January 3, 2014

Creditor Requests for Ancillary Letters of Administration

A New York Probate Lawyer said that, a person claiming to be a creditor of the decedent applies for the issuance to him of ancillary letters of administration. It is conceded that the decedent was domiciled in Ohio, and that letters of administration were issued by a competent tribunal of that State to another person. The petition alleges that the decedent left personal property in New York consisting of 'Royalty contracts of United Music Corporation.' The Ohio administrator submitted an answer on September 18, 1962, alleging that there are no assets of the decedent within the State of New York. He does admit the contract between the decedent and United Music Corporation, 'a publisher in the County of New York', but he makes the somewhat ambiguous allegation that 'no revenue or income' was at that moment due the estate except 'some writers' royalties.' He also asserts that there is no need for ancillary administration because, in his status as domiciliary administrator, he has been collecting the royalties due under that contract, and has experienced no difficulty in the prompt collection of them. He denied knowledge or information as to the validity of the petitioner's claim, and he requested that if ancillary letters are to be issued, they be issued to him. The Public Administrator asserted that his right to letters were superior to that of the petitioner and requested the issuance of letters to him. During the proceeding the petitioner conceded the superior right of the Public Administrator to letters. The matter was placed upon the calendar for hearing of the contested issue as to the existence of any asset in New York County.

A New York Will Lawyer said that, after the matter was placed upon the hearing calendar, the Ohio administrator attempted to avoid meeting that issue by going through a form of sale of all the decedent's rights under the contract. In October, 1962 he applied to the Ohio court for permission to sell all of the decedent's interest in the musical composition 'Huckle Buck', which is the composition published by United Music Corporation, and he obtained judicial permission to sell it 'at the best price obtainable'. No mention was made in that application of the proceedings in this court or of the petitioner's claim. On October 31, 1962, the Ohio administrator signed an instrument which purports to transfer to a third person all of the decedent's interest in the composition, the copyright thereto, and any extension and renewal. The consideration recited in that instrument is $2,500 and payment of that sum to the Ohio administrator was proven.

A Nassau County Probate Lawyer said that, an officer of the United Music Corporation was called as a witness by petitioner. It appears that the decedent had assigned to that corporation all of his interest in the composition, and the corporation agreed to pay specified royalties. Royalties were regularly paid during the decedent's lifetime, and up to the end of June 1961. In August, 1961, the sum of $2,137.68 was paid to the estate, presumably for the period ending June 30th. The witness testified that royalties were being held by the corporation and that for the period July 1, 1961 to December 31, 1962, the accrued royalties amounted to $2,729.73. There was a lack of agreement among counsel as to how long the copyright still has to run, and definitive proof on that question was not submitted. It appears, however, that the copyright is still in existence. We do not have proof of the precise amount of accrued royalties on October 31, 1962. That figure was always obtainable by the administrator from United Music. The only figure near that date is the $2,729.73 accrued on December 31st, just two months later. Thus it is clear that in this hasty sale, the Ohio administrator sold for $2,500 the estate's interest in accrued royalties of an approximately equal sum and also all of the estate's future interests in the musical composition, the royalties, the copyright and any extension or renewals. If the sale is a bona fide sale, it was an incredible bargain for the purchaser, who not only bought nearly two thousand eight hundred dollars at a discount but all rights to future royalties.

The petitioner's claim is based upon an alleged contract with the decedent whereby the latter assigned to him 30% of any and all moneys which the decedent received in connection with the musical composition 'Huckle Buck.' A Staten Island Probate Lawyer said the petitioner is a resident of New York. Patently the assignment or purported assignment of the decedent's interest was intended to impede or defeat the petitioner's claim.

The issue in this case is whether, under all of the circumstances here, there is any asset within this county sufficient to give this court jurisdiction to issue ancillary letters.

In allocating to the courts of the various counties the State's general jurisdiction over the property of non-resident decedents, the Legislature has revealed its recognition and acceptance of these fundamental principles of jurisdiction. Thus section 45 of the Surrogate's Court Act, which establishes the venue of proceedings in the Surrogates' Courts, authorizes court action on the estate of a non-resident only if there be property within the State on which its decrees may operate. Section 47 codifies the generally accepted rule that, for jurisdictional purposes, a debt or obligation owed to the decedent has its situs at the domicile of the debtor or obligor. 'This section', said the Court of Appeals 'embodies what has long been case law in this State. The main reason on account of which the New York law regards the residence of the debtor as the place where the asset is situated, instead of having its situs where the creditor resides, is that otherwise it would be impossible to obtain judgment against the debtor who has to be sued in a jurisdiction where he can be found.'.

In the case now before the court, United Music Corporation still holds the accrued royalties and has title to the music composition and the copyright. Whatever interest this estate administration may have in the royalties, accrued and accruing, it takes through this New York Corporation. The assignee of the Ohio administrator conducts a music publishing business in this State and he, too, is within the reach of the process of our courts. While the Ohio administrator claims that all of the decedent's interest in all of that property has been conveyed to another, the petitioner challenges the alleged transfer. There can be no doubt, under the authorities, that the jurisdiction of the State of New York and of this court extends only to the decedent's interest in this New York property and that a New York decree cannot reach or bind any property outside this State. But it is equally well settled that New York, and New York alone, has the power to reach this New York property, and to render a valid and binding decree in respect of this property. It can obtain jurisdiction also over the person of the New York Corporation and other residents of this State.

The respondent quite correctly says that this court cannot set aside the sale of the property in the present proceeding, to which the purchaser is not a party. This court is not now required to pass upon the legality of the sale or the title of the assignee. There is no doubt of the general power and authority of an administrator to sell the personal property of his intestate or of the authority of a foreign administrator to sell and assign assets of his intestate which have actual situs within this State. There can be no doubt either of the right of an estate to have set aside a sale of assets which is fraudulent as to creditors. The United States Supreme Court has said: 'The executor, though holding the title to the personal assets, is not absolute owner of them. He holds them in trust to pay the debts of the deceased, and then to discharge his legacies; and, as in all other cases of trust, he is personally responsible for any breach of duty. And property thus held, acquired from him by third parties with knowledge of his trust and his disregard of its obligations, can be followed and recovered. The law exacts the most perfect good faith from all parties dealing with a trustee respecting trust property. Whoever takes it for an object other than the general purposes of the trust, or such as may reasonably be supposed to be within its scope, must look to the authority of the trustee, or he will act at his peril.'
It is not, therefore, essential that the court now decide whether the estate could obtain a judgment in its favor against the publisher and the alleged purchaser. It is sufficient that the estate may have a claim against them. When the only asset in this State of a deceased person or his estate is a cause of action against a New York resident, it is not a necessary basis for jurisdiction to issue letters that the cause of action be first proved. It is enough that one can be asserted.

The respondent also contends that the court lacks jurisdiction in this case because the property in New York is not property that 'remains un-administered' within the meaning of section 45, Surrogate's Court Act. The case cited by the respondent and the case relied upon in that decision dealt with assets of a non-resident decedent which were brought into the State of New York by the domiciliary executor. Both decisions make it clear that the words 'and remains un-administered', as used in section 45, refer to the words 'which has, since his death, come into the state'. The property here in question has at all times been within the State. Moreover, the Ohio administrator did not attempt to take possession of this property or to take it under administration, but attempted rather to place it beyond the reach of a New York claimant. The person holding the property is retaining it until a valid judgment determines the rights of the respective claimants. The question that will ultimately have to be decided by the courts of this State is whether the Ohio administrator effectively disposed of the property or whether the estate of the decedent has an interest therein.

The application for the issuance of ancillary letters of administration is, therefore, granted. There has been no attempt to urge any disqualification under section 94, Surrogate's Court Act, of the domiciliary administrator, and, therefore, if he wishes to qualify as ancillary administrator letters will be granted to him upon his filing a bond in an amount sufficient to protect New York creditors. The fact that there may be an adversity of interest between the ancillary administrator and the individual is not sufficient to disqualify him. As the court pointed out in the cited case, in the event that the apparent conflict of interest should lead to a breach of fiduciary duties, the claimant 'will not be left without remedy'. If the domiciliary administrator should fail to qualify within ten days from the service upon his attorney of notice of entry of the decree herein, ancillary letters of administration will be granted to the Public Administrator.

Probate of a will is a complicated procedure there is a need for the expertise of a New York Probate Attorney or New York Estate Litigation Attorney at Stephen Bilkis and Associates. Call us.

December 29, 2013

Husband Files Objection to Wive's Donation to Chartities

In this Estate Litigation action, the will of the testatrix bequeathed her husband a general legacy of $2,500 and named him as income beneficiary of a trust of one-half of the residuary estate. The remaindermen of this trust are charities as also are the legatees of the remaining one-half of the residuary estate. The husband filed objections to the probate of the will and challenged the bequests to charities as violative of Decedent Estate Law, § 17.

A New York Probate Lawyer said that negotiations between the husband and the charities resulted in an agreement by the terms of which the husband withdrew his objections to probate, consented to the admission of the will to probate and renounced and released any and all rights granted to him by Decedent Estate Law, § 17. Five charitable organizations agreed, in the same instrument of settlement, that immediately upon the issuance of letters testamentary the executrix would pay to the husband the sum of $26,000. The agreement stated that 'except as in this stipulation and agreement provided, all of the provisions of aforesaid Will shall remain in full force and effect'.

The executrix now is accounting and has computed the amount of the husband's trust in compliance with the provisions of the will and has deducted the $26,000 payment to the husband from the share of the residuary estate which, under the will, is payable to charities. IA New York Will Lawyer said certain of the latter have objected to this allocation of the settlement figure and they assert that the payment to the husband under the settlement agreement should have been deducted, in the manner of an administration expense, from the full residuary estate prior to the computation of the amount of the residuary trust.

A Nassau County Probate Lawyer said the allocation for which the objecting charities contend would result in an equal apportionment of the settlement figure between the husband's trust and the charities and the effect would be that the husband would be contributing, through loss of income, to the amount which he received in settlement of the contest. While an agreement of such type could have been reached, it certainly is not spelled out in the settlement stipulation and the settlement stipulation cannot be so construed by inference.

The construction urged by the objectants fails to give effect to that portion of the stipulation which provides that the terms of the will shall remain effective. The conclusion must be reached that the charities, as principal beneficiaries under the will, considered it to their financial advantage to avoid both a contest of the will and a determination as to the applicability of Decedent Estate Law, § 17 and, accordingly, they bought their peace from the funds bequeathed to them.

Another issue arises by reason of the rejection by the executrix of the claim of a surgeon who rendered services to the testatrix. The reasonable value of these services is not in dispute and the sole question is whether the liability therefor is that of the estate or of the decedent's husband.

While the general rule is that a husband is liable for medical expenses incurred during his wife's last illness, such obligation exists only to the extent that the expenses are commensurate with the means of the husband and such liability may be assumed by the wife in her lifetime. In the instant case the decedent was a woman of some means while the husband's resources were comparatively small and his income was limited. A Staten Island Probate Lawyer said the fact that is most decisive is that the testatrix not only contracted for the doctor's services but personally paid other bills incurred during her illness. The facts bring the instant situation squarely within the Totten case and, accordingly, the claim is allowed against the estate.

In another case, a motion to dismiss was filed upon jurisdictional grounds in a proceeding for the probate of an instrument propounded as the last will of the decedent.

A New York Probate lawyer said that the decedent died in June 1961 in New York City leaving a testamentary instrument, drawn and executed in this city and naming a New York County resident as executor and a New York County resident as sole beneficiary. The instrument is limited in its application to property in the United States and not only is the nominated executor a resident of this county but the alternate executor is a New York banking corporation.
The decedent left a very substantial body of property in this county in the forms of a bank deposit, securities and cash with a brokerage firm and tangible personalty. The decedent's creditors in this state are said to have claims in the neighborhood of a half million dollars. Facts which are of controlling importance on this motion are that the decedent explicitly directed in the propounded instrument that it be offered for probate in this court and that the validity and construction of the instrument be governed by the laws of the State of New York.

The motion to dismiss is made upon the basis that the decedent was a resident of Peru and, under the laws of that country, certain relatives of the decedent may assert rights of inheritance which are not provided by the laws of New York. There can be no question as to the absolute right of this court to exercise jurisdiction in this proceeding and, in recognition of this, the motion is directed to the discretion of the court. It seems that in view of the explicit desires of the decedent, coupled with the existence of New York assets and New York creditors, the naming of a New York executor and a New York beneficiary, very little is left to the exercise of discretion and a refusal to retain jurisdiction would constitute a clear abuse of discretion.
This is not an appropriate time to express an opinion as to the operative effect of the decedent's direction that New York law govern the disposition of his American assets but, if for any reason the law of Peru should be controlling, this would not be the first instance in which foreign law has been applied in the administration of estates in this court. Admittedly, the movant desires to avoid the ruling in a case, and, for this reason alone, a dismissal of the proceeding could be construed as a repudiation by this court of a decision which is controlling upon it. Upon all the facts there appears to be no equitable reason for thwarting the expressed wishes of the decedent and any such action would unduly complicate the administration of the estate, occasion unwarranted expense to interested parties and even work injustice.

Probate of a will is the important process in order for the provisions in a will to be effective. In case of probate of a will, you can refer that case to our New York Probate attorneys here in Stephen Bilkis and Associates. For other matters, consult our New York Estate lawyers now and receive a reliable advice.

November 13, 2013

Court Decides Will Dispute Regarding Real Property

The decedent died in November 2005. A New York Probate Lawyer said its distributees are the spouse, the claimant and two other children. Preliminary letters testamentary issued to the claimant, by order entered and letters testamentary issued to him. In the probate petition, the claimant listed estate assets consisting of personal property of $100,000 and Bronx realty valued at $500,000. The decedent's will devises the Bronx realty outright to the spouse, and divides the residuary estate 61% to the spouse, 7% to each of his three children and 3% to each of six grandchildren.

A Bronx County Probate attorney said that the documents and the claimant's deposition testimony reveal that, following the decedent's divorce from the claimant's mother, the claimant became a tenant in common in the Bronx realty with the decedent, by purchasing his mother's 50% interest therein for $40,000. Thereafter, the day the will was executed, the claimant conveyed his 50% interest in the realty to the decedent for $50,000, which the claimant admittedly received. The deed recites that the conveyance was in consideration of $50,000 and any other valuable consideration “paid” by the decedent.

A New York Will Lawyer said in the petition filed, the claimant commenced this proceeding alleging the following: (1) the claimant was unable to exercise good judgment at the time he transferred his interest in the property to the decedent as the claimant was then suffering from a bipolar disease; (2) the decedent took advantage of his poor judgment by acquiring his interest, which was worth hundreds of thousands of dollars, for “inadequate” consideration of only $50,000; and, (3) the decedent failed to honor his promise to pay the claimant an additional $250,000 at an unspecified later date. The claimant seeks either the $250,000 claimed, or a reconveyance of his interest in the realty for $50,000.

In her verified answer, the spouse generally denied the allegations of the complaint and interposed 18 affirmative defenses and a counterclaim, including the following defenses on which her motion is based: (1) any claim of fraud is barred by the statute of limitations; (2) on October 2, 2003, about three months after the conveyance at issue, the claimant was aware that the decedent gave the claimant's two siblings $80,000 each, yet the claimant failed to make any claim at that time when funds were available and failed to join as necessary parties his two siblings who received a total of $160,000 of funds; (3) the claimant failed to comply with SCPA 1803(1) as he never interposed his claim in the petition for probate and he is now estopped from interposing it; (4) the claim cannot be established in light of the provisions of the Dead Man's Statute; and, (5) the claim is barred by the Statute of Frauds. In her counterclaim, the spouse asserts that she is entitled to a distribution of 61% of the residuary estate plus interest at a rate of 9% from seven months after the issuance of preliminary letters testamentary on December 7, 2006 to the date of distribution. Her counterclaim also seeks all legal fees and disbursements she incurred in defending against the claim which, she contends, is prima facie a violation of the claimant's acceptance of his fiduciary position and demonstrates his willful failure to abide by the terms of the decedent's will for his own personal gain.
During discovery the claimant testified that there was no writing or other document evidencing the decedent's alleged promise to pay an additional $250,000 in the future. Although he believed that the realty was then valued at $600,000, no appraisal was done. He was aware that the decedent paid $80,000 to each of his two siblings in October, 2003, but he believed that those sums were paid to satisfy an existing mortgage or other loans. He also was aware that the decedent gifted the family electrical business to his brother, and he had no idea of the value of that business. He received gifts from the decedent in the form of early completion bonuses while he worked for the family electrical business and when the decedent helped pay legal bills arising from the claimant's 2003 divorce proceeding. Nassau County Probate Lawyers said his bipolar disorder was diagnosed in November, 2001 and he has received treatment for the condition since that date.

The spouse now moves for summary judgment dismissing the claim, essentially reiterating the defenses and contentions interposed in her answer and annexing in support, inter alia, the deed and the claimant's deposition testimony. Based solely on his own affidavit, the claimant opposes the motion contending that: (1) his claims were timely interposed less than three years after the will was admitted to probate; (2) as the promise to pay an additional $250,000 did not specify a time for such payment, the claim did not accrue until the decedent's death, and therefore, this proceeding was commenced within the six-year limitation period applicable to fraud; and, (3) his sister was aware of the decedent's promise and is willing to testify, and his former wife was also aware of the promise, so the lack of documentary proof is not fatal to his claim and CPLR 4519 does not bar the testimony of witnesses other than himself.

A Staten Island Probate Lawyer said that a summary judgment cannot be granted unless it clearly appears that no material issues of fact exist. The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact.

Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference, and issues of credibility may not be determined on the motion but must await the trial.

CPLR 4519 bars testimony from a person interested in the event or a person from, through or under whom such person derives his or her interest or title with regard to any personal transaction or communication with the decedent. Generally, evidence that is inadmissible at trial under CPLR 4519 cannot be used to support a motion for summary judgment; however, such evidence may be considered in determining whether a triable issue exists to defeat the motion for summary judgment. Nonetheless, evidence otherwise excludable at trial may not form the sole basis for a court's determination, and standing alone, may be insufficient to defeat a motion for summary judgment.
Here, the spouse made out a prima facie case that the decedent acquired the claimant's one-half interest in the realty by establishing that the claimant duly executed a deed which stated that he received consideration of $50,000 for the sale of the realty. In fact, claimant concedes: (1) he received the $50,000 in consideration recited in the deed; (2) he made a $10,000 profit on this transaction as he had acquired his interest in the realty from his mother for $40,000; and, (3) there is no writing to support his claim that he was to receive an additional $250,000 whenever the decedent was able to pay that sum.

In opposition to the motion for summary judgment, the claimant offered no more than his own self-serving, conclusory allegations. He did not offer any independent proof to support his allegation that the decedent was able to take advantage of him due to his bipolar condition or as to the value of the property at the time he executed the deed. Although the claimant correctly asserts that CPLR 4519 would not bar either his sister or his ex-wife from testifying about the decedent's alleged oral promise to make an additional payment to him, the claimant failed to submit an affidavit from either of them in support of this contention. Thus, as the claimant's affidavit concerning the alleged oral promise is inadmissible under CPLR 4519 and there is no other evidence in admissible form to support this contention, the claimant's affidavit, standing alone, is insufficient to establish the existence of any material issue of fact.

Moreover, in light of the parol evidence rule, it is questionable whether the testimony of a disinterested witness concerning the decedent's alleged oral promise to pay an additional sum of money as consideration at some indefinite future date would be admissible to vary or contradict the unambiguous consideration stated in the deed.

Accordingly, for the reasons stated herein the spouse's motion for summary judgment is granted, and the claim is dismissed. The court finds it unnecessary to discuss the other issues raised with respect to the instant motion. Moreover, as the claimant pursued the claim individually and the spouse's counterclaims are interposed against him in his capacity as the executor of the estate, the counterclaims are also dismissed, without prejudice to the spouse's right to raise the same or similar issues in an accounting or other appropriate proceeding. Of course, in making this determination, the court expresses no opinion as to whether the spouse is entitled to any of the relief requested in her counterclaims.

A will, being an ultimate instrument executed by a person before his demise should be carefully executed. It must be executed taking into considerations the provisions of law. In that way, when the time comes for its implementation, there will be no problem in court proceedings. Here in Stephen Bilkis and Associates, our Bronx County Estate attorneys make it a point that the will of our clients were executed in accordance with law, so that when our Bronx County Probate lawyers will file a probate petition in courts, each and every provisions of the will are valid and will be implemented accordingly.

November 2, 2013

Court Decides if Bequest to Decendent's Friend is Valid

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

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

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

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

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

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

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

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

October 28, 2013

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

A New York Probate Lawyer said that, in this SCPA 2103 proceeding, the respondent moved to vacate her default and for other relief. The branch of the motion seeking to vacate the respondent's default is now academic as a result of the court's decision and order dated February 1, 2008. In that decision and order, the petitioner's application to strike the respondent's pleadings and to enter a default judgment in the sum of $173,000 was denied, provided that the respondent both paid the sum of $400 to cover the cost and fees for her failure to appear at a deposition and, thereafter, appeared to be deposed as directed.

A New York Will Lawyer said that, in her affidavit in support of the motion, the respondent's request for "other relief" is: (1) dismissal of the petition on the ground "that no asset of the estate" was ever removed by her; (2) dismissal of the petition on the ground that the "Stipulation of Settlement" filed in the probate proceeding was intended to cover "all matters and claims," including any claim that the respondent removed estate assets; and (3) the imposition of sanctions on the petitioner's attorney for knowingly filing a "frivolous" petition. In the alternative, the respondent requests that the proceeding be scheduled for a hearing.

Nassau County Probate Lawyers said the issue in this case is whether the respondent was authorized to distribute monies from the decedent's bank account to herself pursuant to a power of attorney.

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

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

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

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

October 23, 2013

Will is Challenged for Lack of Due Execution

A New York Probate Lawyer said this is a contested probate proceeding wherein the objectants, the decedent's two grandchildren and sole distributees, move pursuant to CPLR 3212 for summary judgment denying probate to the propounded instrument dated 28 March 2007 based on lack of due execution. The proponent, the decedent's niece who is the nominated executrix and sole beneficiary under the instrument, opposes the motion.

On 11 April 2007, the decedent died at a nursing home at the age of 87. She left a four-page, typewritten instrument that was witnessed at Kings Harbor Multicare Center, where the decedent was a patient, by two witnesses, contains an attestation clause, was prepared by an attorney who supervised its execution, and has a self-proving affidavit attached. It appears that the sole asset of the estate is real property where one of the objectants currently resides.

A New York Will Lawyer said the motion for summary judgment is based on only one of the three grounds interposed in the objections, namely, that the instrument was not duly executed, in that the decedent did not declare it to be her last will and testament in the presence of witnesses and that the witnesses were not aware that they were in fact witnessing the decedent's will.

The objectants, to support their motion for summary judgment, submit, inter alia, transcripts of the SCPA 1404 examinations of the two attesting witnesses, RC, a nephew of the decedent, and CF, a longtime friend of the decedent. Suffolk County Probate Lawyers said that according to RC’s testimony, on the same date that the will was signed the proponent called and asked him to come to the nursing home to witness a power of attorney for the decedent. After he arrived at the decedent's room, the proponent entered with JK, the drafting attorney, who asked everyone to leave the room for a few minutes. Thereafter, JK asked both witnesses to return to the decedent's room which they did. In the room, there was no discussion about the document, other than JK asking RC to assist the decedent in signing the document as she was having trouble holding the pen; a request RC states he refused. RC testified that neither he nor the other attesting witness was ever told that they were witnessing the decedent's will, and at no time did the decedent herself request that they witness her will.

Nonetheless, RC acknowledges his signature on both the propounded instrument and the self-proving affidavit, but states that he did not read the documents and was unaware of what he was signing.
Nassau County Probate Lawyers said the other witness, CF, stated that the proponent also asked her to witness a document for the decedent, but she was never told that the document was a will. She further testified that during the signing of the documents, the attorney who was present never told her that she was witnessing a will, and the decedent never requested that she witness or sign the will. Although she remembered signing only one document, she acknowledged her signature on the will and on the self-proving affidavit; however, she reiterated that she was never aware that any document she signed was, in fact, the decedent's will.

The objectants contend that EPTL 3-2.1 (a) (3) requires the testator, at some point, to declare or publish to the attesting witnesses that the instrument being witnessed is the testator's will, and the witnesses' testimony that no such declaration was made and that both were unaware that they were witnessing the decedent's will entitles the objectants to summary judgment denying probate.
The proponent opposes the motion asserting, inter alia, that the objectants' motion makes no sense as they claim that there are no triable issues of fact as to lack of due execution, yet their sole basis for seeking summary judgment is that during the SCPA 1404 examinations the attesting witnesses recanted their prior statements, the attestation clause and self-proving affidavits, whether the witnesses were deceived is a question of fact which precludes summary judgment, the motion is defective as there are no supporting affidavits by persons with knowledge of the relevant facts, and the SCPA 1404 transcripts of the witnesses cannot be relied on as they are unsigned and there is no proof that they were served on the non-party attesting witnesses or that they were returned by them, the argument that the will was not published is insufficient to refute due execution where the execution is attorney supervised and an attestation clause and self-proving affidavits exist, as publication can be inferred by conduct and circumstances as well as words and, in any event, the motion is premature as discovery is not complete.

The proponent also relies upon an affirmation submitted by the drafting attorney, JK, who affirms that: he reviewed the will with the decedent in front of the two witnesses; he requested that the decedent sign the document in front of the two witnesses. Both witnesses were asked to sign the propounded instrument and were told prior to signing that they were signing the decedent's last will. He explained to both witnesses the importance of the self-proving affidavit as they signed it and he saw both witnesses sign both documents.

The holdings in Phillips v Joseph Kantor & Co. and Glick and Dolleck, Inc. v Tri- Pac Export Corp. established that summary judgment cannot be granted unless it clearly appears that no material issues of fact exist. The movants must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. As a rule, when the movants have made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact. Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial.

Matter of Falk settled that the burden of proving that an instrument was duly executed is on the proponent who must prove due execution by a preponderance of the evidence. Where a will contains an attestation clause and is attorney supervised, there is a presumption that the instrument was duly executed and is thus a valid will as held in Matter of Pilon, Matter of Leach, Matter of Paigo, Matter of Castiglione. Nonetheless, it was held in Matter of Falk and Matter of Collins that it is incumbent upon Surrogate's Court to examine the entire circumstances attendant to the execution of the document in order to ascertain its validity.

The mere fact that the attesting witnesses either cannot recall the details of the execution ceremony or recant their testimony does not mean that an instrument containing an attestation clause automatically must be denied probate. Instead, it merely increases the care and vigilance that must be exercised in examining the remaining evidence as held in Matter of Collins.

Based on Matter of Shapiro, Matter of Falk, Matter of Ruso and Matter of Covo and under the circumstances presented, including that it appears that the attesting witnesses are recanting their sworn affidavits as to due execution, the court finds that there is a triable issue of fact as to due execution. It, therefore, denies summary judgment. Furthermore, as the proponent points out that the SCPA 1404 transcripts of the non-party witnesses are not signed and there is no evidence that they were actually served on the non-party witnesses, these transcripts cannot be relied on by the court as admissible evidence entitling a party to judgment as a matter of law in accordance with CPLR 3116 [a] and based on the cases of Martinez v Liberty Ave. Realty Corp. and Palmer v Trachetenberg. Inasmuch as the court finds that the motion must be denied as there are triable issues of fact, the other issues raised in opposition to the application will not be addressed.

Bronx County Last Will and Testament Attorneys, Bronx County Probate Attorneys, Bronx County Estate Litigation Attorneys and Stephen Bilkis & Associates are experts in these fields of law. If you find yourself in the same predicament as the family narrated above, please do not hesitate to call or visit our firm.

October 18, 2013

Petitioner Files Claim to Compel Production of a Will

A New York Probate Lawyer said that, petitioner, pro se, in his status as attorney-in-fact for his mother, has instituted a proceeding seeking to compel the production of a will. Petitioner personally has no status in the estate of decedent. Decedent died on May 5, 1984. Based upon a probate petition filed on July 2, 1984, an instrument dated March 27, 1982 was duly admitted to probate by the entry of a decree dated July 13, 1984. Petitioner's principal is decedent's sister. She was not his distributee inasmuch as the decedent was survived by two grandchildren. Under the instrument already admitted to probate, the grandchildren are the primary beneficiaries. Decedent's sister receives a $1,000 legacy. There are several other legacies, including bequests to infants and charitable organizations.

A New York Will Lawyer said that, petitioner alleges that there is a testamentary instrument prior in date to the will admitted to probate under which petitioner believes his principal receives a greater legacy and that such prior instrument is in the possession of the co-executor who is the respondent in the instant proceeding.

A Staten Island Probate Lawyer said that, as a consequence of the greater legacy to his mother in the prior instrument, petitioner intends to institute a further proceeding seeking to vacate the probate decree entered July 13, 1984 and in the event such application be granted, to file objections on behalf of his principal to the probate of the instrument which formed the basis for that decree.

Nassau County Probate Lawyers said the issue in this case is whether petitioner’s petition to compel the production of the will should be granted.

The court in deciding the case said that, the statutory short form power of attorney which was executed by petitioner's principal permits petitioner, as agent, to act for his principal in a wide gamut of transactions. With respect to "claims and litigation" and "estate transactions," the statutory short form power of attorney is broad and sweeping Subdivision 10 of both of the above sections, in addition to all of the specific powers enumerated therein, also confers upon the agent the power " to do any other act or acts, which the principal can do through an agent". Among such powers are the power to hire, discharge, and compensate any attorney or other assistants when the agent thinks such action to be desirable for the proper execution by him of the powers described in the foregoing sections.

