New York Probate and Estate Administration Blog

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.

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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.

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In this case, David Preminger is the plaintiff. The Jamaica Estates Holding Corporation is the defendant-appellant. Mark Labib et al. are third party plaintiffs-respondents. The Jamaica Estates Holding Corporation et al. are third party defendant-appellants, while Schrier Fiscella and Sussman, LLC is another third-party defendant.

History

On May 16th of 2008, the Supreme Court of New York County issued an order regarding a real-estate contract. A New York Probate Lawyer this granted the request that had been made by David Preminger for a summary judgement. He had requested that the real-estate contract be closed within 60 days of the Supreme Court issuing its conclusion. Jamaica Estates made a counter-motion which requested that this claim be dismissed, but the counter-motion was denied.

Around April 2008, another order was entered by the Supreme Court. This order granted the request made by the Labibs. The Labibs requested summary judgements against Jamaica Estates as well. This was in regard to a later contract regarding the sale of the same property. The Labibs made a claim for damages because they had made a deposit which was held in escrow by a law firm. A New York City Probate Lawyer said this was ordered released with interest on top of the fee within 10 days of the order. Finally, it was required that the funds generated from the deal between Jamaica Estates and Mr. Preminger be held until the court issued another order. This was all so ordered.

A great deal of documentary evidence was submitted in order to verify the claims. The Premingers and Labibs both submitted very similar paperwork in order to prove the rightness of their respective claims. A Long Island Probate Lawyer said the contracts of sale were provided, as well as replicas of the original down payment checks. Several letters were also provided. The Jamaica Estates' lawyers wrote letters which cancelled both contracts, and these were submitted, as were letters from the representation of both Preminger and the Labibs. These letters were sent to Jamaica Estates and objected to the termination of the original purchasing contracts, and asserted the rights of the buyers under the terms of those initial agreements. This also established the basis for the claim that Jamaica Estates should be found to have breached their contracts.

Jamaica Estates asserted that the original contracts gave it the right to unilaterally cancel the contract if any liens on the property couldn't be removed within an acceptable amount of time when compared to the anticipated closing date of the deal. This was not the case. The contracts actually offered the option to the buyer in this situation. The buyer had the option to buy the property even when the title was not completely free and clear, as long as any proceeds from the sale went towards freeing it from any obligations held currently against it.

Jamaica Estates also made another argument regarding insurance on the property. It claimed that both of the plaintiffs were required to acquire an affidavit from an insurance company. Jamaica Estates claims that this was to prove that the property would have qualified for insurance if the deal had closed successfully. However, this was unnecessary, because the proceeds of the sale under the terms of the original contract would have provided easily enough funds to remove any obligations that were levied against the property.

Results

Jamaica Estate's movement to dismiss the claim against them was denied.

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

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

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

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

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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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. 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 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. Long Island Probate Lawyers said the petitioners must present sufficient proof that the issues raised by the public administrator have no legal basis.

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

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

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

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

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

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

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

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

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

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

It is true that the parties are not all in agreement respecting the man’s residence. Two of the contestants allege that he was a resident in Central America. The Attorney General of the U.S. State and a special guardian of infant parties allege U.S. State as his residence. However, no person claiming the U.S. State residence desires to bring into court the man’s residence concern as a preliminary issue in the process of the proceeding. The U.S. court would have jurisdiction whether the deceased man was a resident or being a non-resident, he died without leaving personal property within the county upon a motion for a preliminary trial of residence. The Attorney General appears to be the only party to the proceeding contending that the deceased died a resident of the U.S., and he joins in opposition to the motion stating that the question is not relevant to the matters in controversy as to the validity of the paper considered as the deceased man’s last will. The court agrees in the conclusion and holds that the Petitioner has failed to demonstrate the necessity for determination of the issue of residence.

