will executed by a layman must be construed with that fact in mind. The testatrix' intention must be gathered from the instrument as a whole, and when such intention is ascertained, it controls. From the records of the case, it appears that the handwritten portion of the instrument is contained in a single long paragraph, devoid of proper sentence structure, capitalization or spelling. Nonetheless, although the testatrix lacked knowledge of legal terminology used in testamentary instruments, her intentions may be gleaned from a careful reading and analysis of her will. It is apparent that testatrix had her brothers in mind as well as her friend as objects of her bounty. The testatrix' intention to devise and bequeath to her friend a life estate with the remainder, which she called the “Balance”, to her brothers is apparent from the fact that she used the following language: “After the death of xxx (testatrix’ friend) I appoint as Executor for my Brothers as named above xxx.” There would have been no purpose in naming a successor executor unless the testatrix expected that there would be a remainder left after her friend’s death which would require an estate administration by a successor executor. What may appear to be an absolute gift expressed in an anterior clause of a will may be cut down by a posterior provision which is generally deemed to be a subsequent intention.

Evidently, Brooklyn Probate Lawyers said the testatrix had the intention to give her friend a life estate and the remainder or residuary estate to her brothers or their heirs after the death of her friend and these are revealed by the provisions in her will, viz: payment of the balance over; naming of her brothers and their heirs as recipients of such balance; specifying the shares each of such remainder men were to receive; and naming of a successor executor to protect her brothers' interests in the estate after the death of the primary beneficiary. As a rule, where the language used points to more than one possible interpretation of the testator's intent, that one should be adopted which prefers those of the blood over strangers. In the absence of a clear and unequivocal language to the contrary, the Court is justified in adopting a construction in favor of blood relatives.

In sum, Long Island Probate Lawyers said the Court finds that testatrix devised and bequeathed a life estate to her friend without the power to encumber or alienate the principal thereof.

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August 10, 2012

Petitioner Seeks Order


The petitioner has filed for an order to show cause before the court. The petitioner seeks an order under Rule 137 of the Rules of Civil Practice to direct respondent to appear and testify pursuant to a Commission issued out of the Probate Court of the Commonwealth of Massachusetts, Middlesex County. Under such action pending in the sister state, petitioner seeks to obtain from the defendant-wife, the custody of their minor child. A New York Probate Lawyer said to bolster his case so that child custody (father’s rights) is granted in his favor, the movant contends it is necessary to prove that his wife is not mentally fit to care for their infant child.
The respondent who is a psychologist opposes the petition and contends that the granting of such an order would compel him to violate a statutory prohibition regulating his conduct by forcing him to disclose privileged matters between him and a person alleged to be his patient.
From the papers submitted, the court notes that respondent, after having been served with the subpoena, did appear pursuant thereto before the designated commissioner on 7 July 1962; that he answered the first three interrogatories as to his name, address and profession; that as to the balance of the queries, he declined to answer on the ground that such disclosure would reveal confidential relations and communications between himself, as a psychologist, and a client, and as such, is privileged under Section 7611 of the Education Law. The law on privileged communications, under the said Education Law, provides that: “The confidential relations and communications between a psychologist registered under the provisions of this act and his client are placed on the same basis as those provided by law between an attorney and his client, and nothing in this article shall be construed to require any such privileged communications to be disclosed.”

The Ruling:
In the case at bar, there appears to be no question as to the propriety or pertinence of the propounded unanswered interrogatories. The lone issue is whether or not respondent could be impressed to breach a professional confidence, and thereby be guilty of violating the statute referred to.

The court holds that the petitioner's contention that the Commonwealth of Massachusetts has no similar privilege is untenable. The protective statutory bulwark in the form of Section 7611 of the Education Law may not be ignored. Bronx Probate Lawyers said clearly and without a doubt, to grant the relief sought would be violative of the rights of a citizen of the state. The movant's contention that defendant waived the privilege and thus opened the door for respondent to testify is also bereft of merit. The language appearing in cases involving an attorney and his client finds application. Under said cases, the court has repeatedly held that where respondents are attorneys in the state and the inquiry concerns professional acts done, they should not be allowed to reveal, much less compelled to, any matter which the public policy of the state deems inviolate. According to the court, the evil which is sought to be avoided is the revelation of the confidential matter per se and not the exclusion of testimony which might be in some way harmful; that the restriction of the statute is only an echo of the mandate of the canon of ethics in that regard and only applies to testimony which is the rule in regard to all communications in or out of court. Clearly, the Legislature intended that a confidential relationship, as here, should be protected just like the relationship between an attorney and his client. Thus, Brooklyn Probate Lawyers said in as much as the court wishes to assist a sister State, it may not go beyond the statutory powers granted by the Legislature.

In sum, the petition is denied.

For advice on matters similar to the case above mentioned, contact a Kings County Probate Lawyer, a Kings County Child Custody Lawyer, etc. at Stephen Bilkis & Associates. We have the most skilled and well trained legal professionals in the country who can very well assist you whether you need a will drafted, or have an estate litigation matter.

August 2, 2012

Respondent Claims Petitioner Lacks Standing

A 19 years old woman was at the hotel located at Staten Island, New York. The said hotel is approximately one half mile from the woman’s residence where she resided with her mother. While at the hotel, the woman made her way to the roof of the hotel where she plunged to her death. Consequently, the woman's mother’s attorney, who has an office in Staten Island, New York, filed for limited letters testamentary in order to bring an action for a potential wrongful death action.

A New York Probate Lawyer said the complainant mother apparently changed attorneys to one who has offices in Brooklyn and commenced the legal action by filing a summons and complaint with the Kings County clerk's office. The summons stated that the venue was based on the mother’s residence at Brooklyn however the mother’s verified complaint stated that she was a resident of the County of Richmond. The verified complaint contains allegations of fact in support for a single cause of action for damages due to wrongful death and the woman’s conscious pain and suffering up until her death.

The hotel served an answer to the revised verified complaint that includes thirteen affirmative defenses. A Brooklyn Probate Lawyer said the third affirmative defense states that the mother’s complaint filed in Kings County are at improper venue, and that the place of trial of the action should be changed to a proper venue, a Richmond County. Submitted along with the opponents' answer was a demand to change venue. When the mother did not respond to the demand to change venue to a proper county, the hotel filed the underlying notice of motion to change venue with the Richmond County clerk's office.

The mother's counsel, whose law office is located in Kings County, selected Kings County as the venue in the summons of the action based on the alleged residence of the mother. Based on records, the rules governed proper venue. Further, the place of trial shall be in the county in which one of the parties resided when the action was initiated.

The opponent also put forth documents to show that the mother's residence was in Richmond County at the beginning of the action. The opponent’s affirmation contains the mother's petition for probate, letters testamentary and the woman's death certificate. The petition for probate was filed with the surrogate's Court of Richmond County. The form listed the woman's residence as well as the mother’s residence Staten Island, New York. The Richmond County address is also listed on the woman’s death certificate.

Lastly, a Bronx Probate Lawyer said the mother contends that the hotel do not have standing to make a motion and claim that a motion for a default decision against them has been filed in Kings County Supreme Court. The hotel further argues that the mother agreed to extend the time to answer. In support of their argument, the hotel attached an unsigned stipulation extending time to answer. While the attached copy is not signed, the mother's counsel does not argue that it was forwarded to him to memorialize the agreement between the attorneys to extend the time to answer. Nonetheless, the court will grant the hotel to leave to file their answer and the mother shall accept same and be permitted file responses to the remaining affirmative defenses within thirty days of the order.

Consequently, the court ordered that the hotel's motion to change venue to Richmond County is granted. Moreover, it is ordered that the mother shall immediately file an application to extend her limited letters testamentary or file for permanent letters testamentary with the Surrogate Court of Richmond County, and shall document same to the court and opposing counsel upon receipt of the updated letters testamentary. It is also ordered that the hotels are granted leave to file their answer and that the mother shall accept such answer and is granted thirty days to file responses to the court.

The field of law is a complicated matter. It is important that when we encounter these kinds of issues we should be properly informed and we can’t do that without the help of the Kings County Estate Attorney at Stephen Bilkis and Associates. If you want assistance from the experts, whether it is for a will, estate litigation or probate call the Kings County Probate Attorney or Kings County Will Contest Attorneys.

July 28, 2012

Court Decides Executor Commission

In a probate proceeding case, the decedent died on July 3, 2003, leaving a will dated November 22, 1971. The petitioner-executor was an attorney admitted to practice in this state and drafted the will offered for probate. Thereafter he maintained limited contact with the decedent. A New York Probate Lawyer said that, petitioner has submitted an affidavit in which he states that about 1995 he retired from practice and in early 1996 moved to Virginia but then moved back to Owego, New York, in September 1998. Throughout this period he retained his license to practice law until it lapsed at the end of 2000. Since petitioner is no longer licensed to practice he has retained separate counsel to represent him in his capacity as executor.

Thereafter, SCPA 2307 was enacted effective August 2, 1995 the said statute is applicable to the estates of decedents dying after January 1, 1996. It provides that an attorney-draftsman of a will in which he is named as executor can receive full commissions only if the written disclosure of dual fees required by the statute was executed by the testator. In this case there is no written disclosure from the testator. Alternatively, the statute permits full commissions with respect to wills executed prior to January 1, 1996, if the attorney-executor establishes to the satisfaction of the court reasonable grounds to excuse the absence of a written acknowledgment. A Kings Probate Lawyer said that, in his affidavit submitted herein, petitioner argues that after he retired from practice in 1995, "I was unable to remain knowledgeable of current changes to New York State law, including changes to the Surrogate's Court Procedure Act." Petitioner’s affidavit does not indicate any attempt to make the required disclosure. Nevertheless, petitioner was licensed to practice as an attorney, both in 1971 when the will was drawn and in 1995 when the law changed.

The issues in this case are whether petitioner-executor is entitled to his full commission, notwithstanding the failure of the testator to make written disclosure of dual fees as required by the statute; and whether the fact that petitioner had retired from the practice of law and has hired separate counsel to represent him as executor of the estate are reasonable grounds to excuse the absence of the written acknowledgement.

The Court said that in one of the cases decided by the Supreme Court, the attorney-executor hired separate counsel to represent the estate. A Bronx Probate Lawyer said he then argued she should be entitled to a full commission since she was not rendering legal services to the estate and thus receiving double fees. Judge Radigan said: "It would appear to the court that if the salutary effects of the statute are to be realized, that is that testators be made aware that both attorney's fees and commissions are payable to the attorney/fiduciary, then the statute is rendered completely ineffective if it may be circumvented by hiring separate counsel who is unaffiliated."

In similar fashion, the Court said that the petitioner here cannot avoid the statute merely because he is retired from the practice of law and has hired separate counsel to represent him as executor of the estate. A Bronx Probate Lawyer said the fact that he is now retired is irrelevant. He was an attorney when he drew the will and at the time when the required disclosure should have been made.


Neither the fact that petitioner was named only as alternate executor nor that testator retained the original will constitute good cause for the failure of disclosure. A Brooklyn Probate Lawyer said thttp://http://estatelawyer.1800nynylaw.com/lawyer-attorney-1556357.htmlhe fact that testator may have been "very ill” in 1995 and in a nursing home from 1999 until her death also does not constitute good cause.

In view of the foregoing, the Court held that, the required disclosure not having been made, the petitioner is limited to one half an executor's commission pursuant to the statute.

If you are having problems regarding the administration of the estate of the testator, a Kings Estate Administration Attorney can help you. Probate proceeding is complicated and there is a need for the professional advice of a Kings Probate Attorney. In the event of litigation, a Kings Estate Litigation Attorney at Stephen Bilkis and Associate can represent your day in Court.

July 27, 2012

Court Decides Sales Tax Question

The Facts:

On 20 December 1979, the Audit Division of the State Tax Commission issued a Notice of Determination and Demand for Payment of Sales and Use Taxes Due for the period 1 June 1976 through 31 August 1979. Petitioner filed a petition for revision of that determination and for refund of sales and use taxes under Articles 28 and 29 of the Tax Law.

A New York Probate Lawyer said on 21 November 1985, a hearing was held. On 28 May 1986, a decision was made which modified the Determination but left an amount due of $83,884.58. On 28 May 1986, the Commission notified petitioner of the Decision and advised that petitioner had now exhausted his right of review at the administrative level.

Under the Tax Law, a proceeding in court to review an adverse decision by the State Tax Commission may be instituted only under Article 78 of the Civil Practice Law and Rules and must be commenced in the Supreme Court of the State of New York, Albany County, within 4 months from the date of notice.

Thus, an application for an Order extending the statute of limitations to allow the petitioner to commence an Article 78 proceeding against the State Tax Commission (Commission) has been instituted.

The papers submitted on the motion showed that the sole proprietor of the Petitioner-Corporation died on 30 September 1982; that under the terms of his Last Will and Testament admitted to Probate (a proceeding for a will contest, if any) in Kings County, New York, an undivided one-half interest in the restaurant, bar and grill located is given to his wife, individually and in trust for his daughter. The wife is designated as Executrix (for estate administration purposes) and Trustee in the Will. It was the operation of a business at these premises which lead to the sales tax question.