However, notwithstanding the broad sweep of these powers, no authority has been presented which would permit a lay person by virtue of his capacity as attorney-in-fact for his principal to appear on his principal's behalf and act as legal counsel in a court of law unless admitted to so practice. Under the applicable statutes of this state, only those persons duly admitted to practice before the courts of this state may act as a legal representative of another person in a court proceeding or in the further capacity of a practicing attorney. The seriousness with which the legislature views this requirement is manifest since a violation of the statutory proscription is punishable as a misdemeanor Moreover, the potential problems created by the use of this device as a means of encouraging the unauthorized practice of law is obvious Of course, if petitioner's principal wishes to proceed pro se, she may do so. However, she cannot use a power of attorney as a device to license a layman to act as her attorney in a court of record. To sanction this course would effectively circumvent the stringent licensing requirements of attorneys by conferring upon lay persons the same right to represent others by the use of powers of attorney.

It is concluded that petitioner's capacity as attorney-in-fact does not give him, as a layman, the authority to proceed pro se on behalf of his principal in the instant proceeding As a matter of law, petitioner does not have the status to obtain the relief he seeks. Additionally, the court cannot sanction a course which constitutes the illegal practice of law without a license.

Accordingly, the court held that the petition is dismissed on the court's own motion.

Under the applicable statutes of this state, only those persons duly admitted to practice before the courts of this state may act as a legal representative of another person in a court proceeding or in the further capacity of a practicing attorney. If the person has no capacity to act as an attorney-in-fact then, he has no right to compel the production of a will. Seek the representation of a Bronx Estate Administration Attorney and Bronx Probate Attorney at Stephen Bilkis and Associates. Call us.

October 17, 2013

Court Discusses Potential Statute of Limitations Issue

A New York Probate Lawyer said that, defendants move pursuant to CPLR 3211(a)(5) to dismiss plaintiff's complaint contending that plaintiff's claims are barred by the applicable statute of limitations and pursuant to CPLR 3211 (a)(7) dismissing plaintiff's causes of action on the ground that said causes fail to state a cause of action.

Plaintiff, the sister of defendant, brings this action to recover the value of property described as 797 Southern Boulevard, located in Bronx County, and to impose a constructive trust to prevent defendants from transferring this property. A New York Will Lawyer said that, the complaint, which parenthetically was not, verified by the plaintiff, charges plaintiff's sister with influencing their mother to transfer the property in Bronx County to her which according to the plaintiff was to be held in trust for the beneficiaries of their mother's estate. Obviously unless plaintiff's undue influence claim is sustained, the court need not pass upon the cause of action for a constructive trust. Moreover, this action initiated here in Bronx County in essence, challenges the testamentary capacity of the decedent, plaintiff's mother who transferred the Southern Boulevard property by deed to plaintiff's sister. Plaintiff fails to set forth information regarding whether any of the Wills executed by the decedent were admitted to probate nor does Counsel for plaintiff provide this court with such information.

A Nassau County Probate Lawyers said that, as previously noted plaintiff's complaint is not verified by plaintiff and in response to defendants' motion to dismiss, plaintiff submits a short affidavit which makes conclusory assertions that adds little to the complaint. Manifestly, plaintiff's counsel's affirmation and his verification of the allegations set forth in the complaint are without probative value.
A Bronx Estate Litigation Lawyer said that, defendants in support of their motion to dismiss submit a copy of plaintiff's verified complaint (which only contains verification of plaintiff's attorney), the deed dated February 2, 1998 transferring ownership of the Southern Boulevard property from the decedent, to Longwood Properties LLC, a company owned by decedent's daughter Lenore Monaco and her husband, the death certificate of the decedent, the death certificate of the father of both plaintiff and defendant, the last Will and Testament of the decedent executed in Florida on September 12, 1991, the Codicil establishing, inter alia, a Inter Vivos Trust to the Will dated February 20, 1992, the Trust Agreement dated October 22, 1992, the Trust Modification and Ratification dated July 25, 2002 and the further modification dated January 24, 2003. Plaintiff does not challenge the authenticity of these documents.

Suffolk County Probate Lawyers said the issue in this case is whether defendant’s motion for summary judgment to dismiss plaintiff’s complaint on the ground that plaintiff's claims are barred by the applicable statute of limitations and pursuant to CPLR 3211 (a)(7) dismissing plaintiff's causes of action on the ground that said causes fail to state a cause of action.

It is well established that summary judgment is warranted where there are no genuine issues of material facts. Moreover, when faced with a motion to dismiss, the court is required to afford the complaint liberal construction extending every favorable inference to ascertain whether the facts alleged in the complaint fit within any cognizable theory..

When a motion is made pursuant to CPLR 3211(a)(7) the moving party is asserting that the pleading, which is accorded liberal construction, nevertheless fails to state a cause of action. Subdivision (c) of Rule 3211 permits the introduction of documentary evidence which includes judicial records and documents referable to out of court transactions such as contracts, deeds and wills. Obviously, the above description of what may be considered documentary evidence is not all inclusive but is stated merely to demonstrate the variety of documents which a court may consider when deciding a motion for dismissal pursuant paragraph 3211(a)(7). In the case at bar, defendants are seeking a dismissal of the complaint pursuant to CPLR 3211(a)(7) and consequently the defendants have the burden of demonstrating that the documentary evidence submitted conclusively resolves all factual issues and that plaintiff's claims fail as a matter of law. Here, defendants have sustained their burden for the following reasons.

First, it is evident that the disposition of the decedents’ Estate took place over a protracted period of time, commencing with the Will she executed on September 12, 1991, followed by a second Will also executed in Florida in 1992. The Trust Agreement, was executed on October 22, 1992, and nominated plaintiff, and defendant, (both daughters of the decedent), as Trustees. Plaintiff does not challenge her mother's capacity to know the natural objects of her bounty nor does plaintiff challenge her mother's mental capacity when she executed a Codicil on March 20, 2001 or the amendment made to the Trust in July 25, 2002. Instead plaintiff turns to the transfer of the Bronx Property which occurred by the deed dated February 2, 1998.

In order to state a claim for fraud, the plaintiff is required to present evidence such as false statements made to the decedent which caused her to execute a deed that disposed of her property in a manner inconsistent with her mother's alleged conviction to share her estate among her daughters, or to submit proof as to when the fraud or undue influence occurred or the circumstances which occurred that support plaintiff's contention that the property in question was transferred due to the undue influence presumable exercised by plaintiff's sister and her husband.

A finding of undue influence requires proof of a moral coercion which interferes with independent action or by opportunity which could not be resisted to do "that which was against his free will".
Assertions in a complaint which broadly claim fraudulent conduct must satisfy the mandates of CPLR 3016(b). This section, CPLR 3016(b), requires that fraud be pleaded with specificity and a complaint which does not allege fraud with sufficient specificity is dismissible as a matter of law. Moreover, the party who contests the validity of a Will regarding the disposition of the testator's assets has the burden of proving fraud by clear and convincing evidence and plaintiff failed to submit clear and convincing proof regarding what may have induced her mother to transfer the Bronx Property by deed to defendant. Nothing of substance other than the general reference to fraud or undue influence has been presented and plaintiff has failed to explain her mother's capacity to execute several Wills and a Trust disposing of her estate and yet challenges a single disposition of Bronx property made in-between her testamentary wishes.

Consequently, the court held that the defendants' motion is granted and plaintiff's complaint is dismissed. This constitutes the decision and order of this court.

If you doubt the validity if a will, seek the assistance of a Bronx Will Contest Attorney and Bronx Estate Attorney at Stephen Bilkis and Associates in order to invalidate such will.

October 16, 2013

Court Decides Validity of an Election under Decent Estate Law

A New York Probate Lawyer said this is a proceeding to determine the validity of an election under subdivision 7 of section 18 of the Decedent Estate Law.

The court is faced with the issue of whether or not under the circumstances herein, the respondent has lost his right of election by reason of his failure to serve the notice upon the executor personally and by failing to file and record it in the court as expressly required by statute.

A New York Custody Lawyer said on 17 November 1947, the testatrix died a resident of Bronx. She was survived by her husband and eight children, one of whom is an infant. On 20 April 1948, her will was admitted to probate in this court and letters testamentary was issued on the same day to one of her sons.

The will of the testatrix contains no provision for the benefit of her husband, the respondent in this case, except for a legacy of the sum of $1.

Prior to the probate of the will, the husband served by mail on the person named as executor, a paper dated and acknowledged 28 January 1948, purporting to be a notice of election to take his intestate share of the decedent's estate. A Nassau County Probate Lawyer said on or about 27 April 1948, subsequent to the issuance of letters testamentary to the executor, there was received in the mail by the attorneys for the executor an executed copy of this notice.

The estate of the decedent consists of a real estate situated in Ulster and Bronx Counties in New York State and approximately $2,000 in personalty.

Suffolk County Probate Lawyers said that on 8 June 1948, the husband commenced an action in the Supreme Court, Ulster County, against the eight children as the devisees of the decedent's realty, to partition such realty, alleging in this action that he had validly exercised his right of election to take his share of the estate in intestacy. Notice of pendency of the action was filed on or about the same date in the County Clerks' offices of Ulster and Bronx Counties. In both instances the complaint was also filed.

Between 23 June 1948, and 5 January 1949, numerous conferences were held between the attorneys for the executor and the husband's attorney for the purpose of compromising the husband's claim to an intestate share in the estate.

On or about 5 January 1949, the negotiations for a compromise terminated and the husband's attorney was informed that the executor and the other children would not settle the husband's claim on any basis.

Although no notice of election has ever been filed or recorded in this court, the husband's attorney testified that it was his recollection that when he mailed the notice to the executor's attorneys, he also mailed a copy to the clerk of this court. The files and records of the court, however, do not show its receipt.

It is the assertion of the respondent that his election has been validly made because the executor had actual knowledge of the claim the notice of election was given to all the world by the filing of the notice of pendency of action and the negotiations for a compromise of the claim over a period of six months constitute a waiver of strict compliance with the statute.

In short, the question presented is whether or not the husband has substantially complied with the statute.

The court has held in the case of Matter of Altman that the service of the notice of election upon the person nominated as executor prior to the actual probate of the decedent's will is adequate compliance with the statute. Also, in Matter of Davis, service of the notice upon the executor by mail satisfies the statute since full effect must be given to the fact of actual notice. In Matter of Martin, the failure to record the notice does not of itself defeat the rights of the spouse.

In the cases mentioned above in which the rule of "substantial compliance" was applied, the notice was filed in the Surrogate's Court. In Matter of Martin in order to remove any question as to the actual filing of the notice, it was deemed advisable to remand the proceeding to this court to take proof as to the date the notice was filed so that any possible doubt may be removed.

The wording of the statute is not ambiguous but directive as to filing, providing a remedy for a spouse who shall default in filing and is definite as to the place of such filing. Although a certified copy of any order of the Surrogate's Court enlarging the time to make an election, or relieving a default and authorizing the making of an election within a period fixed by the order, is required to be recorded in the same manner as a notice of pendency of action in the clerk's office of the county wherein decedent's realty is situated, the election itself is directed to be filed in the Surrogate's Court.
To hold that participation in litigation, filing a notice of pendency with a complaint in the County Clerk's office, negotiations for settlement, in addition to the service of the notice of election by mail upon the executor satisfied the requirements of the statute as to filing a notice of election in this office, would violate the positive language of the statute and would be equivalent to judicial legislation which is beyond the lawful power of the court.

Based on Matter of Herter, the method of making an election as outlined by the statute is exclusive and while the conduct of the spouse would indicate that he intended to elect, the failure to file as directed by the statute defeats his claim.

Also, based on Matter of Zweig, the mailing of such notice to the clerk of this court where it has not been received does not comply with the statute. Nothing short of actual filing will suffice.
The counsel for the respondent also urges that the executor waived strict compliance of the statute during the negotiations for compromise when his attorneys requested him to defer further action until the termination of negotiations.

Although there is a difference of opinion as to what was meant by the request, there is no evidence of any imposition or deception. The respondent's complaint in the partition action alleged that he had duly elected. Upon the termination of negotiations, there remained over three months within which an application to relieve the spouse's default could have been made.

The court emphasizes that the executor is without power to waive any of the statutory requirements. The filing of the notice of election for record "is not an act to which there are two parties, there is but one party to it. It is a declaration to all whom it may concern. And to be effectual it must be filed for record as in the case of Castleman v. Castleman.

The court finds that the cases Rochester Sav. Bank v. Averill and Karasik v People’s Trust Co. cited by respondent’s counsel to substantiate his position that the failure to file the notice is not a fatal defect are misplaced. These cases merely dealt with the necessity of the filing of stockholders' consents to a corporate mortgage. Also, the statutes involved in these cases are not related to the statute applicable to the case at bar. Subdivision 7 of section 18 of the Decedent Estate Law sets forth not merely directory provisions but mandatory indispensable conditions precedent to the spouse's right of election for cases in other jurisdictions with similar statutes based on Matter of Herter, Matter of Gross, Matter of Zweig, Matter of Sheely and Friedman v Andrews.

The court grants the petition to determine that the purported notice of election is invalid.
Stephen Bilkis and Associates partners with Bronx County Probate Attorneys and Bronx County Last Will and Testament Attorneys to make sure you get quality legal service to help you with your cause. If you have problems with issues like the ones mentioned above, please feel free to call or visit our firm.

October 15, 2013

Court Rules on Case Involving Attorney Client Privledge

A New York Probate Lawyer said that in this proceeding, the court is faced with the primary issue of whether or not the respondent may be compelled to produce at her examination before trial petitioner’s own wills and trusts or whether or not the attorney-client privilege or the confidential, ambulatory nature of the will of a living person protects these documents from disclosure.

The court rules that these documents are not protected by the attorney-client privilege. A New York Wills Lawyer said the confidential nature of these documents, however, dictates that disclosure should be compelled only upon a strong showing of necessity. In this case, the court finds that a limited disclosure is appropriate to enable the petitioner to properly prepare for trial.

The petitioner in this case is the decedent’s sister who commenced this proceeding to set aside and declare invalid a lifetime trust created by the decedent and two wills which were executed respectively on the date that the trust was created and the date that the trust was amended. Petitioner moves for the entry of an order directing that the decedent's other sister, the respondent, to produce her previous and existing wills and/or trusts and any of her wills and/or trusts prepared by Atty. RL or his office. On the other hand, the respondents have cross-moved for a protective order with regard to the requested disclosure and for an order dismissing that branch of the petition seeking to declare the decedent's wills invalid.

On 12 April 1996, the decedent died. He was survived by his two sisters and one brother as his distributees. A Staten Island Probate Lawyer said the petitioner alleges that, prior to the execution of the instruments in question, the decedent had executed testamentary documents in 1978, which essentially provided that his estate was to be divided equally between his two sisters. On 31 August 1995, the decedent allegedly executed a lifetime trust and a will, both of which provided for the same disposition of his estate upon his death. On 1 December 1995, the decedent executed an amendment to the trust and another will, both of which eliminated a $55,000.00 legacy to the respondent's son and replaced it with a $60,000.00 legacy to the respondent. The petitioner asserts that, as a result of the changes made in 1995, the two respondents will receive in excess of $2,000,000.00 while the petitioner will receive less than $168,000.00. It is her contention that the 1995 documents are invalid on the grounds that they were executed at a time when the decedent lacked the requisite mental capacity and that they were the product of the respondent's exercise of undue influence over the decedent.

Nassau County Probate Lawyers said that they support petitioner’s contention that the respondent exerted undue influence upon the decedent, she asserts that the decedent's relationship with his nephew remained the same between 31 August 1995 and 1 December 1995 and that the only reason that he executed the amended trust and new will on 1 December 1995, deleting him as a beneficiary, was because the respondent was displeased with her son. She argues that, if the respondent made similar changes in either or both her own wills and trusts, this would be further proof that the decedent merely followed the lead of the respondent and was subject to her undue influence. The petitioner further contends that any privilege that might be attached to these documents was waived by the respondent inasmuch as her son testified in a deposition that his mother had told him that she would disinherit him if he did not do what she wanted him to do.

On the other hand, the respondents contend that a protective order should be granted because production of the requested documents will cause unreasonable annoyance, embarrassment and prejudice in that this information is not relevant and is also protected by the attorney/client privilege. They also assert that the branch of the petition seeking a judgment with regard to the validity of the wills must be dismissed because the court's jurisdiction to determine the validity of a will is limited to proceedings instituted pursuant to Article 14 of the SCPA and, therefore, the court lacks subject matter jurisdiction to declare an instrument invalid where no party has sought to have it admitted to probate.
The petitioner's request for disclosure is viewed in light of the direction in Allen v. Crowell-Collier Pub. Co to liberally construe the words "material and necessary" in CPLR 3101(a) so that disclosure is required where it can reasonably be concluded that the requested material would be useful in preparing for trial because it might conceivably be used as evidence in chief or rebuttal.
The court notes that this liberal approach to disclosure neither abrogates recognized privileges nor requires the routine production of documents that are ordinarily considered confidential and private in nature. In Matter of Johnson, the court denied a request that a living person deliver a copy of her will to the objectants in a will contest both because its relevance was limited due to the fact that the will of a living person is ambulatory and can be changed at any time prior to death and because the will was subject to the attorney-client privilege under CPLR 4503(a). Furthermore, the disclosure of documents that are confidential and private in nature, such as tax returns, is generally disfavored and their production is compelled only upon a strong showing of necessity which necessarily includes a showing "that the information sought was unavailable from other sources akin to the cases of Walter Karl, Inc., v. Wood, Spancrete Northeast v. Elite Assocs., Muller v. Sorensen, Briton v. Knott Hotels Corp. and Penn York Constr. Corp. v. State of New York.

It was held in the case of Matter of Johnson that it would violate the attorney-client privilege to compel counsel, while the client is alive, to state whether the client had executed a will or to deliver a draft of a will that had not been executed or notes that had been made during a conversation with the client concerning the preparation of a will. There would, however, be no basis to invoke the attorney-client privilege if the will was not prepared by counsel and, instead, was prepared by the maker, whether by filling in blank spaces on a form or otherwise.

The court is now confronted with the question of whether a different rule should prevail with regard to disclosure depending upon whether the maker first gave instructions to counsel, who then prepared the will which was thereafter executed by the maker before at least two witnesses, or whether the maker who is not an attorney prepared the document and then signed it before the witnesses. It notes that even in those instances where the will was prepared by an attorney, it can be argued that the maker of the will is merely being compelled to produce a signed, witnessed writing reflecting the testamentary disposition of the maker's estate at the time that the document was executed and that no one is being compelled to divulge any confidential communication that was uttered to counsel. It does not, therefore, appear that it would violate the attorney-client privilege to inquire of the maker, without allowing any inquiry as to the extent of any attorney's involvement in drafting the will, whether a particular person is named as a beneficiary in a will executed by the maker.

Whether or not the will is in the possession or under the control of the maker falls under the umbrella of the attorney-client privilege. Concerns hinged on the privacy of instruments dictate that executed wills of living persons should not lightly or routinely be subject to disclosure in any proceeding inasmuch as compelling such disclosure is almost tantamount to directing individuals to divulge their private thoughts on a subject while they still have the opportunity to change their final acts on that subject.

In the case at bar, the respondent correctly points out that whether or not she and the decedent executed wills at or about the same time containing similar provisions with regard to her son is not, in and of itself, determinative of whether she was able to exert undue influence over the decedent. The court also agrees with the respondent that the fact that she might have told her son that she was going to disinherit him does not constitute a complete waiver of the privilege with regard to the entire will. If the respondent's wills and trusts are not subject to a privilege which bars their disclosure, their production would be helpful to the petitioner in preparing for trial inasmuch as she would clearly be able to adduce proof at the trial that the decedent's relationship with his nephew remained the same between August and December, 1995 and that he only changed his will and amended his trust, deleting the nephew as a beneficiary when the respondent did likewise in instruments executed by her because she was displeased with her son.

Balancing the petitioner's need for the requested documents in light of the respondent's son's testimony that the respondent threatened him with disinheritance against the respondent's right to privacy with regard to a will that she has the right to change at any time prior to her death, the court concludes that limited disclosure is appropriate.

The petitioner may inquire of the respondent as to the following: whether she had executed any trusts or wills that had not been revoked prior to 31 August 1995; whether she executed any trusts or wills between 31 August 1995 and 1 March 1996; and whether she made any disposition to her son in any of these instruments, and, if she did, the nature or amount of the disposition. The petitioner, however, shall not be entitled to know the identity of any other beneficiary under the above instruments. The documents submitted to the court, the portion of the documents that are inconsistent with the testimony shall be provided to the petitioner.

With regard to the issue of jurisdiction, it appears to the court that respondent’s contention is based on procedure and not subject matter jurisdiction. This observation is based upon the respondents' recognition of the fact that the validity of the wills could certainly be determined in a probate proceeding filed under Article 14 of the Surrogate's Court Procedure Act. The statutory framework permits a person to apply for letters of administration based upon a contention that a purported will is invalid and that no proceeding for its probate has been instituted within a reasonable period of time in accordance with SCPA 1001[9] and 1003[5] ). SCPA 202 provides that the proceedings enumerated in the SCPA are not "exclusive" and that the court may exercise any jurisdiction granted to it, notwithstanding that the jurisdiction sought to be exercised in the proceeding is or may be exercised in or incidental to a different proceeding.

The respondents should not be allowed to offer the will for probate only after and in the event that it is established that the trust is invalid due to either or both lack of capacity and undue influence. Inasmuch as the wills and the trust, as amended, were apparently executed within minutes of each other, there are obviously common questions of law and fact with regard to the validity of each of the instruments even if it is assumed arguendo that the capacity required to execute a will is different from that required to execute a lifetime trust and that the party who bears the burden of proof on this issue might also be different depending on whether a will or a lifetime trust is at issue.

These issues should be a consolidated trial rather than to subsequently litigate any issues, not precluded under the doctrine of collateral estoppel, that involve the same facts. The court or the parties should never be required to engage in multiple trials involving issues that can and should be tried in a consolidated proceeding. The court finds that the respondents are correct in contending that any person who might be adversely affected by the determination of the issues raised herein should be given notification of the relief requested and an opportunity to be heard.

Pursuant to SCPA 1401, the court directs the respondents to file all of the decedent's 1995 wills which are in their possession or under their control. If these documents are not in their possession or under their control, they are to file an affidavit to that effect and they shall also state to the best of their knowledge where these documents might be presently located and who has possession and control of them. In the event that these wills are filed, any person who has the right to seek the admission of either or both of the instruments to probate may institute a probate proceeding. If instituted, jurisdiction shall be obtained over all of the necessary parties and that proceeding shall be consolidated for trial with this proceeding. If any party desires to seek as alternative relief that, in the event that the December, 1995 will is denied probate, the August, 1995 will should be admitted to probate. If the petitioner fails to serve process in this proceeding upon any person who may receive a beneficial disposition or is nominated as a fiduciary under either will, supplemental process shall issue and be served upon any such person.

Bronx County Probate Lawyers, Bronx County Last Will and Testament Lawyers and Stephen Bilkis & Associates help families in trouble of wills or probate left by their loved ones. To be unburdened of this issue, please feel free to call us at our toll free number or visit our firm. A team of experts would gladly answer your questions.

October 2, 2013

Court Discusses Will Construction Statute

A New York Probate Lawyer said that, in this uncontested probate proceeding, the primary issue is whether the "within one thirty day period" for the completion of the will ceremony prescribed by EPTL 3-2.1(a)(4) commences on the date of the signature or the date of the first acknowledgment where the testator has signed the will prior to any acknowledgment of his signature. Although this appears to be a case of first impression, a literal reading of the statute coupled with its legislative history clearly indicates that the period does not commence until the first acknowledgment.

A Bronx Will Contest Lawyer said that, the propounded instrument is dated May 5, 1987. Decedent died on August 1, 1987. Two of the attesting witnesses executed their depositions in the Probate Department of the court. Each of them indicated that the other witnesses were not present when deponent signed the will as a witness and neither witness could pinpoint the date on which he or she had signed the will. One of the witnesses stated, "I do not know when I signed the will but I believe it may have been in July." Their depositions raised serious questions not only as to whether more than thirty days had elapsed between the date that decedent had signed the will and the date that her signature was acknowledged to the second witness but also as to whether more than thirty days had elapsed between the acknowledgment of decedent's signature to the first and second witness. Inasmuch as probate of a will may not be allowed unless the court is satisfied as to the validity of its execution (SCPA 1408), the matter was referred to the Principal Law Assistant to take testimony.

A New York Will Lawyer said that, two attesting witnesses and proponent testified. Proponent stated that, at the request of the decedent, on March 31, 1987 he delivered from a law firm to the decedent the will together with instructions for its execution. On the Saturday before Memorial Day, decedent returned the executed will. One of the attesting witnesses was positive that she was the first witness to whom decedent's signature was acknowledged. This occurred, in May, 1987, most likely a weekday, perhaps on a Wednesday. The other witness who testified had to be subpoenaed. Although he had previously indicated that he did not "believe" that he had witnessed the will before July, 1987, he now testified that "I have no recollection when I signed the will, but if they are stating that they saw my signature in early May on that will it very well is possible that I signed it" then.

The issue in this case is whether the "within one thirty day period" for the completion of the will ceremony prescribed by EPTL 3-2.1(a)(4) commences on the date of the signature or the date of the first acknowledgment where the testator has signed the will prior to any acknowledgment of his signature.

The court held that, based upon the entire record, the court is satisfied that decedent signed the will sometime between March 31, 1987 and the latter part of May, 1987, probably on May 5, 1987, the date inserted in the will. A Nassau County Probate Lawyer said the court is also satisfied that, after she signed the will, she acknowledged her signature to at least two witnesses in May, 1987 who then affixed their signatures.

EPTL 3-2.1(a)(4) provides as follows: "There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. A Staten Island Probate Lawyer said that there shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will."

The above provision neither directly nor by implication requires that two attesting witnesses attest the signature as acknowledged within thirty days of the date it was signed by the testatrix. Instead, in straightforward language, free of any ambiguity, it requires that the second of the two witnesses must attest the signature as acknowledged within thirty days of the date that the first attesting witness so attested. The legislative history of the provision supports its language. Prior to 1967 our law contained no time period in which the execution ceremony had to be completed and the courts wrestled with the issue of whether the execution ceremony was completed within a reasonable time. To cure this problem, the predecessor of EPTL 3-2.1(a)(4) was enacted. Specifically, from September 1, 1967 to September 1, 1974, EPTL 3-2.1(c) provided that "The formalities for the execution and attestation of a will, prescribed by paragraph (a), must be completed within a period of thirty days."

When the present provisions of EPTL 3-2.1(a)(4) were enacted (L.1974, c. 181) the old EPTL 3-2.1(c) was repealed. It is clear that the Legislature by deleting the word "execution" in the newly enacted subdivision (a)(4) intended to make the day the will was signed by the testator exempt from the thirty day period requirement. This conclusion is buttressed by the recommendation of the Law Revision Commission to the Legislature in support of the enactment of subdivision (a)(4) [1974 Leg.Doc. No. 65(d) ]. The Commission specifically noted that the paragraph to be repealed was "ambiguous as to what formality is to begin the running of the thirty day period." It also noted the specific problem: "When a testator acknowledges a signature previously affixed does the period run from the time of the signature or the time of the acknowledgment?"

Accordingly, the court concludes that, even without using the statutory presumption, the thirty day period has been fulfilled, and even if decedent signed the will as early as March 31, 1987, the requirements of EPTL 3-2.1(a)(4) have been met. The court is also satisfied that all of the other requirements have been met to entitle the will to be admitted to probate. Nevertheless, this case is one of too many to count which demonstrates that an attorney is doing a client a disservice when he or she accedes a client's request that a will be drawn by the attorney but its execution be supervised by the client outside of the presence of an attorney.

Under the provisions of EPTL 3-2.1(a)(4) it provides that: "There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will." If there has been a violation of this rule, seek the representation of a Bronx Will Contest Attorney and/or Bronx Probate Attorney at Stephen Bilkis and Associates. Call us.

October 1, 2013

Court Rules on Probate Case Regarding Testamentary Capacity

A New York Probate Lawyer said that, in this motion for summary judgment, the nominated executor under the propounded instrument dated January 14, 1949 seeks a judgment admitting the will to probate. The New York Province for the Society of Jesus (the Jesuits) is the sole beneficiary under the propounded instrument and the President of the Society is the nominated executor.

A New York Will Lawyer said that, the decedent died on December 28, 1986 at the age of 72. He was survived by two brothers, one of whom filed objections to probate. The objectant alleged that the instrument was not executed in accordance with the required statutory formalities, that it was a product of fraud and undue influence and that decedent executed it by mistake without having read it. The objectant subsequently died and his daughter, in her capacity as the executrix of his estate, was substituted as a party in his place. Movant contends that the objections fail to raise any legitimate factual issue as to the validity of the instrument.

A Nassau County Probate Lawyers said that the movant notes that a Jesuit is free to dispose of his property to whomever he wishes prior to taking his final vows. However, in conjunction with taking his final vows, which include a pledge to be completely dependent upon the Society, a Jesuit is required to execute a will leaving his entire estate to the Society. He is also required to execute other documents in which he represents that he does not believe that he presently owns any property and that, if he is mistaken in this belief, he shall give it to the Society. He also agrees to renounce any property that he might thereafter be entitled to receive by inheritance and that he will give to the Society any property thereafter acquired by gift or legacy other than by inheritance. Decedent entered the Society on February 1, 1932 and took his perpetual vows in 1934. It was not until January 1949, that he executed the propounded instrument, the other required documents and took his final vows.
A Bronx Estate Litigation Lawyer said that, the propounded instrument was executed in the office of the Rector (President) of St. Andrew-on-the-Hudson in Poughkeepsie, New York. The witnesses to the instrument were all members of the Society of Jesus. No attorney was present. All three of the attesting witnesses are now dead but one survived the decedent and was deposed by both parties on April 20, 1988. The deposition of one witness, who was born in 1900, is typical of the deposition that might be taken of many people who have lived for more than eight decades. Occasionally, it would take some time before he fully grasped the inquiry directed at him but, once fully focused, his recall of events occurring almost 40 years earlier was as good as could be expected from anyone. His answers to questions posed by counsel for the proponent as well as some of his answers to questions posed by counsel for the objectant indicated that he had known the decedent since he first entered the Society, approximately 17 years prior to January 1949, that decedent had known from the time that he had entered the order that he would execute a will leaving his entire estate to the Society if he decided to take his final vows, that decedent was of sound mind and free from restraint when he signed the will, that decedent requested those present to witness the will and that decedent and the attesting witnesses all signed in the presence of each other. Furthermore, the witness stated that he was charged with supervising the execution of wills in his capacity as the Rector and that it was his policy to read the document aloud before the actual signing.