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

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

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

Insofar, the motion to seek a hearing to determine the location of the securities left by the deceased man is denied. The property in the hands of the temporary administrator not only has a location within the County of the U.S. State, but is actually being administered under the supervision of the court and is actually and physically before the said court.
Records revealed that it is argued by the Petitioner that the authority of the U.S. court to entertain a proceeding for the process of administering the will of a non-resident is limited to those properties where no original administration proceeding is pending at the residence of the person who made the will. In the discussion of the question of jurisdiction of the U.S court, it is assume, without deciding the point, that the deceased man was a resident of a Country in Central America. In this property, a proceeding to determine the validity of the will is pending in Central America, which, for convenience, shall be referred to as the residence of the deceased. It cannot be said that this court lacks jurisdiction to entertain the probate proceeding and that, as matter of law, the proceeding must be dismissed.

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

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

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

A New York Probate Lawyer said 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. A Long Island Probate Lawyer said the first affected only the inheritances to both and the second affected the interests of all excess recipients. All the excess recipients became necessary parties to establish the validity of the will. Eventually it developed that these excess recipients would number over 250 people, most of who lived in Switzerland.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A man died survived by his spouse. He left a will which then became the subject of a probate (will contest) proceeding. Certain documents were sought to be produced which then became the subject matter of the present case.
Two issues were raised during the estate litigation, to wit:
1. Whether or not the instruments sought were privileged matters between the widow and her attorney; and
2. Whether or not a joint representation (by the attorney) exists between the spouses (the decedent and his spouse or widow).

A New York Probate Lawyer said the court held that the subject matter by its very nature was not confidential and was to be disclosed to the decedent in that the decedent and his wife both submitted information to the attorney to prepare wills for each of them; that the husband supplied some of the information to the attorney on behalf of his wife and there are some mutual provisions under the widow's will and the will simultaneously executed by the decedent. While they are not mutual wills, they nonetheless were prepared simultaneously by the same attorney, and executed in the presence of the same witnesses and are of such a nature as to foreclose any claim that the information was privileged. While the contents of a person's will should not be readily discoverable by third parties and should be confidential, the controversy herein was not between the decedent's widow and a third person but between the widow and her husband's estate."
On the issue of joint representation, it has been held that where two or more persons consult an attorney for their mutual benefit, the attorney-client privilege cannot be invoked in any litigation between such persons or their descendants; rather, it may be invoked in any litigation between them and third parties. The starting point for the court's analysis was the 4 February 2009 agreement where the parties agreed, by stipulation, to submit to the court for in camera inspection in addition to the documents ordered to be submitted. This agreement made it clear that the decedent and the widow obligated themselves to certain provisions regarding a joint estate plan. They agreed to include certain provisions in their respective wills and that it "shall inure to the benefit of and shall be binding upon the heirs, executors and administrators (for estate administration) of the parties." Such agreement appeared to have replaced prior agreements between the decedent and the widow. The widow could not have had a reasonable expectation of privacy concerning the documents at issue. It is belied by the fact that she was a party to an agreement which bound her to effectuate a joint testamentary plan with the decedent.

Moreover, both the letters offered into evidence were addressed solely to the decedent. Both begin with "[t]he following is a summary of your estate plan". Both refer to the "provisions of the above-mentioned agreement." Long Island Probate Lawyers said the notes from January 30, 2009 similarly reflect the existence of the agreement. The agreement concerning a joint estate plan had been in place at the time of the correspondence and meeting.

Manhattan Probate Lawyers said he cases cited by the preliminary executors of the instant case are unwarranted. The production of the widow’s will was not sought but the un-redacted copies of two letters addressed solely to the decedent and notes from a meeting at which the mentioned agreement as well as both of their estate plans were discussed. The case cited does not find application in the present case. It was a proceeding to determine the validity of the surviving spouse's right of election and not a probate proceeding.

As a result, the un-redacted copies of the two (2) letters, the attorney notes and the agreement was ordered to be provided to the respondent.

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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.

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In January 13, 2007, the father died survived by 11 children: three from the first marriage, four from the second marriage and four alleged non-marital children. The purported will was offered for probate benefits only one child from the first marriage, Angela Manning, who inherits the entire estate and named executrix.

Allegedly, in June 24, 1996, the deceded executed his will. In that he underwent a DNA tests in 2005 and 2006 which revealed that he is the biological father of the claimants who were born long before the execution of the decedent’s will. They claim that the only the non-marital children known or acknowledged after the execution of the will shall be presumed to be inadvertently disinherited as an after born child with whom the same right shall be extended.