The Ruling:

Here, no proceeding under Article 78, CPLR, has been commenced. The application to extend the Statute of Limitations has been brought by the mother alleging that the daughter is an infant, age 13, who has been adversely affected by the Commission's Decision.

Under the rules, the subject proceeding must be commenced within four months after the final determination or with leave of the court where the petitioner, or the person whom he represents at that time, was under a disability, as specified. In such a case, the proceeding must be commenced within two years.

In the instant case, the sole shareholder of the corporation died after the initial Determination and before the final decision of the Commission. A Long Island Probate Lawyers said from the record, many things were not clear which might necessitate an evidentiary hearing at some point, if the court grants the relief sought. The court is mindful of the provision of the Tax Law, which required payment of all taxes, penalties and interest, together with the filing of an undertaking as a condition precedent to commencing an Article 78 proceeding.

Thus, the motion to extend the time in which to institute a proceeding under Article 78, CPLR, to review the decision of the Commission, is granted upon the condition that petitioner comply with the requirement of the Tax Law. All rights are reserved to the Commission to raise any and all defenses including the defense of Statute of Limitations in the Article 78 proceeding, if such a proceeding is commenced.

Brooklyn Probate Lawyers said that legal proceedings are tough to understand especially when you have no legal background or experience. If you find yourself involved in a situation such as the above and you need the assistance of a legal counsel, contact a Kings County Probate Lawyer. Get in touch with Stephen Bilkis & Associates. We have the best skilled and experienced Kings County Estate Administration Attorneys, Kings County Will Contest Attorneys, etc.

July 18, 2012

Foreclosure of Home Involved in Probate

The plaintiff in this case is Financial Freedom Acquisition. The defendants in the case include Kevin J. Malloy, Esq. who is the guardian ad litem for the unknown distributees, heirs, and next of kin of the deceased, Howard Harris. This includes anyone that is interested in the estate of Howard Harris as the distributee or otherwise.

Orders of the Court

This is a notice of motion and cross motion in regard to the estate of the decedent Howard Harris. There have been papers filed, numbers one through 23 in this case.

A New York Probate Lawyer said this first order of the court is for a partial summary judgment in favor of the plaintiff and against the defendants Daniel Roochvarg and David Roochvarg. The joint answer supplied by the defendants is struck along with their affirmative defenses and counter claims.

The cross motion number 002 by the defendants, David and Daniel Roochvark for an order that denies the plaintiffs motion for a summary judgment with reference to compute is awarded in the favor of the defendants and against the plaintiffs and dismisses the complaint. The summary judgment on the counter claims is in favor of the defendants and against the plaintiff is denied.

The plaintiff has begun this action to foreclose on a property that is located on Orange Street in Central Islip, New York. The plaintiff filed a summons and complaint on the fourteenth of June, 2011. In May, 2007, the decedent had executed an adjustable rate home equity mortgage in the amount of $544,185. The agreement required the lender to advance the sum that was secured by the mortgage company to the borrower in intervals that were set forth in the agreement. The mortgage is due and payable upon the death of the borrower or when the borrower ceases to use the property as his primary residence.

Case Background

The decedent passed away on the 15th of February, in 2009. He left a last will and testament that was dated the seventeenth of April, 2003. The will left half of his estate to each of the defendants, David and Daniel Roochvang. The two were the sole beneficiaries of the will.

The petition for probate was filed and David Roochvarg stated while under oath that the decedent had no unpaid debts. The estimated value of the property was listed as $200,000.

The complaint that is made by the plaintiff states that the mortgage on the property was assigned before the probate action. Long Island Probate Lawyers said the plaintiff alleges that the defendants have failed to pay the balance that is due even though they provided notice of default after the death of the decedent. The defendants deny all of the allegations made by the plaintiff.

Final Decision

When reviewing the case the court has found that the defendants have failed to prove that they did not know about the default. In fact, Brooklyn Probate Lawyers said by answering for the remaining defendants in the case the defendants further establish default on the loan in question.

After careful consideration the court rules in favor of the plaintiff as stated above. All of the motions made by the defendants are denied. The court proposes an order to appoint a referee to compute the charges to be made to the plaintiff.

If you are in need of legal advice for a probate case, contact Stephen Bilkis & Associates. Our team of expert lawyers will be happy to sit down and discuss your case with you during a free consultation. Our offices are located throughout the city of New York for your convenience.


July 15, 2012

Sibling Claims Decedent was a Victim of Undue Influence

An 87 year old bachelor died on May 12, 1992. He had an estate that was worth $7,000,000. He left his estate to his sister, his brother and the two children of his brother who died before him. He also named the three children of his sister as his heirs. The sister was the named executor in the bachelor’s will.

She filed a petition for probate but this probate was opposed by the bachelor’s brother and his nephews. During the pendency of the probate proceedings, the sister died and in her own will, she named her son as the executor of her will and the executor of her bachelor brother’s will. The Surrogate Court granted letters testamentary to the nephew of the bachelor.

The crux of the issue in the probate proceedings is the testamentary capacity of the bachelor at the time of the execution of the will and whether or not undue influence was exerted by his sister so that he executed the will which is now being presented for probate.

The proof of the brother and nephews of the bachelor to prove the lack of testamentary capacity is that sometime between 1987 and 1988 the bachelor let himself go and refused to bathe regularly. He was unkempt. He had a stroke in 1989 and he was diagnosed with Alzheimer’s. A New York Probate Lawyer said it was after this diagnosis, in 1990 that the bachelor established a bank trust for his sister and her three children amounting to $1,500,000. Later that year, the bachelor was found wandering in the bus terminal and later, he was found walking in front of his apartment building wearing nothing but his underpants. He was placed in a nursing home and in 1991 he was hospitalized and found to be suffering from dementia and brain atrophy. He later died in a nursing home in California in 1992.

The Surrogate Court refused the probate of the decedent’s will which was executed in 1988. The Court found that the bachelor at the time he executed the will did not understand that he was making a will; he was unaware of the nature and extent of his properties; nor was he aware of the objects of his generosity.

The denial of probate was appealed by the executor of the estate of the bachelor but the order of the surrogate court denying probate was upheld. A Staten Island Probate Lawyer said the only question now before the Surrogate Court is whether or not the trusts executed by the bachelor in favor of his deceased sister and her children as well as the monetary gifts he gave them at or around the same time of the execution of the will should also be nullified because of lack of capacity to contract.

The Surrogate Court found because of the Alzheimer’s disease and the dementia and the brain atrophy, it can safely be concluded that just as the bachelor had no testamentary capacity, he also had no capacity at that time to establish the trusts.

There was evidence to prove that at the time of the mental incapacity of the bachelor, the trusts and gifts were established by the bachelor at the behest and instigation of his sister who was also his beneficiary and heir as well as executor.

In accordance with these findings, the son of the bachelor’s sister, who was granted letters testamentary, is now called upon to render an accounting of the estate of the bachelor which was under his administration. Brooklyn Probate Lawyers said he is required to return the trusts as well as the earnings of the trusts and the gifts he and his siblings received from the bachelor.

A testator who was suffering from Alzheimer’s disease and dementia has no testamentary capacity. You must consult a King’s County Will Contest lawyer if you wish to bring an action to object to the probate of a will. A King’s County Will Contest attorney can assist you to bring a will contest action. The King’s County Will contest attorneys from Stephen Bilkis and Associates can help you present evidence of lack of testamentary capacity of the testator. Call Stephen Bilkis and Associates and confer with their King’s County Will Contest Lawyers at any of their offices in King’s County.

July 15, 2012

Court Decides if Letters Testamentary Should be Issued

A man who had three children by a first marriage married a woman who had five children of her own. When she married her husband, her husband sold the house he owned and moved into the house of his second wife.

Sometime in Aprill 22, 2009, the man died a month after he executed a will. In this will, he named his daughter by his first marriage and her husband as the executors of his will. The couple was the ones who presented the will for probate. And they also asked the probate court to issue letters testamentary in their favor in accordance with the provisions of the will of their father.

The second wife of the testator objected to the probate of the will on the ground that her husband has had two major strokes and numerous mini strokes all throughout his confinement in a nursing home just prior to his death. He was diagnosed to be suffering from dementia and so he could not have known or understood the contents of the will he purportedly executed.
The second wife also objected to the probate of the will on the ground that the consent and waiver she signed with regard to the probate of the will was obtained under duress. She claims that she was hospitalized for dehydration and the children of her husband from his first marriage made her sign papers which were supposed to make her a member of Medicaid. A New York Probate Lawyer said he claimed that after she was released from the hospital, she was admitted into a nursing home and she found out that her step children succeeded in transferring the title to her house to her husband’s name alone and then they succeeded in making him sign a will where he provided that the house will be put in trust for the benefit of his children from his first marriage and for his wife’s children from her first marriage in equal shares.

The woman said that the house is her own property and not her husband’s so that he cannot dispose of it by will. She also claims that the children of her husband from his first marriage had succeeded in removing the house from the trust set up by her husband and has transferred the house into the name of the named executor of her husband’s will.

The second wife of the decedent objected to the issuance of letters testamentary in favor of her husband’s daughter by his first marriage. Suffolk County Probate Lawyers said she claims that she is unfit and because issuing letters testamentary will empower the daughter of her husband to sell her house ant o divide the proceeds among the heirs.

The only question before the probate court was whether or not the letters testamentary should be issued.

The Court held that the letters testamentary should be issued because no facts have been put forward by the second wife of the decedent who opposes her stepdaughter’s designation as executrix of her husband’s estate. Brooklyn Probate Lawyers said the allegations must be bona fide facts alleging misconduct or wrongdoing. When there are serious allegations of unfitness of the executor, the court may refuse to appoint the executor and issue letters testamentary.

The appointment of an executor and the issuance of preliminary letters testamentary are necessary to allow for the administration of the estate where the probate of the will may be delayed. The Court then issued letters testamentary to the named executors of the will with the specific prohibition from selling the house which is the subject matter of the disposition of the will.

Are you like the second wife in this case? Has your house been the subject matter of disposition in the will of your husband even if it does not form part of your husband’s estate? You may contest the probate of the will and file an opposition to contest the will. You need the advice and assistance of a King’s County Will Contest Lawyer who can help you present evidence to show that the will was not properly executed. A King’s County Will Contest attorney can help you gather evidence to show undue influence on the testator by the named executor or lack of testamentary capacity by the testator. Come and consult with any of the King’s County Will contest attorneys at Stephen Bilkis and Associates who are willing to help you. Visit the offices of Stephen Bilkis and Associates today.

July 13, 2012

First Wife Petitions Will

A man married a woman sometime on February 11, 1921 while they were residents of New York state. A year later, the man filed a case for annulment of his marriage in King’s County. He claimed that the woman he married falsely represented herself. He court dismissed the petition for annulment of marriage.

Two years later, the wife had to be committed to a mental institution and declared as incompetent. She has been confined in a state mental institution from that time until the death of the man in 1954.

A New York Probate Lawyer said five years after the wife was declared incompetent and was ordered to be confined to a mental institution, the man filed another annulment action before the court. This time, the court granted his petition for annulment. The court’s grant of the annulment was conditioned on the execution of the husband of an undertaking to pay the state institution the sum of $7 weekly for her medical costs. The man never signed an undertaking to foot his ex-wife’s medical bills and the clerk of the court never entered the decision granting him the annulment of marriage he had prayed for.

Fourteen years later, the man married another woman in Connecticut. They had no children. In 1954, the man died and left a will. In this will, he left his entire estate to his wife.
His first and legal wife filed a petition for probate of the will through her sister who stands as her guardian. The second wife objects to the probate of the will on the ground that she is the wife of the testator and not the first wife.

The second wife claims that her marriage with the testator was validly entered into. She claims that the first marriage of her husband was annulled. She also claims that her husband also obtained a divorce from his first wife in Mexico. NYC Probate Lawyers said for this reason, she claims that “the wife” referred to in the will really refers to her and not to the first wife who is in the mental institution.

The only question before the court is whether or not the will should be probated; there is also the question of whether or not the second wife who objects to the probate of the will has an interest in the will.

The Court ruled that the first marriage of the testator was not annulled. The records were searched and there were not found any orders entered declaring the first marriage annulled.
The records of the state institution where the first wife has been confined also show that the first wife was served with notice of the annulment in 1929 but no other process was served on her: there was no process served on her to notify her that her marriage had already been annulled or declared annulled.

Brooklyn Probate Lawyers said the divorce from Mexico allegedly obtained by the testator was obtained by non-appearance. It is invalid and cannot be countenanced as valid in the state of New York.
The marriage of the testator with the second wife was made while the first marriage subsisted. It cannot be considered valid.

Under the rules of probate, only persons with interest in the testator’s estate are permitted to object to the probate of the will. Here, the objector has not proven that she has a valid and subsisting marriage with the testator. She is not the wife of the testator and she has no personality to appear or to object to the probate of the will.

The Court ruled that the first wife has met her burden to prove the illegality of the testator’s second marriage to the woman who has come forward and appeared to file an objection to the probate of the will. The notice of appearance of the second wife of the testator is stricken off the record and her objections to the probate are dismissed.