A Staten Island Probate Lawyer said that, objectant contends that the testimony raises factual issues as to whether the decedent acknowledged to the attesting witnesses that the instrument was a will and as to whether he requested that they serve as attesting witnesses. She also asserts that there is an issue as to whether decedent or the witnesses first signed the instrument. Lastly, objectant argues that there are serious questions as to whether the will was a product of undue influence as a result of the following: the confidential relationship between the sole beneficiary and the testator, the presence of only members of the Society at the execution ceremony, the policy of the Society not to allow the testator to take his final vows unless he executed the will, and the statement of the testator to his niece in the days immediately prior to his death that he had no will and wanted to make one.
The issue in this case is whether the will of the decedent should be admitted to probate.

The court held that the death of all of the people present at the execution ceremony cannot be ignored. Should this case be submitted to a jury, they will not have the opportunity to view witnesses to assess their credibility. Instead, their determination would be based solely upon the evidence presently before the court. The attestation clause in the propounded instrument states that the will was "signed, sealed, published and declared, by the above testator as and for his last Will and Testament in the presence of us, who, at his request, in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto." The facts set forth in an attestation clause are prima facie evidence of those facts and together with other evidence may suffice to establish the validity of the will even though the attesting witnesses thereafter fail to recall the facts set forth therein or testify to the contrary.

Here, the testimony of the then surviving attesting witness did not contradict any statement contained in the attestation clause. At most, in response to leading questions, which were posed and answered in succession rather than read and digested at the leisure of the elderly witness, the witness candidly stated that he could not definitively state that he had an independent recollection as to any of the specifics of an event occurring almost four decades earlier. However, he repeatedly insisted that he knew the decedent well and that the decedent knew that he was executing a will leaving his entire estate to the Society. The witness also consistently stated that he had supervised many will execution ceremonies in his status as Rector, that it was his custom to read the entire instrument aloud before it was executed, and that he was confident that he had done so in this case.

The only admissible proof that could be adduced before a jury on the issues of testamentary capacity and due execution are the attestation clause and the deposition of the surviving witness. Based upon this evidence, the court would be obliged to direct a verdict in favor of the proponent. To rule to the contrary would result in denying probate to instruments whenever objections have been interposed and the attesting witnesses candidly cannot recall the specific details about an event which lasted for less than an hour decades earlier. Although the admission of a will to probate is a solemn event, due execution and testamentary capacity must be proved by only a preponderance of the evidence rather than beyond a reasonable doubt because the doors of the courts should open more easily to carry out a testator's last wishes than the doors of the prisons to incarcerate those guilty of a crime.

Objectant's allegations as to undue influence are no more persuasive than her other contentions, notwithstanding that decedent could not have taken his final vows unless he executed the propounded instrument. Influence and undue influence are not synonymous.

The testator's will is not rendered invalid merely because its provisions were the quid pro quo for something that the testator received. A will which is the product of an offer and an acceptance resulting in a binding contract to make a joint will, or not to revoke a joint will, is sanctioned by the provisions of EPTL 13-2.1(b). Consequently, it cannot be concluded that an arrangement under which a religious entity is named as the sole beneficiary of a will in exchange for lifetime membership, which entitles the member to have his basic needs taken care of for life, violates public policy or constitutes undue influence per se.

Objectant has failed to lay bare any evidentary facts which would warrant submitting the question of undue influence to a jury. The decedent did not take his final vows and execute his will until 17 years after he had joined the Society. This belies any claim that he was hastily pressured into making an irrevocable decision to leave everything to the Society. Decedent had ample time to change his mind. Notwithstanding decedent's vow of poverty, he appears to have accepted money from his father and died with approximately $100,000.00 in his own name. Similarly, if decedent was not satisfied with the will at any time within the approximately 38 years that he lived after executing it, he could have executed another will without the Society being any the wiser and left it up to the court to decide whether he had retained this right. Inasmuch as decedent opted not to revoke his will, the court need not pass upon movant's contention that decedent was contractually obligated to leave his entire estate to the Society even if he had not done so by will.

Decedent's alleged statement to the objectant shortly prior to his death to the effect that he had no will and wanted to make one does not create any factual question on the issue of either testamentary capacity or undue influence. Notwithstanding that this offer of proof would be barred by CPLR 4519 if movant objected thereto at the trial, it can be considered to defeat the motion for summary judgment if it creates a pertinent factual issue. However, it creates no factual issue. Statements allegedly made 38 years after the will was executed are too remote in time to have any probative value. Absent unusual circumstances, the permissible time frame for inquiry about events relating to the decedent's capacity is a period from three years prior to the execution of the will to two years thereafter. It might be reasonable to infer from the decedent's alleged statement that he did not have testamentary capacity at the time that he made the statement because he no longer remembered 38 years after he had executed the will that he had one, or that he did not want the objectant either to know about his testamentary plans or to pester him about those plans. However, it cannot be inferred from this statement that the decedent did not know what he was doing 38 years earlier or that he was unduly influenced at that time. This is certainly the case here where decedent had known for at least 17 years before he executed the will that he would have to execute the will leaving everything to the Society if he wanted to take his final vows.

Accordingly, the court held that the objectant has failed to show that there are any triable issues of fact and the motion for summary judgment is granted.

If there are issues concerning the testamentary capacity of the decedent at the time of the execution of his will, or there are lapses with regard to the extrinsic validity of the will, seek the assistance of a Bronx Will Contest Attorney and/or Bronx Estate Litigation Attorney in order to prevent the probate of the will. Call us at Stephen Bilkis and Associates.

September 26, 2013

Court Rules on Letters of Testamentary

This is a probate proceeding which has been pending since January 15, 1973. The decedent died and was survived by a husband who was alleged to be incapacitated and who was named as her executor and sole beneficiary in her will.

A New York Probate Lawyer said in connection with the right to letters testamentary, the court rendered a decision directing the issuance of letters testamentary to the petitioner, who was one of the two substituted co-executors, directing him to file an accounting complying with Rule of the court.

Subsequently there were numerous letters from the various parties interested in this estate but nothing was done either by the petitioner or his then attorney to comply with the decision of the court.

In a letter forwarding a stipulation of substitution of attorneys for the executor, the substituted attorney stated that he would take the necessary steps to complete the probate. A New York Will Lawyer said nothing further was done until the court made its own inquiry concerning the delay in probate.

The substituted attorney then filed an affidavit stating that the decedent's husband had died and that the petitioner was the named executor in the husband's will and that the attorney would represent the executor in the probate of the husband's will. Lastly, he stated that the assets in the estate of the decedent herein consisted of a parcel of real property held in the name of the decedent and her husband as tenants by the entirety, and two bank accounts jointly held by the decedent and her husband.

The report of the guardian ad litem appointed by the court to protect the interests of the decedent's incapacitated husband indicated that she was unable to ascertain the nature of the decedent's assets from either the petitioner or his then attorney.

Nassau County Probate Lawyers said if the aforementioned assets are the sole assets in which the decedent had any interest, then there is no need to probate the decedent's will since these assets pass by operation of law to the surviving spouse.

All too often petitions are filed in this court where there is no need for probate of the decedent's will because the only assets in which the decedent had any interest passed by operation of law to a surviving joint tenant.

If the probate proceeding, which was unnecessary, had not been instituted, a great deal of expense and delay would have been avoided. As a result of the unnecessary delay in this proceeding, no estate tax proceedings have been filed, subjecting the estate to an interest penalty as well as depriving the surviving joint tenant of the use of the funds which belonged to him on the death of his wife. The petition for probate should be withdrawn.

In another probate proceeding, the action is one to impress a trust on assets received by the defendant as the principal beneficiary under a will executed by the mother of the parties, and admitted to probate. Staten Island Probate Lawyers said the action is based upon fraud and undue influence practiced on the deceased testator.

The papers reveal that after a probate proceeding, to which the complainant was a party, the Surrogate admitted to probate the will of the mother. An appeal was taken by the complainant as a contestant therein. The Appellate Division affirmed the decree.

Examination of the record on appeal reveals that the complainant as a contestant in the probate proceedings urged the same grounds in objection to the probate of the will as she alleges in this action. A reading of the Verified Bill of Particulars, dated June 15, 1956, in these probate proceedings recite almost verbatim the allegations contained in the complaint under consideration. On the trial her counsel stated the contestant was not ready to proceed. The Surrogate directed the trial to proceed, denying an application of the contestant's attorney to withdraw. After trial, the Surrogate held that the Court finds that the will of mother was executed in accordance with the provisions of Section 21 of the Decedent Estate Law; that she was of sound mind and free from restraint at the time she executed the will. After a hearing, on a motion by the contestant to open her default, the Surrogate denied the motion.

The decree of the Surrogate is a bar to this action. That the decree was rendered on the default of the contestant does not prevent its use as a bar. The complainant here was a party to the probate proceeding, pleaded as an objection the grounds upon which this action is based, and had an opportunity to be heard. The fact that she failed to avail herself of the opportunity to offer proof to sustain her objections does not reduce or destroy the estoppel created by the judgment.

In our efforts to execute a will, we sometimes forget that honoring the deceased person is the main goal. If you want a Nassau County Will Contest Lawyer or a Nassau County Probate Attorney for your will related troubles, call Stephen Bilkis and Associates. They can also provide you a Nassau County Estate Administration Attorney or a Nassau County Estate Litigation Lawyer.

September 19, 2013

Court Discusses Proving Testamentary Capacity

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated March 19, 2003 to probate. The objectant is the son of the decedent. The propounded instrument nominates the proponent as executor. The decedent, died on August 8, 2006, at the age of 88, survived by two children. Decedent and his wife of 42 years were divorced on January 8, 2004. The will offered for probate bequeaths substantially all of decedent's assets to Perry to the exclusion of Nils. The decedent had as many as six wills, all but one of which (March 31, 2001) excluded Nils from decedent's estate.

A New York Wills Lawyer said that, in 1954, the decedent founded a company in the business of the distribution of airplane parts and accessories. Decedent was the sole shareholder. Both the decedent’s children were employed by the company. In 1995, the first son’s employment was terminated and thereafter, he and decedent were estranged. On April 12, 2002, pursuant to a stock purchase agreement, the decedent sold his stock in the company to his son who executed a note for $9,600, 000, representing the purchase price of 80% of decedent's shares. The remaining 20% of the stock was gifted by decedent to his son. Prior to the stock sale, decedent transferred substantial assets to his wife.
A Nassau Estate Litigation Lawyer, the objectant has interposed the following objections to the propounded instrument: lack of testamentary capacity, lack of due execution, fraud, and undue influence. In support of the motion to admit the will to probate, the proponent submits his own affidavit, the deposition testimony of witnesses to the will, the affidavits of employees of the company, the company’s accountant, the wife’s attorney an associate in proponent's law firm. Various documentary evidence was also submitted.

A Nassau County Probate Lawyer said that, in opposition, the objectant submits his own affidavit, the affirmation of counsel and voluminous documentary evidence including hospital records, a prior will of the decedent dated March 3, 2001, a codicil dated January 19, 2002, and a will dated April 25, 2002, records of litigation involving the company, decedent and his son correspondence, and documents contained in the decedent's divorce proceeding. In further support of the motion, the proponent submits his own affidavit, the reply affirmation of counsel, and decedent's prior wills dated November 2, 1995, April 28, 1999, and February 5, 2000.

An attorney met the decedent in 2001 and represented the decedent in connection with the sale of the company and supervised the closing of that sale. The attorney also represented the decedent in his divorce action. He drafted the propounded instrument that is the subject of this proceeding. He had also drafted decedent's 2002 will. According to the attorney, during the pendency of decedent's divorce proceeding, the decedent asked him to draft a new will. Decedent met with the attorney alone in his office and stated that as a result of decedent's estrangement with his other son; decedent did not want to leave anything to the son. In addition, because of the pendency of the divorce proceedings, decedent did not want to leave his wife anything either. The attorney stated that he again met with the decedent on the date of the execution of the will to review its terms. An associate in the attorney’s office, assisted in the supervision of the execution of the will. The attorney, the proponent, stated that he met with the decedent multiple times over the course of 2002-2004 and that decedent was aware of his assets and assuredly competent to execute a will in March of 2003, noting that several months after the execution of the will, decedent entered into a stipulation settling his divorce proceeding. The wife and her attorney concurred as to the decedent's competency.
The issue in this case is whether the objectants motion for summary judgment dismissing the objections and admitting the propounded instrument dated March 19, 2003 to probate should be granted.

A Staten Island Probate Lawyer said the court said that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tending sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in a contested probate proceeding is appropriate where an objectant fails to raise any issues of fact regarding execution of the will, testamentary capacity, undue influence or fraud. The remedy, however, is inappropriate where there are material issues of act.

The proponent has the burden of proving testamentary capacity. It is essential that testator understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property and his relation to the persons who ordinarily would be the natural objects of his bounty. Although he need not have a precise knowledge of his assets, he must be able to understand the plan and effect of the will, and less mental faculty is required to execute a will than any other instrument. Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and does not preclude a finding thereof as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made. "However, when there is conflicting evidence or the possibility of drawing inferences from undisputed evidence, the issue of capacity is one for the jury".
In this case, the record establishes that at all relevant times, including the time when the will was executed, the decedent possessed the capacity required by EPTL 3-1.1 to make a will. Pursuant to their deposition testimony, the attesting witnesses stated that the decedent was of sound mind at the time of the execution of the propounded will. This testimony was buttressed by the testimony of the attorney-draftsman who was well familiar with the decedent and met the decedent to discuss the proposed distribution of his estate, as well as the attorney who assisted in the will's execution. The affidavits of the witnesses also support decedent's competency at the time he executed the will.
Based upon the foregoing, the proponent has established prima facie that decedent was of sound mind and memory when he executed the will (EPTL 3-1.1). The record is devoid any proof that at the date of the execution of the propounded instrument, decedent was incapable of handling his own affairs or lacked the requisite capacity to make a will. In particular, the 2001 North Shore University Hospital records do not raise an issue as to decedent's testamentary capacity at the time he executed the will in 2003. The unsigned correspondence of the physician dated March 5, 2002 submitted by objectant in opposition has not been considered by this court as it is not in admissible form. Accordingly, the objection of lack of testamentary capacity is dismissed.
The proponent has the burden of proof on the issue of due execution. Due execution requires that the proposed will be signed by the testator, that such signature be affixed to the will in the presence of the attesting witnesses or that the testator acknowledge his signature on the propounded will to each witness, that the testator publish to the attesting witnesses that the instrument is his will and that the witnesses attest the testator's signature and sign their names at the end of the will. If the will execution is supervised by an attorney, the proponent is entitled to the presumption of due execution. Where an attorney states to the attesting witnesses, in the decedent's presence, that decedent is executing a will, such statement meets the publication requirement. If the decedent does not expressly request that a particular witness sign the will, such a request may be inferred from a testator's conduct and from circumstances surrounding execution of the will. The attestation clause and self-proving affidavits further support proponent's assertion that the propounded will was executed in compliance with statutory formalities.
Here, the testimony of the two attesting witnesses, the attorney-draftsman and the attorney who assisted in the supervision of the will prima facie establish due execution of the propounded instrument. Absent from the record is any proof that the propounded instrument was not executed in conformity with the formal requirements. Accordingly, the objection of lack of due execution is dismissed.
To prevail upon a claim of fraud, the objectant must prove by clear and convincing evidence that the proponent knowingly made false statements to decedent to induce him to execute a will that disposed of his property in a manner contrary to that in which he would have otherwise disposed of it. There is no such evidence in this case. Accordingly, the objection of fraud is dismissed.
In order to prove undue influence, the objectant must show (1) the existence and exertion of an influence; (2) the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will, that, but for undue influence, would not have been executed. Undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of his will, his family relations, the condition of his health and mind and a variety of other factors such as the opportunity to exercise such influence. It is seldom practiced openly but it is the product of persistent and subtle suggestion imposed upon a weaker mind and furthered by the exploitation of a relationship of trust and confidence. Without the showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed in insufficient. Circumstantial evidence is sufficient to warrant a trial on the question of undue influence.
The record is devoid of any evidence supporting the objection of undue influence. The submission of multiple litigations involving corporate entities, decedent, his son, and his wife have no bearing on the validity of the propounded instrument dated March 19, 2003. Nor does the April 2002 sale of the company to his son at allegedly below market value bear on the validity of the propounded will. It should be emphasized that the propounded will was executed in March 2003 during the pendency of decedent's divorce proceedings that culminated in a judgment of divorce in January 2004. The stipulation of settlement in the divorce action in August 2003, some five (5) months after the execution of the will encompassed the transfer of substantial assets. Contrary to objectant's assertion, the fact commencing in April 2002, by reason of the pendency of the divorce proceeding, the decedent resided with the son is not evidence of undue influence. Indeed, the evidence on this issue shows that decedent voluntarily took up residence with his son. "An inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary inference".
In this regard, the court notes that the propounded instrument is consistent with decedent's overall testamentary plan, that is, the exclusion of the other son from decedent's estate. There is no evidence that son actually exercised any undue influence upon the decedent. Accordingly, the objection of undue influence is dismissed.
Accordingly, the court held that, the proponent's request for an award of costs pursuant to CPLR 2302 and sanctions is denied. Proponent's motion is granted; the objections to the March 19, 2003 will are dismissed. A decree may be entered admitting the propounded instrument to probate.
Proponent has the burden of proving testamentary capacity. Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and does not preclude a finding thereof. If you want to contest the testamentary capacity of the testator, you will need the assistance of a Nassau Probate Attorney and Nassau Estate Litigation Attorney in order to file your opposition.

September 17, 2013

Court Decides Whether Accounting Fees and Attorney's Fees Should be Approved

A New York Probate Lawyer said that, in this accounting proceeding, the only issues before the court are the approval of attorneys' fees and accounting fees. The decedent died on November 25, 2004, a resident of Nassau County leaving a will dated October 12, 2004, which was admitted to probate by decree of this court dated July 12, 2005. Letters testamentary issued to the decedent's daughter, on July 12, 2005. The decedent was survived by seven children. The will divides the decedent's residuary estate equally among his seven children

A New York Wills Lawyer said that, this is the executor's first and final accounting covering the period November 25, 2004 through May 30, 2008. The summary statement shows charges to the accounting party of $955,030.92. Objections to the account were filed by the other children of the decedent. A stipulation of settlement settling the objections was entered into on September 23, 2009. Pursuant to the terms of the stipulation, the executor agreed to reduce her claim for executor's commissions from $32,414.40 to $22,414.40 and use the reduction to fund a $10,000 payment to the objectants. The agreement also provides for the distribution of certain items of tangible property.

The issue in this case is whether the accounting fees and the attorney’s fees should be approved by the court.

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

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

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate administration matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed.
With respect to disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter. In one case desicion, this court discussed the allowance of charges for photocopies, telephone calls, postage, messengers and couriers, express deliveries and computer-assisted legal research. The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in the said case. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.
The court is in receipt of an affirmation of services from the attorney who previously represented the executor in connection with the probate of the decedent's will and the administration of the estate. According to the attorney, he expended 65.05 hours on this matter at an hourly rate of $300.00 for a total of $19,515.00. He also advanced disbursements in the amount of $1,350.00 and received a flat fee of $200.00 for preparation of the decedent's will. Counsel has received payments totaling $3,750.00. A review of counsel's time records shows entries for some work that is secretarial in nature (i.e. mailing citations and faxing documents). In addition, it appears that some work related to counsel's preparation of his affirmation of legal services, which is not compensable. Considering all of the factors used in determining the reasonableness of fees, the court fixes the fee of the executor's former counsel in the total amount of $17,750.00, of which $3,750.00 has been paid and $14,000.00 remains unpaid. In addition, disbursements in the amount of $1,350.00, representing the probate filing fee, the fee for service of the citation and the fee for filing the executor's bond are approved.
The executor's current counsel has submitted an affirmation of legal services, which shows that attorneys at his firm spent a total of 71.75 hours on this matter at hourly rates of $350.00 and $300.00, for a total of $24,352.50. Disbursements in the amount of $1,628.25 were incurred. Counsel has received payments totaling $4,250.00. According to counsel, his firm obtained the file in May 2008 from the executor's prior attorney. The services performed by the attorney consisted of appearing in court on the return date of the citation in the compulsory accounting proceeding, working with the accountant to prepare the accounting, reviewing the records of prior counsel, filing the voluntary account and preparing the related court papers, conducting discovery, participation in the executor's SCPA 2211 examination and appearance at court conferences. Considering all of the factors used in determining the reasonableness of fees, the court fixes the fee of the executor's current counsel in the requested amount of $24,352.50. Disbursements in the amount of $1,417.00 are approved. Thus, the total amount approved for fee and disbursements is $25,769.50, of which $4,250.00 has been paid and $21,519.50 remains unpaid.
The accountant has submitted an affidavit of accounting services. According to the accountant, he spent 79 hours preparing the accounting at his normal hourly rate of $150.00 for a total of $11,850.00. In addition, the accountant's assistant rendered services which amounted to $1,968.75. The accountant claims that the number of hours spent on this matter appears somewhat higher than usual because he had to analyze "over 139 expense items and over 70 income items." The accountant is seeking approval of a reduced fee in the amount of $5,000.00. The accountant also prepared a schedule valuing the decedent's model train collection. Under the circumstances here, accounting fees in the amount of $5,000.00 are approved.
Accordingly, the court held that it is a Settle decree.
The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate administration matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. If your wish to claim for accounting fees and/pr attorney’s fees in a probate proceeding, seek the assistance of a Nassau Estate Administration Attorney or Nassau Probate Attorney at Stephen Bilkis and Associates in order to know you can avail your claim.

August 18, 2013

Court Decides Statute of Limitation Issue

The decedent died on February 7, 1946. Shortly thereafter the executrix filed with the court a petition for the probate of the decedent's will, together with her oath and designation. Jurisdiction of all necessary parties was obtained and the proceeding was marked for decree on July 10, 1946, subject to the affidavits of subscribing witnesses. Letters testamentary were not issued at that time.

The County Attorney of advised the then petitioner (and now executrix) by letter of the existence of the, the Board of Public Welfare of Nassau County filed a notice of claim with the court. This notice was not served on the then petitioner. Nothing further was done by the petitioner to complete the proceeding until February 1965 when the matter was reactivated and the will eventually admitted to probate and letters were issued.

A New York Probate Lawyer said the petitioner herein has requested a determination that the aforementioned claim of the Board of Public Welfare of Nassau County be held invalid and unenforceable against the estate and the executrix on the grounds that the claim is barred by the six-year Statute of Limitations provided by the old section 48 of the Civil Practice Act. The section 104 of the Social Welfare Law does not authorize recovery of amounts paid by welfare boards for any period prior to ten years before decedent's death, and thus at least that part of the claim in the amount of $2,130.57 representing payments made prior to 1938 is not recoverable. The estate was insolvent at the date of the decedent's death because the amount of her funeral and administration expenses exceeded the value of her personal property, and the amount of mortgage liens and unpaid interest thereon exceeded the value of her real property.

The County Attorney, on behalf of the Board of Public Welfare, has conceded that it is barred from any recovery of the $2,130.57 portion of the claim for the period from January 28, 1932 to April 7, 1937 since those payments were made more than ten years prior to decedent's death in spite of the possibility of a small overlapping. He also indicates acceptance of petitioner's statements relative to the value of decedent's assets at the date of her death and of the amount of funeral and administration expenses. The remaining allegations of invalidity and unenforceability of the claim as set forth in the petition are, however, disputed.

A New York Probate Lawyer said the Social Welfare Law as it read at the date of decedent's death provides that a public welfare official may bring action against the estate or the executors of a person, who dies leaving real or personal property, if such person or anyone for whose support he was liable, received assistance during the preceding ten years. It further states that any assistance or care received by such person shall constitute an implied contract. Former section 48 of the Civil Practice Act at that date required that an action on an implied contract be commenced within six years after the cause of action has accrued.

The Board of Public Welfare takes the position that its filing of a notice of claim with the court on or about January 20, 1947 was equivalent to the commencement of an action, thus the six-year Statute of Limitations was tolled. The executrix argues that in order to validly present such a claim there had to be an executor or administrator in office, and since there was none, the six-year Statute of Limitations has run and bars the claim; that former section 21 of the Civil Practice Act which provided for an 18-month tolling of the Statute of Limitations where a person against whom a cause of action exists dies within the state, and further provided that if letters testamentary or of administration were not issued within the state at least six months before the expiration of the Statute of Limitations as so extended, the term of one year after such letters are issued is not a part of the time limited for commencement of an action, affords no relief to the claimant because it did not apply to a cause of action accruing after death and as to such cause of action, there was no other provision for tolling the statute.

A Staten Island Probate Lawyer said the court agrees that for a claim on a decedent's estate to be made, demand must be made on an executor or administrator; that the filing of a notice of claim with the court was not a demand on an executor as required by statute, nor was a notice to her.

While it is true that both hold that in a claim of this type 'the claim accrues upon the date of death and the time within which it may be enforced against the particular decedent's estate runs for six years thereafter, this court is of the opinion that such holdings are subject to the further rule of law that an action does not accrue until the appointment of a representative upon whom a demand can be made.

The court agrees that a claim maturing or accruing after death is governed by the ordinarily applicable Statute of Limitations, unextended by the relief granted by CPLR, and like statutes. The court believes that a correct statement of the law applicable to this point was set forth by Surrogate Delehanty. The section applies only to claims upon which the statute had begun to run prior to death. The claims which matured after death are not covered by the text of the section at all. As to such claims the general six-year statute applies, Limited only by the rule of law that the cause of action is deemed to be completely in existence only when there is also in existence a person against whom process can issue. The court in that instance then went on to hold that the cause of action came into full existence when letters of administration were issued. If there is no representative in office at the time the right matures, the claimant may not be prejudiced by a delay in appointment, and the statute will not operate against him, no matter what the extent of the delay of those interested in the estate in securing the appointment of a representative.

The court holds, therefore, that the six-year Statute of Limitations applicable to this claim began to run on the date of issuance of letters testamentary to the petitioner on September 27, 1965. However, because of additional questions of fact, no determination as to the validity of the claim can be made without an accounting. Although section 104 of the Social Welfare Law was amended in 1953 to provide that a claim such as this cannot be defeated or barred by any lack of sufficiency or ability on the part of decedent during the period the claimed assistance was received, this amendment has been held not to have retroactive effect. The Board of Public Welfare accordingly has the burden of proving that decedent was of sufficient ability to have been responsible for the claimed payments made herein.

In addition, the court is not in a position without an accounting to pass upon the question of whether or not this estate is insolvent. The present value of the vacant real property and the present status of the lien or liens upon it have not been made known to the court. These matters can be determined in an accounting proceeding after the sale, if any, of the real property. Since the claimant has never served a claim upon the executrix, if it is so advised a proper claim should be filed pursuant to the Surrogate's Court Act.

A qualified executor is a must for every situation that would arise in a will related dispute. If you want to be assured that you will get what is due for you, a Nassau County Probate Lawyer together with a Nassau County Will Contest Attorney from Stephen Bilkis and Associates can assist you.

August 1, 2013

Probate Court Decides Out of State Jurisdiction Issue

Two cases before two (2) courts involve the same or similar issues, that is, the jurisdictions of both courts in ruling upon the probate proceedings filed before it.


First Case:

A New York Probate Lawyer said that on 26 April 1954, the decedent was committed to a State Hospital. Thereafter or on 12 August 1954, a Supreme Court in Kings County issued an order finding decedent to be an incompetent person. This order recited that decedent was then a resident of Kings County, and appointed “A”, a resident of Huntington, Suffolk County, as committee of the person and property of the incompetent. On 29 March 1955, the decedent died while a patient in the State Hospital. Consequently, “A”, who continues to reside in Huntington, was named executrix in the will of the decedent. Following the death, a probate proceeding was then instituted with “A” as the petitioner in Suffolk County. Respondent, appearing specially, challenges the jurisdiction of the Court on the ground that decedent, at the time of his death, was a resident of Kings County.

A New York Will Lawyer said the question that the court must resolve is whether or not the decedent died a resident of Kings County or Suffolk County.

Here, the court finds that, upon the facts presented, the decedent died a resident of Kings County. Thus, respondent's objection must be sustained, and the petition for probate must be dismissed.

Second Case:

Suffolk County Probate Lawyers said that on 2 October 1958, defendant's brother filed before the Court of Sullivan County a petition for the probate of a will dated 9 May 1952, with the petitioner named as one of the executors thereof. The widow and daughter of decedent and one other person appear specially and object to the jurisdiction of the Surrogate's Court of Sullivan County.

Nassau County Probate Lawyers said that here, it appears without question that letters of administration (for estate administration purposes) of the goods, chattels and credits which were of decedent were issued to the widow by the Surrogate's Court of Kings County on 27 March 1958. As Section 44 of the Surrogate's Court Act provide, among other things, that: jurisdiction, once duly exercised over any matter by a surrogate's court, excludes the subsequent exercise of jurisdiction by another surrogate's court over the same matter, and all its incidents. Clearly, orderly and sound procedure requires that the within proceeding in this court be adjourned to enable the proponent of the propounded instrument to apply to the Surrogate of Kings County to vacate the letters of administration there issued on the grounds that decedent was not a resident of Kings County at the time of his death, that decedent did not die intestate and on such other and further grounds as he may see fit to advance. While contrary reasoning can be found in the case of Matter of Mills' Estate, the weight of authority indicates that the suggested course of action is the better practice and procedure. It might also be pointed out that it would appear that said application to vacate would not be barred on the principle of res adjudicata by virtue of the proceeding culminating in the decision dated 18 September 1958, because apparently there were different issues involved. Staten Island Probate Lawyers said it would appear also that there would be different parties.