Normally, a child is entitled to after born rights if born after execution of the will. There is no exception to this rule other than for a child adopted after the execution of a will, though born previously.

A New York Probate Lawyer said that the statute is unequivocal and thus creates a presumption for a testator who 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 unprovided for by some settlement, the after-born shares in the gift to existing children . This statutes speaks of a child born after the execution of a will.

Jurisprudence provides otherwise but this was amended thereby stating that 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. Westchester Probate Lawyers said this took effect only after the death of the decedent but clearly that it supersedes all other laws.

The amendments restricts the non-marital childs entitlement to a non-marital child, born after the execution of a last will. Thus, this Court cannot deviate from the language of the law and cannot accord other meaning other than what the statute provides. The Court shall not exceed its authority beyond what the law provides. Thus, under the after-born statutes, claimants has no rights.

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A New York attorney applied for letters of administration upon the request of the executor of a will. The said executor is also the beneficiary and a nephew of the decedent who was a New York resident at the time of her demise. Upon closer observation of the will, it was noticed that the beneficiary also stood as witness to the execution of the same as shown in the document. Under New York law, a witness cannot be a beneficiary at the same time and this is to avoid among others undue influence from coming into the picture in the execution of the will. This is the only question poised that must be determined by the court in this preliminary estate administration proceeding.

The facts of the case showed that the decedent was a resident of New York. She visited her nephews in Canada and there executed a will in front of 2 witnesses that included the designated executor-beneficiary. In the will, the decedent specifically designated her nephew as the sole beneficiary of her estate relating to personal property and also assigned him as the executor of the same. A New York Probate Lawyer said when the time for presentation of the will came, jurisdiction was acquired by the court over the persons of the 2 other nephews of the decedent but they decided not to participate in the proceedings. A consent and waiver from the other brother was obtained and as such there was no will contest that can hamper the proceedings from commencing under normal circumstances save for the perceived defect in the document as regards the formalities required by the law when it comes to the valid execution of a will.

The petitioner in this regard presented proof of the applicable laws in Canada. He argued that since the instrument was executed in the said country, then the formalities required in executing a will is controlled by the law of the place where it was executed. He argued further that since the will is valid where it was executed, then it must also be treated as valid in New York such that the formalities required by New York law in the execution of a last will and testament should not apply in this particular case. Long Island Probate Lawyers said that the nephew assigned as sole beneficiary-executor can also be a witness at the same time in the said instrument is not irregular under Canadian Law even if the same is not permitted in New York should not be an issue as the place where the instrument was made and deemed to have complied with the requirements must always be given weight.

In deciding the issue of whether or not the will can be probated in New York given the obvious non- conformity with the essential formalities required by New York Law, and taking note that there was is estate litigation in the particular case, the court ruled that the New York Law pertaining to this particular case was enacted for the purpose of discouraging the witness in the execution of a will from having any interest in the estate of the testator. That a witness being devoid of any interest in a will, necessarily would testify only on the truth pertaining to the execution of the said instrument. New York City Probate Lawyers said that the court further declared that it is in conformity to the argument presented by the petitioner and also explained that an instrument that is considered valid in the jurisdiction where it was executed must also be considered as validly executed in New York. Consequently, the court declared finally that the instrument is valid and issued a decree that the will is to be admitted to probate and the letters of administration is also granted to the petitioner.

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A man executed a will in January 23, 1962. In this will the man made bequests of jewelry and personal property; devises of real property; and a trust to his widow. The value of the gifts and benefits he gave to her in the will amounted to $7,500,000.00.

He also made a bequest to his four daughters in the form of a trust amounting to $1,700,000. The four daughters were to share the trust.

He also made a bequest for each of his five sons in the form of individual trusts amounting to $1,450,000.00 each.

The widow objected to the probate of the will. A New York Probate Lawyer said her objection is centered on what they claim was a typographical or fraudulent mistake made by the lawyer in making a trust for each of the sons. It should have been a trust of $1,450,000 to be shared equally among his five sons similar to the trust bequeathed to the daughters.