Do you wish to file an objection to the probate of a will? You need the advice and assistance of a King’s County Probate Lawyer. A King’s Country Probate attorney can explain to you that you can object to the probate of a will only if you have an interest in the estate which is the subject matter of the will which is sought to be probated. The King’s County Probate attorneys from Stephen Bilkis and Associates will help you prove your interest in the estate of the testator. The King’s County probate Lawyers from Stephen Bilkis and Associates can help you argue your case and present evidence on your objection. Call Stephen Bilkis and Associates today.

July 1, 2012

Court Hears Allegations of Fraud and Undue Infuence

A petition for probate was filed. A contestant came forward in the probate proceeding contesting the due execution of the will and contesting as well the testamentary capacity of the testator. The contestant in his objection made general allegations of fraud and undue influence against the proponent of the will.

The proponent of the will then filed a motion for a bill of particulars. He demands that the party contesting the will be made to state specifically the acts or omissions as well as the time, the date, and the place where the specific acts of fraud and undue influence were perpetrated by him against the testator.

The Court is faced with the question of the extent a proponent may require a will contestant to provide specific and particular details of the fraud and undue influence he claims were committed by the proponent.

The Court is faced with two decided cases by the Supreme Court of New York that have contradictory holdings. A New York Probate Lawyer said in the older case, the Supreme Court of New York ruled that it is necessary to state the specific acts or conduct which constitutes the undue influence as well as the particular false statements, misrepresentations and fraudulent acts which have been practiced to constitute the fraud.

In the more recent case, the Supreme Court of New York has held that the party contesting the will needs only to set forth in general terms the acts, statements and misrepresentations which were allegedly used to commit fraud or undue influence against the testator.

The Court has to reconcile these two seemingly contradictory cases that dictate two different levels of disclosure of facts that constitute fraud and undue influence. The Court has held that the most reasonable holding is that when pleading undue influence and fraud as grounds for objection to the probate of a will, the ultimate facts constituting the fraud and undue influence must be stated and not mere conclusory statements.

Long Island Probate Lawyers said the Court reconciled the two cases by analyzing which of the two cases were consistently upheld in other later decisions of the Supreme Court of New York and the Court came to the conclusion that what is necessary is to state the “basic essential facts.
This means that specific acts or courses of action must be stated; the time and the place where the undue influence took place must be stated; if there is more than one person who practiced undue influence, then their names must all be stated. Brooklyn Probate Lawyers said that all the false statements, suppressions of facts, misrepresentations and other fraudulent acts must be enumerated. The dates, times and places where the fraud was committed have to be stated. If there were acts of physical violence then each and every instance of acts of violence must be stated.

Statements which merely state conclusions are not allowed as these cannot be the basis for findings of fact.

The specific allegations will allow the party against whom the charges of fraud and undue influence were hurled the opportunity to also specifically deny with particularity the instances of fraud and undue influence he allegedly committed.

In this way the issues will be more easily joined and presentation of evidence will be more orderly and logical.

Have you filed a petition for the probate of a will? Was there a party who came over to contest the probate of the will? Were you accused of having committed fraud and undue influence? Stephen Bilkis and Associates can help present not only facts in your favor that show a lack of fraud and undue influence, the legal team from Stephen Bilkis can also argue in your behalf.

June 30, 2012

Will Contest Filed Based on Domocile of Decedent

A citizen of the United States and resident of Kings County had lived most of his life in Kings County and has acquired properties and interests there. However, in the last years of his life he has lived in Casablanca in the Northern African French Protectorate of Morocco.

The Surrogate’s Court of Kings County entertained the probate petition but soon a will contestant appeared and filed his objection stating that the testator was already domiciled in Casablanca, Morocco at the time of his death.

The petitioner and the will contestant agreed to reserve the issue of determining the domicile of the testator until after the executor has filed a preliminary accounting/inventory of the properties comprising the estate of the testator.

A New York Probate Lawyer said that after the executor submitted an accounting of the properties of the estate, the parties submitted evidence as to the domicile of the testator at the time of his death to determine which law shall govern the distribution of the properties of the estate.

The testator was survived by five children. One of them was legitimated by a final judgment. Of these five sons, there was one who died long before the testator. The specific provisions of the will must be governed by the rules of inheritance of French Civil Law which governs Casablanca, Morocco.

Under French Civil Law, the testator cannot distribute his estate as he pleases. Three fourths of his estate must be distributed to his “forced” heirs, his sons. Each son is counted as one heir and will receive one share. The children of the son who died long before his father, the testator, will inherit equally the one share that their father gets. The legitimated son will get only half a share as the legitimate sons.

The testator created trusts in favor of some of his grandchildren who were still infants. French Civil Law does not allow for trusts to be recognized. Therefore, a Long Island Probate Lawyer said the estate of the testator will be distributed as follows: three-fourths will be shared by all his five sons: each son gets one share except the legitimated son who will only get half the share of a legitimate son. He grandchildren of the testator by his son that predeceased him will inherit from him in representation of their father, the son of the testator. They will share their predeceased father’s one share equally.

The remaining one-fourth of the estate will be considered a free portion which will be distributed in equal shares to the infant beneficiaries named by the testator as the beneficiaries of the trust he created in his will. Brooklyn Probate Lawyers said their share in the one-fourth of the estate must be equal and these will be outright gifts in cash.

The Court held that in probate proceedings of a person who is domiciled in a country or state different from the state where his will is being probated, the law of the country or state of his domicile will apply not only to determine if his will was duly executed under the laws of his domicile; the distribution of his estate will also be governed by the laws of the country or state of his domicile.

In this case, the testator’s wish of creating a trust for his minor grandchildren was not given due course because the law of his country of domicile do not provide for the creation of trusts by a will. Are you a distributee of a will? Was the testator domiciled in Kings County at the time of his death? You will need the assistance of a Kings County Probate Lawyer to prove the domicile of the testator in Kings County. A Kings County Probate Lawyer can also prove that the laws of the state of New York govern the testator and his will. Call Stephen Bilkis and Associates today. Speak with any of their Kings County Probate attorneys who are willing and able to represent you and argue your case in your behalf. Call Stephen Bilkis and Associates today or see any of their Kings County Probate attorneys at any of their offices conveniently located in the New York area.

June 18, 2012

Court Discusses Non-marital Child Entitlement in Will Contest

In a probate proceeding, two non-marital children have moved to have their status as children entitled to benefits under the after-born statute determined. In a prior decision, the court ruled that any question regarding a party's status in a probate proceeding should be determined as a preliminary matter and stayed all other proceedings.

Rather than question any of the underlying facts, such as proof of paternity, the parties have consented to have the motion submitted assuming the truth of the non-marital children's allegations for a determination of whether as a matter of law those allegations state a cause of action entitling the claimants to after-born status.

A New York Probate Lawyer said the father of the children died and was survived by eleven children; three from a first marriage, four from a second marriage and the four alleged non-marital children. The will offered for probate benefits only one child from the first marriage, the petitioner and named executor, who inherits the entire estate valued at several million dollars.

Estates Powers and Trusts Law (ETPL) create a rule of presumed intent for a person who made a will and may have inadvertently omitted a child born after he executed his will. If he gave something to existing children and the after-born is neither provided for nor mentioned in the will and not provided for by some settlement, the after-born shares in the gift to existing children.

Case law has granted non-marital after-born children the same rights as marital after-born children if they can establish their inheritance rights under the EPTL. The after-born statute has been amended to address the rights of after-born non-marital children. Long Island Probate Lawyers said the amendment provides for a non-marital child, born after the execution of a last will shall be considered an after-born child of his or her father where paternity is established. While the amendment became effective only after the non-marital father's death, it essentially codifies preexisting case law.

The claimants allege that after the father of the children executed his will, he underwent DNA tests in 2005 and 2006 which revealed to him for the first time that he was their biological father. Although the claimants were in fact born long before the execution of their father's will, they claim that non-marital children, only known or acknowledged by their father after execution of his will, should be accorded the same presumption of inadvertent disinheritance as an after-born child and extended the same rights.

Generally, a child is entitled to after-born rights only if born after execution of the will. There is no reported exception to the rule other than for a child adopted after the execution of a will, even though born previously.

The statute itself speaks clearly of a child born after the execution of a last will. The claimants argue that the meaning should be extended to a non-marital child who is known or acknowledged by the deceased father only after execution of his will. However, a Brooklyn Probate Lawyer said the court is not at liberty to conjecture about, add to or subtract from words having a definite and plain meaning. To engraft exceptions where none exist are trespasses by a court upon the legislative domain. When a statute is free from ambiguity and its sweep unburdened by qualification or exception, a court must apply the language as it is written.

The 2007 amendment to the EPTL specifically restricts a non-marital child's entitlement to a non-marital child, born after the execution of a last will. The court may not ignore a statute's language in an effort to derive or construct a legislative intent that could easily have been articulated by the Legislature when it drafted the amendment. The court will not exceed its authority by reading the claimant's language into the statute. It is accordingly concluded that claimants are not entitled to any rights under the after-born statute.
Legitimate and illegitimate children are often not treated equally and even children from the same set of parents often encounter unequal treatment. If you are one of the many children who feels that you deserve more than what you were given and you doubt the authenticity of a last will, consult a Kings County Will Contest Attorney and a Kings County Probate Lawyer. If you also need the expertise of Kings County Estate Administration Attorney, feel free to call the office of Stephen Bilkis and Associates.

June 17, 2012

Beneficiary Contests Last Minute Change to Will

A man died at age 84 and he is a resident of Westchester County. The man’s sole heir is his 15-year-old granddaughter who is the daughter of his estranged son who predeceased the man in 2004. A New York Probate Lawyer said the man was also survived by 10 nieces and nephews, including the complainant nephew and the opponent niece. The man had been married twice, with both marriages ending in divorce — the second of which was finalized shortly before the man's death.

The following pertinent facts have been gleaned from transcripts of pre-trial testimony given by the nephew and the niece and from affidavits submitted on their behalf. Around October 2004, shortly after the man underwent quadruple by-pass surgery, the man's second spouse, left the man and purportedly seized nearly $140,000.00 of assets held in a joint account in their names. Over the next two years, the man was beset with numerous physical ailments such as pneumonia, broken shoulder, diabetes and kidney-related problems, which caused him to be hospitalized and undergo physical rehabilitation on numerous occasions during that period.

Shortly after the second spouse left him, the man contacted the nephew, who was the man’s personal accountant since the late 1990's, in order to gain his assistance in trying to recover from his second wife the proceeds from the joint account. At that time, the man informed his nephew that under his then-existing will (executed in or around 1993), he had bequeathed his entire estate to his second wife, and he wanted to change his testamentary plan to bequeath his estate to his nephew and/or his nephew's son. Thereupon, the nephew who resides in Rockland County contacted her counsel of record in the instant proceeding — with whom petitioner has had a mutual professional relationship for client referrals since the late 1990's.

The nephew’s counsel agreed to assist the man in pursuing his claim to recover the assets from the joint account and, following a meeting with the man, the nephew’s counsel prepared a draft of a new will for the man. However, shortly after the draft was prepared, the man expressed to petitioner his dissatisfaction with certain aspects of his nephew's counsel’s legal services. Thereupon, the nephew contacted a female attorney who is a distant cousin of the nephew's spouse — whose law office is located in Rockland County. The nephew dispatched a copy of her counsel's draft to the female attorney, who adopted the draft in preparing a testamentary instrument for the man. On December 30, 2004, at her law office, the female attorney supervised the man's execution of the 2004 instrument, pursuant to which the man bequeathed his entire residuary estate to his nephew, and in the event that his nephew predeceased him, to the spouse of his nephew, and in the event she predeceased the man, to his nephew’s then-living issue. The will also nominated the nephew to be the sole executor and the nephew's spouse as successor/alternate executrix. The will also specifically disinherited the man’s second wife, for having abandoned him without justification and specifically disinherited any issue of the man’s estranged son, due to the man's estrangement from his son and his son’s children. The complainant nephew acted as liaison between the female attorney and the man in arranging for the man's execution of the 2004 will by transporting the man to the female attorney’s office; being present when the man executed the will; and by paying $150.00 to the female attorney for her services and was not reimbursed therefore.

Subsequently, in or around early 2005, the opponents assumed primary responsibility for assisting the man in many aspects of his daily routine, including paying his bills, managing his medication and health care assistance, scheduling his medical appointments, and acting as liaison between the man and the law firm which the man ultimately retained to represent him in the divorce action that his second wife had commenced against him. During this time, the man decided to appoint his niece as his attorney-in-fact and his health-care proxy. In conjunction with that decision, while he was hospitalized for a shoulder injury he had sustained, the man executed a testamentary instrument under the supervision of two attorneys from the law firm.

Also, at or around that time, the man executed a power of attorney and health-care proxy in his niece’s favor. Under the 2005 will, the man specifically revoked the 2004 last will and bequeathed the sum of $10,000.00 to his nephew. He also bequeathed his entire residuary estate to his niece, and in the event she failed to survive him, the residuary estate will go to the man’s nephew. The 2005 will also appointed his niece as sole executrix and his nephew as alternate executor. The 2005 last will also specifically disinherit the man’s second wife.