In sum, the court finds that the proceeding must be adjourned without date, the same to be restored by any appearing party on notice of three days after determination of the suggested application in Kings County.

Contact Stephen Bilkis & Associates for experienced representation. Our Kings County Probate Attorneys, Kings County Estate Administration Attorneys, Kings County Estate Litigation Attorneys, and the like, are the best in the legal profession. With our legal counsels’ competence and exceptional skills, favorable judgments or resolutions to legal disputes are highly probable. Call us now at our numbers or visit any of our offices for a free consultation and be advised of the legal remedies you may avail of in your situation. With us, the protection and enforcement of your rights and interests is our priority. Justice is our utmost goal.

July 27, 2013

Court Decides Executrix Commissions

n a proceeding for ancillary probate of the will of decedent, which will, it is alleged, has been admitted to probate in the Republic of Mexico, the nation in which decedent was domiciled at the time of his death. The application indicates that decedent possessed real property in both Bronx County and Westchester County.

A New York Probate Lawyer said that petitioner has advised the court that he initially sought to obtain ancillary letters from the Surrogate's Court, Westchester County. However, when the staff of that court indicated to him that they would require additional documents, he opted to abandon proceeding before that court and to seek relief in Bronx County.

The court does not reach the merits of the application. There is no question that, ab initio, petitioner could have proceeded in either county. However, petitioner having exercised his option to proceed in Westchester County, it would constitute an inappropriate countenancing of forum shopping for this court to now entertain the instant application.

It is well established that, when two courts have concurrent subject matter jurisdiction, once one has exercised jurisdiction in the matter, it should not be entertained by the other.

In the instant matter, this court is sensitive to the fact that the application in Westchester County perhaps did not reach the point of a formal application that was denied by judicial act. However, the spirit of the above cited rule, which is intrinsic to the orderly administration of justice divorced from the pernicious practice of judge shopping, requires that, in the exercise of discretion, this court not entertain a matter that was previously submitted to another court that had jurisdiction over the subject and did not, by its own order, decline jurisdiction without prejudice to petitioner's proceeding before another forum of his choice.

Accordingly, a New York Will Lawyer said the instant application is dismissed without prejudice to the petitioner pursuing such relief before the Surrogate's Court, Westchester County, as he deems appropriate.

A Suffolk County Probate Lawyer said in another probate case, although the objections previously filed have now been withdrawn, the court is called upon to decide whether SCPA 2307-a(7) mandates that it be determined prior to the issuance of letters testamentary to the designated executrix, the attorney who drafted the will, whether she has complied with the disclosure requirements of subdivisions 1 and 2 of this statute or whether the determination of this issue may be deferred based upon the fact that the only assets of the estate are pending causes of action to which a claim for wrongful death will be added.

A Nassau County Probate Lawyer said SCPA 2307-a was enacted to clarify that attorneys who drafted wills designating themselves as the executors are entitled to both full statutory commissions and reasonable legal fees provided that they have complied with the disclosure requirements of the statute and only one-half of the statutory commissions to which they would otherwise be entitled if they failed to obtain proof of disclosure in the form mandated by the statute.

Prior to the enactment of this statute not only was there a question as to the commissions and legal fees to which an attorney-executor would be entitled but also a question as to whether objections to full statutory commissions based upon the attorney's failure to make full disclosure had to be made in the probate proceeding or could be asserted for the first time in an accounting or other appropriate proceeding.

The Legislature, apparently of the opinion that executors are entitled to know that rate at which they will be compensated prior to undertaking a fiduciary responsibility, provided in SCPA 2307-a(7) that "a determination of compliance with the requirements of subdivisions 1 and 2 of this section shall be made in a proceeding for the issuance of letters testamentary." However, there are no statutory guidelines for the procedure to be used by the court before it renders this determination.

Fundamental concepts of due process would appear to dictate that, before the court determines this issue, notice and an opportunity to be heard should be afforded to all the parties who would be affected by the amount of the commissions awarded. Furthermore, in furtherance of the public policy that requires courts to husband their limited resources by confining their determinations to the resolutions of controversies having a present, practical impact, the courts generally decline to entertain potential issues which may never actually arise.

Here, if there is no recovery in the pending actions, the commissions of the executrix shall be zero regardless of whether the commissions are computed at the full statutory rate or one-half that amount. Under these circumstances, and in the absence of the designated executrix insisting that the court presently render a determination with regard to the rate at which her commissions are to be computed prior to the issuance of letters testamentary, the court concludes that it has the discretion to hold this issue in abeyance until an accounting or other appropriate future proceeding even though SCPA 2307-a(7) states that this issue "shall" be determined in the probate proceeding.

In short, neither the executrix nor the residuary beneficiaries should be compelled to presently address this issue if they do not want to and they might never have to in the event that there is no recovery in the pending actions. Of course, the court is not determining whether the designated executrix would have a right to insist that this issue be determined in the probate proceeding.
In the absence of any opposition, the court is satisfied that the will was duly executed and that the testatrix was in all respects competent to make a will and not under any restraint. Notwithstanding that the pro se objectants have withdrawn their objections, the decree admitting the will to probate, which shall contain a provision that all issues as to the amount of commissions under SCPA 2307-a shall be determined in an appropriate future proceeding, shall be settled upon the former objectants.

Probate of a will of a decedent is an operative process in order that the provisions in the will, will take effect. Here in Stephen Bilkis and Associates, we, through our Bronx County Probate attorneys assist the executors of the will to have the will probated in the Court. With the help of our Bronx County Estate lawyers, we will advice you on how to divide your estate properly.

July 26, 2013

Court Discusses Issues Related to Filing of Notice of Election

This is an application for an order relieving the petitioner of her default in filing her notice to take an elective share as decedent's surviving spouse within the time provided and extending her time to file the notice of election. The question presented is whether the provision in EPTL 5-1.1-A (d)(1) that "an election under this section must be made in no event later than two years after the date of decedent's death" precludes the granting of this uncontested application which was not filed until almost three years after decedent's death.

A Bronx County Probate lawyer said that the decedent's distributees are the petitioner, who is his second wife, and two adult children, issue of his first marriage. The decedent's will was admitted to probate in November 2002 and letters testamentary issued to decedent's brother. Under the circumstances that existed on the date of decedent's death, his estate is bequeathed in equal shares to his two children. The petitioner, a resident of Mexico, concedes that she was served with a citation in the probate proceeding by mail in July 2002. She did not file the instant application until January, 2003.

A New York Probate Lawyer said the petitioner's primary reasons for her delay in seeking to file the notice of election are that counsel for the executor allegedly had informed her that the entire estate consisted of joint accounts that were not testamentary substitutes because the decedent had created them prior to their marriage and that she did not receive the probate citation until more than two years after the date of decedent's death. Although it took the petitioner a considerable period of time, she eventually obtained jurisdiction over the executor and the two beneficiaries of the estate, and they have interposed no opposition to the relief requested.

The pertinent provisions of EPTL 5-1.1-A provide as follows: (d) Procedure for exercise of right of election. (1) An election under this section must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be, but in no event later than two years after the date of decedent's death. (2) The time to make such election may be extended before expiration by an order of the surrogate's court from which such letters issued for a further period not exceeding six months upon any one application. If the spouse defaults in filing such election within the time provided in subparagraph (d)(1), the surrogate's court may relieve the spouse from such default and authorize the making of an election within the period fixed by the order, provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of the letters. An application for relief from the default and for an extension of time to elect shall be made upon a petition showing reasonable cause and on notice to such persons and in such manner as the surrogate may direct.

A New York Will Lawyer said the above provisions were enacted in 1992 and the only difference from the prior statute is the addition of the language in subdivision (d)(1) "but in no event later than two years after decedent's death". Although there have been cases which discussed other aspects of the two-year period in the 1992 legislation, the only case dealing directly with the issue of whether the two-year period acts as a statute of limitations barring any relief thereafter is Surrogate’s decision in a case, where it noted that "there is significant commentary" stating that the two-year period "was intended to create an absolute time bar to filing after that date", he nevertheless held that, at least with regard to testamentary assets, an application for an extension under subdivision (d)(2) that was not filed until 40 months after decedent's death could be granted on the rationale that "the language of the second sentence of subparagraph (d)(2) modifies and permits relief from the times provided in EPTL 5-1.1-A (d)(1) of both six months from the issuance of such letters and two years after decedent's death "
The result in such case appears equitable in light of the fact that none of the interested parties was surprised by the spouse's seeking an elective share inasmuch as they had been engaged in contested probate and discovery proceedings as well as extensive settlement negotiations since shortly after decedent's death. Nevertheless, the same result might have been reached on other grounds than the statutory interpretation adopted by the court. That interpretation might be questioned by arguing that that the reason that the Legislature left subdivision (d)(2) unchanged from prior law is because it was of the opinion that the 1992 enactment of (d)(1) containing the language "but in no event later than two years after decedent's death" reflects a clear intent that the two-year period was to act as a statute of limitations. In any event, inasmuch as neither the beneficiaries nor the executor of the estate has opposed the relief requested, the court does not have to either embrace or reject the holding in such case, in order to grant this application. This is so because even if the two-year period is deemed a statute of limitations, any party who wants to rely upon the statute of limitations as a defense to a claim must plead it as an affirmative defense.

Accordingly, a Nassau County Probate Lawyer said in the absence of this issue being raised by the respondents, the court will not, sua sponte, bar the application for an extension of time to file a notice of election with regard to assets that have, or will, pass to the respondents who have defaulted.
The petitioner has shown the following "reasonable cause" to warrant granting the extension: 1) she was not notified of the probate proceeding until more than two years after decedent's death; 2) she was given misleading information about the decedent's assets; and 3) she had difficulty in obtaining New York counsel from her residence in Mexico. Accordingly, the application is granted. This decision constitutes the order of the court extending the petitioner's time to serve and file her notice of election until February 2004. Of course, this determination is without prejudice to the rights of any party who was not served with process in this proceeding and would be adversely affected by this determination as a result of their having received a testamentary substitute or otherwise.

A Staten Island Probate Lawyer said there are formalities in which a will should conform. Here in Stephen Bilkis and Associates, our Bronx County Estate attorneys will advice you on how to execute your will properly in order that when the time that our Bronx County Probate lawyers will proceed with the probate of your will, it will be allowed by the court. In such case, the proceedings will be expedient and the estate will be divided accordingly.

July 4, 2013

Defendants Fail to Establish Prima Facie Case for Summary Judgment

Two cases were brought before the court for resolution.

In the first case:

A New York Probate Lawyer said that on 24 July 2006, the Supreme Court of New York County rendered judgment granting the defendant's motion for summary judgment only to the extent of precluding plaintiff from asserting any claims for legal fees incurred in the prosecution of the action, and denied the defendant's application to dismiss plaintiff's claims for consequential damages based on the alleged breach of duty. The defendant appealed.
The appellate court unanimously affirmed the order appealed from, with costs.

A New York Wills Lawyer said that as held in the case of Acquista v New York Life Ins. Co. in 2001, an insured may recover foreseeable damages, beyond the limits of its policy, for breach of a duty to investigate, bargain for and settle claims in good faith. Here, the court's denial of defendant's application to dismiss plaintiff's claims for consequential damages from the alleged breach of such a duty was proper. Defendant has not shown that the proffered exclusion for consequential loss was an applicable provision under the policy. As a rule, consequential loss and consequential damages are not synonymous, as suggested by the defendant.

The defendant's remaining arguments were also found by the court bereft of merit.
In the second case:

The defendants have occupied a parcel of farm land in Suffolk County for more than 23 years. Sometime in 1981, the defendants entered into a one-year written lease, effective 1 March 1981, with the original owner. However, after a few years, they entered into an oral agreement and the defendants tendered yearly rent to the original owner each spring. Nassau County Probate Lawyers said that on 1 January 1988, the land was deeded to the original owner's daughter and son-in-law, who did not interrupt the defendants' possession of the premises or insist on receiving the annual rent payments. The defendants continued to occupy the land and submit the rent payments to the original owner up to the year 2002. In late 2002 or early 2003, following the original owner's death, the son-in-law told the defendants that he was selling the property and that the defendants no longer had a right to occupy the land. The defendants offered to pay the 2003 annual rent to the son-in-law but he refused to accept it. The property was sold to the plaintiff while the defendants continued to occupy the land.

Staten Island Probate Lawyers said that consequently, plaintiff commenced an action for ejectment against the defendants to remove them from the property, among other things. On 1 February 2005, the Supreme Court denied that branch of the defendants' motion which was for summary judgment on their counterclaim for a judgment declaring that they occupied the land under a valid year-to-year tenancy which was not terminated by proper notice. The defendants appealed.

The appellate court affirmed the order appealed from, with costs.

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law on their counterclaim for a judgment declaring that they occupied the land under a valid year-to-year tenancy which was not terminated by proper notice. Initially, the defendants met their burden of establishing that a year-to-year tenancy was created. The affidavits and photocopies of annual rent checks submitted by the defendants demonstrated the intent of the defendants and the original owner to create an implied periodic tenancy, rather than a tenancy-at-will. However, the defendants failed to establish, as a matter of law, that they did not receive proper notice of the termination of their tenancy. Under such circumstances, the Supreme County properly denied that branch of the defendants' motion which was for summary judgment on the counterclaim for a judgment declaring that they occupy the subject premises under a valid year-to-year periodic tenancy.

New York Estate Litigation Lawyers or New York Ejectment Lawyers at Stephen Bilkis & Associates are the people to call when it comes to cases like the above. Our firm has the best legal counsels in the country with extensive experiences in trial practice or litigation. Contact us now for a free consultation and learn what you can do to best resolve your legal problems.

June 26, 2013

Court Decides Suit Regarding Family Trust

The document sued upon is a Family Trust.

On 19 May 1999, a Family Trust, a revocable inter vivos trust, was created. It is a 29-page document with nine articles. A, the settlor, is the mother of plaintiff and defendant. A, and her husband, B, are the co-trustees.

A New York Probate Lawyer said that according to the Family Trust, its purpose is to hold property, which was attached to and made part of the agreement, together with such monies, securities and other assets as the trustee may thereafter at any time hold or acquire (said monies, securities and other assets, referred to collectively as the “Trust Estate”) for the purposes of providing income to the settlor during her lifetime, paying her funeral expenses, estate taxes, probate fees, legal and accounting fees related to her estate, satisfying any cash bequests, all inheritance taxes, funding a marital share deduction, providing income for the benefit of her husband or their children during her husband's lifetime and upon his death, paying the balance of the Trust Estate to their children, per stirpes. Further, the Family Trust agreement provided that if A died, the balance of the Trust Estate would be distributed to her husband if he survived her, and that upon his death, or the settlor's death if her spouse predeceased her, the trustee would pay the balance of the Trust Estate to the settlor's children, per stirpes.

On 29 September 1999, A died, and, on 6 September 2002, her husband died. Plaintiff and defendant are the trustees under the terms of the Family Trust.

Under CPLR 3213, a plaintiff is allowed to commence an action based upon an instrument for the payment of money only by serving a summons and notice of motion for summary judgment and supporting papers in lieu of a complaint. A Nassau County Probate Lawyer said the document comes within the provision if a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms. The instrument does not qualify if outside proof is needed, other than simple proof of nonpayment or a similar de minimis deviation from the face of the document. Where the instrument requires something in addition to the defendant's explicit promise to pay a sum of money, the provision is unavailable.

As a rule, in determining whether an instrument is one for the payment of money only, the test is not what the instrument may be reduced to by part performance or by elision of a portion of it, but how the instrument read in the first instance.

According to plaintiff, the Family Trust comes within the purview of CPLR 3213, based upon a single sentence in the Family Trust. The court disagrees.

According to the court, the Family Trust goes beyond merely guaranteeing the payment of money, and does not require the payment of any specific amount of money to the plaintiff. In addition, the Family Trust does not contain a specific promise by the defendant to pay a sum of money to the plaintiff. Finally, the Trust Estate's assets and their value can only be determined through extrinsic means. Therefore, CPLR 3213 is not available here, as the character of the instrument relied upon does not meet the express statutory requirement that it be for the payment of money only.

According to defendant, an action has been commenced to compel an accounting of the estate of A’s husband, and that he has filed certain objections.

Here, a Suffolk County Probate Lawyer said it appears that the accounting was commenced in Surrogate's Court, Suffolk County, while the objections were filed in Surrogate's Court, Queens County. However, as the issues relating to the Family Trust are solely between living people and the estate of A’s husband is not a beneficiary of the trust, there is no need to transfer this matter to the Surrogate's Court.
Accordingly, plaintiff's motion for summary judgment in lieu of the complaint was denied, and the motion was converted to a special proceeding under article 77 of the CPLR; and defendant's cross motion to dismiss the motion was denied in its entirety. The moving papers were deemed the petition and answer, and should either party deem it necessary, they may examine one another as trustees as to any matter relating to their administration of the trust in accordance with the provisions of article 31 of the CPLR.
Free consultations are available at our firm. Know your rights. Learn the legal remedies you may make use of in order to resolve your legal problems. Speak with a Suffolk County Probate Lawyer, Suffolk County Trust Lawyer, Suffolk County Estate Lawyer, and the like, at Stephen Bilkis & Associates. Contact us now for a free legal advice.

June 3, 2013

Court Decides Property Dispute Among Family Members

The Facts of the Case:

On 18 October 2007, a decedent died and is survived by his daughter-one and his granddaughters, A and B, the children of predeceased daughter-two, as his sole distributes. The decedent’s wife had predeceased him in September 2003. After the death of the decedent, the petitioner instituted an SCPA 2103 discovery proceeding. A New York Probate Lawyer said the petitioner is granddaughter B, who resides in Florida and to whom limited letters of administration (for estate administration purposes in an estate litigation) issued for the sole purpose of prosecuting the discovery proceeding and the respondent is daughter-one, who resides in Selden, Suffolk County. The property, subject of the proceeding, is a parcel of real property in Massapequa Park, Nassau County, and three bank accounts. Apparently, the real property was conveyed by the decedent to the respondent by deed dated 26 August 2004 and recorded 7 September 2004. The deed purported to convey all of the decedent's right, title and interest in the property, except that it reserved a life estate in the decedent. At the time of decedent's death, the bank accounts were held either jointly between decedent and respondent or solely by respondent.
In the SCPA 2103 proceeding, petitioner alleges that respondent was in a confidential relationship with the decedent and used that relationship to exert undue influence upon the decedent to convey the real property and change the title and/or beneficiary designations on the subject accounts. In opposition, respondent denies petitioner's allegations and contends that all the transactions reflect the exercise of the decedent's own free will. The respondent now moves for a summary judgment and for an order dismissing the petition and canceling a notice of pendency filed against the decedent's former residence.

The Ruling of the Court:

As the rules provide, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial of the action. The court's function on a motion for summary judgment is issue finding rather than issue determination. The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party. If there is any doubt as to the existence of a triable issue, the motion must be denied. However, mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to overcome a motion for summary judgment.

On the Deed of Conveyance:
Respondent has presented evidences including the testimony of the lawyer who prepared the subject deed as well as a will, which has not yet been presented for probate or will contest, and a power of attorney. In this regard, the court finds that respondent has clearly made out a prima facie case that the subject deed was a valid conveyance of the property to respondent.
Here, petitioner does not allege that there was no delivery or acceptance by the respondent; her only argument is that the decedent lacked the donative intent to effect a valid conveyance and/or that the conveyance is the result of undue influence upon the decedent or the result of misrepresentations made by the respondent to the effect that the conveyance would be for the convenience of the decedent and was merely for Medicaid and estate tax planning. Petitioner offered nothing but her own testimony that decedent seemed forgetful and frail at or about the time of the execution of the deed. Moreover, upon questioning by respondent's attorney she could not point to a single incident which would support a conclusion that the respondent had exercised undue influence on the decedent or had made any promise or representation to him about holding the property merely for his convenience. The only evidence casting any doubt on the bona fides of the subject deed is the deposition testimony of petitioner's sister about an incident that allegedly occurred at her parents' home after her mother's funeral. She alleges that she overheard respondent say to someone on the telephone something to the effect that now that her mother had passed away they can get daughter-two’s name off the house. In this case, the court finds that even if this testimony were to be believed, it does not rebut the overwhelming testimony from the lawyer that the conveyance of the property to respondent was decedent's overriding intention. Furthermore, the record does not support petitioner's contention that decedent and respondent were in a confidential relationship. Respondent was decedent's closest relative and the only one in any proximity to decedent. Although decedent was elderly and respondent did some of the banking transactions and had arranged for his meals, there is no evidence that decedent relied on respondent for his daily needs. He continued to pay some of his own bills and never had home health aides or nurses and continued to live alone for approximately three years after the deed conveyance. In sum, the court finds that the record as a whole establishes that decedent was competent and acted on his own volition; that even if some level of dependence was established, it is counterbalanced by the closeness of the familial relationship and the circumstances of the case.

In sum, a Nassau County Probate Lawyer said that the that branch of the motion seeking summary judgment on the validity of the deed and canceling the notice of pendency is granted.

On the Bank Accounts:

A Staten Island Probate Lawyer said that there are three bank accounts in dispute, two with bank-one and one with bank-two. The bank-one savings account is titled in the names of decedent and respondent daughter-one payable to either or the survivor in trust for daughter-two. Here, the signature card used to open the account indicates that the funds in the account are payable to either or the survivor of two joint tenants. Clearly, pursuant to the Banking Law, the presumption that the parties intended to create a true joint bank account with rights of survivorship applies. The burden is then on the opposing party to prove fraud, undue influence or lack of capacity, or that the account was opened merely for convenience and not with the intent of conferring a present beneficial interest. However, petitioner has offered no such proof. Thus, the court finds that the signature card was sufficient to establish respondent's prima facie case, and respondent is entitled to the balance in the account on the date of decedent's death.

The bank-one checking account, on the other hand, is payable to the decedent and daughter-one. Thus, there is no survivorship language and the presumption of Banking Law does not obtain. In this case, the presumption is that the account is held by the two co-tenants as tenants in common. The presumption may be rebutted by proof that the parties intended to create a true joint account with right of survivorship. Here, there is no indication of the decedent's intent when the account was opened in February 2004. While it may be that after daughter-two’s death he intended respondent to succeed to the funds in the joint checking account upon his own death, it is his intention at the time the account was opened which is controlling. Thus, there being no evidence of intent, the motion with regard to the bank-one checking account is denied.

On the bank-two trust account, the account had been titled in the names of the decedent in trust for daughter-two, and daughter-one. On 5 August 2004, the title of the account was changed to daughter-one in trust for her daughter. This now constitutes as a gift of the entire account to respondent. The instrument used to change the title on the account was signed by both respondent and decedent before a notary public. The transaction occurred six months after daughter-two’s death and at or about the time of the execution of the subject deed and the decedent's last will and testament, both of which clearly evince the decedent's intention to leave the bulk of his estate to respondent, his only living child. The decedent's death did not eventuate for another three years after the transaction, and clearly was not a deathbed transfer or a gift after his death. Clearly, the respondent has established all the elements of valid gift. Thus, she is entitled to summary judgment, and that the transfer of the bank-two trust account was a valid lifetime gift.

In sum, the respondent’s motion is granted in part and denied in part; the motion with regard to the deed, bank-one savings account and bank-two trust account is granted; and the motion with regard to the bank-one checking account is denied.

Disputes among family members usually arise when properties are given or received by reason of succession or death of a loved one. In this regard, the intention of the decedent must be established by clear and convincing evidence. Thus, for the best Suffolk County Estate Litigation Lawyers, contact us at Stephen Bilkis & Associates. We have free consultation services. Call us and confer with our Suffolk County Estate Administration Attorneys, Suffolk County Probate Attorneys, and the like.

January 24, 2013

Petitioner Questions Validity of Will

In a will contest probate proceeding, the appellant woman appeals from a decree of the Surrogate's Court which as granted the motion of the petitioner, Public Administrator of Kings County, for summary judgment dismissing her objections to admit the deceased person’s will dated September 30, 1977, admitted the will to for validation and determined that the will was validly executed. The court ordered that the decree is affirmed insofar as appealed from, with costs payable personally by the appellant.

The last will and testament purporting to be the will of the deceased man was executed on September 30, 1977, under the supervision of an attorney. New York Probate Lawyers said the will contains a confirmation clause and was subscribed by witnesses whose signatures were notarized. The will devised certain real property located in Brooklyn to one of the deceased man’s three daughters. The man died on November 30, 1977, and his will was filed with the Surrogate's Court, Kings County, in April 1978. The man died without a valid will in 2000, and the Public Administrator of Kings County was appointed to oversee her estate.

In May 2003, a photocopied document was submitted to the Probate Department of the Surrogate's Court, Kings County, purporting to be the will of the deceased man. The 2003 instrument provided that the real property was to be divided equally among the deceased man's three daughters.

In January 2008, the Public Administrator filed a petition to admit the will to probate, and the appellant woman filed objections thereto. In an order dated March 11, 2010, the Surrogate's Court granted the Public Administrator's motion for summary judgment dismissing the objections. In a decree dated April 5, 2010, the will was admitted to probate.

The Surrogate's Court properly awarded summary judgment dismissing the objections and properly admitted the will to probate. Nassau County Probate Lawyers said the Public Administrator established legitimate showing that the will had been on file in the Probate Department of the Surrogate's Court, Kings County, since 1978. Therefore, it was an ancient document, exempt from the requirements that, when the witnesses to a will are deceased, the handwriting of the person who made the will and at least one witness must be proved. In addition, the will contained a confirmation clause, which is legitimate evidence of proper execution. The will was prepared by an attorney, thereby giving rise to a presumption of proper execution. In opposition, the appellant failed to raise a triable issue of fact. The appellant also failed to raise a triable issue of fact as to the validity of the deceased man’s signature, or to otherwise offer proof in support of her objections. The appellant's remaining contentions are without merit.

In another probate proceeding in which an action to compel the determination of claims to real property, for dispossession and for a court-ordered prohibition was transferred from the Supreme Court to the Surrogate's Court, the accused parties appeal from so much of an interlocutory judgment or default judgment of the Surrogate's Court as, after a nonjury trial, and upon a decision of the same court dated May 19, 2009, determining that a certain deed dated June 6, 2002, is null and void and dismissing their first affirmative defense, and upon a decision of the same court dated October 13, 2009, determining that a certain deed dated May 9, 2001, was not procured through the exercise of undue influence and dismissing their third affirmative defense, is in favor of the complainant and against them determining that the complainant holds in fee simple absolute certain real property as described in the deed dated May 9, 2001. Suffolk County Probate Lawyers said the Surrogate’s Court ordered that the default judgment is affirmed insofar as appealed from, with costs.

Having your name in someone else’s last will measures your importance to the life of that person. If you were given an estate and you want to make sure that everything is in order, consult a Kings County Estate Administration Lawyer and a Kings County Probate Attorney from Stephen Bilkis and Associates.

December 27, 2012

Court Decides Whether Illegal Alien is Barred from Recovering Damages

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

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

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

A Staten Island Probate Lawyer said that, the Supreme Court granted the plaintiff's motion as to both defendants, and granted those branches of Wildflower's cross motion which were for summary judgment on its cross claims and its third-party cause of action. On appeal, this Court modified the Supreme Court's order by denying that branch of the plaintiff's motion which was for summary judgment on the issue of Classic's liability pursuant to Labor Law § 240 (1), searching the record and awarding Classic summary judgment dismissing the causes of action alleging a violation of Labor Law § 240 (1), and denying those branches of Wildflower's cross motion which were for summary judgment on its cross claims and its third-party cause of action seeking contractual and common-law indemnification.

Meanwhile, the matter proceeded to trial. The jury was informed that it would be determining who was at fault for the accident, as between Classic and City Wide, and that Wildflower had been found not negligent as a matter of law. During his testimony, the plaintiff admitted that he was undocumented, and that he had submitted a fraudulent Social Security card to City Wide at the time he was hired. The plaintiff further testified that City Wide paid him for 35 hours of work per week, by check, and for approximately 17 hours of overtime per week, in cash. The plaintiff's supervisor testified that the plaintiff worked a normal 35-hour week and that City Wide employees almost never worked overtime, but this testimony was contradicted by that of the plaintiff's brother, also an employee of City Wide, who testified that he worked every Saturday.
The plaintiff presented medical evidence demonstrating that his injuries were permanent, that he required constant assistance with the activities of daily living and extensive physical, occupational, and psychological therapy, and that it would be extremely difficult for him to become self-sufficient. There was some medical evidence, which was sharply disputed by the defendants, that the plaintiff suffered traumatic brain injury, which diminished his cognitive functioning to the point where it would be difficult to live independently or maintain employment. According to the plaintiff, his family in Ecuador would be incapable of tending to his needs, and his only opportunity for non-institutional living in the United States was to move into his brother's home, which was impractical since his brother lived with his wife and children.

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

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

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

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

The Court holds that a worker's submission of false documentation is sufficient to bar recovery of damages for lost wages only where that conduct actually induces the employer to hire the worker, and that this circumstance is not present where the employer knew or should have known of the worker's undocumented status or failed to verify the worker's eligibility for employment as required by federal legislation.

Relying on Balbuena v IDR Realty LLC, the defendants contend that, because the plaintiff, an undocumented alien who is ineligible for employment in this country, submitted false documentation when he was hired by City Wide, he was not entitled to any damages for lost wages. Indeed, the defendants suggest that the plaintiff's fraudulent conduct should result in the dismissal of the complaint. A careful reading of the Court of Appeals' decision in Balbuena convinces the Court that the defendants' argument must be rejected.