She claims that the trust for each of the sons was inserted without the knowledge and consent of the testator. Or, in the alternative, the widow asserted that her husband had no understanding and knowledge of the contents of the instrument. The inclusion of the words “each” and “to each” were made by the lawyer who drafted the will and was not the free and voluntary act of the testator. The widow asserted that the lawyer’s insertion of those words constituted fraud committed by the lawyer against the testator. And if the lawyer inserted the words by mistake or inadvertence then the words were still not the free and voluntary acts of the testator himself. For these reasons, she objects to the will.

Two adult sons of the testator also filed objections to the will but their position was that the will should be admitted to probate as a valid will first. After it has been admitted to probate, the question of interpreting the provisions in the will can then be tried.

The executor also moved for the admission of the will to probate except for the questioned provisions of the individual trusts to the sons. Manhattan Probate Lawyers said he claims that the estate of the testator has not enough funds to satisfy the provision of the individual trusts for each of the sons.

The Court held that it cannot give due course to the objection of the widow or the executor because these objections have no bearing on the issue of validity or due execution of the will. In a probate proceeding, the first issue is whether or not a will is valid. The objections must focus on issues that bear on the validity of the will.

These objections have more to do with the interpretations of the provisions of the will. To give due course to the objection of the widow and the executor will have the Court decide that some parts of the will were validly executed by the testator who had understanding of its provisions while some other parts of it were invalidly executed by the testator who had no understanding of the other provisions. This would lead to an absurd and contradictory finding.

So far, there is proof that the testator had testamentary capacity at the time he executed his will. He complied with the formal requirements of validly executing a will. Given these circumstances, the Court cannot inquire as to the testator’s understanding of the effect of the language of his will.

It could be, as sometimes happens that the testator gave instructions to his lawyer who drafted the will. The lawyer read the will to the testator and the testator adopted the words of the lawyer. If the lawyer made a mistake as to the words so that they do not carry out the testator’s intentions, it is the lawyer who has not carried out the testator’s instructions. It was a mistake done in good faith and it cannot affect the validity of the will.

The issue raised in the objections here is the interpretation to be given to certain provisions of the will, not the testamentary capacity of the testator. Long Island Probate Lawyers said the charge of fraud and undue influence was not substantiated. If a mistake was made, it is an error in simple arithmetic or an oversight on the part of the lawyer and the testator.

The Court admitted the will into probate and ruled that after this a hearing may be conducted on application of any interested party for the construction or interpretation of the provisions of the will.

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In this case, the only issue that has to be determined by the court is whether or not it has jurisdiction to entertain the probate of the decedent’s last will and testament.

The facts of the case state that the decedent was a resident of New York when he executed his last will and testament. The said will was executed in New York on March 24, 1974 and the executor assigned is also from New York. A few months after the will was executed and during the same year, the testator was removed from his residence in New York by his niece because he needed personal care and attention due to old age and sickness. From New York the decedent was then transferred to the place of residence of the niece which is in Pennsylvania. The following year, the niece was able to get an appointment as guardian of the decedent from a court in Pennsylvania based on the fact that the decedent then is already incompetent. The guardian later removed all the personal properties in New York leaving only the house owned by the decedent as the only estate left in New York.

A New York Probate Lawyer said that upon the death of the decedent, the named executor in the will sent to the guardian the copy of the will executed by the decedent. The lawyer of the guardian wrote back and stated in the letter that the guardian had already applied for letters of administration and that his client treats the said will as invalid. The court of Pennsylvania later on also issued the letters of administration applied for by the guardian. This started the will contest between the parties.

The named executor proceeded to apply for the adjudication of the will in New York and in the process, the court by means of citations, tried to get the side of the guardian including two more persons as heirs or assigns, on why the will should not be admitted. The guardian for her part stated that the decedent is no longer a resident of New York because Pennsylvania is already his residence and a court of the said State has already issued the applied for letters of administration in favour the guardian. A Staten Island Probate Lawyer said that in view of such, the court of New York has no jurisdiction to initiate estate administration or to conduct any hearing connected to the properties of the decedent.