In early or mid-February 2006, during a conversation between the man and his nephew at the man’s home concerning his ongoing efforts to recover the proceeds from the joint account, the man informed his nephew of the existence of the 2005 last will. According to the man’s nephew, during the conversation, the man told him that the man’s niece had pressured him into signing the 2005 last will while he was in the hospital. Upon learning the information, the nephew contacted the law firm and requested that a copy of the 2005 last will be sent to the man's home. When he received the copy a day or so later, the man’s nephew went over the terms of the 2005 last will with the man and, upon the man's expression of discontent with the terms, the nephew suggested that he execute another will. During the conversations, the nephew discussed with the man that the man owed him between $10,000.00 and $15,000.00 for various loans that his nephew had made to him and for the unpaid professional services that his nephew had performed for him, and the man indicated to his nephew that he wanted to divide his estate between his nephew and his niece, in percentages of 60% to his nephew and 40% to his niece. At the time of the foregoing conversations, the nephew assisted the law firm in reviewing the man’s assets for the purpose of negotiating a settlement of the divorce action that the man’s second wife had commenced against him.

In mid-February 2006, the man contacted the female attorney and advised her that he wanted to execute a new will, virtually identical in many respects to the 2004 last will that she had previously prepared for him, except that the man now wanted his residuary estate to be divided between his nephew and his niece, in percentages of 60% to his nephew and 40% to his niece. The female attorney drafted the 2006 last will in accordance with the man's instructions, and forwarded a copy of the draft to the man’s nephew to give to the man.

On February 23, 2006, as the nephew was driving the man to the female attorney's office to execute the 2006 last will, the man suddenly informed her nephew that he wanted him and his niece to split his residuary estate in equal 50% shares. At that point, the nephew contacted the female attorney through her cellular telephone, and after providing her with the background information attendant to the man’s execution of the 2005 last will, informed her of the man's requested adjustment to his residuary disposition. Long Island Probate Lawyers said the female attorney who has drafted the last will and/or supervised the will execution ceremonies on an average of two to five occasions annually since 1991, made the requested revision prior to the man’s nephew and the man’s arrival at her office.

Brooklyn Probate Lawyers said when they arrived, the female attorney met privately with the man, at which time the man expressed his concerns to the female attorney about the propriety of the 2005 last will he had executed in the hospital. According to the female attorney, from conversations she had with both the nephew and the man, even though she had not prepared a family-tree diagram of the man's relatives, the man made her aware that his only son had predeceased him and that he had a grand-daughter. During their private conference, the female attorney went over each and every term of the 2006 last will with the man thoroughly and upon his approval thereof they rejoined the complainants in a conference room to commence the execution ceremony.

The nephew of the man and the proponent of the last will executed on February 23, 2006 moved for summary judgment to dismiss the objections to probate and to his prospective appointment as executor filed by the opponent, the niece of the man, who opposes the motion. The motion is granted in part, and denied in part.

The objection seeking the nephew's disqualification as executor due to his want of understanding, dishonesty, and unfitness for the execution is dismissed
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June 16, 2012

Beneficiaries Bring Will Contest Action

On this proceeding, the beneficiaries of a woman asked for an order to suspend the verdict of the court with regards the admission to probate to the woman's will. A New York Probate Lawyer said they also asked to vacate the letters testamentary issued to the woman’s caregiver. They also requested to grant them the opportunity to examine the attesting witnesses to the will, directing that objections be filed within a reasonable amount of time after the completion of the examination of witnesses and staying the administrator of the will from disbursing the estate proceeds. The abovementioned motion’s is opposed by the woman’s caregiver.

The aforesaid woman died seven months after the execution of her will. Her husband predeceased her and she never had any children, biological or adopted. Apparently, the woman was survived by her six beneficiaries who reside in Australia. The woman’s caregiver originally filed a petition for the validation of the woman’s will and asserts that the woman had no successors. On the probate petition of the caregiver, she states that she was the woman's live-in companion, the beneficiary of woman's entire estate, as well as the designated administrator. Further, the only other individual named by the caregiver as a person interested with the woman's assets is her sister, a resident of Ukraine. The caregiver’s sister was listed as the successor beneficiary of the woman's entire assets and the nominated successor as the administrator. Additionally, the petition reveals the woman’s address as the caregiver’s address.

On the basis of the information provided by the caregiver, an initial letter was issued however the court directed the caregiver to submit a family tree. The caregiver consequently submitted an affidavit stating that she wasn’t aware of any person capable of giving a family tree. The caregiver further advised the court that the woman spoke occasionally with someone and was also visited by another man but she didn’t know whether the two persons were related to the woman. Consequently, the counsel for various members of the woman's family advised the court by letter that the woman had performed a will in which members of the woman's family and the family of her late husband was named as the beneficiaries and co-administrators. A copy of the will was provided to the court, but counsel advised the court that the original signed document had not been located. The counsel then stated that the family members intended to prove that the given will was obtained by the caregiver by means of fraud and undue influence. Moreover, they alleged that the woman was not of sound mind or memory, not capable of making a will and that the will was not properly completed. Afterwards, the copy of the letter was sent to the caregiver’s counsel. Brooklyn Probate Lawyers said the letter also accused the caregiver of committing perjury when she made sworn statements in her petition that the woman left no heirs. As a result, the counsel of the woman's family demanded that the petition for probate be modified to reflect the woman's beneficiaries.

The caregiver filed a permission to change her attorney and after two months, she filed again another permission to change to another attorney. Consequently, the caregiver filed a revised petition where she was not listed as an interested person. Yet another amended petition was then filed on and in that last version, the caregiver acknowledged the existence of the six alleged beneficiaries. The court did not require that a supplemental citation be served on the newly acknowledged beneficiaries and a notice of appearance on their behalf had previously been filed. The caregiver's attorney did not provide the counsel of the woman’s beneficiaries with a copy of the second revised petition or advise him or his clients that it had been filed.
The caregiver’s attorney asserts that sometime he telephoned an associate of the opposing counsel with the intention of inquiring whether the 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.

The caregiver's attorney had decided to grant the validation of the will and a notice of settlement was served personally on the office of the counsel of the woman’s beneficiaries. Consequently, no objections were filed within five days of the date of personal service. On the basis of the information contained in the second amended petition, the will offered by the caregiver was admitted to validate.

In support of the motion to vacate the decision of validation, Bronx Probate Lawyers said the opponent argues that the motion should be granted as the opponent had previously indicated that they seek to avail themselves of the right to file objections to the validation of the will presented by the petitioner and further believe that the proceedings should take place prior to the court making any determination on the objections to be filed by the opponents. They further assert that it will never happened as the opponents were unaware of the filing of the second revised complaint by the petitioner as the same was never served on their counsel and the opponent’s counsel erroneously believed that the notice of settlement served by the petitioner was for the re-issuance of temporary letters of the validation of the will.

In opposition, the caregiver's attorney argues that the motion must be denied, as it does not meet the standard established by the court of appeals. Bases on records, a probate decree should be vacated only if the complainant can demonstrate the facts constituting a substantial basis for challenging the offered will and a reasonable probability of success on the merits of its undue influence claim.

The opposing counsel argues that the complainants did not meet the requirements for relief from a judgment or order. On the five categories of relief, the counsel of the complainants apparently argued that the situation surrounding the failure to timely file the objections to probate give rise to an excusable default. In support of the position, the complainant's counsel points out that the caregiver's attorney requested that the complainant’s counsel permission for the extension of temporary letters, but then served him with a notice of settlement for full letters, without any prior notification of the change in strategy and neglected to send him a copy or give notice of the second amended petition filed with the court. The complainant’s counsel states that he was away from the office when the notice of settlement was received and further claims that he reasonably assumed that the notice of settlement was for the previously agreed upon extension of preliminary letters and therefore did not object. The counsel also asserts that he was waiting for the second amended petition to be filed, after which he intended to proceed on behalf of his clients.

Consequently, even after a will has been admitted to probate, the court may examine the issues concerning its validity and effect. Under the unique facts presented in the case, the court is not presently satisfied as to the genuineness of the woman’s will. For that reason, the court vacates its decision that permitted to probate the woman's will. The court also vacates the letters testamentary issued to the caregiver and will reissue preliminary letters testamentary to her. The caregiver stays as administrator from making distributions or expending any funds she may have already distributed to herself and the matter will appear on the court's calendar for conference.

If you know someone who needs immediate help with her estate related lawsuits or last will and testament, contact Stephen Bilkis and Associates for advice and a free consultation.

June 14, 2012

Family Brings Estate Administration Action

A woman resident of Israel died. She was survived by her husband and three children. The middle child filed a petition for letters of estate administration. The middle child’s petition alleged that her mother was an heir of the estate of her uncle and that the Chase Bank, which was the administrator of his uncle’s estate, failed to fully distribute the estate's assets. The middle child petitioned for letters of estate administration to pursue the claim. The youngest daughter consented to her sister’s appointment. The eldest daughter of the woman who resides in Israel was served by mail and defaulted. Letters of estate administration were issued to the middle child of the deceased woman.

Eight months later, the middle child brought a proceeding to compel the bank to account for its administration of his deceased uncle’s estate. Shortly thereafter, a New York Probate Lawyer said the eldest daughter initiated proceedings in Israel to probate her mother's will. The instrument left the deceased woman’s estate to her husband. If the husband predeceased her, the middle child receives $1 and the rest of the children will receive the balance of her estate in equal shares. The husband had died as a resident of Israel. His will was admitted to probate in Israel. Under his will, he left $1 to the middle child, $3,000 to the youngest daughter and the balance to the eldest daughter. The eldest daughter is the executrix of her father's will and the nominated executrix under the proffered Israeli will of her mother.

The middle child filed objections in Israel to the probate of the Israeli will on the ground that her mother lacked testamentary capacity. Brooklyn Probate Lawyers said she also brought a proceeding in Israel to vacate the decree probating her father's will. The eldest daughter and the bank, acting as trustees of the trust created for the deceased woman under the will of another brother, moved to vacate the letters of administration issued to the middle child. They claimed that the letters should be vacated because the deceased had a will, there were material misstatements in the petition for letters of administration, and she was not fit to serve as fiduciary.

The middle child and the youngest daughter have adopted identical positions in the estate litigation. For purposes of clarity, the court referred to their actions and positions as those of the administrator. The middle child filed an answer, alleging that the bank had no standing in the proceeding and that there had been no material misstatements of fact in the petition for the letters of administration. She claimed that their sister and the bank instituted the proceeding to vacate her letters of administration for their own nefarious reasons. She filed the instant order to show cause to enjoin the eldest daughter from prosecuting the probate proceeding in Israel but she did not reply to the motion.

A non-resident who commences a proceeding in New York confers personal jurisdiction on the court. In a proper case, it includes the authority to enjoin a party from prosecuting a related action in any other state or country. Bronx Probate Lawyers said the only question is whether the administrator has presented a proper case for injunctive relief.

An application for injunctive relief is addressed to the discretion of the court. To obtain a preliminary injunction, the applicant must show that he or she is likely to succeed on the merits, he or she risks irreparable injury without the injunction, and the equities favor the granting of an injunction. Injunctive relief is a drastic remedy. Accordingly, the applicant must show a clear right to relief.

The middle child has failed to establish a right to relief on a number of grounds. The application for injunctive relief is procedurally defective. The administrator seeks injunctive relief in a motion. The court cannot grant injunctive relief on an application made by motion only. To grant injunctive relief, the administrator must claim some right to affirmative relief. In her answer, the administrator does not seek affirmative relief. Without a pleading seeking affirmative relief, the court cannot grant injunctive relief. The requirement of an affirmative pleading is especially critical where the granting of the application would leave the issue of the validity of the deceased person’s will in permanent limbo. The administrator seeks to enjoin their sister from proceeding in the only court where the issue is raised. The result would be to, in effect, deny probate to the Israeli will without any hearing on the merits.

Lest the middle child be under some misapprehension, even if the objections were amended to request affirmative relief, injunctive relief is not available on the facts of the case. It is not clear that the court has the authority to entertain a petition to deny probate of a foreign will. There is no express statutory authority for such a suit. The law authorizes proceedings to probate a foreign will, as long as there is property to be administered.

Restraint of a foreign proceeding is such extraordinary relief that it should only be granted in exceptional circumstances. The middle child claims that the Israeli proceeding is fraudulent. There is nothing in the record to support the conclusive allegation. The fact that there has been a substantial delay in offering the instrument for probate is not evidence of fraudulent intent or delay that invokes the equitable doctrine of latches.

The middle child claims that her sister conspired to conceal medical evidence that would prove her mother lacked testamentary capacity. The only medical evidence identified is a letter from one of their mother's treating physicians to her New York trustee describing the need for funds for her condition. This letter has been furnished to the applicants pursuant to this court's decision in a related will contest trust accounting.

The middle child argues that Israeli probate procedure does not provide for comprehensive discovery. In support, she attaches an affidavit by an Israeli attorney that Israeli law does not include extensive pretrial procedures and many of the procedures allowed by law are not often used. The fact that the rule in the foreign state as to evidence is less liberal than that of New York is not sufficient to take the extraordinary step of enjoining a probate proceeding in the state of the domiciliary. Nor is the claim that the applicants will be required to incur the inconvenience or expense of litigating in foreign court sufficient to grant an injunction against the foreign proceeding.