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

December 14, 2012

Petitioner Alleges Fraud in Will Contest Proceeding

The Facts of the Case:

On 8 January 2006, the decedent died with a will dated 31 December 1993. On 26 April 2007, the decedent’s will was admitted for probate (will contest proceeding) by the court and a decree was thereafter issued, and letters testamentary also issued to the decedent’s wife as executor of the estate of her husband, the decedent (for estate administration as may be determined in estate litigation). At the time of the decedent’s death, he owns a surveying business. On 12 December 2007, an Asset Purchase Agreement was entered into between the decedent’s wife and “A” where “A” agreed to purchase the decedent's business and all of the assets used in connection with the business. The purchase price was $375,000.00. On 14 December 2007, “A” executed a promissory note in the sum of $200,000.00. The note was guaranteed by a Land Surveyor company, “X”. The terms of the promissory note provide that “A” will pay the sum of $200,000.00, together with interest thereon at the rate of 5% per annum, in sixty consecutive monthly payments of principal and interest, each of which, except the last, was required to be in the sum of $3,774.25, the first payment to be made before 14 January 2008. Thereafter, on 14 December 2007, a bill of sale was executed by the decedent’s wife in favor of “A” where she was represented in the sale and in post-closing disputes concerning the sale by lawyer-two. However, no payment was ever made. Thus, on 25 January 2008, by written notice, the wife exercised her option to declare the unpaid principal balance of the promissory note to become immediately due, plus interest. The wife hired lawyer-one, and lawyer-two to act as co-counsel.

In opposition, respondent “A” alleges that the wife breached their agreement by failing to provide adequate documentation to allow him to collect on the accounts receivable; that the wife fraudulently misrepresented the value of the accounts receivable, either by intentionally keeping the necessary documentation from him or by misrepresenting that said documentation ever existed; that the wife fraudulently misrepresented that “A” would be receiving as part of the sale business assets such as cars, documents and files and other significant assets of the business; that, as a result, “A” has refused to make payment on the note. Moreover, “A” argues that lawyer-two should be disqualified from serving as the wife’s co-counsel on the grounds of the advocate-witness rule because he is a material and necessary witness; because he served as the wife’s attorney throughout the negotiation and sale of the business; that lawyer-two has intimate knowledge regarding the assets of the business and what was promised to “A” as part of the sale; that lawyer-two will be deposed and questioned as to the existence of the accounts receivable and his role in furnishing the necessary documents to allow “A” to collect on those accounts; that lawyer-two is a material and necessary witness because he was involved in negotiations, meetings and drafting of documents in connection with the sale. Furthermore, “A” also asks for leave of court to amend his answer to add two affirmative defenses, one alleging mutual mistake concerning the disputed invoices and the value of the accounts receivable and one alleging unilateral mistake by “A” caused by fraudulent conduct on the part of the wife, since the wife’s counsel has declined to stipulate to allow the amendment; that the amendment does not create any prejudice or cause any surprise to the wife; that these defenses arise out of the same set of facts previously set forth in the petition; and that the case is still in the early stages of discovery where no depositions have yet taken place, and the wife will still have the opportunity to seek discovery on these new defenses.

A New York Probate Lawyer said the wife opposes the motion for the disqualification and leave to amend the answer, and cross-moves for leave to amend her petition to include a demand for attorney's fees and out-of-pocket expenses. The respondent opposes the cross motion in its reply papers.

The Ruling of the Court:

On the Disqualification:

The question of whether or not to disqualify an attorney is a matter which rests in the sound discretion of the court. AS a rule, a party seeking disqualification bears the burden of demonstrating that disqualification is warranted. Moreover disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. A Staten Island Probate Lawyer said the disqualification denies a party's right to representation by the attorney of its choice. The right to counsel of choice is not absolute and may be overridden where necessary but it is a valued right and any restrictions must be carefully scrutinized. A determination of the issue requires a balancing of one party's interest in retaining counsel of his or her own personal choice against the other party's right to be free from the apprehension of prejudice. On the other hand, with regard to the advocate-witness rule, an attorney will be disqualified from representing a client when the attorney's testimony is necessary and he or she ought to be called as a witness. Where a party's attorney was an active participant in and has personal knowledge of the underlying circumstances, and ought to be called as a witness on behalf of his or her client, it is improper for such attorney to continue the representation, and any doubt concerning the necessity for the attorney's testimony should be resolved in favor of disqualification. Generally, the roles of an advocate and of a witness are inconsistent making it unseemly for a lawyer in a trial to argue his own credibility as a witness. Moreover, the party seeking to disqualify an attorney bears the burden of establishing that the attorney will be called as a witness at trial and the attorney's testimony is necessary. When determining if the attorney's testimony is necessary, the Court must take into account such factors as the significance of the matters, the weight of the testimony, and the availability of other evidence.

Here, since lawyer-two has personal knowledge of the facts relating to the subject transaction and will almost certainly be called as a witness at trial, the court finds it appropriate that he must be disqualified; that his testimony is not only material, but necessary by virtue of his intimate involvement in the transaction and negotiations. Thus, the motion for disqualification is granted.
http://www.newyorkinjurylawyer247blog.com/mt-static/images/formatting-icons/link.gif
On the Amendment:

Nassau County Probate Lawyers said as a rule, the court has the discretion to allow a party to amend a pleading at any time, and that such discretion should be exercised freely. In exercising its discretion, the court will consider: how long the amending party was aware of the facts upon which the amendment is predicated and whether a reasonable excuse for the delay has been offered; whether the proposed amendment lacks; and whether the proposed amendment would cause prejudice to the other party. The type of prejudice required to defeat a proposed amendment is the loss of a special right in the interim, a change of position or significant trouble or expense which could have been avoided had the original pleading included what the party seeks to add by way of amendment. Moreover, the prejudice must directly arise from the omission in the original pleading. Prejudice does not arise simply because the proposed amendment sets forth an additional theory or because the amendment may defeat the other party's claim.

Here, it must be noted that the request for leave to amend the petition is unopposed. Obviously, such request will not cause prejudice to the respondents. Thus, the motion for leave to amend the petition is granted; the respondents may amend their answer not only as matter of right, but also because there has been no significant delay nor will the necessary type of prejudice result to the petitioner.

Get in touch with Stephen Bilkis & Associates for the best and the most brilliant Suffolk County Probate Attorneys or Suffolk County Will Contest Attorneys. We have free consultation services to assist you with your legal problems. Our lawyers have undergone extensive training and have participated in a number of estate litigations where they have acquired exceptional skills to provide you with the best legal advice and remedies. We have our Suffolk County Estate Litigation Attorneys, and the like, at your service.

November 22, 2012

Court Looks at the Intent of the Decedent

This is a petition for probate of the will of the decedent. The decedent died as a resident of Richmond County on the 19th of September, 1901 and left a last will and testament that was admitted to the courts on the 10th of October, 1902.

Background

The petition for probate sets forth that the next of kin are his widow, a son, and two daughters. A granddaughter is now seeking construction of paragraph five of the will that directs the executrix of the will to sell the farm located in Springfield in Queens County, New York. A New York Probate Lawyer said the proceeds from the sale are to be paid in the sum of $500 each for his daughters and the rest of the proceeds are to be invested and the rents, issues and profits are to be divided between his daughters in equal shares. Upon the passing of my daughters the sum invested shall be divided among their children. If they leave no issue of them surviving, then my son’s children as may be living shall receive the sum.

One of the daughters died leaving issue and the other daughter died without issue. The question has come up as to whether the entire estate passes to the granddaughter left by one of the decedent’s daughters or if the estate should be equally divided among his son’s children as well.

Case Discussion and Decision

In order to make a determination in this case the court must carefully consider the language of the will. It is quite clear that the decedent had the intention of leaving each of his family members with a portion of the estate. His widow was left with his residence. His son was left with a parcel of land. Staten Island Probate Lawyers said the daughters were left with the proceeds from a parcel of land to be sold and the profits placed in a trust to be distributed to his daughters. He obviously did not want the title of the property passed on to his daughters as they were both married and he did not want a right of courtesy passed in favor of their husbands.

The court must carefully look at how the decedent left his assets to his family in this case. He left his wife and son well taken care of as they each received their own parcel of land. However, his daughters were only given $500 each and the income of the corpus. Nassau County Probate Lawyers said it hardly seems as if he intended for one of the children of his daughter to suffer simply because the other daughter failed to have issue.

For this reason, the only children described in the will as far as the distributions being passed would be the granddaughter or his daughter’s daughter. She should be the only person who shares the distributions and the children of his son should be excluded from this distribution.

Stephen Bilkis & Associates offers a free consultation for those visiting our offices for the first time. Our offices are located throughout New York City. We have a team of expert New York lawyers waiting to discuss your case with you to help you through any legal issue that you may have.

November 18, 2012

Court Analyzes Format of the Will

This is a case being heard in the Surrogate’s Court of Queens County. The matter involves the executor of a will who is requesting that the court construe the instrument, particularly the first paragraph in order to determine what is to be charged to the legacy that he receives under it.

Court Discussion

The paragraph that is being question reads, “After my lawful debts are paid I bequeath the sum of $10,000 to the executor. A New York Probate Lawyer said that out of this sum he is to pay my funeral expenses and other lawful debts and pay for the perpetual care for my grave and the grave of my late husband.”

There are four more paragraphs of the instrument. In the following paragraphs the decedent makes general and specific bequests. In the final paragraph the residue is left to a nephew.

The instrument was drafted by a lawyer on a will form that is typically used by laymen to draft their own wills, which leave legacy of confusion for their heirs and fees for the attorneys that are employed by them. Suffolk County Lawyers said the attorney- draftsman is not representing the petitioner in this case.

In the paragraph in question it is seen that the intent of the last phrase in the paragraph is to nullify the phrase that was printed stating after “all my debts are paid.”

The executor poses the question of what the meaning of “other lawful debts” refers to in this case. Does it include the administration expenses such as the filing fees and attorney fees or is it limited to the debts acquired by the decedent during her lifetime.

The debts of a decedent have been distinguishable from funeral expenses and administration expenses for quite some time. Nassau County Probate Lawyers said it is stated that in the payments of debts the rules of priority are implied. The distinction of these debts provides that the reasonable funeral expenses of the decedent are subject to the payment of expenses of administration shall be preferred debts and claims against the estate. These fees will be paid out of the first money that is received by the fiduciary.

Court Decision

When the court reads the decedent’s will as a whole there is no evidence that the testator intended to extend the meaning of the word debts to include the administration expenses. For this reason, the court finds that the executor will be charged with the funeral expenses and the expense of perpetual care to the headstones of the decedent and her late husband. The costs of administration will be charged to the residuary estate.

The federal and state estate taxes on property being passed on through the will are to be apportioned in accordance with EPTL.

If you are in need of legal assistance of any kind, contact the law offices of Stephen Bilkis & Associates. Our offices are located throughout the metropolitan area of Manhattan for your convenience. You may call us at any time to speak with an expert New York litigator about your situation. A free consultation will be provided to you on your first visit to our offices.

November 15, 2012

Appellant Seeks to Enforce a Stipulation of Settlement

This is a case being heard in the Second Department, Appellate Division of the Supreme Court of the State of New York. The matter before the court is a contested probate proceeding. The executor of the estate is appealing an order that was made in the Surrogate’s Court of Queens County. The order was dated the 27th of July, 1989 and denied his motion to enforce a stipulation of settlement to admit the will for probate.

Case Discussion

On the 4th of October, 1988, a stipulation of settlement was entered between the appellant executor of the decedent’s estate and the widow and the sons of the decedent who had objected to probate of the will previously.

The stipulation was made in open court between the parties and provided that the objectants would withdraw their objections to probate in exchange for a payment of $23,500 to the decedent’s widow and a payment of $1000 to his oldest son. A New York Probate Lawyer said that both the widow and the son were present at the hearing and acknowledged that they agreed to the stipulation. However, one of the son’s of the decedent was not in court on the day the agreement was entered refused to sign the stipulation on the ground that it failed to provide a payment of $3000 to him as bequeathed by the will.

The executor moved to enforce the stipulation but the Surrogate denied his request. The surrogate offered no explanation for this denial and it is this order that is being appealed.

Court Decision

When the facts of the case are reviewed the court finds that the ruling in the Surrogate’s court was made in error as there was no evidence provided to support it. For this reason, a Nassau County Probate Lawyer said the order is reversed with the costs being paid by the respondents personally. The motion by the appellant is granted and the matter will be remitted to the Surrogate’s Court of Queens County for further proceedings.

Stephen Bilkis & Associates offers free consultations to any one involved in a legal matter that they need help with. Come into one of our New York City offices to speak with an experienced lawyer regarding your case.

November 6, 2012

Court Interpretes Last Will and Testament

This is a probate matter dealing with the will of the decedent. In this proceeding it has been requested that a construction of specific paragraphs of the decedents will be conducted. A New York Probate Lawyer said in the second paragraph of the will it is clearly written that the premises located at 42-32 81st Street in Elmhurst, Queens County, New York be left to her daughter. The condition to the home being given to her daughter is that it cannot be sold until ten years after the decedent’s death.

In the seventh paragraph of the will the testator named her other daughter as the sole beneficiary of the income of the home located at 42-30 81st Street in Elmhurst, Queens County, New York. The paragraph goes on to state that if the marital relationship between her daughter and her daughter’s husband is terminated either by the death of the husband or through divorce the property is to be hers absolutely and forever.

Court Decision

A Nassau County Probate Lawyer said on the issue involving the property left to her first daughter in the second paragraph of the will, the restraint of not being able to sell the home for ten years is void and can be disregarded. For the property left to her other daughter the provision of the termination of her marriage is deemed void as it tends to induce the daughter to procure a divorce. A Staten Island Probate Lawyer said for this reason, that statement will be eliminated and the daughter is found to be the sole owner of the premises, without any restrictions.

If you are involved in a probate matter it is a good idea to have a lawyer on your side. Contact Stephen Bilkis & Associates to speak with an experienced New York probate lawyer regarding your issue. Our offices are located all around the metropolitan area of Manhattan. A free consultation will be provided upon your first visit to our offices.

October 31, 2012

Respondent Filed a Petition for Letters

This case is being heard in the Second Department, Appellate Division, of the Supreme Court of the State of New York. The appeal in this case involves an application made by the administratrix of an estate to disqualify the attorney as her co-administrator. The attorney previously represented both parties but was dismissed by the petitioner when he participated in the prosecution of a compulsory accounting proceeding trying to surcharge her. The Surrogate’s Court of Queens County ruled that the allegations made by the petitioner were insufficient to warrant disqualification.

Case Background

The decedent passed away on the 28th of March, 1979. The respondent acting as the attorney for the estate filed a petition for letters of administration on behalf of the decedent’s widow and his son of a previous marriage.

The respondent addressed a letter to the distributees indicating that there were several outstanding judgments against the decedent and that the properties of the estate were encumbered by tax and mortgage liens. A New York Probate Lawyer said the letter suggested a sale of some of the properties in order to settle some of the debts.

The widow and her attorney wrote letters to the respondent demanding disclosure of the progress and administration of the estate. None of these demands were answered, although some of the property was sold. The widow contends that these properties were sold without her approval or signature as required.

A proceeding was started in October of 1982 to compel the widow to account. She contends that the accounting proceeding, which aimed to surcharge her, was engineered by the respondent in conflict of his fiduciary duty as her counsel and notes that the order for the proceeding was delivered to her in an envelope from his offices. A Staten Island Probate Lawyer said the respondent has remained silent in response to these allegations.

Case Discussion and Decision

The petitioner has discharged the respondent from further representation of her as the administratrix of the estate and started this proceeding against seeking disqualification from further representation in the affairs of the estate. In her petition she states that the respondent froze her out of participation in the settlement of the estate and that he sold assets of the estate without her knowledge or consent.

Generally, as a rule when an attorney represents more than one client and a situation comes up that poses a potential conflict of between the clients regarding his representation he may not undertake representation of either against the other unless it is shown that no conflict actually exists.

In this case the court finds that the previous order was incorrect. Nassau County Probate Lawyers said there is sufficient evidence to show that the respondent should be dismissed from the case. The order from the Surrogate’s Court of Queens County is reversed and the application to disqualify the respondent from representing the petitioner is granted. The costs are payable by the respondent personally.

Stephen Bilkis & Associates have offices in New York City. You may contact us at any time to set up an appointment for a free consultation, whether you need a will, trust or have an estate litigation issue. One of our lawyers will be happy to sit down and discuss your legal issue with you and help you determine your best course of action.

October 25, 2012

Plaintiff Contends Lease Assignment Invalid

This case is being heard in the Appellate Division of the Supreme Court of the State of New York, Second Department. The respondent and appellant in the case is Richard P. Booth. The appellant and respondent in the case is the Ameriquest Mortgage Company.

Case Background

A New York Probate Lawyer said Donald Booth and his wife Diane Booth had a leasehold estate of land located in Babylon. The lease was dated the first of January, 1977 and was renewed in August of 1990. When Diane passed away in 1998, Donald assigned the leasehold estate to himself and his son, Donald Jr. This lease assignment was made on the 9th of November, 1998. Donald passed away on the sixth of October in the year 2000. After his father passed away, Donald Jr. assigned the lease to himself and his wife Michelle as joint tenants.

On the 23rd of March, the couple gave a mortgage on the leasehold to the defendant, Ameriquest Mortgage Company. A loan of $435,000 was secured for the couple. Donald Jr. and his wife Michelle defaulted on the mortgage loan and Ameriquest Mortgage Company then instituted a foreclosure action against the couple.

In January of 2001, Donald’s sister filed a petition for the probate of the will that was purportedly executed by Donald on the 22nd of June, 2000. The plaintiff in this case, Richard Booth, is Donald’s older son, objected to the petition on the grounds that Donald was not competent to execute the will and that the will had been executed as a result of fraud and undue influence exerted by Donald Jr. The probate petition was then withdrawn and the plaintiff was appointed as the administrator of Donald’s estate.

In August of 2003, the plaintiff started an action against Donald Jr. declaring that the lease assignment made in November of 1998 was invalid. Donald Jr. passed away in 2005 and the case was transferred to the Surrogates Court. The Surrogates court ruled that the lease assignment was invalid and the plaintiff was the sole beneficiary of Donald’s estate.

The action before the court was commenced on the 2nd of August by the plaintiff to have the mortgage adjudged as null and void and to have the mortgage of record canceled and discharged. A Staten Island Probate Lawyer said the plaintiff also sought to bar Ameriquest from all claims to and in interest of the property.

Court Decision

The Supreme Court decision made previously in this case denied the branch of Ameriquest’s motion for summary judgment to dismiss the portion of the complaint that sought to have the mortgage canceled and discharged. Nassau County Probate Lawyers said the court finds that this original order from the Supreme Court was in fact correct.

The cross appeal made by the defendant for a motion to preclude the plaintiff from introducing as evidence at the trial the order that was made in the Surrogate’s Court of Suffolk County must be dismissed. This evidentiary ruling, even when it is made before a trial on the motion of papers, is not appealable as a right or by permission. All of the remaining contentions made by the plaintiff are found to be without merit.

If you are in need of legal representation in any type of legal matter, contact Stephen Bilkis & Associates. Our offices are located in New York City. We have a team of expert New York City lawyers willing to sit down with you and discuss your case. A free consultation is provided to each of our clients on their first visit to one of our offices.

October 15, 2012

Wife Claims Husband Executed Will Under Undue Influence

This case is being heard in the Supreme Court of the State of New York, Appellate Division, Second Department. The matter before the court deals with Leonard Favaloro, deceased, Joan Favaloro as the appellant and Joyce Donahue, et al. as the respondents.

Case Background

The decedent, Leonard Favaloro died on May 8th, 2006 when he was 79 years old. He is survived by his wife of 34 years, Joan Favaloro and his two adult daughters from a previous marriage. The daughters are the petitioners in this case.

The will of the decedent was entered into probate pursuant to a stipulation between the decedent and his surviving wife. She obtained letters of testamentary and the petitioners obtained letters of administration for the purpose of examining their rights to an IRA account and an investment account that the decedent owned while he was alive.

A Staten Island Probate Lawyer said the petitioners conducted a discovery and then filed a petition for the accounts to be turned over from the decedent’s wife. The petitioners claim that the accounts were designated to pass on to them after the decedent passed away. The petitioners claim that prior to his death his wife had changed the title and the beneficiary designations on the accounts to prevent them from passing on to the petitioners.

The wife of the decedent moved for a summary judgment to dismiss the petition on the 23rd of April, 2009. She stated that she was the designated beneficiary and owner of the accounts since they were started, which was over fifteen years prior to the death of the decedent. Nassau County Probate Lawyers said she further argues that she remained the beneficiary and owner of the accounts despite the fact that the decedent executed change of beneficiary forms whil in the hospital in April of 2006. She states that the broker was following oral instructions to not implement the change forms.

The petitioners oppose the motion for summary judgment and state that since the broker received the change forms this showed that the decedent wanted the accounts to be handed over to them upon his passing.

Case Discussion and Decision

The wife is appealing an order that is dated the 29th of September, 2009 that denied her motion for summary judgment. The Surrogate’s court determined that while she had made prima facie showing that the decendant had rescinded the change forms there were still triable issues of fact as to whether he did so under undue influence. When the case went on to a jury trial the jury was given the opportunity to answer the question of whether or not the decedent was under undue influence when he called the broker and gave the instructions to disregard the change forms that gave the accounts to the petitioners.

The court is ordering that the original decree be reversed and the appellant’s motion for judgment as a matter of law is granted. The petition is dismissed. A bill of costs will be awarded to the appellant.

Stephen Bilkis & Associates has a team of expert New York probate lawyers who can help you through situations such as the above. Contact one of our New York City offices to set up an appointment to meet with one of our attorneys to discuss you legal issue. A free consultation is provided on your first visit to our office.

October 8, 2012

Court Hears Will Contest over Real Property

This matter deals with the last will and testament of Irene N. Timblin, deceased. The case is being heard in the Surrogates Court of Suffolk County. The will has been propounded in the Surrogates Court of Suffolk County. The Public Administrator of Cascade County in California has raised objections to the probate upon the ground that the decedent died while living in Cascade County, California and not in Suffolk County.

Case Background

The decedent and her husband lived in Blueblinds at Smithtown in a manor home located on Long Island. The graves are located near Saint James. The husband passed away in November of 1955 and his wife passed away in May of 1956.

In 1955, the wife voted in the general election from her home in Smithtown. The couple had an apartment in Brooklyn where the business of the husband was located.

A New York Probate Lawyer said after her husband passed away, the wife went to Palm Springs, California in January of 1956 for a recuperative vacation. She intended to return to New York in the spring. She rented a home in Palm Springs for her extended stay. However, in March of 1956, she bought and furnished a home in the area. Around the same time she made a call to her housekeeper in New York and told her to bring the car, a pet, and some other household effects to California. The majority of her personal clothing had already been shipped to California.

Unexpectedly, the decedent was called to New York, likely to sign papers to sell her husbands business. While in New York she called some of her friends, each who state that the decedent expressed she would be returning to California to reside. She became ill while in New York and the last hotel she stayed in had her listed address as being in Palm Springs.

The decedent passed away without having her belongings shipped to Palm Springs and never spending a night in her new home.

Case Discussion

When the decedent first left New York it was clear that she intended to come back to the state to live. However, while in California she made the decision to move there. She did say that she planned on keeping an apartment in New York City. A Staten Island Probate Lawyer said the question before the court is where the decedent’s domicile was at the time of her death.

The decedent had lived in New York for her entire married life. Her friends and family are in the area and her husband and now she are both buried here. While it cannot be argued that she had intended to make the move to California before she became ill, it is established that her roots were in the state of New York.

Case Decision

When the facts of the matter are reviewed it is clear that the decedent had intended to move to California. However, Nassau County Probate Lawyers said at the time of her demise she was still deeply rooted in New York. For this reason, the objections made by the Public Administrator of Cascade County in California are dismissed.

Probate matters can become complicated, which is why it is important to have a qualified New York probate attorney on your side. Contact Stephen Bilkis & Associates to set up an appointment to speak with one of our experienced probate attorneys. Our offices are located in New York City and a free consultation with one of our lawyers is offered upon your first visit.

October 2, 2012

Beneficiaries Bring Will Contest Action

This is a probate proceeding involving the estate of Alexander MacLeman, deceased. The case is being heard in the Surrogate’s Court of the City of New York located in Westchester County. The probate of the estate is being contested in this case. Karen MacLeman Morgese, who is one of the three children of the decedent and a nominated co-executor of the will, has offered the will for probate. Karen’s two brothers, John and William MacLeman have each filed objections to the probate.

Case Background

The decedent passed away on the 10th of December, 2003. He was 91 years old at the time and living in an assisted living facility located in Ossining in Westchester County, New York. The decedents will, gave the real property located in Amagansett, Suffolk County to his daughter Karen. The will bequeathed $50,000 to William to equalize loans he had made to his other children. A New York Probate Lawyer said the loans of the other children were forgiven in the will. The personal property and residuary estate were given to all three children in equal parts. A further provision in the will stated that any checking accounts, savings accounts, certificates of deposit, etc. that he held jointly with any of the children at the time he passed would be estate assets and not provided to the surviving joint tenant of the assets.

Probate Objections

The two brothers allege that Karen has transferred $300,000 in bank accounts and certificates of deposit from the decedents name to “in trust for” accounts for her own benefit. The further allege that the accounts that she held jointly with the decedent were transferred as well.

It is also alleged that Karen had significant control over the finances of the decedent from before the time the will was instrumented and beyond the date of the decedent’s death. Suffolk County Probate Lawyers said they further argue that this will departed from two other wills from 1991 and 1998 where the assets of the decedent were to be divided equally among all three children.

Case Discussion and Decision

When reviewing the facts that have been provided in this case the court has determined that a full disclosure schedule must be made in regard to the matter. The court has made document and disclosure demands that must be submitted by all of the parties. Examinations will be held for the documents before the trial goes to court. Nassau County Probate Lawyers said this includes any non-party testimony as well as expert testimony in the case. Motions can be made after full disclosure of the case is over. When ready, the case will be remitted for trial. Before the trial an all purpose conference will be held in the case. All counsel shall appear before the court before the matter is called into court on the calendar for the day.

Stephen Bilkis & Associates offers a free consultation to anyone that comes into our office to discuss a legal matter for the first time. We have several offices in the New York City area for your convenience. You may call us at any time to set up an appointment to discuss your case with one of our expert New York probate lawyers.

September 28, 2012

Court Hears Action for Specific Performance

This matter deals with Angelo Licata who is deceased. The appellant of the case is Annette Chessare and the respondents in the case are Cecilia Licata, et al. The case is being heard in the Second Judicial Department, Appellate Division, of the Supreme Court of the State of New York.

According to a New York Probate Lawyer, a probate proceeding was held and an action for specific performance of a contract to sell real property was transferred from the Supreme Court of Suffolk County to the Surrogate’s Court of Suffolk County. The appellant, Annette Chessare is appealing the order from the Surrogates Court dated the fifth of February, 2009 that denied her motion for summary judgment on the complaint made in the action for specific performance and an order from the same court made on the 25th of September, 2009 upon re-argument that adhered to the original decision that was previously made on the fifth of February, 2009.

Court Discussion and Decision

The court orders that the appeal for the order that was made on the fifth of February, 2009 is dismissed as that order was superseded by the order that was dated the 25th of September, 2009. A Manhattan Probate Lawyer said the court affirms the decision that was made on re-argument on the 25th of September, 2009. A bill of costs will be awarded to the respondents as well.

It is found that the Surrogate’s court was correct in denying the motion for summary judgment made by the plaintiff in the complaint that sought to compel specific performance of a contract for the sale of real property to the plaintiff. In order to be enforced a contract for the sale of real property must be evident in writing that meets the statute of frauds. A Nassau County Probate Lawyer said the contract must identify and describe the subject matter and state all of the essential terms of the complete agreement in order to meet the statutes requirements.

In this particular case the plaintiff has failed to make prima facie showing entitlement to a judgment as the matter of the law. The evidence that was submitted by the plaintiff did not establish the absence of a triable issue of fact regarding whether specific terms of the mortgage were subject to the contract or had been left for future negotiations.

Stephen Bilkis & Associates offers free consultations regarding any legal issue that you may have, whether you have an estate litigation issue, or require a will. Contact one of our New York City offices to speak with a qualified attorney today.

September 12, 2012

Public Administrator Seeking Approval for Accounting

This matter deals with the account of proceedings of Eric P. Milgrim, the Public Administrator for Nassau County as the administrator of the estate of Nora Mabry who is deceased. The Surrogates Court of the State of New York in the county of Nassau is hearing this case.

Case Background

A New York Probate Lawyer said presented to the court are the first and the final account of the Public Administrator for the estate of Nora Mabry. Nora Mabry died intestate as a resident of Uniondale, on the 26th of December, 1998. The decedent left a will that was dated the 15th of June, 1979. In the will the decedent bequeathed her entire residuary estate to her nephew, Wyman Scott who died after the decedent. The Public Administrator was appointed as the temporary administrator for the estate on the 14th of April, 2005. The will of the decedent was admitted for probate by a decree from this court dated the 11th of May, 2010. Letters of administration were issued to the Public Administrator at this time.

The account that is filed by the Public Administrator shows the receipt of $87,102.28 of estate principal, supplemented by an income collected in the amount of $4,935.98. The total charges came to $92,038.26. This amount was then reduced by administrative expenses through April of 2010. A balance of $23,883.09 was left.

The Public Administrator is seeking approval for the accounting, approval of commissions, the fixing of the fees for the services of the accountant and attorney, and the authorization to distribute the net estate to the court appointed administrator of the estate, Wyman Scott. Additionally, the court must release the Administrator from the surety bond.

Court Discussion and Decision

In regard to the attorney fees charged to the estate, the court has the final responsibility of approving all of the legal fees that are charged to an estate and has the discretion to determine what a reasonable amount is. Suffolk County Probate Lawyers aid in this case the Public Administrator had petitioned the court for approval of the payment of legal fees in the amount of $13,410.50.

The court has reviewed the affirmation of the services that were provided along with the time records that have been submitted to the court. The records indicate the amount of legal time that was spent on estate matters. These records are important to the court when trying to determine reasonable compensation.

The accountant has submitted an affidavit to the court showing the services that were provided in regard to the estate matters. Nassau County Probate Lawyers said this includes preparing the annual federal and state taxes for the estate. It is noted that a final return is still required. The accountant has requested fees in the amount of $1950.00.

Upon review of the account as submitted by the Public Administrator the court finds that the request for fees by both the attorney and the accountant are reasonable. The commission of the administrator is also approved and will be subject to audit.