In ruling upon this petition of the executor, the court said that there was irregularity in the position taken by the guardian. This is evidenced by the fact that when she applied for the estate administration of the decedent’s properties, the court in Pennsylvania was not informed that there exists a real property in New York. The said court was in effect made to decide only on the representation supplied by the guardian and was not given all the information it needed to know all the facts fully. Long Island Probate Lawyers said that in applying for letters of administration, the guardian stated in her application that the real property of the decedent is located in Pennsylvania and not New York.

The court also noted that the guardian knew of the existence of the will and she did not bring it to the attention of the Pennsylvania court and that consequently, no estate litigation in relation to the said will has been initiated and that the actual domicile of the decedent has also not been the subject of any contest in any court. Based on the above determinations, the court ruled that it has jurisdiction to accept the application for probate of the said will and this will also carry the power to determine the issue about the decedent’s domicile.

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

To whom shall the letters testamentary be issued?

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

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

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

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

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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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Skilled legal counsel will help you in your will contest case whenever you need representation and legal advice. Get in touch with Stephen Bilkis & Associates for a consultation. Our team is highly skilled in all matters concerning estate law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On March 12, 1992, Louis Rosen died in a mental facility in California, allegedly leaving behind his entire estate to Warren Silverman as his primary beneficiary. According to reports that reached New York Probate Lawyer, the last will that was left by Rosen was written during the time when he was already determined to be mentally ill. This means that the Will naming Warren to be the primary beneficiary of Rosen’s estate is invalid according to existing laws. Also, according to the evidences presented at court by the other surviving relatives of Rosen, Warren and Warren’s mother Miriam exerted excessive influence to the deceased making them the only people who had access to Rosen’s financial resources four years before he died.

Four years before Rosen died, Miriam already moved into Rosen’s apartment and took care of everything for him, including his financial affairs. This was confirmed by Rosen’s accountant because he claimed he personally saw Miriam “bossing” Rosen around. He also claimed that Miriam had access and even had control over Rosen’s bank account including his personal checks. This is one of the reasons why Rosen’s other relatives have filed a case against Warren saying that the only reason why Rosen had named him primary executor and beneficiary of all his estate was because of the influence of his mother Miriam over Rosen at the time Rosen was already mentally unstable.

The court also believed, upon seeing the evidences presented that Rosen was indeed under no mental condition to knowingly decide for himself anymore. Reports that reached a Long Island Probate Lawyers said that there are several accounts when Rosen was found lost and only in his underwear by the local police. The last time they were able to find him was in 1990 where he was taken to a nearby hospital for treatments. Friends and relatives also noticed the changes in Rosen’s behaviour, saying he was already incapable to keeping his personal hygiene. It was actually during this time when Miriam moved in and took care of everything for Rosen. It was also during this time, when Rosen made deposits, supposedly gifts to Miriam’s children amounting to almost $10,000 each. After that, he allegedly made a transfer of a staggering $1.5 million to Warren and Miriam. These supposedly cash gifts and other properties left by Rosen to Warren are what the other relatives of Rosen are now objecting to.

In 1991, Rosen was diagnosed with advanced dementia, rendering him mentally invalid to make sound decision for himself. This also established that back in 1988, he was also in no mental health condition to determine whether his actions were right or wrong. It was Miriam who was there with him thereby establishing that she can and had already used her influence on him. He was already incapable to sound decision and judgement.

Warren however objected to these accusations saying the cash “gifts” were valid and legal according to existing laws. The will contest trial lasted for nine days with dozens of evidences presented in favor of Warren as well as the relatives who filed for complaint. After careful evaluation of all evidences presented the court denied the motion to summary judgement in favor of Warren.

Nobody understands how important your properties and your estate are for you than the Westchester County Probate Lawyers. They know that you have worked hard to achieve these things and they represent your life’s work and achievements.

Stephen Bilkis and Associates together with their legal team have already established convenient office locations throughout New York’s Metropolitan areas to be able to serve you best. We are ready to give you legal advice on your properties and estate issues to give you peace of mind that your assets will remain with you and your loved ones at the most cost effective way.