The middle child argues that the Israeli proceeding should be enjoined because it threatens to interfere with the court's jurisdiction and her mother’s estate administration. She claims that the eldest daughter brought the Israeli proceeding as part of a scheme to deprive the middle child of standing in her suit against the bank. On a superficial level, she is correct. It is always the case that the probate of an instrument after letters of administration are entered will affect the estate administration. Prosecution of the Israeli probate proceeding will not affect the authority of the court to determine the administrator’s claims of malfeasance in the estate of the deceased brother. It will only determine the appropriate parties to the estate litigation.

Finally, the middle child argues that the Israeli proceeding should be enjoined because Israeli courts will not accord comity to New York's granting of letters of administration. However, comity is not a strong factor where probate is involved.

If New York courts would not apply comity to refuse to entertain the probate of the will of a non-domiciliary where letters of administration were issued by a sister state where the deceased was residing, there is no reason for the Israeli courts to apply comity to refuse to entertain the probate petition of the will of a domiciliary merely because the court has issued letters of estate administration.

For the above reasons, the application for an injunction prohibiting the eldest child from prosecuting in Israel the proceeding to probate the instrument dated January 12, 1987 is denied.

Family disputes arise when properties are not properly distributed however, there are situations that one particular child is trusted more than the other. When you encounter these kinds of situation, you may contact a Kings County Probate Lawyer or a Kings County Will Contest Attorney. Stephen Bilkis and Associates can also provide you with the most sought after Kings County Estate Lawyer to help you with your property related legal actions.

June 12, 2012

Court Rules on Status of Joint Will

The Facts:

On 17 October 1967, a husband and a wife (“wife-one”) executed a joint will.
On 27 September 1971, the wife died and the joint will, insofar as her estate was concerned, was admitted to probate in Kings County (for estate administration; estate litigation). At the time of her death, the husband and the wife owned as tenants by the entirety, two parcels of real estate and had a bank account in their joint names in a Brooklyn bank.

On 20 November 1972, the husband contracted to sell one of the properties (the “Clarenton Road property”) for $32,750, all cash. A New York Probate Lawyer said that on 26 December 1972, he got re-married to defendant-one (“wife-two”). On 3 March 1973, the husband and defendant-one contracted to buy certain real property (the “Forest Green Property”) for $44,785, that is, $26,785 cash over a mortgage of $18,000. On 30 June 1973, the husband closed the sale of the aforesaid property and on 3 July 1973, with the proceeds from the sale thereof, closed the purchase of the new property, taking title thereto in his name and defendant-one as tenants by the entirety.

On 7 November 1974, the husband died and the joint will insofar as his estate was concerned was admitted to probate in Richmond County. Brooklyn Probate Lawyers said at the time of his death, the husband owned the Forest Green property as tenants by the entirety with defendant-one, the Avenue D property in his own name (as wife-one, with whom he had owned said property as tenants by the entirety, had pre-deceased him), two bank accounts in his name jointly with defendant-one in which there was $305.50 at the East River Savings Bank (emanating from the husband’s and wife-one’s bank account in Brooklyn), and $148.32 at a Trust Company, the monies of which were contributed solely by the husband. It was alleged that furniture in the home of the husband and defendant-one was purchased by the husband with $4,065 from the proceeds of the sale of the Clarendon Road property.

Neither wife-one nor wife-two ever worked or made any contribution to the purchases of Clarendon Road, Avenue D, the bank accounts or the purchase of the furniture at the home of the husband and wife-two/defendant-one.

On or about 26 February 1975, plaintiffs commenced the instant action. The theory of the complaint is that the joint will executed by the husband and wife-one, plaintiffs' parents, imposed a contractual obligation upon the survivor to dispose of his or her assets, upon his or her death, to plaintiffs. The plaintiffs seek a declaration of their rights with respect to their father’s estate.

Long Island Probate Lawyers said the complaint consisted of four causes of action, as follows: to impress a constructive trust upon certain real property; to void the right of election filed by defendant-one under section 5-1.1 of the Estates, Powers and Trusts Law as surviving widow of the husband; to impress a constructive trust upon the proceeds of a pension plan the husband had with the City of New York, which were paid to defendant-one as designated beneficiary at the husband’s death; to impress a constructive trust upon funds which, prior to the death of wife-one had been in savings and/or checking accounts in the joint or individual names of the husband and wife-one, and upon other personal property which had been in the joint and/or individual names of the husband and wife-one prior to wife-one’s death, which the husband thereafter transferred to himself and defendant-one as joint tenants.

Trial Term dismissed the complaint on the grounds that the joint will did not expressly impose a restriction on the disposition of property during the lifetime of the surviving spouse and that the joint will may not be enforced as a contract, for want of adequate consideration.

Plaintiffs appeal; an action for a declaratory judgment.

The Ruling:

The trial court was in error.

It has been held that two persons may validly agree to dispose of their estates in a particular way and may embody their agreement in mutual wills or a joint testament. A will is, of course, always ambulatory and revocable until death; however, one so inclined may bind himself a mutual or joint will to dispose of his estate in a specified and agreed manner. If, in violation of the agreement so made, one of the parties to the joint will executes a new one, the latter is recognized as his last testament, but the courts will require its executor and beneficiaries to perform the contract of their decedent. Indeed, to permit the one who survives to gain the benefits of the joint will and then to flout its provisions in violation of the promise made to the other would be a mockery of justice. The principle, supported by reason and equity, has been followed in this State as well as in other jurisdictions.
Notably, each (testator) was at liberty during his lifetime to use his own (property) as he saw fit, short of making a different testamentary disposition or a gift to defeat the purpose of the agreement, which was that upon his death each was to leave the property of which he was then possessed in the manner agreed upon.
Here, the joint will executed by the husband and wife-one strongly suggests an enforceable obligation upon the survivor to dispose of his property pursuant to paragraph "Second" because throughout, the plural pronouns "we" and "us" and not "I" are used, and further because the beneficiaries under the will, other than the testators themselves, are their children. As was said in another connection, the whole writing may be instinct with an obligation imperfectly expressed. If that is so, there is a contract.
The court has recently ruled in a specifically enforced contractual obligations created by a joint will whose language is virtually identical to the will executed by the parents of plaintiffs herein. The following language from that opinion is apropos: While the mere existence of a joint testament may not in and of itself serve to establish the agreement, the language used by the testators or the circumstances surrounding it is suffice to spell out a contract, particularly in the case of a joint will executed by a husband and a wife or by parents interested in providing for their children.
The defendants' contention that all of the assets of the husband and wife-one were provided by the husband and that therefore the husband could dispose of his property as he saw fit is of no moment. The husband’s property during his marriage to wife-one was held in both their names and upon her death; he received and became the owner of all the property in his own name. The husband, of course, was free during his lifetime to use the property so received but he could not make a testamentary disposition contrary to the agreement or a gift, as he did here, to defeat the purpose of the agreement.
Moreover, the defendants' attempt to distinguish the case on the ground that the husband did not execute a separate will after wife-one’s death is irrelevant since, as indicated above, the husband could not defeat the agreement embodied in the joint will by making a gift or gifts to his second wife. There was consideration sufficient to enforce the agreement, found in the mutual promises of the testator/testatrix to have the survivor dispose of the property to their children upon his or her death. Had the husband pre-deceased wife-one, it was surely his intention that wife-one, upon her death, should devise and bequeath the property to plaintiffs.
Therefore, defendants' various contentions in support of the claim that the joint will did not create an enforceable contract are rejected. Reliance by the trial court on EPTL § 10-6.2(a)(4) was error as this section refers to the "Exercise of a power of appointment; conformity to directions of donor", and is inapplicable to the case here.
The court notes that the Clarendon Road property sold by the husband was property which he and his deceased wife held as tenants by the entirety.
The general rule is that an estate by the entirety can be conveyed or encumbered only by the joint deed or consent of the husband and the wife, and neither can, without the consent of the other, convey or encumber any part of an estate by the entirety so as to affect the right of survivorship in the other, but where either a husband or a wife survives, such survivor may dispose of the property as he or she sees fit. However, in this case we recognize a restriction on the right of the survivor husband to make an unfettered disposition. The court holds that the rule as to disposition of properties owned by tenants by the entirety is changed. The court merely says that a husband and a wife who are tenants by the entirety may, by joint will containing an exchange of promises, provide for the ultimate disposition of property held by them as tenants by the.
On defendant-one’s right of election under section 5-1.1 of the Estates, Powers and Trusts Law, the court concludes that such election is unavailable against any property, real or personal, which is subject to plaintiffs' entitlements under the joint last will and testament of the husband and wife-one.
Henceforth, the judgment of the Supreme Court, New York County is reversed, on the law, and the complaint reinstated, without costs; judgment is granted in favor of plaintiffs.
To know more of your rights under circumstances similar to the above, contact a Kings County Probate Attorney or a Kings County Will Contest Attorney, among others, at Stephen Bilkis & Associates. Our firm offers its assistance by providing you with free legal consultations to help you with your legal struggles.

June 3, 2012

Petitioner Requests Preliminary Letters

A man died on October 28, 2006 leaving a will dated April 27, 2006. The man’s last will nominates an attorney and a friend as executors. He was survived by his two adult children. The man’s friend renounced his appointment.

The will provides that the man’s entire residuary estate shall be distributed to his woman companion. The will specifically disinherits the man’s children. The attorney assigned as executor has petitioned for preliminary letters testamentary.

By order to show cause, the man’s daughter seeks an order denying the issuance of preliminary letters testamentary to the attorney; disqualifying the attorney from serving as executor of the estate; removing the assigned attorney executor as the attorney for the estate; compelling the attorney to comply with discovery demands previously served; compelling the attorney to produce and file with the court an alleged 2004 will of the man; appointing a guardian ad litem to represent the interests of the deceased man’s two infant grandchildren named as beneficiaries in the prior will; appointing the daughter as executor since she was alleged named as executor in the 2004 will; staying the issuance of preliminary letters to the attorney in pending a hearing on the order to show cause; and adjourning the law examinations. The decision addresses only the issue of whether preliminary letters should issue to the attorney.

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

The court said that although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator's will. A person not named as an executor has no standing to seek preliminary letters. Moreover, the law provides that where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner.

A testator's wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Preliminary letters may be denied, however, where the nominated executor's eligibility is at issue. Where there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that the dishonesty makes him ineligible. Generally, Bronx Probate Lawyers said that mere conclusive allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters. Further, if it is in the best interest and protection of the estate and its beneficiaries to appoint a fiduciary other than the nominated executor, temporary letters may issue to the Public Administrator.

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

The 2006 will dispenses with the filing of a bond. Brooklyn Probate Lawyers said that even if the will dispenses with the filing of a bond, the court may require a bond if extraordinary circumstances exist. Preliminary letters testamentary shall issue to the attorney upon his duly qualifying under the law, to serve without bond.

Assigning someone outside of the family to serve as someone else’s last will executor mean that person is trusted. If you were named as someone else’s executor for last will and testament and you find it difficult to unite the family members, feel free to seek the assistance of New York Probate Lawyers from Stephen Bilkis and Associates.

June 2, 2012

Court Decides Jurisdiction Issue

In an action to recover damages for medical malpractice and lack of informed consent, in which the accused Medical Center commenced a third-party action against the woman as successor executor of the estate of her husband. The woman appeals from an order of the Supreme Court which denied her motion to dismiss the third-party complaint based upon her allegation that her status as personal representative of the estate of her husband was terminated by operation of law.

New York Probate Lawyers said that on July 18, 2002, the complainant underwent surgery at the Medical Center and the woman’s husband served as the complainant’s anesthesiologist. The anesthesiologist died and his father, as the executor of the anesthesiologist’s estate, petitioned the Surrogate's Court to have the will admitted to probate. The petition to admit the will to probate stated that the anesthesiologist died while a resident of New York, and that his wife was named in the will as successor executor. By decree, the will was admitted to probate and letters testamentary were issued to the anesthesiologist’s father. Thereafter, the father died.

The complainants commenced the main action against the Medical Center. The Medical Center commenced the instant third-party action against the wife, as successor executor of the anesthesiologist’s estate, seeking common-law indemnification. Brooklyn Probate Lawyers said the complainant, a resident of Colorado, retained Colorado attorneys. On behalf of their client, the law firm entered into a stipulation with the Medical Center, in which the complainant admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for the anesthesiologist. The stipulation also stated that the Medical Center will seek no recovery from the Estate of the anesthesiologist except to the extent of any professional liability insurance available to the Estate of the deceased anesthesiologist.

Long Island Probate Lawyers said by notice of motion, the complainant's newly-retained attorney in New York moved to dismiss the third-party complaint, based upon the complainant's affidavit stating that he had been designated as Successor Executor of the Estate of the deceased anesthesiologist, but the Estate was closed, and his role was extinguished in 2006. Her attorney also submitted an affirmation acknowledging that the woman had been personal representative for an Estate which was domiciled and probated in Colorado, but claimed that her appointment terminated in 2007, pursuant to Colorado law which provides that, if no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates. No documents were submitted in support of the complainant’s claim that her status as personal representative had terminated. In opposition, the Medical Center noted that in Colorado to close an estate, assuming there was one in Colorado, you have to file papers. No such papers are annexed to the motion.

In the order appealed from, the Supreme Court denied the complainant’s motion on the ground that she failed to establish that at the time of service the estate had been closed under laws of Colorado.