The decree made by the court will discharge the surety and authorize the Public Administrator to distribute the balance of the net estate to the court appointed administrator of the estate of Wyman Scott.

September 11, 2012

Court Discusses Final Accounting of Estate

This matter deals with the accounting done by Daniel D’Amico as the Executor of the estate of Andrew Peter D’Amico, deceased. The case is being heard in the Surrogates Court of the State of New York located in the county of Nassau.

A New York Probate Lawyer said the accounting done by Daniel D’Amico as the executor of the estate of Andrew Peter D’Amico has been submitted to the court for review. The executor is seeking approval of his final accounting regarding the estate. This includes the computation and payment of his commissions as the executor of the estate and the commissions of Andrew D’Amico as trustee. In addition, the executor seeks approval of the allowance of fees and expenses for the attorney and accountant and approval to repay a loan made by Gloria Maria D’Amico.

Case Background

The decedent passed away as a resident of Nassau County on the 2nd of February, 2008. As filed the account of the estate shows total charges of $421,603.87 and total credits of $41,258.94 which leaves a balance of $382,121.44 on hand as of the first of February, 2010.

There have been waivers of citation and consent filed on behalf of all of the necessary parties including Andrew, Gloria, Eben, Gabel, Nathaniel, Richard, and Daniel D’Amico (father), and all of the infants and grandchildren. Each of the grandchildren is to receive a bequest of $10,000 as there are sufficient funds to meet these bequests.

Case Discussion and Decisions

The will of the decedent provides that specific bequests be made to the infant grandchildren should be held in trust with Andrew D’Amico as the trustee. There has been no trust accounting provided to the court and for this reason no commissions can be awarded to the trustee during this proceeding. The request for these commissions to be paid is denied for this reason.

In respect to the counsel fees, the legal services to the estate were provided by Kim Goldstein. According to a Nassau County Probate Lawyers, she has billed the estate for 40 hours worth of work. The amount requested is $12,000. None of this has been paid and the counsel expects to accrue another thousand dollars in legal time through the issuance of the decree and the distribution of the assets of the estate. However, the counsel has agreed to reduce their fees to the amount of $4000. The court will set the legal fees to be paid in the amount of $4000 from the estate.

The accountant’s fees are not normally compensable from the estate assets unless there are unusual circumstances where the assistance of an accountant is required. In this case, the services provided by the accountant were requested by the counsel. The accountant, Howard Leibowitz has requested payment in the amount of $875. He has offered a supporting affidavit showing that he prepared various state and federal tax documents in regard to the estate. These fees are approved in the amount requested by the court.

The repayment of the loan to Gloria Maria D’Amico in the amount of $50,000 is approved as well. The overall accounting of the estate is approved and subject to audit. The decree will provide the release of the executor.

Probate litigation can become quite confusing. Contact Stephen Bilkis & Associates to discuss any probate issue that you may be involved in. Our offices are located in New York City. You may call to speak with one our experienced probate lawyers at any time. A free consultation will be provided on your first visit to our office.

September 9, 2012

Court Decides Jurisdiction Issue

This is a case being heard in the Second Department, Appellate Division, of the Supreme Court of the State of New York. In this case the objectants are appealing a decree made in the Surrogate’s Court of Queens County. A New York Probate Lawyer said the decree was made on the 9th of September, 1975 and adjudged that the decedent died as a resident of Queens County. A will was admitted to the court for probate and letters of testamentary were provided to the people named in the will as executors of the estate.

Case Background

The decedent, was the successful owner of a business complex that manufactured plastic products for the school stationery industry. The business was run in the city of Flushing located in Queens County. In 1965, he had one of his corporations rent an apartment for him to use in Miami Beach. He used the apartment from January of 1966 through 1969. When the lease for the apartment was made the decedent was living in a penthouse apartment located in Manhattan. He had created an apartment out of an upper space of one of his business buildings for convenience. He would stay in that apartment from time to time as well.

In 1966, he married a French citizen residing in the United States. The record of where they lived immediately after they were married is unclear. However, it is quite clear that they did not live in the apartment located in Flushing. There is evidence that they lived in the Florida apartment for some time until they moved to France in May of 1969.

In August of 1969, the decedent contracted to sell his shares in the corporation. He sold his shares to his partner in the sum of $1,115,000. This was to be paid in installments over a six year time period. Nassau County Probate Lawyers said that during the closing it is noted that the corporation owned an apartment in Flushing, New York. This apartment was furnished and lived in by decedent. The decedent stated an interest in keeping the apartment as a place to stay when he was visiting New York.

In 1970, while visiting New York, the decedent executed a will that states that he is a resident of New York, New York, and further goes on to state that the will shall be probated in the state of New York.

Court Discussion and Decision

Once the decedent sold his share of the business, he and his wife lived in an expansive estate in France. A Staten Island Probate Lawyer said that while he visited New York and paid taxes within the United States, it is fairly evident that the decedent had chosen to reside in France for the last part of his life.

For this reason it is determined that the decedent died a domiciliary of France. The decree is reversed as appealed from and a bill of costs is served jointly to the appellants. This is payable from the estate. The petition for probate is hereby dismissed.

Probate litigation hearings can become complicated quickly. If you need to speak with an experienced probate lawyer, contact Stephen Bilkis & Associates. Our offices are located conveniently throughout New York City. You may contact us at any time to speak with one of our qualified New York attorneys during a free consultation.

August 13, 2012

Trustee Requests Division of Trust

The Facts:

On 31 December 1915, a testator died. On 31 March 1916, his will dated 20 October 1915 was admitted to probate. The Kings County Trust Company was granted letters testamentary on 31 March 1916 and letters of trusteeship on 24 October 1934. Under the will, the testator gave his residuary estate to his executor, in trust, to pay the net income arising therefrom to his wife, for and during her life. On 11 March 1959, the testator’s wife died. The will provides that upon the wife’s death, the said trust is to terminate, and the corpus thereof is to go and that the testator gives, devises and bequeaths the same, in equal shares, among his then surviving nephews and nieces, and the issue of any deceased nephew or niece (except issue of one niece), such issue taking in equal shares the share their parent would have taken if living. According to the will, it is the testator’s intention not to make the issue of the lone niece beneficiaries under his will.

Thereafter, the trustee brought the instant proceeding for the judicial settlement of its account. The trustee has requested in its petition that the Court find and determine that, in accordance with the intent of said decedent, as set forth in the will, the net distributable principal of the trust, now terminated, is primarily divisible into four equal major shares, one each for the lawful issue living at such termination and who represent decedent's deceased nephews and nieces, the issue of each said deceased nephew and niece, respectively, to receive, in equal sub-shares, per stirpes, the equal major share which the deceased nephew or niece whom they represent would have taken, if living; and direct distribution accordingly.

Decedent had four nephews and four nieces. A New York Probate Lawyer said all of them died before the termination of the trust. Two nephews and two nieces died without issue.

The Issue:
Are the children of the deceased nephews and nieces entitled to the estate of the deceased?

The Ruling:
Since the testator died prior to the enactment of section 47-a of the Decedent Estate Law, which became effective on 30 April 1921, the common-law rule respecting the interpretation and meaning of the word “issue” is applicable to the will. Manhattan Probate Lawyers said that while that rule, presumed in the absence of any other expression of testamentary intent, includes descendants in every degree, the courts are inclined to hold that the presumption would yield to a very faint glimpse of a different intention.

In the case at bar, the gift of the remainder upon the termination of the trust is in equal shares among testator's then surviving nephews and nieces, and the issue of any deceased nephew or niece, such issue taking in equal shares the share their parent would have taken if living. The language used by the testator imports a gift by representation through a parent and consequently a per stirpes distribution. Thus, Nassau County Probate Lawyers said the court finds that distribution should be made of a one-fourth major share divided, in equal parts, among the six children of deceased nephew-one; a one-fourth major share should be divided, in equal parts, between the two children of deceased nephew-two; a one-fourth major share should be divided, in equal parts, among the two children and a grandson of deceased niece-one, and the remaining one-fourth major share should be divided among the issue of deceased niece-two, viz: one part to her son and one part divided equally among the children of her deceased son. In the absence of objections, there should be paid from the respective remainder interests of two of the heirs in the amounts assigned by them to a corporation.

For legal assistance, contact Stephen Bilkis & Associates for a Kings County Probate Attorney, a Kings County Trust Attorney, and the like. We have free consultations for you to be apprised of what your case may entail and what steps you need to make in order to protect your rights and interest before courts of law.

August 11, 2012

Court Looks at Disposition of Decedent's Gifts

The Facts of the Case:

On 19 December 1947, a woman died. She was a resident of the Village of Millbrook, Dutchess County, New York. On 18 February 1948, her last Will and Testament was duly admitted to probate by decree of the Dutchess County Surrogate. Under the said will, after making certain specific devises, the testatrix, in paragraphs Fifth and Sixth of her said will, provided that:

Fifth: “I give, bequeath and devise to my executors hereinafter named all the rest, residue and remainder of my property including my house on Elm Drive, Millbrook, N. Y., to be held by them in trust for my brother, Pleasant Valley, N. Y., they to invest and reinvest the same and pay the income therefrom to him for as long as he lives. A New York Probate Lawyer said a portion of the principal may also be used for the support and maintenance of my said brother if deemed necessary in the sole judgment of my said executors and trustees.”

Sixth: “After the death of my said brother, I give, bequeath and devise all my property then remaining, both real and personal, to woman-one of Pine Plains, N. Y., and the said woman-two of Kingston, N. Y., share and share alike.”

Undoubtedly, under the said will, a trust was made in favor of the brother of the testatrix, and that after the brother’s death, all property of the testatrix then remaining, both real and personal, are bequeathed and devised to two other named individuals, the trustees. However, on 5 September 1964, one of the two residuary legatees named in the said Will, woman-one, predeceased the brother of the testatrix who is the beneficiary of the trust.

The aforementioned specific parts of the will are now the questions in the herein case that must be resolved by the court.

The Issues of the Case:
What happens to the remainder interest created in the said will? Does the remainder interest created pass to the legal representative of the residuary legatee, woman-one, who predeceased the beneficiary of the trust? Nassau County Probate Lawyers said if not, does it pass to the other remainder man? If not, does it lapse and become covered by the rules on intestacy instead?

The Ruling of the Court:

In New York, the general rule is that a gift of a remainder to named persons indicates an intention to give an indefeasibly vested interest.

Courts have, on various occasions with facts similar to the instant case, held that:
First, the court considers it determinative that no condition of survival is present in the paragraph and construes the provision as creating vested interests in the remainder men named in such paragraph.

Second, Long Island Probate Lawyers said the gift of a remainder nominatim indicates an intention to give a vested interest.

Third, the fact that the gifts to the remainder men are included in a residuary bequest without provision for disposition of failed gifts is a further indication that the interests of the remainder men are vested.

And lastly, such holding also results in a salutary avoidance of intestacy.

Clearly, the aforesaid holding of the court is in accord with the generally accepted rules of construction and represents the rule in New York. For an excellent and thorough consideration of the rules, several cases have also been considered by the court for its reference.
In the case at bar, the language of the Will has clearly created and indefeasibly vested one-half of the remainder of the estate to woman-one, the residuary legatee who predeceased the beneficiary, which is not divested upon her failure to survive the life of the said beneficiary. Thus, her right to the inheritance should pass to her legal representative while the other one-half should pass to the other surviving residuary legatee, woman-two.
Last Wills and Testaments are subject to probate proceedings and several questions may thereafter arise as to who are entitled to inherit; or, like in the aforesaid case, the right of representation. For assistance or advice on similar matters, contact us at Stephen Bilkis & Associates. We have the best and the brightest Kings County Probate Lawyers who may help you with your legal concerns. Consult with our Kings County Estate Litigation Lawyers, and the like.

August 8, 2012

Petitioner Objects to Jurisdiction

This is a matter concerning the last will and testament of the deceased Kate Freeman Clark. The case is being heard in the Surrogates Court of Suffolk County.

Motion

The motion that is before the court is to have the probate proceeding in this court dismissed and surrendered to the Chancery Court of Marshal County in the state of Mississippi. The motion asks for this court to give up its jurisdiction in the case. The Surrogate Court of Suffolk County took jurisdiction in this case under section 45 of Subdivision 3 as the decedent left a considerable amount of personal property within this county.

Case Background

The decedent, Kate Freeman Clark, passed away on the 3rd of March, 1957 in Holly Springs, Mississippi. This is where the decedent was domiciled.

On the 23rd of April, 1957, the decedents holographic will with 2 codicils, was sent to the Surrogate Court of Suffolk County by Archibald R. Watson. Archibald R. Watson was named as the executor, trustee, and the residuary legatee in the will.

On the 7th of May, 1957, the objectors in this case, Harris Gholson and Clyde T. Freeman, issued a photostatic copy of the will of the decedent with codicils in the Chancery Court of Marshall County. This proceeding was ex parte and Archibald R. Watson was not given notice of this proceeding and on the same day that court issued probate of the will and two codicils that were dated the 14th of May, 1950, and the 10th of July, 1950.

Under Mississippi Code from 1942, it is only prima facie that the will was probated at this point and is not conclusive that this is the last will and testament of the decedent. In Missouri, two years must pass without contest before a will and testament is deemed as legitimate.

On the 28th of May, the petitioner, Archibald R. Watson was served with notice by the objectors of their petition for construction of the will and codicils in the Chancery Court of Marshall County in the state of Mississippi. A Manhattan Probate Lawyer said the petitioner was not able to appear in the court at the time. During this case the objector’s informed the judge that the case was being submitted to the court in New York. The judge then issued a construction decree on behalf of the objectors.

A New York Probate Lawyer said the petitioner is angry at the way the case was handled in the court of Mississippi as this resulted in Gholson being named as the executor. Mr. Watson charges the objectors with bad faith and contends that the construction degree is distorted in the face of the documents that are provided.

Court Discussion and Order

In review of this case it is found that there was a large amount of property left by the decedent in Suffolk County. Additionally, the will appoints an executor to the estate, Mr. Watson. After reviewing the findings of the case the court finds that it would not be proper to give up its jurisdiction in this matter. A Nassau County Probate Lawyer said the court finds in favor of the petitioner and the motion by the objectors is denied in its entirety.

If you are in need of legal advice contact the law offices of Stephen Bilkis & Associates. Our team of lawyers will sit down with you during a free consultation to discuss your rights. Our offices are located throughout New York City for your convenience. You may contact us at any time to discuss your legal issues.


August 1, 2012

An Estate Administrator Seeks to Bar Property Transfer

A deceased wife, who owned a property at Brooklyn, has taken sole title as an occupant by the entirety following the death of her husband. The day after the death of the wife, a woman performed a deed whereby she allegedly conveyed, as the estate administrator and titled the property to herself as recipient. The woman performed a mortgage on the property in favor of a financial institution to secure a loan in the amount of $250,000.00. Consequently, the woman again performed a mortgage on the property in favor of a mortgage company to secure a loan in the amount of $340,000.00. According to the settlement, the mortgage transaction proceeds totaling $251,237.66 were used to pay off the prior financial institution’s mortgage. A New York Probate Lawyer said the approval of the financial institution’s mortgage was then recorded.

The complainant, a mortgage company, issued an approval of its $340,000.00 mortgage, apparently in error. The approval of the complainant's mortgage was then recorded. Afterwards, the complainant filed a notice of pendency on the property and initiated the instant action to vacate the approval of mortgage and to restore its mortgage lien to its priority position.

Consequently, another woman claiming to be the administrator the estate (estate administration) moved for an order to cancel the notice of pendency, permanently barring as a lien and discharging of record to a certain mortgage on the property. The woman commenced an action against the first administrator to vacate and discharge of record the deed allegedly conveying title to the first administrator. In her complaint, she alleged that she was the sister and next of kin of the deceased wife and her interest in the property accrued upon the death of her sister. In addition, no will of the deceased wife has been probated in Kings County or elsewhere. She alleged that the first administrator had no power to convey the property of her deceased sister’s assets and the deed should therefore be nullified and discharged of record.

Despite the fact that it had previously filed a notice of pendency against the property, the mortgage company was not named as one of the opponent in the woman's action. As a result, the first administrator filed an answer to the woman's complaint which contained general denials and no affirmative defenses. Nassau County Probate Lawyers said by the decision of the court, the woman’s complaint was granted a decision without trial and the deed to the first administrator was considered to be null and void. The city register was directed upon presentation of a certified copy of the decision, to cancel and discharge the record of the deed.
The part of the woman's motion for cancellation of the notice of pendency filed by the mortgage company is appropriately denied by the court.

The woman further sought the mortgage company from asserting any mortgage lien against the property based on the decision nullifying the deed of the first administrator. The woman also argues that since the first administrator was deemed and never had a valid interest in the property, she then had no power to perform the mortgage in favor of the mortgage company. However, there is no argument that the woman initiated her action subsequent to the mortgage company’s filing of the notice of pendency in the action, yet failed to join the complainant as a party opponent.

In opposition to the woman's motion, the mortgage company submits a copy of a proposed last will and testament of the deceased wife. Suffolk County Probate Lawyers said as a result of the proceeding, the part of the woman's motion for an order discharging, cancelling or barring the assertion of any mortgage lien in favor of the mortgage company is denied.

It is difficult to secure a property nowadays because of the people who would do anything just to acquire things they don’t own. If you want to make your belongings secure, ask help from the Kings County Estate Attorneys to prepare your last will and testament. If you need to validate someone’s will, you can have the Kings County Probate Lawyers handle the case. The Kings County Will Contest Lawyer at Stephen Bilkis and Associates can also be your legal counsel for a lawsuit arising from last and will testament dispute.

July 24, 2012

Court Decides Payment of Estate Taxes

A woman died and was survived by her five children. Her will, dated September 1, 2006 was admitted for probate on July 2, 2010 and letters of estate administration was issued to one of her children. The Will established a credit shelter trust for her husband, with remainder to her children. It left the rest, residue and remainder of her estate to her husband outright. Her husband predeceased her and she provided in the Will that if her husband predeceased her, she will left all the rest, residue and remainder of her properties, real, personal and mixed and wherever situated to her elder daughter. All the rest and remainder are to be equally divided among her children.

A New York Probate Lawyer said the estate is sufficiently large to generate a New York State estate tax. The will provides that all estate, inheritance, transfer, succession or other similar taxes shall be payable out of the residuary of the estate. The executor asks that the Court construe the gift to real property as a pre-residuary gift and the remainder clause of the Will as the residuary estate. The executor brings the construction proceeding, since he claims that not all of the residuary beneficiaries agree with his interpretation.

The Will in question directs that the payment of estate taxes be paid from the residuary estate. The Will contest claims that the Will contains two residuary clauses. Westchester County Probate Lawyer said the executor asks the Court to construe one of the residuary clauses as the true residuary estate. The effect will be that all estate taxes will be apportioned among the beneficiaries of the residuary clause and the devise of real property under the other residuary clause will pass to the devisee free of New York estate taxes. No objections have been filed to the petition for a construction, although the executor states that not all of his siblings agree with his interpretation.

The executor treats the matter as purely one of construction. He alleges that the residuary estate, to which tax exoneration provision of the Will applies, is not clear. In construing a will, the Court looks first at whether the will's provisions are clear. INassau County Probate Lawyer said if there is no ambiguity, the court should interpret the will in accordance with the testator's intent as expressed in the will. If there is an ambiguity, the Court should take extrinsic evidence of the deceased woman's intention.

However, construction of a tax apportionment clause cannot be made without considering the special rules governing the State's apportionment statute. The question of allocation should not be approached as would a construction question where at all events the meaning of the text must be determined from the content of the will. In a tax allocation problem, the text of the will is to be scanned only to see if there is clear direction not to apportion; and if such explicit direction is not found, construction of text ceases because the statute states the rule.

The Estates Powers and Trusts Law (ETPL) provides that whenever it appears that a fiduciary may be required to pay an estate tax with respect to property included in the gross estate, the amount of the tax, except in a case where the testator otherwise directs in her will shall be equitably apportioned among the persons to whom the property is disposed of in accordance with the rules of apportionment set forth, and the persons benefited shall contribute the amounts apportioned against them. ETPL provides that unless otherwise provided in the will or non-testamentary instrument, apportioned among the beneficiaries, in proportion to the benefit received.

Accordingly, the courts have applied a rule of strict construction where exoneration from apportionment is alleged. In case of doubt as to what the will means on the subject of taxes the statutory direction to apportion is absolute.

When the will directs payment of federal and State estate taxes out of the residuary estate, taxes are to be apportioned among the residuary beneficiaries unless there is a clear direction against apportionment.

The testator clearly provided for the disposition of her residuary estate after creating a marital trust for her husband in the event that her husband survived her. Finally, the effect of finding that the residuary estate is created would be to relieve the child receiving the real property from the obligation to share in the estate taxes imposed on the value of the devise. While the testator left her daughter a specific devise out of the residuary estate, there is no indication that the testator also intended to exonerate the specific devise from its share of the estate taxes imposed as a result of the gift. Accordingly, the estate taxes imposed must be apportioned among the residuary beneficiaries, including the devisee of the real property, according to the value of their residuary bequests.

Inheritance are not just about accepting what was given to you, it comes with obligations and responsibilities. Lawyers’ fees and taxes will surely take a big chunk of your bequest. If you need a Kings County Probate Attorney or a Kings County Will Contest Lawyer, you may call the office of Stephen Bilkis and Associates during office hours. You can also avail of the services of a Kings County Estate Attorney or a Kings County Estate Administration Lawyer to help you.

Continue reading "Court Decides Payment of Estate Taxes" »

July 23, 2012

Court Decides Guardian Ad Litem Fee

This case involves the will of Josephine H. Kempisty who is deceased. The case is a probate proceeding being held in the Surrogates Court of the State of New York in Nassau County.

Current Issue

This probate proceeding is a review of a settlement stipulation that was negotiated and crafted by the guardian ad litem that was appointed as a representative of Regina Karasinski, the sister of the decedent.

Case History

The decedent, Josephine Kempisty passed away on the fifteenth of February, 2009. A New York Probate Lawyer said she was a resident of New Hyde Park in Nassau County. She left a last will and testament that was dated the 28th of June, 2007. There were 19 statutory distributes who survived the decedent. This includes four brothers and sisters and 15 children on these siblings.

The will left the property of the decedent in three equal shares. Two of the shares were left to her sisters, Evelyn Mueller and Jane Welser. The third share was left to the niece of the decedent, Barbara LoRusso. LoRusso is the executor and petitioner. The will does not mention the decedents other sister, Regina, who has Alzheimer’s.

The 15 distributees have filed waivers of citation and jurisdiction over the remaining three parties, including Regina. There were no objections to the will raised by the distributees. The petitioner was issued preliminary letters on the 19th of May in 2009 and the letters are extended upon application.

Regina was appointed a guardian ad litem. Nassau County Probate Lawyers said the guardian issued a report that reflects the estate of the decedent has an approximate value of $570,000. Additionally, there are non-testamentary assets of $292,000, this includes $200,000 that is held in a joint account that names Barbara as the joint tenant. These joint accounts were found to have been established by Barbara who used power of attorney as executed by the decedent. Additionally, the guardian ad litem discovered that the will had been prepared by an attorney who received instructions over the telephone from Barbara and the execution of the will was not supervised. There were serious questions raised about the competency of the decedent at the time the will was executed.

The guardian ad litem communicated his objections to the petitioner’s attorney and a settlement was negotiated. The settlement includes a payment of $90,125 to Regina from the personal funds of the petitioner. Long Island Probate Lawyers said as the settlement agreement does not have any effect on the distributions provided by the will it is unnecessary to seek the approval from the other legatees. The amount of the settlement is calculated to be close to the amount that would have been payable to Regina as an intestate share of the probate and non-testamentary property. The settlement stipulation as negotiated is approved by the court.

The other issue that is addressed by the court is the fee for the guardian ad litem. Ultimately, legal fees are typically charged to the estate and the court has the discretion to determine an appropriate amount. It is determined after careful consideration that the guardian ad litem will be awarded the amount of $17,000. This amount will be paid out of the general assets of the estate within thirty days of the letters of administration being issued to the petitioner.

Stephen Bilkis & Associates offers law offices throughout the city of New York. If you are involved in a case such as the above or any other type of legal matter, contact our offices for help. You can set up a time to come in and discuss your case in a free consultation with one of our expert litigators.

July 15, 2012

Court Decides if Surrogates Court Abused its DIscretion

The Facts:

The Respondent found among the decedent's effects a purported will signed by the decedent but with the signatures of the witnesses torn off and missing. The respondent claims that the attorney whose name appears on the back of the will does not remember the alleged will or attending on the execution of any will by the decedent. Had the decedent died intestate, her sole heir would be her sister, a Finnish citizen who resides in Finland and who intends to file a will contest.

Under the will, the appellant was named as the executor and sole beneficiary in the will. When the appellant learned about the will, his attorney visited the respondent's office and requested that the will be filed forthwith as required by law.

A New York Probate Lawyer said the respondent, instead of merely filing the will, he simultaneously filed a petition for the issuance of citation to show cause why the will should not be admitted to probate and for a decree admitting said will to probate and directing the issuance of letters testamentary to the executor who might qualify, or to determine that the act of tearing revoked the instrument and, if the court found that the will was revoked, then, in the alternative, for the issuance of letters of administration, for the purpose of estate administration or estate litigation, to respondent.

The respondent claims that the will is not valid and probate will be denied. Simultaneously with the filing of the petition, respondent made a motion for the issuance to him of temporary letters of administration.

On the contrary, the appellant opposed respondent's motion for the appointment of the temporary administrator and moved for an order dismissing the petition to prove the will and for a further order authorizing appellant to petition the court to prove said will.

The respondent's motion was granted and the appellant's motion was denied. Westchester County Probate Lawyer said the order denying the appellant's motion provides that the motion to dismiss the petition for the probate of the will or, in the alternative, for the issuance to respondent of letters of administration is denied in all respects.

The appellant did not move for the dismissal of the entire petition, as indicated by the fact that he requested authorization to petition the court for probate. If the entire proceeding had been dismissed on motion, the appellant would not require authorization to file a petition for probate. It is possible that the request for such authorization was made in view of the fact that the rules provide that: No petition for the probate of a will, or for the grant of letters of administration or of guardianship will be entertained during the pendency of a prior proceeding for the same or like relief respecting the same matter.

The Ruling:

The court finds that the respondent was not authorized to propound the will for probate since he was not a person interested in the estate within the statutory definition thereof; neither did the respondent come within the provision of the Surrogate's Court Act which states that: Nassau County Probate Lawyers said the surrogate's court may direct the public administrator or county treasurer to present a petition if a will has been filed in the surrogate's office for over sixty days and no other person who is entitled to petition for its probate has done so.

Here, the Surrogate should have granted the motion to dismiss the petition insofar as it sought the probate of the will and should have granted appellant's motion for authorization to petition the court for the probate of the will.

On the relief requested in the appellant's motion, the Surrogate was not required to dismiss the petition insofar as it sought a determination that the instrument was revoked by the act of tearing and that, in the alternative, letters of administration be granted to respondent. But even if the appellant's motion sought the dismissal of the entire petition, the showing was sufficient to satisfy the Surrogate that the decedent died without leaving a valid will and died intestate; and to authorize him to issue a citation and to continue the proceeding as one for the issuance of general letters of administration.

Henceforth, the Surrogate did not abuse its discretion by the granting of temporary letters of administration to respondent. After appellant files a petition for the probate of the purported will, the parties may move to consolidate the proceeding instituted by appellant with that portion of the proceeding instituted by the respondent which has not been dismissed. The order granting the motion for the issuance of temporary letters of administration is affirmed; the order denying the cross motion to dismiss the petition modified by striking therefrom the ordering paragraph and by substituting therefor provisions granting the appellant's cross motion: to dismiss the petition insofar as it seeks a probate of the will and to authorize appellant to petition the court for the probate of the will.

Kings County Estate Administration Lawyers from Stephen Bilkis & Associates are offering free legal consultations for everyone. If you are conflicted with the legal approach you must make, contact a Kings County Probate Attorney from our firm. Discuss your case with us and you will be advised by our legal experts with the best there is.

July 9, 2012

Court Says Larger Estate Doesnt Justify Larger Fees

A woman resident died on February 15, 2009, leaving a last will and testament dated June 28, 2007. She was survived by 19 statutory heirs, including four siblings and the 15 children of four predeceased siblings.

The last will and testament leaves all of the woman’s property in three equal shares, two of which pass to the woman’s sisters, the elder sister and younger sister. The will directs that the third equal share be paid over to the woman’s niece, who is the nominated executor and the petitioner. It makes no mention of the woman’s third surviving sister who suffers from Alzheimer's disease. A New York Probate Lawyer said waivers of citation were filed on behalf of 15 heirs, and jurisdiction was obtained over the remaining three interested parties, including the third sister. None of the heirs raised will contests. Preliminary letters were issued to the petitioner on May 19, 2009 and the letters have been extended upon application.

The court appointed guardian on behalf of the third sister is a guardian for incompetent persons. His report reflects that the probate estate was valued at approximately $570,000.00 and that there were non-testamentary assets of $292,000.00, including $200,000.00 held in joint accounts which named the petitioner as the joint tenant. The guardian ad litem also discovered that the petitioner had established the joint accounts using a power of attorney executed by the woman. He further learned that the last will had been prepared on the basis of telephoned instructions from the petitioner to an attorney, and that the will execution had not been supervised by an attorney. Additionally, based upon information uncovered by the guardian ad litem, which included medical records, serious questions were raised concerning the woman’s competency at the time the will was executed.

The guardian ad litem communicated his potential probate objections to the attorney for petitioner and they then negotiated a settlement. The stipulation provides that petitioner will pay $90,125.00 out of her own personal funds to the third sister; the last will and testament will be admitted to probate. Since the agreement has no effect on distributions to be made under the will, the consent of the other inheritors is unnecessary. Long Island Probate Lawyers said the guardian ad litem's calculations reflect that the settlement amount payable to the third sister closely mirrors her intestate share of the woman’s probate and non-testamentary property, without consideration of the estate litigation expenses which would have been incurred by the estate had the matter not been successfully settled.

The court must also fix the fee of the guardian ad litem. Ultimate responsibility for approving legal fees that are charged to an estate lies with the court, which has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the estate administration. This remains true even in the event that the parties have consented to the requested fee.

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

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed.
The fee is fixed in the amount requested by the guardian ad litem, $17,000.00, which shall be paid out of the general assets of the estate within 30 days of the issuance of full letters of administration to petitioner. The court thanks the guardian ad litem for his fine work and the outstanding result achieved on behalf of his ward.

When disputes over money arise, the family relationship suffers. To question the choice of one person implies that you do not trust the person. If you want to prove that a person assigned as executor is not capable of doing the job, call the Kings County Will Contest Attorneys and Kings County Estate Lawyers. Stephen Bilkis and Associates can also provide you with a Kings County Probate Lawyer to make sure that the document you have is the one to be implemented.

July 5, 2012

Petioner for Estate Claims Lawyer Misappropriated Funds

Sometime in 1985, the respondent was retained by a woman to probate the Last Will and Testament of her deceased mother. The respondent accepted the retainer with full knowledge that the Will would have to be probated in the Court (for estate administration or will contest; estate litigation) in which he was employed. Thereafter, the respondent failed to apply to the Chief Administrator of the Courts for permission to engage in the private practice of law with respect to the subject estate, as follows:

In May of 1985, the respondent acting as the attorney for the estate, filed a probate petition and other relevant papers in the Surrogate's Court, Kings County, but, in doing so, concealed the fact that he was the attorney for the estate.

On 6 June 1985, the subject Will was admitted to probate and an administratrix was appointed. The respondent was paid the sum of $1,200 for his legal services.

Charge One: Suffolk County Probate Lawyers said that from 1966 to the present time, the respondent was employed at the Surrogate's Court, Kings County, and while so employed, practiced law in violation of the Rules of the Chief Administrator of the Courts. From 1966 to 1984, the respondent was a Law Assistant, and in 1984, the respondent became the Chief Law Assistant in that court, a position which he has held continuously to the present date.

Charge Two: that the respondent agreed to sell real estate belonging to the estate for a fee of 1% of the purchase price but not less than $750. Again the respondent failed to apply for any approval from the Chief Administrator of the Courts to engage in the private practice of law. At the closing held on 19 January 1989, the property was sold for a purchase price of $248,000, entitling the respondent to a fee of $2,480. Nassau County Probate Lawyers said that the respondent then improperly converted to his own use the sum of $3,520 by drawing himself a check payable in the amount of $6,000, without the knowledge or consent the administratrix, who had since moved to Seattle, Washington.

Charge Three: that the administratrix filed a complaint with the Grievance Committee, by letter dated 23 February 1989, alleging that the respondent had engaged in the larcenous taking of $3,520 from her mother's estate. By letters dated 24 February and 27 February 1989, addressed to the complainant's attorney, the respondent attempted to induce the administratrix into withdrawing her complaint. The letters were accompanied by checks totalling $3,520.

Four: that the respondent failed to apply for approval from the Chief Administrator of the Courts to permit him to engage in the private practice of law with regard to the estate, as follows:

Sometime in 1976, the respondent prepared a Will for another woman wherein he named himself as alternate executor. The woman died in May of 1982.

In October 1982, following the death of the aforesaid woman, the respondent presented the Will in the Surrogate's Court, Kings County, for probate. In probating the Will, the respondent listed himself as sole executor and requested that letters testamentary be issued to him. In filing the papers with the court, the respondent failed to disclose the fact that he was an attorney or that he had drafted the Will. The respondent received $8,000 from the estate for services rendered.

Thereafter, the respondent failed to file an affidavit with the court, setting forth the total commissions paid to him and the total attorney's fees paid to him for services rendered on behalf of the estate. Further, the respondent failed to report as income on his 1982 Federal income tax return the $8,000 which he earned for services rendered to this estate.

Charge Five: that the respondent failed to apply for approval from the Chief Administrator of the Courts to permit him to engage in the private practice of law with regard to the estate, as follows:

Sometime in 1986, the respondent drafted a Will for another woman, in which he named himself as executor and as a beneficiary. In May 1988, the woman died.

Following the death of the aforesaid woman, the respondent, acting as a sole executor of the estate, submitted the Will to the Surrogate's Court, Westchester County, for probate.
Charge Six: that the respondent failed to apply for the prior approval of the Chief Administrator of the Courts to permit him to engage in the private practice of law with regard to the estate, as follows:

Sometime in 1984, the respondent prepared a Will for another woman, in which he was named as sole executor. In 1986, the respondent drafted a Codicil which left unchanged his appointment as executor. In January 1988, the woman died.

Following the death of the aforesaid woman, the respondent submitted the Will and Codicil to the Surrogate's Court, Kings County, for probate. The petition also alleged that in listing himself as sole executor and requesting letters to administer the estate, the respondent failed to file with the petition a statement disclosing that he was an attorney, that he was acting as counsel, and that he had drafted the Will and Codicil which he was offering for probate. The respondent received $46,000 from the estate for the legal services rendered.

Thereafter, the respondent failed to file an affidavit with the court, setting forth the total commissions paid to him and the total attorney's fees paid to him for services rendered to the estate.

In sum, a petition setting forth six charges of professional misconduct against the respondent has been filed. The Special Referee sustained all six charges.

The petitioner moves to confirm the report of the Special Referee and the respondent has submitted a brief in answer thereto.

The Ruling:

After reviewing all the evidence adduced, the court finds that the Special Referee properly sustained all of the charges of professional misconduct alleged against the respondent.
Here, in determining an appropriate measure of discipline to impose, the court has taken into consideration the serious personal problems which the respondent was experiencing at the time, the character evidence submitted, and the absence of any prior disciplinary history. In view of the respondent's misuse of his escrow account and his subsequent attempt to induce the withdrawal of a complaint against him, the court finds that the respondent is guilty of serious professional misconduct.

As a result, the respondent is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; the respondent must now comply with the court's rules governing the conduct of disbarred, suspended and resigned attorneys; the respondent is commanded to desist and refrain from practicing law in any form, either as principal or as agent, clerk or employee of another, from appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission or other public authority, from giving to another an opinion as to the law or its application or any advice in relation thereto, and from holding himself out in any way as an attorney and counselor-at-law.

Accordingly, the petitioner's motion to confirm the report of the Special Referee is granted.
Stephen Bilkis & Associates provides free legal consultations. Contact us now and discuss your case with us. Know your rights and what legal steps are available to you for your protection. Our Nassau County Estate Litigation Attorneys are more than willing to assist you. We have our Nassau County Probate Attorneys or our Nassau County Will Contest Attorneys, and the like, on standby to answer any of your legal queries. Our legal experts have had extensive training, experience, and skill so they can give you the best legal advice there is.

July 2, 2012

Court Holds Executrix was Negligent

Two men were business partners. In 1925, one partner filed a suit to compel his business partner to account for the properties of the partnership in his keeping. The partner who sued contended that his business partner diverted the profits of their business.

While the suit for accounting was pending, the business partner died who was sued died. He left a will which was probated. An executrix was appointed in the will and approved by the probate court. A couple stood as sureties for the fiduciary bond of the executrix.

Soon, the surety also died and he also left a will which was admitted into probate. In 1932 the surety’s estate was settled.

In the meantime, the business partner who sued got a favorable decision and he was awarded the sum of $107,877.35.

Eleven years after he began his suit for accounting to recover the profits which his deceased business partner had diverted for his own personal use, the man sued the executrix of his deceased business partner so that she will pay to him from the assets of his deceased business partner’s estate what profits his deceased business partner had diverted for his own personal use. A New York Probate Lawyer said the executrix of the deceased business partner never appeared in court and so a default judgment was entered against her. He was granted an award of $128,652.38.

By that time the estate of his deceased business partner had already been fully distributed but the executrix had not yet rendered her full accounting to the probate court. In 1941 the business partner filed two new suits against the administration by the executrix. Again, the executrix failed and refused to appear in the suit so a judgment was entered against her administration in the amount of $73,534.02.

Thirteen years later in 1957, the business partner died. His will was admitted into probate and letters testamentary were issued to his executor. A Sufflolk County Probate Lawyers said the executor of the business partner’s estate listed as assets of the estate the judgment awards which remain unpaid to the business partner against the executrix of his former (also deceased) business partner and his estate.
The executor filed a suit against the estate of the sureties for the estate and executrix of his former business partner’s estate.

The only question before the Court is whether or not this suit filed by the executor of the estate of the defrauded business partner should prosper seeing as it was filed after the lapse of decades from the time that the judgment awards were entered.

The Court held that there was a delay of thirteen years from the time that the default judgment against the executrix was entered in 1945. The Court also held that even if there was a delay, the suit by the executor cannot be barred because neither the executrix not the fiduciaries/sureties of his business partner’s estates have not yet filed an accounting and they have not repudiated the trust they voluntarily and freely entered into to distribute the estate of the deceased’s estate to satisfy all his debts.

The court held that the executrix was negligent in her administration of the estate of the deceased business partner. A Nassau County Probate Lawyer said she did not appear in court so that she can put up the defense that the actions were all barred by the statute of limitations. Once judgment had been entered against her, it has become final and executory. She can no longer put up the defense of statute of limitations now.

The motion to dismiss is denied.

If you were appointed as executor of a will, you must be diligent in protecting the estate and preserving it for the satisfaction of the debts of the deceased and for the benefit of the beneficiaries of the will. Once the estate you are administering is sued, you must appear and put up all the necessary defenses. Are you an executor of an estate? You need the advice and assistance of a Kings County Estate Administration Lawyer who can help you sort through the debts and receivables of the estate. A Kings County Estate Administration Attorney can help you file suits to collect the debts owed to the testator. A Kings County Estate Administration lawyer can also help you defend the estate from frivolous and unjust claims. At Stephen Bilkis and Associates, their Estate Administration lawyers are ready and willing to assist you. Call Stephen Bilkis and Associates, or better yet, come to any of their offices in Kings County and meet with their Estate Administration attorneys.

June 28, 2012

Petitioners Request Letters of Administration

A woman died on October 26, 2000. The alleged last will and testament was executed on March 23, 1995. Under the last will and testament, the woman left her estate to her two sisters, or the survivor. She named her elder sister as executor and the younger sister as successor. The elder sister predeceased the woman without issue. As a result, the entire estate was passed to the younger sister.

In 2005, the younger sister petitioned for the appointment of a guardian of her property. The court, finding that the younger sister had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, a niece, and a friend, as guardians of the woman’s property.

A New York Probate Lawyer said in May, 2007, a judge authorized the petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. The affidavit of the friend in support states that she located the copy among the woman’s important papers after her death. While the deceased woman must have had the original will, her house had been sold and the purchaser threw away all of the deceased woman’s papers. The affirmation of the deceased woman’s friend states that after the woman’s death, her home was taken over by her former handyman who threw away all of her papers.

The instrument was prepared by an attorney, who supervised its execution and was a subscribing witness. He has filed an affirmation of due execution. The second subscribing witness cannot be located. The petitioners now move to withdraw their probate petition and ask that the Court to issue letters of administration to them. They allege that they are unable to probate the instrument because of the unavailability of the second subscribing witness. The heirs have executed agreements waiving their intestate rights so as to mirror the testamentary plan set forth in the woman’s Last Will & Testament dated March 23, 1995.

When there is an apparently valid testamentary instrument on file, the Court has the obligation to try to respect the testamentary wishes expressed therein, if this can be done. Nassau County Probate Lawyers said the law, however, gives to every person a right to dispose of his property in any manner that best suits him, and, so long as he was possessed of sufficient mental capacity and observed in the execution of the instrument the required legal formality and acted freely, it is his wishes which must be respected, and his testamentary disposition given effect, regardless of the contrary wishes of his heirs at law and next of kin or beneficiaries respecting his property.

Normally, it is the duty of the nominated executor to take diligent and active steps to procure its probate and to protect the will from attack from any source. When the nominated trusted persons has died or are under a disability, any person designated in the will as a legatee or devisee, or guardian for such person, may petition to probate the instrument.

However, the courts have recognized exceptions to this duty where probate would be futile or otherwise unwarranted. Thus, an executor who believes that the instrument is not a valid testamentary instrument is under no obligation to offer it for probate. Nor will probate be required where the will has become ineffective because the legacies had lapsed and the named executor had died or was unwilling to act. Long Island Probate Lawyer said even an otherwise valid instrument need not be offered for probate where its proof is doubtful or would entail undue time and expense, especially where the results would be similar to intestacy.

Finally, even where the distribution in intestacy differs from that provided in the instrument, the Court will grant letters of administration when there has been unreasonable delay in probate, where all the legatees are adults and either consent, default or appear but do not file objections. When all the parties interested in an estate, either under testacy or intestacy, agree that a will shall not be offered or admitted to probate, it is not within the power of a surrogate to enforce its admission.

The sole beneficiary under the instrument is alive and the petitioners are expressly authorized by the Supreme Court to initiate probate proceedings on her behalf. Probate does not seem to present insurmountable difficulties. While the failure to locate the original creates a presumption of revocation by the deceased woman, the presumption may be rebutted when there is a natural explanation for the failure to locate the original and the copy is found among the deceased person’s important papers.

Every person intends to provide something for their family and loved ones even in the time of death. If you find it difficult and troublesome to acquire what you inherited, feel free to contact the New York Estate Litigation Lawyers from Stephen Bilkis and Associates.

June 24, 2012

Court Rules That Trust Acted as a Substitute Will

A man created a living trust. A living trust is one where all the man’s assets are put in a trust with a bank or trust company and the income earned by his assets will be paid out to the man himself. The problem with this living trust the man created was that he bought the trust document in a pre-printed fill-in-the-blank form: he never went to a lawyer to have the lawyer create a trust document for him, tailor-cutting the provisions of the document so that it would fit his circumstances.

The trust he created came in a document that was sent to him in the three-ring-binder contained a Certificate of Trust, and Affidavit of Trust, a Living Will, a property power of attorney, a health care power of attorney and a copy of the man’s will which was stapled. The man can just cut out and paste those provisions that he didn’t like and keep the provisions that he did like and wished to retain. Glued to the ring binder is a sticker that showed the name and copyright of the lawyer who created the fill-in-the blank trust and will. The three-ring binder is part of an estate-planning product that also includes a seminar, a handbook and a computer software program which allows the person who purchased the portfolio to create a will and print it.

A New York Probate Lawyer said the living trust was created sometime on April 30, 1996. On the same date, the man also executed a will. The man’s will provided that all of the properties of his estate which were included in the living trust will be revoked upon his death and the entirety of his estate will pass on to his dear friend. This provision was later amended by the testator before his death on September 9, 1996. The amended provided that only 99.75 per cent of the entire estate under the living trust will be given to his dear friend and the remaining .25 will pass on to another friend.

When the testator died, it was discovered that he had made an earlier will in October 1990 that provided that 1/10 of 1 per cent was given as an outright gift to the other friend while the balance was given outright to the dear friend. Nassau County Probate Lawyers said this 1990 will was filed with the court.

At the time of the testator’s death, he had and estate that was worth about $1,000,000. $950,000 of this estate was already converted into the living trust. The properties worth around $60,000 remaining in the testator’s name at the time of his death which were not included in the trust will pass in accordance with the provisions of the will.

The dear friend submitted the 1996 living trust and the 1996 last will and testament for probate. Manhattan Probate Lawyers said when the Surrogate’s Court looked at the document creating the trust and the will, the Surrogate’s Court discovered the haphazard cut and paste trust and will and declared that it was impossible to determine what the testator actually desired. The Court had problems when it found so many inconsistencies and ambiguities.

First the court found that the pre-printed generic trust and will documents paid for by the testator was created for a husband and wife who intended to make a mutual will. The testator was a single man who was never married and had only one child: the named executor in the will.

The Court was in a dilemma as to what to do with the trust and the will. The Court could not make heads and tails of the testator’s desire as to how to dispose of his estate. To complicate the legal tangle, the executor of the will (the son of the testator) asked the court to interpret the provisions of the trust and the will so as to pour the entire estate into the trust which shall then all pass to her father’s dear friend.

During the probate, five nephews and nieces appeared. They were distributees in the will. They claim that the trust should be made ineffective but they contended that the will was valid. They asked the Surrogate’s Court to declare the trust ineffective and so prevent the transfer of the entirety of the estate to the trust. They asked the Surrogate’s Court to dispose of the entire estate of the testator in accordance with the provisions only of the will. Some of these nieces and nephews were still infants and so the Surrogate’s Court appointed a guardian ad litem for them so that their interests in the will can be safeguarded.

The Court admitted that the Surrogate’s Court has the power to interpret and construe a will to determine the legal questions presented before it and to make a complete distribution of the estate covered by will. The Court also ruled it best to interpret the will now during the probate proceedings to see whether or not they can figure out the intent of the testator. The Court also resolved to interpret the trust as the two documents are so closely related that the testator’s will can only be fully determined by scrutinizing both.

The Court adapted the issues as worded by the guardian ad litem: will the merger of the will and the trust render the trust invalid? Are the assets of the estate to be held in a continuing trust after the testator’s death? Is the provision of the will pouring all the estate properties into the trust effective? Are the nieces and nephews of the decedent excluded from any share in the estate or in the trust?

The Court held that the revocable living trust is really a substitute will. It disposed of the decedent’s estate to another or others upon his death. The Court held that upon the decedent’s death, the principal of the trust shall be given outright to the petitioner and in the event that the petitioner pre-deceases the decedent then the nephews and nieces will stand to inherit the entirety of the principal of the trust.

The Court also held that the trust cannot validly receive all the properties of the estate. The language of the will requires the distribution of the estate as conditional. And the will states that if the trust is not legally effective, all his property shall pass onto his dear friend who will only hold and administer the properties until it is distributed as a testamentary trust.

In conclusion, the Court held that, after scrutinizing the provisions of the will, the properties constituting the trust will pass on to the dear friend. The remaining properties of the estate which were not included by the decedent in his living trust cannot be incorporated into the trust and cannot be poured-over into the trust or be given outright to the dear friend. The remaining properties of the estate shall be distributed to the nephews and nieces who will share in the properties as intestate distributees. The Court directed the Surrogate’s Court to proceed with the probate of the will and to distribute the assets of the estate in accordance with the findings and holdings of this Court.

Are you like the testator in this case who wanted to create a do-it-yourself will? Do not think that you can create your own will without any advice or assistance from a New York Probate lawyer. Our legal team can explain to you the legal requirements so that your will can be considered as having been duly executed. At Stephen Bilkis and Associates, we can help you draft your will in accordance with your wishes, but taking into account all the requirements of the law. Do not attempt to do your own will without consulting us so that your will need not be invalidated instead, it can be probated and distributed in accordance with your wishes.

June 20, 2012

Probate Court Discusses Cy Pres Doctrine

The Facts:

On 1 November 1995, a doctor (“the doctor”) died. On 8 July 1996, his will was admitted to probate (for estate administration or estate litigation). Under the will, the doctor bequeathed $3,500,000 to a hospital (“the Hospital”), to be held as the Endowment Fund in perpetuity, with the income only to be used for general purposes. This was in addition to the $1,000,000 that he and his wife gave the hospital for the same purpose in December of 1988. In addition, the doctor bequeathed 5% of his residuary estate (up to a maximum of $10 million) and one quarter of the balance of the residuary estate to the hospital. His will directed that these amounts be added to the Endowment Fund and administered under the conditions established under the will. The hospital received approximately $37,000,000 from the estate of the doctor dedicated to the Endowment Fund.

On 8 April 1998, the doctor’s wife (“the wife”) died. On 30 December 1998, her will was admitted to probate. Under the will, she bequeathed $4,000,000 to the same aforesaid hospital as the Endowment Fund, to be held either in perpetuity with the income to be used for general purposes, or in part or in whole for the construction or acquisition of a building to be called in their names. In addition, she left 20% of her residuary estate to the hospital, to be added to the Endowment Fund and administered under the conditions established under the will. A New York Probate Lawyer said the hospital received approximately $98,000,000 from the estate of the wife dedicated to the Endowment Fund.

The present day value of the Endowment Fund is approximately $133,250,000.

The Prior Cy Pres Proceeding:

Since the death of the aforesaid donors, there have been dramatic changes in the health care industry that have negatively impacted the financial status of New York hospitals. As a result of the severe economic pressures, the hospital found itself in dire financial straits. In March 2000, the hospital adopted a recovery plan to meet these challenges. As part of the recovery plan, the hospital became a member of a larger system of hospitals consisting of several other hospitals, to provide for savings in purchasing and improving cash flow. However, key parts of the plan required the use of the donated funds to secure loans for capital improvements and working capital. Under the recovery plan, the hospital proposed to refinance its existing mortgage and increase the size of the loan by $63.4 million to fund necessary capital improvements that were projected to increase hospital utilization. It also proposed to obtain $25 million from commercial loans to provide additional working capital. However, these borrowings would require additional collateral. Since the hospital had already maximized its debt capacity, it proposed to use funds from the Endowment Fund as collateral. After the mortgage and the commercial paper loans were repaid, the collateral would be restored to the Endowment Fund as restricted funds. In addition, the hospital proposed to use $15 million from the Endowment Fund to purchase and renovate a medical treatment facility to be named after the donors.

Thus, the Hospital petitioned the court to modify the restrictions on the bequests under the wills pursuant to the doctrine of cy pres. Long Island Probate Lawyers said the hospital requested that the court exercise its cy pres powers to modify the restrictions in the wills to allow the Hospital to use a sufficient portion of the Endowment Fund to secure the new financing for strategic capital projects and working capital and to interpret the wife’s will to permit the Hospital to spend approximately $15 million to acquire and renovate the treatment facility. In its petition, the hospital emphasized that these measures were necessary if it is to compete successfully and survive economically in the changing health care environment. The Attorney General appeared and filed an affidavit in support of the petition.

The court found that the forces buffeting the health care industry in general and the hospital, in particular, were unforeseen changes that jeopardized the donors' charitable intentions.
Thus, the court found that the proposed loan was the best practical solution that would preserve the donors' charitable intent. The court applied the doctrine of cy pres to approve the use of restricted funds as collateral as requested. Pursuant to the decree, approximately $92,000,000 from the Endowment Fund was segregated to serve as collateral for the mortgage and the working capital short term loans.

The Instant Cy Pres Proceeding:

The original recovery plan, of which the cy pres proceeding was a key part, has achieved many of its goals. The Hospital has a new president and a chief executive officer. Its participation in the system of hospitals has resulted in improved cash flow from billing and collection, reduction of operating expenses and increased operating efficiency. Nassau County Probate Lawyers said it has made numerous capital improvements, including the modernization of facilities and creation of new laboratories and offices, the renovation of its ambulatory care center, emergency facilities, cancer care facilities and rehabilitative treatment facility. The refinancing has resulted in savings of millions of dollars in financing costs.

Nonetheless, the Hospital is still subject to the economic forces that have buffeted the health care industry. Almost two thirds of the Hospital's income comes from reimbursement under the Medicare or Medicaid program. The reimbursement rates set by the federal and state governments have failed to keep pace with the rate of inflation, let alone the increased cost of providing health care. The growth in managed care and the increased number of uninsured patients, noted in the original cy pres petition, has reduced Hospital revenues. The Hospital has found itself in the position of servicing an increasing volume of patients, but receiving a lower amount of revenue.

Here, the Hospital is required to fund needed improvements in delivering health care out of operating surplus, which does not exist. This is in addition to increased costs mandated by requirements prescribed after the terrorist attack on the World Trade Center and the subsequent Anthrax scare. As a result, the hospital has experienced operating losses of approximately $12 million per year. This has forced the Hospital to forgo needed improvements and delay paying its suppliers, resulting in higher costs of supplies and the threat that its vendors will cease doing business with it. The result has been felt by the entire health care industry. Despite its economic situation, the success of the recovery plan depends upon the hospital’s ability to increase operating capital and achieve operating surpluses over the long haul. The hospital believes that it will be able to achieve this if it is able to borrow $15 million from the Endowment Fund to pay down its accounts payable and invest an additional $10 million to fund critical and strategic capital projects. The Attorney General has reviewed the petition and filed an affidavit in support.

The Issue:

The sole issue is the uncontested petition to release funds in the Endowment Fund, a restricted fund of the Hospital, under the doctrine of cy pres.

The Ruling:

Key factual issues in the instant cy pres proceeding were raised and determined in the prior cy pres proceeding. To the extent that these factual issues are identical to the issues in the current cy pres proceeding, and the parties in this proceeding had an opportunity to be heard in the prior proceeding, the factual issues determined in the prior cy pres proceeding should be binding and there is no need to relitigate them.

The use of the subject doctrine is rare because the factual issues determined in a cy pres proceeding involve facts specific to the charity seeking cy pres relief, limiting the usefulness of a prior cy pres proceeding to a charity not involved in the original proceeding. However, where a charity applies for additional relief under the doctrine, there is no inherent reason why the doctrine should not apply.

This is the situation in the instant case. In the prior cy pres proceeding, the court found that the gift to the hospital was charitable in nature, that the donors had a general charitable intent to benefit the hospital, that the hospital had severe financial needs due to changed circumstances in the health care industry, and that the proposed modification of the restriction of the bequests was the option that most closely preserved the donors' original charitable intentions. Inasmuch as the Attorney General is the only other party in interest in this proceeding, and was a party to the prior cy pres proceeding, there is no impediment to using the doctrine of collateral estoppel.

Consequently, the findings made in the prior proceeding that the bequests to the Endowment Fund were charitable and that the donors' charitable intent was a general, not specific, intent is established. Even without the benefit of the prior decision, the court notes that the record in this case leaves little doubt on these issues. However, in order to apply the doctrine of cy pres, there must also be a showing that the specific charitable purposes are no longer capable of being performed. There must be a showing that there has been a change of circumstances such that the particular charitable intention of the testator fails. As to this factual issue, that of a change of circumstances, public policy would seem to require that the charity not rely solely on the prior decision, but establish that events since the prior decision have acted to make the original plan approved in the prior proceeding ineffectual in achieving its goal of saving the Hospital.

Here, the record shows that since the approval of the prior petition, the Hospital has been damaged more by the economic forces discussed in the prior decision. In addition, since the terrorist attack on the World Trade Center and the Anthrax scare, hospitals have been required to expend additional monies to upgrade their security systems and preparedness for treating victims of terrorist and biological attacks. As a result, the Hospital finds itself once again on the edge of bankruptcy. Despite its economic situation, the Hospital believes that it will be able to increase operating capital and achieve operating surpluses over the long haul, if it is able to borrow $25 million from the Endowment Fund to pay down its accounts payable and to invest in critical and strategic capital projects. Moreover, the Hospital must establish that the application is the least invasive method of preserving the donors' charitable intent. The Attorney General has carefully reviewed the proposal and the financial documents upon which they were based and is satisfied that the application is narrowly tailored to preserve the Endowment Fund as much as possible and that granting the petition will enable the hospital to fulfill its health care mission. He further reports that the relief requested is necessary to avoid a substantial risk of bankruptcy.

During the donors’ lifetimes, they were closely associated with the hospital and engaged in many activities to promote its existence and ensure its continuing medical service to the community. They made substantial monetary contributions to this end, both inter vivos and testamentary. This led the court to find in the prior proceeding that the donors would want the hospital to continue as a hospital. Since that has become impracticable in light of its current financial circumstances, it is proper that the court exercise its cy pres powers to prevent the suspension of a valuable community service and the failure of a definite charitable purpose. Literal compliance with the restrictive provisions of the Endowment Fund is impracticable because the income of the hospital is insufficient to allow the hospital to continue its operations and avoid bankruptcy. Modification of the restrictions to allow a sufficient portion of the Endowment Fund to be used to reduce the accounts payable and make the capital improvements to implement the hospital’s recovery plan has the potential to keep the Hospital in operation and preserve the donor’s overriding general charitable intent.

Henceforth, the court finds that the hospital has met the three required tests for application of the cy pres doctrine and grants the cy pres petition in its entirety.

For a free legal consultation, give Stephen Bilkis & Associates a call. We offer our assistance by providing you legal advices from the best lawyers in the country. Call us and learn more of what you can do to protect your ri

June 11, 2012

Court Determines Subject Matter Jurisdiction

The Facts:

Sometime in 1936, plaintiff and his wife (the deceased), residents of Kings County, entered into an agreement to execute mutual reciprocal and irrevocable wills which neither of the parties was to alter, cancel or revoke without the written consent of the other. The wills were accordingly executed.

In 1954, the wife executed another will. In her will, she devised and bequeathed all her estate, both real and personal, to plaintiff husband.

On 27 July 1955, the wife died leaving her surviving plaintiff husband. Allegedly, the will of 1954 was made in violation of the 1936 agreement and with intent to avoid the provisions of the 1936 will and in order to deprive plaintiff of his rights thereunder; that the 1954 will was admitted to probate by the Surrogate of the County of Kings on 6 February 1956; that the said will was made by deceased without the knowledge or consent of plaintiff and that the only asset of the estate is a bank account of almost $3,000.

Thus, a New York Probate Lawyer said an action has been brought by plaintiff husband against the executrix of his deceased wife's estate and the legatees under a will executed by her in 1954, as defendants herein (the defendant, Bank of Brooklyn, being merely a depository).

Plaintiff seeks to have the 1954 will, which was admitted to probate, declared null and void, and demands judgment that defendants be restrained from disposing or removing from the jurisdiction of the court any money or property of the estate, that the provisions of the 1936 will be carried out in all respects and that a trust in favor of plaintiff be declared as to the funds in the bank account.

The moving party urges, as a bar, to the present action that plaintiff could have sought the relief he seeks in the action in the Surrogate's Court which possesses broad powers in matters relating to decedent estates.

Plaintiff contends that he was obliged to commence the present action on the basis of breach of contract and to impress a testamentary trust on the assets left by the decedent.