The complainant acknowledges that she had been appointed the personal representative for the anesthesiologist’s estate, which was resident and probated in Colorado. A complainant may commence an action in New York against a foreign executor, that is, an executor residing in another jurisdiction. Further, the complainant did not submit any evidence that a closing statement was in fact filed closing the estate, or any other evidence that her appointment terminated. In view of the foregoing, the Supreme Court properly determined that the complainant failed to establish that she was no longer the personal representative of the estate at the time the third-party action was commenced. The complainant's remaining contentions either are without merit or need not be addressed in light of full determination.

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May 30, 2012

Court Decides Legal Fees for Estate Administration

The Facts:

A decedent was survived by his wife, an adult son who is the petitioner herein, and four adult grandchildren. A New York Probate Lawyer said the decedent's wife is a person under disability and her interests are being represented by a guardian ad litem appointed for that purpose by the court. Although SCPA 1404 examinations were demanded by the respondents, the examinations were never conducted, the parties having promptly entered into settlement negotiations.

The propounded instrument bequeaths the entire estate to the decedent's lifetime trust, which in turn leaves the entire estate to petitioner, to the exclusion of the surviving spouse and grandchildren. The parties have entered into a stipulation of settlement, subject to the court's approval, which permits the will's admission to probate, effectively guarantees the surviving spouse her elective share, and distributes the net estate after payment of debts, administration expenses, and the elective share, into two parts, one part to be distributed to the petitioner and the other to be divided equally among the grandchildren.

Following the probate proceeding, the court is satisfied that the proposed stipulation is in the best interests of all parties concerned and the stipulation is accordingly approved.
Now, the court must determine an appropriate fee for the guardian ad litem.

The Ruling:

The court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the estate administration or estate litigation. Bronx Probate Lawyers said this remains true even in the event that the parties have consented to the requested fee. The Surrogate is obligated to limit the attorney's fees to reasonable amounts regardless of any agreement made by the attorney with the interested party. The retainer agreement is merely some evidence of the reasonable value of legal services. 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 Moreover, when multiple attorneys are employed by the fiduciary of a decedent's estate, the aggregate fee should approximate what one attorney would charge. Some overlap in services may necessarily occur, and should be a factor when considering the aggregate fee. There can be some exceptions or stretching of this rule, for example, where the separate counsel does separate work, where counsel are under time pressures, or where there are complex or exceptional circumstances.

The court, in evaluating the cost of legal services, may consider a number of factors, viz: the time spent; the complexity of the questions involved; the nature of the services provided; the amount and complexity of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services.

The court, in discharging this duty to review fees, cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements as set forth. Also, Brooklyn Probate Lawyers said the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem. Moreover, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation.

On another note, a guardian ad litem is entitled to a fee for his or her services rendered. The aforesaid factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee. Normally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets.

A sizeable estate permits adequate compensation, but nothing beyond that. A large estate does not, by itself, justify a large fee. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed. This also applies to the fee of a guardian ad litem.

Here, the value of the decedent's estate at death was approximately $506,000.00. Debts and administration expenses total approximately $44,400.00, leaving a net estate of approximately $461,600.00 against which to calculate the elective share. The stipulation of settlement provides that the spouse will receive the sum of $154,000.00, which is greater than her one-third elective share. In his affirmation of legal services, the guardian ad litem avers that he spent approximately 31 hours on the matter. His services included: interviewing the attesting witnesses to the will, one of whom was the attorney who drafted the instrument; visiting his ward; ascertaining the value of the estate and determining the value of his ward's elective share; participating in settlement negotiations among counsel for the petitioner and the grandchildren as well as three court conferences; and preparing and filing his interim and final reports.

Henceforth, considering the foregoing, the fee of the guardian ad litem is $7,500.00, to be paid from the spouse's elective share.

The loss of a loved one isn’t easy. Engaging and being involved in litigation is, all the more, harder. At Stephen Bilkis & Associates, we can help you. We can provide you with the legal expertise you need. Contact us now and have a free consultation with our Nassau County Estate Administration Attorneys or Nassau County Probate Attorneys.

May 25, 2012

Peittioner Challenges Jurisdiction of Probate Proceeding

This is a probate case involving the last will and testament of Daniel Joseph Roach. The case is being heard in the Surrogate’s Court of Suffolk County in the state of New York. The petitioner and proponent in the case is Mary A. Hennessy. She is represented by Joseph L. Callahan. The respondent in the case is Daniel Joseph Roach Jr. He is represented by the law firm of Fennelly & Fennelly from New York City.

The respondent in this case, Daniel J. Roach Jr. is appearing especially in front of this court to challenge the jurisdiction in regard to the probate proceeding of the decedent, Daniel Joseph Roach. The respondent states that at the time of his death, Daniel Joseph Roach was a resident of Kings County and therefore the probate should be held in the Kings County Surrogate Court.

Facts of the Case

The facts of this case are not being disputed. A New York Probate Lawyer said it is known that the decedent was committed to the Kings Park State Hospital on the 26th of April in the year 1954. In August of 1954, Daniel Joseph Roach was determined to be an incompetent person by an order that was issued by the Supreme Court of Kings County. This order stated that the decedent was a resident of Kings County.

The order made by the Supreme Court declaring the decedent as an incompetent person also appointed Mary A. Hennessy, who is from Huntington, which is located in Suffolk County, as the committee for the person and the property of the incompetent Daniel Roach. The decedent passed away on the 29th of March, 1955, while he was a patient in the Kings Park State Hospital.

Mary A. Hennessy, who remains a resident of Huntington in Suffolk County was named as the executrix in the will left by the decedent. She is the petitioner in this case.

The question before the court is whether the decedent passed away as a resident of Kings County or Suffolk County.

Court Discussion and Decision

The court has reviewed all of the facts of the case that have been presented. Bronx Probate Lawyers said that upon review of the case the court has determined that the decedent was a resident of Kings County at the time of his death. In the matters regarding the will of the decedent, probate should be issued in Kings County.

The objection that is made by the respondent is sustained. Brooklyn Probate Lawyers said that the petition for probate in the Surrogate Court of Suffolk County is dismissed. The petitioner will need to move the petition for probate to the Surrogate Court of Kings County for this particular case.

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May 21, 2012

Court Interpretes Zoning Ordinance

The complainant operates a manufactured home park on real estate he owns in a residential zone in Chemung County. Residents of the park place manufactured homes on lots leased from the complainant. A New York Probate Lawyer said in 2009, the complainant's estate administration manager approached the accused, the Town Enforcement Officer, to inquire about obtaining a building permit to install a manufactured home owned by the complainant on a lot in the park to be offered for sale to the public. The accused Town Enforcement Officer advised the complainant that the proposal was a commercial use prohibited by the Town Zoning Code. The complainant then applied to the Town Zoning Board of Appeals for an interpretation of the ordinance. After a public hearing, the Zoning Board of Appeals determined that the complainant's proposed use was prohibited. The complainant commenced the proceeding to annul the determination and Supreme Court dismissed the petition. The complainant appealed.

The Town Zoning Code defines a manufactured home park as a parcel of land under single ownership which is improved for the placement of mobile homes and manufactured homes for non-transient use and which is offered to the public of two or more mobile and manufactured homes. In a provision entitled Commercial Sale of Mobile and Manufactured Homes, the zoning ordinance provides that a mobile and manufactured home park shall be established for the purpose of permitting habitation of such mobile or manufactured homes. Bronx Probate Lawyers said no sales lot or area shall be used for the purpose of selling mobile or manufactured homes. Relying upon the emphasized language, the Zoning Board of Appeals found that the complainant’s proposal to place an unoccupied manufactured home on a lot for sale would have the effect of transforming the said residential lot into a dedicated lot or area for the commercial sale of a mobile home and was an illegal commercial sale of a mobile home within a residential district. The Zoning Board of Appeals further distinguished the complainant’s proposal from sales of mobile homes by individual owners in anticipation of moving and finding that such casual sales did not violate the ordinance but nonetheless would have to be monitored on a case by case basis.

The Supreme Court accorded deference to the decision of the Zoning Board of Appeals, but that heightened standard was not merited. Brooklyn Probate Lawyers said a fact-based interpretation of a zoning ordinance that determines its application to a particular use of property is entitled to great deference. However, deference is not required when reviewing a pure legal interpretation of terms in an ordinance. The meaning of the term sales lot or area in the ordinance at issue presents a purely legal question in which no deference to the Zoning Board of Appeal's interpretation is required.

A statute or ordinance is to be construed as a whole, reading all of its parts together to determine the legislative intent and to avoid rendering any of its language superfluous. Unambiguous language is to be construed to give effect to its plain meaning. Applying these principles to this ordinance, its plain language does not support the Zoning Board of Appeal's interpretation.

The purpose of the complainant's proposal — by which a manufactured or mobile home would be affixed to a residential lot within the park and then sold to be inhabited on that lot — is plainly that of habitation. Thus, it does not fall within the use prohibited by the ordinance — that is, the designation of a sales lot or area that has no residential purpose, but is dedicated instead to the display of model homes to be inspected by potential buyers and ultimately resided in elsewhere. To construe the language otherwise would render the adjective sales in the phrase sales lot or area superfluous. As the complainant's proposed use does not violate the Town Zoning Code, the Supreme Court's judgment is reversed.

Even if our intentions are good, sometimes we don’t get the support of the people aroundus. If you are intending to pursue an estate related lawsuit, whether it involves an estate litigation, trust or probate, feel free to consult an Estate Attorney or an Estate Litigation Lawyer from Stephen Bilkis and Associates.

May 3, 2012

Defenant Appeals Jury Verdict

In this case, Scott H. See Jr. is the appellant. Baltic Estates, Inc. are the respondents.

History

A New York Probate Lawyer said this case involves the recovery of damages for personal injuries. There was another action that was tied to this one, but the two were eventually consolidated. With the limitations involved in his brief, the plaintiff makes an appeal against an order issued by the Supreme Court of Dutchess County which was entered in July of 2008. This order denied a motion that the appellant made which moved for the dismissal of a verdict reached by a jury. The conclusion reached by the jury had been on the side of the defendant in regards to the liability in the case. The appellant contends that the majority of the evidence should have lead the jury to rule in his favor instead of falling on the side of the defendant, which he feels is grounds for a new trial. By the same token, he appeals against the judgment made by the court on February 24th, 2009. This ruling was also in favor of the defendant.

Results

The appeal against the order issued as a result of the jury verdict was dismissed. The appeal against the other order passed by the same court at a later date was also dismissed, and the ruling of the original judgement affirmed in any aspect that was appealed against by the appellant.

Further, a single bill of costs is awarded to the respondent. Brooklyn Probate Lawyer said the reason that this appeal has to be dismissed is because no right of direct appeal exists for the appellant. Once the judgment from the original action was entered, the direct right of appeal no longer applied.

Also, the only reason that a jury verdict should be dismissed is if the verdict they reached appears to be impossible. That is to say, that if any fair and reasonable interpretation of the evidence put before a jury can indicate the reasoning of their ruling, then the verdict should never be set aside. Going against a jury verdict simply because someone argues that the majority of the evidence seemed to be on their side is a more complicated matter.

Basically, the jury in this case was presented with two separate versions of events. These events both claimed to be factual in nature, but were in conflict with each other on several points. This means that the only way for the jury to reach a verdict is to interpret the data given to them as best they can. As long as they do this in a fair manner, the ruling should be upheld.

Therefore, Long Island Probate Lawyers said that the plaintiff's movement that, pursuant to CPLR 4404(a), the jury verdict that ruled in the favor of the original defendant should be set aside because most of the evidence presented at the original hearing favored the plaintiff has to be denied on these grounds.

Stephen Bilkis & Associates offers legal services throughout the metropolitan area of Manhattan. If you find yourself in need of legal advice, whether it is a will contest, estate administration or trust, you may contact one of our offices to set up an appointment for your free consultation. Our lawyers will help you determine what your best course of legal action will be based on your current situation.


May 2, 2012

Court Rules on Breach of Contract

The plaintiff in the case is Island Estates Management, while the defendant is MBA-Manorhaven, LLC.

History

A New York Probate Lawyer said the plaintiff had an agreement to buy a property from the defendant, based on a contract signed in December of 1998. A deposit of $350000 was placed to secure the purchase, but the final purchase price was to be based on how many units got approved for the subdivision. Island Estates had an option to review the property which was to last 60 days. During that window they could terminate the agreement if they chose. That agreement was extended, in writing, several times, a fact that neither party argues.

The agreement also includes obligations on behalf of the buyer. For example, Island Estates had a year to get a zoning permit so that subdivision could go forward. Brooklyn Probate Lawyers said the seller also had thirty-days to provide written notice to cancel the agreement and refund the deposit. This couldn't be exercised if the failure to meet milestones was beyond the control of the buyer. However, the buyer had a maximum of two years to meet these milestones unless they paid $100,000 for an extension, which they did not.

A problem arose when environmental contamination was found on the property; although MBA-Manorhaven had not represented that there was such according to Island Estates. Long Island Probate Lawyers said it was agreed that along with extending the deadline that MBA would pay for the cleanup costs of the site up to the amount of $400,000, while Island Estates would pay any amount beyond that up to $600,000, while anything beyond that would be shared 50/50.

Island Estates alleges that MBA-Manorhaven breached their contract by failing to provide bills showing the amount of the cleanup costs, and also that they did not complete the cleanup as required in the agreement. Based on the various portions of the agreement, closing of the deal would not be completed until Island Estates received the Special Use Permit and Site Plan. However, that would not be issued until the environmental conditions were improved. MBA-Manorhaven is using that breach of contract as its reason for termination of the contract. Island Estates would like to instead close the deal.

Submitted as evidence that MBA-Manorhaven has a poor track record of cleaning up environmental problems was the claim that the DEC stated that MBA-Manorhaven has “...not always been as aggressive about remediating pollution as they have been about debating its existence...” That statement and the elapsed four year period shows that MBA-Manorhaven did not take sufficient action to correct the problem of the environmental status of the property.

When a party breaches a contract, they are not permitted to use their own breach as a reason for canceling the agreement. Essentially, MBA-Manorhaven sought to get out of any obligation they might face simply by failing to conform to their responsibilities in the agreement. This would not be an act of good faith, and is why the defendant's request to dismiss the case must be denied.

According to the initial contract, if the cleanup costs were going to be more than 2 million, then either party could cancel, unless the other party notified them within a time limit that they would pay for costs in excess of that amount. MBA-Manorhaven sought to cancel, but within the time limit, Island agreed to pay the costs, rendering that cancellation invalid.

Results

None of the reasons given by MBA-Manorhaven was able to create a valid reason by which they could cancel the contract with Island Estates. As a result, the defendant's move to dismiss the case is denied. Further, the counsel for both sides of the contract was ordered to move to a conference that would start in motion the proceedings of completion of the original deal.

Stephen Bilkis & Associates offers legal services throughout the metropolitan area of Manhattan. If you find yourself in need of legal advice, whether it is for a will contest, estate administration issue or probate matter, you may contact one of our offices to set up an appointment for your free consultation. Our lawyers will help you determine what your best course of legal action will be based on your current situation.


April 28, 2012

Court Decides Real Property Dispute

In this case, Roxrun Estates, Inc. et al, are the respondents-appellants, and the Roxbury Run Village Association, Inc et al., is the other appellant-respondent and defendants.

Background

A New York Probate Lawyer said in 1972, Roxbury Run Corporation proposed to build a 500-unit townhouse development in Delaware County. A declaration was drawn up which laid out the rights and responsibilities of the owners who would purchase units in the development, as well as the property owners' association. The Roxbury Run Village Association was created for the express purpose of building and looking after the various common areas, including recreational areas, which would be utilized by the members of the development. Two types of members were included in the association. Class A were owners of improved property. Class A members received a vote for every improved unit. Roxbury Run, on the other hand, was entitled to three votes as a Class B member for every property they owned. By December of 1979, all Class B memberships were to cease, after an amendment was made to the original agreement moving that date back from 1982.

RRVA operated by charging special charges and maintenance fees. Roxbury Run only had to pay 15% of those maintenance fees, but full price on special assessments. 2/3rds of the class A members and the class B member had to agree on a vote to increase the costs of anything more than 5%. In 1982, the total size of the development was reduced to 250 total units, and Roxbury Run agreed to only have two directors on the board of the RRVA. Roxbury Run also agreed to only ever be entitled to 99 votes no matter the actual votes they should be allowed. Bronx Probate Lawyers said the Roxrun Estates then purchased 130 of the unimproved lots as long as they only had to pay either 15% or $6.06 for maintenance costs.

Problems arose when the maintenance cost was increased to $85 on each unit. A special assessment was also levied at the cost of $750 on each unit. Roxrun Estates had a member present, but was not allowed to vote with the 99 votes; instead, he only had 1 vote and was told that Roxrun would be obliged to pay the full amount as other owners.

Several actions commenced, the conclusion of which was that RRVA was granted a summary judgment in favor of foreclosure and Roxrun estates filed for bankruptcy. This stayed the foreclosure sale, but eventually, Bankruptcy Court allowed the RRVA to purchase the lots that were previously owned by Roxrun Estates.

A problem emerged because bankruptcy court did not examine whether or not the lien on the property was actually valid. Brooklyn Probate Lawyers said the problem revolves around the fact that the validity of the voting rights that Roxrun Estates asserts needs to be established, because if they were correct in their claim of voting rights, the liens based on the assessments for would never be levied because Roxrun would have been able to vote down those fees.

Results

Upon further examination, Roxrun Estates was a Class A member. Class A members, and henceforth, Roxrun Estates, were really only allowed to cast a single vote at the meeting which increased the costs that would be paid for maintaining the units. Therefore, the validity of the lien and the bankruptcy hearing were valid.

However, it is also important to note that RRVA claimed that the Supreme Court should not have allowed Roxrun Estates to only be liable for 15% of the maintenance fees. The problem is that a provision in the original agreements states that fees should be assessed in the same way but didn't have to be equal. Therefore, Roxrun Estates was entitled to pay less for maintenance because it costs less to maintain an unimproved lot.

Stephen Bilkis & Associates offers legal services throughout the metropolitan area of Manhattan. If you find yourself in need of legal advice, and need a Will, or have a probate, or estate litigation matter, you may contact one of our offices to set up an appointment for your free consultation. Our lawyers will help you determine what your best course of legal action will be based on your current situation.


April 26, 2012

Court Decides Validity of German vs. U.S. Will

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

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

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

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

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

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

The argument has a superficial appeal, but that is all. It may well be that the vesting order in and of itself deprived the son of all right or interest in the Foster trust and, if that is so, he will never be able to share in that trust. However, Long Island Probate Lawyers said that the Surrogate's decree admitting the husband’s will to validation created a further obstacle to his son's sharing therein. Before the entry of the decree, from which the son appealed to the Appellate Division, he had to overcome only the vesting order. After its entry, he had also to overcome the force and effect of the document offered by the petitioners. This is sufficient to constitute the son as an aggrieved party.
The decedent spent most of his life in Germany, died a resident of Germany and executed the will in question in that country in the German language and in the form prescribed by German law. Since the validity and effect of a will of movables is determined by the law of the state in which the deceased died resided, the question of the effect of the destruction of the will should be governed by German law.
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April 25, 2012

Court Determines Which Will to Submit to Probate

The guardian of the decedent’s estate has filed for a petition and requested the court to allow the probate of the alleged will. The petition also contained that a fee should be established by the court.

The testator of the will and testament has passed away. He left his wife and 3 children his estate. The widow was named the guardian as stated in the decedent’s will. The widow at that time is afflicted with dementia. The two older sons of the testator were also named as co-guardians for their mother.

A New York Probate Lawyer said the two sons requested a probate of a specific will. A few months later, they filed another probate on another will and requested that the previous motion be denied by the court.
The first in will in question contained provisions that the testator’s tangible assets be awarded to his wife. His older sons were also named as the executors of that will. The other testament in question allegedly contained specifications that the personal assets and residences of the testator will be given to his wife. This particular will have named the wife as the trustee and executor. The two sons in this will were named as the alternate executors and trustees.

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

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

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

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

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

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

A New York Probate Lawyer can assist you in preparing your estate litigation. Contact the offices of Stephen Bilkis & Associates for a consultation. A New York Estate Attorney is reliable and trustworthy when it comes to legal representation.



April 22, 2012

Guardian Charged with Gross Negligence

A guardian for an old man is accused of gross negligence, malpractice, inaction, unlawful and breach of authority relationship regarding his conduct and/or lack thereof in exercising a certain right of election on the old man’s behalf against the last will and testament of his deceased son.
The claim for compensatory and disciplinary damages results, allegedly, from the defendant's failure as guardian of the father to have taken steps necessary to have enabled his ward to exercise his personal right of election against an excessive testamentary gift for educational purposes. While this probate proceeding concerned the will of the son who died, the facts herein involved concern the estates of three deceased because, as will appear more fully below, soon after the son died, the mother died and shortly thereafter, the father died.

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

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

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

The validation proceedings of the son's and mother's wills were adjourned from time to time in the Surrogate's Court pending settlement discussions relative to the objections filed and then a written agreement of settlement was entered into among the preliminary executor of the son's estate, the preliminary executor of the mother's estate (who was the father's former guardian) and the plaintiff-administrator of the father's estate. Bronx Probate Lawyers said several individual beneficiaries of these properties also joined in the settlement agreement. This agreement settled the objections to validation filed against the son's will and the mother's will. As part of the consideration for this settlement agreement, the estate of the mother assigned to the estate of the father the elective share which the mother had sought to enforce with respect to the excessive educational gift made in the son's will to the University of Detroit and further agreed to pay to the father's estate.

The complaint now made by the plaintiff, the administrator of the father's estate, essentially charges the defendant, the lawyer who served as the father's guardian in the validation proceeding relating to the son's will, with having intended to deprive his ward, the father, of the father's right to inherit from the mother's estate and with further injuring his ward by 'failing' to take the steps necessary for the appointment of a committee for the father to protect the latter's interest in the son's estate through the exercise of the father's right to elect against the excessive educational gift made in the son's will to the University of Detroit.

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

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

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

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

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

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April 18, 2012

Heir Brings Will Contest Action

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

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

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

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

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

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

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

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

Stephen Bilkis & Associates with its NY New York Probate Lawyers will help you to know your rights and the rights of your love ones.

April 11, 2012

Court Decides Appropriate Fee for Guardian ad Litem

A decedent was survived by his wife (a person under disability represented by a guardian ad litem), an adult son (petitioner) and four adult grandchildren and the issue of a predeceased child. Under the decedent’s will, his entire estate was left to the decedent's lifetime trust, which in turn leaves the entire estate to petitioner, to the exclusion of the surviving spouse and grandchildren.

Subsequently, a stipulation of settlement was entered into by the parties which was then approved by the court for the best interest of all parties concerned. The approved settlement permitted the will's admission to probate (estate litigation or will contest), effectively guarantees the surviving spouse her elective share, and distributes the net estate after payment of debts, administration expenses, and the elective share, into two parts, one part to be distributed to the petitioner and the other to be divided equally among the grandchildren.

The question now is the amount of appropriate fee for the guardian ad litem.

The responsibility for approving legal fees that are charged to an estate and the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate (estate administration) is left for the courts to decide, even in the event that the parties have consented to the requested fee. A New York Probate Lawyer said the attorney's fees may be limited to reasonable amounts regardless of any agreement made by the attorney with the interested party or the existence of a retainer agreement. A retainer agreement is merely some evidence of the reasonable value of legal services. While no hard and fast rule exists to calculate reasonable compensation to an attorney in every case, the court is required to exercise his or her authority "with reason, proper discretion and not arbitrarily". Moreover, when multiple attorneys are employed by the fiduciary of a decedent's estate, the aggregate fee should approximate what one attorney would charge. Some overlap in services may necessarily occur and should be a factor when considering the aggregate fee. There can be some exceptions or stretching of this rule, for example, where the separate counsel does separate work, where counsel are under time pressures, or where there are complex or exceptional circumstances.

A number of factors are considered in determining the cost of legal services, to wit:
1. time spent;
2. complexity of the questions;
3. nature of the services provided;
4. the amount and complexity of litigation required;
5. the amounts involved and the benefit resulting from the execution of such services;
6. the lawyer's experience and reputation; and
7. the customary fee charged by the Bar for similar cases.

The legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem. Bronx Probate Lawyers said all the above-mentioned factors must be in balance and that “time spent” is the least important factor considered by the court in fixing reasonable fees.

The guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem. The nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee. Brooklyn Probate Lawyers said that normally, the fee is an administration expense of an estate and is paid from estate assets.

A sizeable estate permits adequate compensation, but nothing beyond that. A large estate does not, by itself, justify a large fee. Besides, the size of the estate can even operate as a limitation on the fees payable.

The burden on 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 the determining whether the amount of time spent was reasonable for the various tasks performed. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed.

The guardian ad litem avers that he spent approximately 31 hours on the matter. His services included: interviewing the attesting witnesses to the will, one of whom was the attorney who drafted the instrument; visiting his ward; ascertaining the value of the estate and determining the value of his ward's elective share; participating in settlement negotiations among counsel for the petitioner and the grandchildren as well as three court conferences; and preparing and filing his interim and final reports.

In view of the above, the court fixed the fee of the guardian in the sum of $7,500.00 to be paid from the spouse's elective share.

You might be in the same situation as the abovementioned case. If so, know the proper amount of fees required to be paid. Contact Stephen Bilkis & Associates. Our Nassau County Estate Attorneys, particularly, our Nassau County Estate Litigation Attorneys possess the experience and expertise in estate administration. Be guided and ask a professional for assistance.

April 8, 2012

Petitioner Seeks Order Vacating Settlement Agreement

In this probate proceeding, petitioner filed a motion seeking an order of vacating a settlement agreement and a renunciation and disclaimer of its purported execution to render said stipulation effective.

Decedent was survived by his spouse, herein petitioner, and two children of decedent from prior marriage as respondents to the probate proceeding in Nassau County Surrogate Court.

A New York Probate Lawyer said the petitioner filed a petition for probate of decedent’s will in Nassau County Surrogate Court and preliminary letters testamentary was issued in her favor. Decedent's son was represented counsel and negotiations for settlement proceeded between parties to the case. The dialogues resulted in a stipulation of settlement. Settlement stipulated that a certain asset plan of the decedent be divided equally among the spouse and two children of the decedent in trust. The will provided that residuary estate be allocated as follows: 65% to the spouse, 25% to the daughter, and 10% to the decedent’s sister.

Decedent did not designate any beneficiary to the plan and, under its terms, the spouse became the beneficiary by default. Petitioner had no knowledge that she was considered the default beneficiary of the plan of the decedent believing instead that it was the decedent’s estate who is the plan’s beneficiary. Decedent’s spouse further alleged that her counsel made inquiries about the terms of the plan and, before any information was acquired by her, she already renounced her share in the interest of the plan in excess of the agreed share in the settlement. Had she known that she was the sole beneficiary, she would not have made such renunciation in the first place.

In the opposition file the respondents, they claimed that the settlement agreement expressed the true intentions of the parties, petitioner’s designation as the plan’s beneficiary was irrelevant to the case because of the settlement covering both testamentary and non-testamentary assets of the decedent’s estate and that, since petitioner is appointed as preliminary executrix, she .has access to the financial records of the estate giving her time to read and review the plan prior to her renunciation. Brooklyn Probate Lawyers sai the respondents further argued that petitioner’s renunciation was irrevocable.

As stated in a settled cases by the Court, “A contract entered into under mutual mistake of fact is voidable and subject to rescission if the mistake exists at the time the contract was negotiated and the mistake is substantial, resulting in an absence of the requisite ‘meeting of minds’” between the parties. As in the issue at hand, settlement agreement is considered a contract and the same requisite applies for motion to vacate stipulation of settlement on the ground of mutual mistake.

On the other hand, respondents contended that petitioner committed negligence for not exercising due diligence in the determination of assets of the decedent wherein she was appointed as preliminary executrix. Long Island Probate Lawyers said the spouse had the opportunity to acquire knowledge that she was the beneficiary designated to the asset plan of the decedent absent of negligence and fault on her part.

Furthermore, the Court recognized the well-settle rule that "stipulations of settlement which put an end to litigation promote efficient dispute resolution and are essential to the litigation process" and also that “stipulations are especially favored where, as here, the parties have been represented by counsel.”

Considering these several factors, the Court found no sufficient ground to grant the motion to vacate of the stipulation of settlement and reliefs prayed for by petitioner. The Court, as such, denied the motion to vacate of the stipulation of settlement as well as the renunciation filed by the petitioner.

To minimize length of resolving litigations in court, parties to a case would resort to entering into settlement agreement among them. We at Stephen Bilkis and Associates have Nassau County Estate Lawyers that can help you expedite the resolution of probate litigation. One of the options you may consider is entering into stipulation of settlement among the estate beneficiaries and it is considered best that you hire the legal services of our Nassau County Probate Lawyers in order to safeguard your interest in the estate.

March 28, 2012

probate

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

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

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

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

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

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

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

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

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

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

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

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

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

March 26, 2012

Court Listens to Jurisdictional Challenge of Will

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

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

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

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

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

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

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

March 24, 2012

Court Determines Case Filed by Executor

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

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

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

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

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

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

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March 23, 2012

Court Decides Jurisidiction Between Switzerland and U.S.

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

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

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

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

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

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

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March 21, 2012

Court Hears Validation Proceeding for Deceased Priest's Will

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 20, 2012

Court Discussed Enforceability of Swiss Estate Documents

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

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

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

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

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

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

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

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

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

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

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March 18, 2012

Court Decides Jurisiction Issue Regarding Estate

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

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

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

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

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

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

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

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

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March 17, 2012

Court Decides Will Jurisdiction Issue

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

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

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

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

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

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

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

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March 14, 2012

Son Contests Mother's Will

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

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

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

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

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

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

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

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

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

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

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

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

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

March 13, 2012

Validity of a Will Questioned

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

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

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

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

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

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

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

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

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

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

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

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

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

March 8, 2012

Petitioner Disputes Will Jurisdiction

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

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

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

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

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

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

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

March 7, 2012

Court Determines Authenticity of Will

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

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

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

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

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

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

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

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March 5, 2012

Court Decides Will Contest Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 4, 2012

Court Discusses No Contest Clauses in Wills

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

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

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

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

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

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

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

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

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

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

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

February 28, 2012

Court Decides Will and Trust Dispute

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is important that we choose who to entrust with our properties with. Legal issues arise when we are not aware whether or not our legal obligations are taken cared off. If you or anyone you know get into this kind of situation, call the New York Estate Administration Lawyers at Stephen Bilkis and Associates.

February 23, 2012

probate

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

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

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

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

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

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

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

February 23, 2012

Court Decides Extensive Will Dispute

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stephen Bilkis & Associates with its legal team will help you regarding last and will testament of your loved ones. Better to seek advice and know your rights with our lawyers and we will make sure that your estate will be protected as you would want it to be.

February 22, 2012

Court Rules on Validity of Will

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

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

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

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

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

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

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

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

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

A lawyer will provide assistance in your petition for probate. Contact the offices of Stephen Bilkis & Associates today.

February 21, 2012

Beneficiaries Claim Estate Administrator is Dishonest

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

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

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

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

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

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

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

Stephen Bilkis & Associates with its skilled legal team, have convenient offices throughout the New York Metropolitan area. We can provide you with advice to guide you through situations where estate is dissipated because of another's intentional deceit. Without skilled legal counsel, you may lose your rights which may cost you a significant amount of money.

February 20, 2012

Court Rules on Allegations of Undue Influence

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

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

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

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

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

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

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

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

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

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

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

A New York Probate Lawyer is always available to assist you in your time of need. Talk to Stephen Bilkis & Associates for advice and guidance.

February 18, 2012

Court Rules on Bank Fraud Allegations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When a family member left you their hard earned assets, Stephen Bilkis & Associates with its skilled legal team will work hard with you to obtain what the law dictates.

February 17, 2012

Court Rules on Probate Issue

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

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

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

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

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

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

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

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

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

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

Lawsuits can be time-consuming and stressful. If you need legal assistance, a New York Probate Lawyer will help you file your objections for probate. Contact Stephen Bilkis & Associates for more inquiries.

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February 15, 2012

Court Rules on Complex Will Matter

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

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

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

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

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

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

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

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

Stephen Bilkis & Associates with their legal team will help you to know your rights and the rights of your love ones.

February 13, 2012

Court Rules on Complex Probate Matter

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

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

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

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

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

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

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

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

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

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

Stephen Bilkis and Associates can assist you in preparing your estate litigation. Contact our office for a consultation.

February 10, 2012

Court Rules on a Will Contest Matter

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

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

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

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

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

Stephen Bilkis and Associates are ready to help you in your estate cases. You’ll be glad to know that together with their legal team, their offices are now easily accessible all throughout the Metropolitan area of New York. They are ready to serve you and are willing to answer your legal questions.


February 9, 2012

Court Rules on a Will Contest Matter

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

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

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

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

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

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

You will also be happy to know that Stephen Bilkis and Associates together and their legal team have already established offices all over the metropolitan areas of New York. Our team will carefully assess your case to make sure that you understand everything that is involved. Without skilled legal counsel, you could lose your properties and much more. We are working for your convenience.

February 7, 2012

Can an Appeal that was Never Filed Serve as Notice of a Will Contest

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

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

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

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

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

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

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

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February 6, 2012

Court Rules on a Will Contest Matter

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

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

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

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

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

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

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

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

February 4, 2012

Court Rules on a Will Contest Matter

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

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

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

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

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

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

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

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

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

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

February 3, 2012

Court Rules on a Will Contest Matter

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

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

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

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

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

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

February 1, 2012

Court Rules on Terrorem Clause

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

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

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

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

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

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


January 31, 2012

Court Rules on a Will Contest Matter

With an Estate amounting to almost two million dollars, E. Louise Grupp died in September 25, 1992. The will that was given for probate was only dated two weeks before Mr. Grupp died. The will was dated September 11, 1992. The executors who wear named in the will were Joan E. Maloney, Esq., and Eleanor G. Dunn. There was an older will filed with the court that was dated July 9, 1992. Interested parties had examined the witnesses to the will.

The will dated September 11, 1992 sets up the $300,000 trust for Ms. Nitterauer and places another $150,000 in trust for her sons. Aside from that she gets personal effects and the testator’s house. From what Brooklyn Probate Lawyers gathered, the remaining part of the estate of the deceased goes to the Manufacturers and Traders Trust Company as trustee for the Buffalo Foundation to be held as a perpetual charitable fund in memory of Mrs. Grupp and her late husband. Nine charities are assigned as income beneficiaries of fund assets in various percentages totaling 95% of net income, with the recipients of the remaining 5% to be selected by the Foundation. If the foundation fails to qualify as a charity or any of the other named organizations then the trustee will select from qualifying charities.

A terrorem clause was also in this will. That if anyone contests the probate or any part of the will, their interest will be forfeited, and it will be treated like that person died before the testator.

The court had said that they have to determine if that will dated September 11 will be treated as the will for Mrs. Grupp. According to a New York Probate Lawyer, it is the Surrogate court that determines the validity of a will. The will is not admitted if there is the lack of capacity, lack of due execution or undue influence. The courts typically refuse to address the ‘no contest’ clause before the probate. The court will interview the will witnesses and the lawyer. The Surrogate Court determined that is the will for Mrs. Grupp.

The terrorem clause was not very clear. This gives the petitioner an additional risk. It does not say specifically if all the people in the will be disinherited or only the person who opposed the will. A Bronx Probate Lawyers said that the court had good and compelling reason to deviate from the Davis rule. There were several differences with the Davies case. There were also concerns that the most-recent will is totally different from the planning goals of the testatrix who was to save on estate taxes to increase the legacies to certain individuals. The court was moving towards construction. In this way, they can ascertain the intent of the testator as to his will. It must be in the will itself.

Mrs. Grupp had intended for the charities to benefit as it is also showing on the prior will. As with the ‘no contest’ clause, they determined that if the deceased really wanted for all parties to be deprived, then she would have added words to that effect. The court is concerned about if Mrs. Grupp wanted even the charities to forfeit if the will is questioned. The court determined that the ‘no contest’ clause will not include the charities if in case the will was questioned as in previous will it has always been part and always first.

The last will and testament may be ambiguous at times, and sometimes you have questions which one will apply. Stephen Bilkis and Associates can assist you in the determination and give you expert legal advice. They will go through the step by step probate with you to make sure you are getting what should be for you. They will make sure you understand and see to it that what should be given to you is given to you.

At Stephen Bilkis & Associates, we have the best legal team anywhere in New York or Long Island. We know it is hard to get what is due to you when other people do not have your best interest at heart, we do. To get a free consultation call us at 1-800 NY - NY- LAW.

January 25, 2012

A conservator is a person appointed by court

Ruth Bricker, Charles Ballon and the United States Trust Company submitted a counter-application regarding the preliminary letters sent to them for the last will and testament of Anna Lazarus. In the will submitted by Abraham Lautman to the court for probate, Mr. Lautman and United States Trust Company were named as executors. In their petition, Mr. Lautman’s eligibility to serve hold and oversee the assets of Ms. Lazarus is questioned. The company is agreeing to act alone and not together with Mr. Lautman.

From the information was obtained by a New York Probate Lawyer, United States Trust Company alleges a number of misconduct on Mr. Lautman’s part while acting as the decedent’s attorney-in-fact and co-conservator while she was alive. An attorney-in-fact is a person who is legally authorized to transact business-related transactions in behalf of another. A conservatorship is where a person is appointed by court to oversee and mange the financial affairs of a person who is considered as under a legal disability. It is also required that part of the financial accounting is submitted for review. It is said the Mr. Lautman did not submit his records to his co-conservators, including the documents and assets of Ms. Lazarus. He is also charged with preventing access to Ms. Lazarus’ apartment, drawing checks that are payable to himself or cash, and wrongful investment of funds owned by Ms. Lazarus in Great Britain.

The court if there is a good cause may reverse the instruction of a will to make a person an executor of the estate. In the preliminary letters issued, it is required that it is in its original form. This does not remove the court’s authority for a wise discretion in determining who will be part of the execution of the will. Nassau County Probate Lawyers said that leaving out a person named in a later will do not require a full hearing. It can be determined with affidavits as a basis or through a summary hearing. The court says that they prefer to avoid a contest within a contest. The legislature also wants an uncomplicated probate hearing. This is to save on cost and time for the court, and the parties concerned.

A commentary by the Chairman of the Committee on Simplification of New York Probate was cited. It says that nothing is really served by contesting preliminary letters. Appointing a person to take care of the estate immediately is to protect the estate that is the reason why preliminary letters are sent to people mentioned in the will and any addition.

In their decision, the court stated that due process asserts that Mr. Lautman as a named executor, have the chance to answer questions on his ineligibility. There is also no petition that has been submitted to question the validity of the last addition where Mr. Lautman was named. To avoid multiplicity, Brooklyn Probate Lawyers mentioned that the court will wait for any contest to the will. If just in case the will or the addition to the will is contested and the probate denied, which is known to happen, then the condition where Mr. Lautman is an executor is gone. If there is no contest on the will, counsel will notify the court and a hearing on eligibility will be set.

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October 27, 2011

This is a case file by William Power Maloney

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

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

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

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

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

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