According to Nassau County Probate Lawyers, the defendant files a motion for an order directing that judgment be entered dismissing the complaint, pursuant to Rule 107 of the Rules of Civil Practice, on the ground that the court does not have jurisdiction on the subject matter of the action and, on the further ground, that it is an action relating to a decedent's estate and should be brought in the Surrogate's Court, Kings County, where a proceeding is presently pending for the administration of the assets of the defendant estate; estate administration or estate litigation.

The Ruling:

The rule is well established that the Supreme Court will refuse to entertain jurisdiction of a matter where the Surrogate's Court has complete power to safeguard the interests of the parties.

Here, plaintiff can adequately protect the rights he is now asserting by resorting to the Surrogate's Court where a proceeding relating to the deceased's estate has already been instituted. Long Island Probate Lawyers said if the testatrix bound her estate by a valid antecedent obligation, this court (Surrogate's Court) is empowered to grant to the claimant full and complete legal and equitable relief.

It has been ruled that while the court has concurrent jurisdiction and although, strictly speaking, another action may not be pending between the same parties for the same cause, there is no sound basis for resorting to this forum when a complete determination of the issue sought to be tendered can be had in the Surrogate's Court.

The Surrogate's Court is a specialized court. For a long period of time, efforts have been made to encompass within its fold all matters embracing, or properly relating to, the estates of decedents over which the surrogate has jurisdiction. To this end, legislation has been enacted tending to bring that result about, all in the interest of speedier justice and the unification of jurisdiction. The herein court has concurrent jurisdiction with the surrogate's, but has wisely yielded its right to jurisdiction to the accomplishment of the end sought.

Henceforth, the motion is denied, under the rule upon which the motion is predicated, as no basis exists for a dismissal under any of the items therein specified as a ground for dismissal. Nonetheless, the court has power under the circumstances to refuse to entertain jurisdiction; thus, the court does refuse and dismisses the complaint.

For free legal consultations on similar situations as the above, get in touch with a Kings County Probate Attorney at Stephen Bilkis & Associates. Our legal experts have had extensive experience and training on the matter, thus, have acquired unique skills that could help you. Talk to a Kings County Will Contest Attorney from our firm so you could better protect your rights.

May 6, 2012

Court Dismisses Appeal on Proceedural Grounds

The plaintiffs and appellants in this case are Leslie Lerman and Lois Lerman. Summerhill Estates, Inc, Adam C. Robinson, Marleen L. Robinson, Allen M. Robinson, and Michele A. Keagle are the defendants of the case. Cayuga County is the defendant and respondent in the case.

A New York Probate Lawyer said this appeal case is being heard in the Supreme Court of the State of New York in the Appellate Division. The judges overseeing the case are P. J. Smith, Scudder, Fahey, Centra, and Peradotto, JJ. The case is being heard on the 25th of October in 2011.

Respondents Case

The respondent in this case, Cayuga County is moving to dismiss an appeal that was ordered by the Supreme Court. The original appeal was entered into the court by the Office of the Clerk in Cayuga County on the first of July in 2011. The reason given by the respondent for the dismissal of the appeal is that the appellants did not act within the necessary time frame for making the appeal.

Affidavit

The court has read the affidavit of J. Ryan Hatch, Esquire. The affidavit was written by J. Ryan Hatch, Esquire on the 20th of September. The affidavit was affirmed by the court on October 7th, 2011. It is written that the notice of motion was provided at this time along with the proof of service. This shows due deliberation of delivery of the information by the respondents and defendants.

From this affidavit, the court can see that the defendant – respondent are correct in stating that the appeal was not made within the specified time frame that was ordered by the original court where the case was heard.

Court Order

Based on the information that has been provided to the court, we find in favor of the defendant. Nassau County Probate Lawyers said the motion for the appeal to be dismissed is hereby granted. This is without any further orders, unless the appellant perfects the appeal and submits it to the courts on or before the 27th of December, 2011.

The law offices of Stephen Bilkis & Associates can help you if you find yourself in any type of legal situation. Our offices are located throughout the city of New York for your convenience. If you have a legal questions or are in need of legal advice, simply give one of our offices a call to set up your free consultation.

May 4, 2012

Children of Famous Artist Seek Restitution

This case is in regards to the estate of Mark Rothko. Kate Rothko and Christopher Rothko are petitioners, while charitable beneficiaries are also cross-petitioners. The respondents are Bernard J. Reis, Theodoros Stamos, Morton Levine, Marlborough Gallery, Inc., Marlborough A.G., and Francis K. Lloyd. The Mark Rothko Foundation, Inc. was listed as an intervener.

The Case

A New York Probate Lawyers said Mark Rothko, a worldwide renowned abstract expressionist artist passed away on February 25, 1970. The petitioners are the artist's children. The children seek restitution for their father's estate, both in terms of paintings that were sold by the parties involved, and in financial compensation for the paintings which were already sold to non-party purchases. They also seek to have their legal fees compensated. Essentially, the suit is about whether the children, should have control over their father's estate, or whether the executors named should. The Attorney General represented the people of New York due to the charitable interest in the case. Reis and Stamos are charged with acting in a conflict of interest, while Levine is charged with negligence regarding the sale of the property. All are charged with not fulfilling their legal obligations correctly.

Examination

The respondents were prohibited from selling paintings without court permission, although the children allege that this has taken place. Mr. Reis is accused of a conflict of interest based on his positions as executor, friend and professional advisor of the deceased and as director of Marlborough Gallery. His positions as executor and as director for the gallery had opposing interests. Because of the direct conflict of interest, the courts evaluate his behavior as the same as self-dealing.

Levine and Stamos also face a problem because they knew that Reis was acting in a direct conflict of interest and did nothing, leaving them liable, in addition to Stamos' own actions against the estate which lead to further liability. Nassau County Probate Lawyer said because of the failure of the three to properly execute the will of the estate, the court saw fit to remove them as fiduciaries.

When determining restitution to the estate, the value of the paintings sold off by the Marlborough respondents needed to be calculated. A well-respected art historian, Professor Shapiro, compared Rothko's value and popularity to that of artists like Jackson Pollock. Others, including the Director of the Guggenheim and an international art dealer also testified to the importance and value of Rothko in the art world.

Further complicating the issue is that the respondents were found to be in violation of the order issued by the court which restrained them from in any way disposing of any of the paintings included in the estate. NY Probate Lawyers said this entitles the estate for restitution for those paintings which were improperly sold off. The court also needs to determine if the correct value for reparations to the petitioners should be the value of the work when it was sold, or the present value. However, following Scott on Trusts and Restatement of Trusts, it is found that the petitioners in such a case should be entitled to the value of the objects at present day if they have appreciated in value, which the paintings have. The petitioners used Ben Heller, an expert, to evaluate the value of the paintings and papers included in their father's estate. However, the courts thought his values were too high and had to lower them somewhat when assessing damages.

Results

At the end of the process, the Marlboroughs and Lloyd were fined $3,332,000 for violating orders laid down by the court. If any of the paintings which contributed to the value of this liability are returned, that amount will be subtracted from the fines owed by any of the respondents. Levine is separately liable for $6,464,880 plus interest. To discharge their liabilities to the estate, Reis, Stamos, MNY and MAG were found owing $9,252,000. Finally, the 658 paintings included in the estate which had not already been sold are to be returned to the family.

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


May 1, 2012

Court Discusses Anticipatory Subrogation

Estates 7

The Hudson Insurance Company is the plaintiff and AK Construction Co. LLC., Panasia Estates INC., and Hement Mehta are the defendants.

The Case

A New York Probate Lawyer said that in this action, the plaintiff is seeking a declaratory judgment related to property damage, while the defendants move to dismiss the plaintiff's complaint. There are six different avenues pursued by the plaintiffs, involving breach of contract, breach of warranty, misrepresentation, neglect or intentional misconduct regarding the statute of limitations and the same in regards to subrogation rights. They are also seeking to be compensated for the costs of their legal aide.

Panasia Estates held a builder's risk insurance policy issued by the Hudson Insurance Company. This policy covered the property which it owned. AK Construction was hired by Panasia to work on those properties. Around July 2003, Panasia made an insurance claim regarding water damage to a property. The plaintiff argues that building deterioration caused the damage, and as such claimed it was not responsible for covering the damages. They did not claim that AK Construction caused the leak; as such a problem would have been covered under the insurance policy. The plaintiff would be free to pursue action against AK Construction if their activity caused the damage, and also wants to hold Hehment Mehta liable.

Mr. Mehta is the property manager for Panasia Estates. He has also invested in AK Construction. It is important to note, however, that it is not an insured or a party to the insurance policy held on the property by Panasia Estates. Nassau County Probate Lawyers said that he, therefore, can have no personal liability no matter what positions he might hold with those two organizations. The plaintiff alleges that he was an officer, director and member of those organizations but that fact remains irrelevant to the matter of his personal liability. The complaint against him therefore needs to be dismissed.

When a declaratory judgment is made, the court has to state its grounds. When the question at hand is whether or not to dismiss a complaint because a proper claim wasn't made, the issue is not about whether or not the end result of the hearing would be favorable to either party. Instead, the court only has to decide whether or not a case is actually presented which indicates that a declaratory judgment should be made.

Results

The motions that were put forward by AK Construction and by Panasia Estates were not granted. The plaintiff made a claim under the doctrine of anticipatory subrogation which prevented these movements for dismissal. When a defendant is subject to this type of a claim, they may implead another party if that party could be liable to the defendant for the claim being made by the original plaintiff. Suffolk County Probate Lawyers said the language which permits this is broadly phrased, which allows the court to include claims that are based on subrogation. It is important to note that no statute of limitations or the doctrine of laches should prevent this action from going forward. Neither AK Construction nor Panasia Estates could prove definitively that the plaintiff took a prohibitive amount of time to move forward with a claim. The key is that the defendants were not prejudiced by any excessive delay in moving forward on the part of the plaintiff.

Typically speaking, contractual obligations and liability claims are subject to a six year state of limitations. This involves property damage and a construction contract between the parties. As such, the six year statute of limitations applies, but it began on July 12, 2003. The action commenced four days short of the xi year period, rendering the statute of limitations an invalid reason for dismissal.

AK Construction had its motion denied. The plaintiff was also awarded $100 of motion costs to abide the event. Hement Mehta's motion to dismiss the claim against him was granted, as was the claim of Panasia Estates.

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


April 28, 2012

Court Hears Real Property Case

In this case, the Bay Street Landing Home Owners Association is the Plaintiff, while the defendants include PDR Bay Street/St. George, LLC, Philip Ressa and Estates at Bay Street Landing, LLC.

History

A New York Probate Lawyer asked the plaintiff asked for a summary judgement for $300000 and interest. The defendants once owned 130 Bay Street Landing in Staten Island New York. Counterclaims were also laid by the defendants. Ressa was once a principal in PDR and a guarantor for the Promenade Fund for the HOA. He sued another principal and guarantor, Dominick Marino, and two others: Leib Puretz and Tovia Mermelstein. Those two moved for summary judgment in favor of the defendant. They also asked that Ressa's lawyer be disqualified because he might need to be a witness.

Originally, the plaintiff agreed to sell 130 Bay Street Landing to Bay Street/St. George LLC. This property was to be developed as part of a condo complex. The right to the property was later assigned to the defendant. In the declaration agreed upon between the defendant and the HOA, PDR agreed to maintain and repair the Promenade as defined in the agreement. Manhattan Probate Lawyers said the agreement also stated that if that work was not performed that the defendant should pay $300,000 to the home owner's association. Bay Street/St. George was also required to establish a payment bond in some form that was accepted by the HOA to guarantee the payment of that amount in the event that the agreed upon work was not completed.

Ressa and Marino both agreed to guarantee the obligation of the contract as outlined in the agreement between the HOA and PDR. When PDR sold the property to Estates, there was an agreement which said that any obligation that PDR had regarding the Promenade or the fund to be paid in the absence of the agreed upon improvements was transferred to the new owners. After this took place, the City repaired the promenade with its own funds. Because the city, rather than the defendant's, repaired the promenade; the defendant's claim that they are entitled to the fund which was originally agreed upon if those repairs were not completed by the owners.

When the property was sold to Estates, both parties had legal representation carefully go over all of the relevant documentation. Nassau County Probate Lawyers said this included the Assumption and Indemnification agreement which stated that the obligation regarding the Promenade repairs was transferred to the new owners. Although Estates, claim that they were not aware of this agreement, the presence of legal counsel renders this argument invalid and extremely unlikely.

Because the city performed the repairs which were supposed to the obligation of the owners of the building, essentially a windfall for the defendant was created. Estates also offered another invalid defense when they claimed that they should retain the fund because the work that the City did on the Promenade was not the exact same as the work which had been outlined in the original agreement between the Home Owner's Association and the owners of the building.

Results

Summary judgment was granted in favor of the Home Owner's Association against Estates. The resultant award was equal to the originally agreed upon $300000 as well as any of the costs and disbursements assessed. Any claims against Mr. Ressa and PDR Bay Street/St. George were dismissed because any liability on their part was transferred to Estates at the time of the sale of the property. The counterclaims filed by the defendants against the plaintiffs are also similarly dismissed. Also dismissed is the claim by Ressa against Mermelstein, Puretz and Marino, along with any counterclaims by the third-party defendants.

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


April 16, 2012

Court Dicusses Validity of Joint Will in Light of Recent Divorce Proceeding

A couple executed a Joint Will that will make whoever is the survivor among them as the one to be given the entire property whether own individually or several and be the executor of the irrevocable Joint Will. The Joint Will further provided that whatever remained after the death of the survivor would be distributed to a trust, with equal shares of the trust to be allocated among their grandchildren and one of their children, their daughter. The Joint Will's terms state that it is forever binding, and may be revoked or modified only by a writing subscribed by both parties and executed with the formality of a Will.

A New York Probate Lawyer said that approximately 8 years after the execution of the Joint Will and after approximately 50 years of marriage, the couple was divorced by judgment dated April 6, 2001. Several months before, apparently in anticipation of the divorce, the couple reaffirmed the Joint Will by executing a Marital Settlement Agreement, the terms of which were incorporated into the divorce judgment. The agreement stated, in pertinent part, that neither party would attempt to revoke the Joint Will, and provided quit claim deeds granting sole title of their condominium to the husband and sole title of their other condominium to the Wife. No further action was taken by either the Wife or the husband regarding the Joint Will.

In 2006, a NY Probate Lawyer said the Wife established her 2006 Irrevocable Trust, the body of which was her condominium. The Wife and her son-in-law were named as the trustees.

A Nassau County Probate Lawyers said the trust document states, in pertinent part, that upon the Wife’s death, its principal is to be distributed to such one or more persons out of a class composed of her former Husband and her descendants and spouses of the her descendants on such terms as the Wife may appoint by a Will hereafter executed specifically referring to this power of appointment.

Subsequently, the Wife nominally exercised the rights of the power of appointment of the trust document through a one-paragraph will, executed in 2007 will. The 2007 will stated that it was not intended to modify or revoke the Joint Will, which shall remain in full force and effect. Rather, its sole purpose was, pursuant to the power of appointment of the trust document, to provide for the trust to convey, upon her death, its corpus, the condominium, in equal shares to the her four children.

Following the Wife’s death, the Husband filed a petition for the probate of the Joint Will. In 2008, the Husband applied for preliminary letters as evidence to be issued to him, which the Surrogate's Court granted in an order on 2008. That same year, the Husband, as the preliminary executor of his former Wife’s property, commenced a turnover proceeding against, among others, his daughter and her Husband, seeking, to his son-in-law as trustee of the trust, to execute and deliver the deed to his former Wife’s condominium to the her properties.

In their answer to the Husband’s petition, the daughter and the son-in-law alleged, among other things, that the condominium was no longer a part of the properties, as a will is not effective until the death of the one who made it, and that neither the Joint Will nor the 2007 will prohibited the deceased Wife from making gifts or transferring property during her lifetime.

Thereafter, in August 2008, the son-in-law, as trustee of the trust, commenced a proceeding for the validity of the 2007 will.

The daughter and son-in-law filed objections to the Husband’s appointment as executor of the Wife’s estate. They alleged that the Wife had already transferred her ownership interest of the condominium to the trust on June 2, 2006, and, therefore, the property was neither a part of the Wife’s properties nor subject to the terms of the Joint Will that the Husband submitted for validity. They also alleged that the Husband had an absolute conflict of interest that prevented him from being the estate administrator of his former Wife’s properties according to her 2007 will and, if the Surrogate's Court would allow him to act as his former Wife’s executor regardless, his letters should be limited and he should be required to post a bond.

On September 18, 2008, the Husband filed objections to his son-in-law’s petition for validity, claiming that the terms of the 2007 will violated the Joint Will and, therefore, the 2007 Will should not be admitted for validation. The son-in-law moved for summary judgment of dismissing the petition for the validation of the 2007 will, dismissing the objections to the son-in-law’s appointment as executor, and to direct the son-in-law to execute and deliver the deed to the condominium to the deceased Wife’s properties.

The terms of Article of the Joint Will therefore create two categories of property that passed to the survivor, any property comprising the entire property of the one dying first, and all property of which either of the couple has the power of disposal. The Husband asserted that even accepting his daughter’s argument that the Wife transferred title to the condominium to the trust, thereby placing such property outside the Joint Will, such property was nevertheless encompassed by the second category created by Article SECOND of the Joint Will.

Specifically, the Husband asserted that because his former Wife, retained upon her death the power of appointment regarding the disposal of the condominium, and exercised such power in her 2007 will by directing that upon her death, the trust was to convey such property to their four children, in equal shares, the deceased Wife retained the power of disposal over the condominium. Accordingly, because the deceased Wife retained the power of disposal over the condominium, the 2007 will was, in effect, a nullity, because it did not exercise the deceased Wife’s power of appointment in favor of the Husband, as required by Article SECOND of the Joint Will and, accordingly, that branch of his daughter’s cross motion which was for summary judgment on their petition for the validation of the 2007 will should be denied.

In a decision the Surrogate's Court found that the Husband was entitled to summary judgment on the petition in the turnover proceeding to the extent of a direction that as co-trustee, his son-in-law transfers back the condominium to the property. The Surrogate's Court held that the Husband was entitled to summary judgment on the petition for the validation of the Joint Will, dismissing the daughter’s objections to his appointment as executor, and dismissing the son-in-laws petition for the validity of the 2007 will.

In an order, the Surrogate's Court, in effect, granted the Husband petition for the validity of the Joint Will and, in effect, granted that branch of his motion which was for summary judgment on the petition in the turnover proceeding, directing his son-in-law as trustee of the trust, to execute and deliver the deed to the condominium to him, as executor of his former Wife’s property.

At the time they executed the Joint Will in 1993, the couple had been married for nearly 43 years. As they did not separate until 1997, it is reasonable to infer, that at the time they executed the Joint Will, they intended to remain married and to give to each other their respective properties as well as all properties over which they retained power of disposal. Given the circumstances in which the Joint Will was executed—namely, a long-standing marriage—the phrase whether owned jointly or severally was not, as the daughter contend, intended to qualify the power of disposal phrase, but instead intended to expand the scope of the requisite power of disposal to include properties the couple owned jointly or severally with each other.

The group of New York Will Contest Lawyers at Stephen Bilkis & Associates will make sure that you get what was given to you by a family member. The firm’s offices are located all throughout the New York Metropolitan area.

April 15, 2012

Court Rules on Reasonable Attorney and Accountant's Fees

This case pertains to the accounting proceeding relative to attorneys fees, accountant’s fee and commissions.

In February 26, 1996, the decedent died leaving a will dated March 9, 1984 which was decreed on May 18, 2004 to which a letters of administration was issued to the Public Administrator on said date. The summary state shows charges to accounting party of P289,650.33 as the Public Administrator’s first and final accounting. The residuary estate under the will was directed to be paid to Diabetes Association of New York, Inc.

The court in its authority and discretion, considers a number of factors in evaluating legal services and other fees. These includes: the time spent, the complexity of the questions ivolved, the nature of the services provided, the amount of litigation required, the amounts involved and the benefit resulting from the execution of such services, the lawyer’s experience and reputation and the customary fee charge by the Bar for similar services. A New York Probate Lawyer said a legal fee must be imposed reasonably taking into consideration the valude of the estate. The attorney(s) services includes: 1) preparation and filing of the petition for temporary letters of adminstration and cross petition for probate and letters of administration together with the acocmpanying affidavits and rquiredancillary documents; (2) preparation and filing of the renunciation of nominated executor and multiple waivers of process and consent to probate for numerous distributees and legatees (3) obtaining the Public Administrator’s fiduciary bond; (4) review of known family information and research as to whereabouts of alleged distributees (5) preparation and filing of an affidavit of heirship (6) arranging for service of process of probate citations and preparation and filing of an affidavit requesting substituted service (7) preparation and filing of proposed probate decree (8) attendance at the probate citation return date (9) preparation of receipt, release and refunding agreement for the hospital, who is a legatee under decedent’s will and conversations with the administrative and legal personnel regarding same (10) preparation and filing of the Public Adminstrator’s final account and the petition for judicial settlement of account (11) arranging for service of accounting citation and ensuring adequate service of same to secure jurisdiciton over all interested parties (12) multiple telephone conferences and correspondence with various attorneys and the Public Administrator of Nassau County and the employees thereof. The said firm likewise handled the sale of the cooperative apartment and charge services in the amount of $1,500.00 for the said purpose.

After realizing some duplication in the attorneys fees, a reasonable reduction in fee was made.

With regard to the professoinal fee of accountant (s), it shall be secured when the expertise for that matter called for. Generally, the same is to be included in the attorneys fee for the fiduciary in order to avoid duplicity.

Nassau County Probate Lawyers said that depending on the circumstances, it shall be drawn from the estate or otherwise. In the instant case, the accountant(s) work is not doubled and thus the service charge is reasonable. Thus, the accountant(s) fee is paid with P7,250.00 with the unpaid amount of $575.00 and the commission of Public Administrator is approved accordingly.

It is ordered that the surety is discharged and the case is settled.

Probate of Will carries with it the concurrence of expenses both for the litigation and services of professionals who will handle the affairs of the estate. Manhattan Probate Lawyers said the civil law and tax laws, requires the fair computation of services as against the services rendered by the expert in order to serve the purpose of the law and at the same time giving the government the rightful claim thereof. Our New York Estate Litigation Lawyers can pass upon all the matters with prompt. Come to the Stephen Bilkis and Associates and we shall be glad to serve you. Our New York Estate Litigation Lawyers had come across numerous cases at which the highest court has rules upon. Thus, we assure you that jurisprudence was fully studied and your case will never be like a needle in the haystock.


April 13, 2012

Brothers Bring Will Contest Action over Division of Family Business

A resident of Nassau County died on 28 December 2010 and was survived by his sister, the petitioner; and two (2) brothers, the respondent and movant herein. The decedent's last will and testament dated 23 May 2000 was offered for probate (estate litigation or estate administration or will contest) by the petitioner, who was named as the sole beneficiary of the decedent's residuary estate, as well as the executrix. Preliminary letters testamentary were issued to the petitioner on 13 January 2011. The two (2) brothers of the decedent have filed their objections to the probate of the will.

The arguments presented before the court all boil down to a supermarket known as John's Farms, which was run by the decedent and one of his brothers (“brother A”). The supermarket is comprised of three separate closely held corporations - (1) Corp. A, which operates the grocery and dry goods business within the decedent’s Farms, owned by the decedent and brother A as equal shareholders; (2) Corp. B, which sells fish and seafood at the decedent’s Farms, and was owned by the decedent and brother A as equal shareholders; and (3) Corp C, which operates a meat market within the decedent’s Farms, owned wholly by decedent.
The two (2) brothers of the decedent were ordered by the court to deliver and turn over to the petitioner the computer taken from the decedent's home on the date of his death. While certain computer components were eventually turned over to the petitioner, the computer components turned over to the petitioner were not part of the home computer taken from the decedent's home. A New York Probate Lawyers said that it appeared that the wrong computer had been turned over to the petitioner. Apparently, brother A had several computers used in the business which made it difficult to differentiate and offered to reimburse the estate for the value of the decedent's computer equipment that was not delivered to the petitioner or her counsel in lieu of turning it over. The court has denied the same stating that the offer to pay the value of the computer is essentially pointless because of the fact that the reason the petitioner sought the decedent's home computer was to obtain any relevant business records of the decedent thereon. Hence, the petitioner sought to clone all of the computers at the decedent’s Farms.
It has been ruled that computer data, electronic documents and computer memory may all be discoverable; "Whether the court is dealing with traditional paper discovery or electronic discovery, the first issue the court must determine is whether the material sought is subject to disclosure as 'material and necessary' in the prosecution or defense of the action". Since the decedent owned all or part of each of the three corporations which operated their businesses at the decedent’s Farms, the information on the computers at the decedent’s Farms was properly discoverable by the petitioner as the preliminary executor of the decedent's estate.

In response to the petitioner's discovery request, Bronx Probate Lawyers said hard drive containing a clone of the cash registers and CD ROMS was provided to the petitioner's counsel. At this juncture, there is no evidence that the cloning performed was improper or incomplete. In the absence of proof that a party intentionally destroyed or withheld evidence, the court should not direct the cloning of that party's hard drives. Until the petitioner is able to review the cloned computer records and the CD ROMS, and demonstrate that the information provided by the respondents is incomplete, it would be precipitous of this court to order that the computers be cloned again. Hence, the request for another clone was denied.

The request that the petitioner’s forensic accountants be given access to the decedent’s Farms was also denied, and can only be granted upon a showing that the respondents have failed to provide the petitioner with the documentation and data requested.

Given the difficulties encountered by the parties, the petitioner’s request for a discovery conference has been granted. Nassau County Probate Lawyers said with regard to the petitioner's request for costs and sanctions, the court declined to grant the same.

On the other hand, the court was troubled by the cavalier attitude brother A and his counsel have taken with regard to the court-ordered production of the home computer removed from the decedent's home after his death. If after reviewing the information on the invoice (of the computer) and conducting a renewed search for the computer identified therein, brother A still cannot produce such computer, he was ordered to provide the petitioner and the court with a detailed statement, under oath, by someone with direct knowledge of the facts, setting forth the means and methods used to conduct the search for the decedent's home computer. Such affidavit had to be submitted to the court before the date of the conference scheduled.

The rules provide for a proceeding by a fiduciary with regard to the continuation of a business. It permits a fiduciary to "petition for the continuation of a business other than a profession, of which decedent or the person whose estate is being administered was sole owner and it is desired to continue it for the best interests of the estate ... " . "[W]here the business of the decedent is a corporation, authority from the court is unnecessary". In addition, a fiduciary may ask the court for advice and direction regarding the sale of estate property and in other "extraordinary circumstances." In following the advice and direction, the fiduciary will be protected from liability. Generally, the property for which advice and direction is sought would be owned by the estate directly and not through corporate shares, but in practice, courts will give advice and direction where an estate owns all of the corporate shares, as opposed to owning a partial interest. "Where the fiduciaries, through the medium of ownership of all of the shares of stock, control a close corporation, the Surrogate possesses the equitable power to disregard the corporate entity and may proceed to treat the estate fiduciaries and their corporate problems with respect to disposition of the corporate assets, and its effect upon the estate, upon the realistic basis that the fiduciaries and the management of the corporation are one and the same." "The doctrine that the court must treat the problem differently when rendering advice and direction in instances where the estate owns the entire stock of a corporation and the cases where it owns less than all of the stock seems to be the rule" finds application. "Where the entire stock of the corporation was owned by the estate, the court, in its equitable powers, might disregard the corporate entity".

Hence, the petition was granted to the extent that petitioner was authorized to continue BNC for a period of up to two years from the date of the court’s decision but prohibited to employ someone to supervise the business on her behalf. A fiduciary has the power to employ an agent to act upon her decisions, even though there is no explicit authorization. "A fiduciary can employ agents to do work he legitimately cannot do himself.

Further, as Corp C is indisputably wholly owned by the decedent's estate, it wasn’t necessary for the court to direct brother A to cease all interference with the operation thereof.

At this point, brother A was ordered to immediately turn over any cash receipts in his possession and stop taking, transferring or disposing of the cash receipts and income of Corp. C; make available, deliver or turn over the books and records of Corp. C and of the decedent; refrain from removing or altering any data contained within the hard drives of the computers which contain information pertaining to Corp C.

In the present case, the court the petition is not precluded on the basis of unclean hands, waiver, estoppel or laches.

The argument that there was an inconsistency between sections of the Corporate by-laws is without merit. Corporate by-laws may include additional qualifications for directors. Once the by-laws state a requirement for serving as a director, it need not be restated in each subsection, and a failure to have it restated repeatedly does not create an inconsistency or require reference to resolve an inconsistency. The assertion that the by-laws were silent on whether a personal representative of a shareholder's estate is a shareholder according to the by-laws was correct but that silence doesn’t mean that a personal representative of a shareholder's estate is a not shareholder. In fact, the law specifically gives fiduciaries the power to vote shares of stock held in a fiduciary capacity. "If the shares [of stock] are not specifically bequeathed, ownership thereof will vest in the fiduciary who will then have sole authority to vote for officers and directors." None of the points averred altered the fact that a director of Corp. A must be a shareholder, and the personal representative of decedent's estate is the only shareholder aside from brother A.

Moreover, the respondents argued that the relief sought has been sought by the petitioner in prior proceedings. The court ruled otherwise. The relief sought in the prior proceeding was for an authorization to continue Corp. C, whereas, in the instant case, the relief prayed for was to protect the assets of the estate.

In conclusion, the petition to protect the assets of the estate was decided as follows - The request to enjoin respondents from seeking to vacate an agreement between Corp. C and Corp. A. was denied as unnecessary; The request to vacate the selection of a replacement director was granted; The request to nullify the meeting of the board of directors of Corp. A., was granted.

The motion for summary judgment or dismissal of the petition was also denied.
The court acknowledged the challenges faced by the parties who have made it absolutely clear that they do not wish to work together. If it proves impossible that the parties could find a way to join forces or part amicably, the court would then have no choice but to consider the appointment of a temporary receiver pursuant, who will manage the business until such time as a buyer can be found. While this is an extreme remedy, the documents filed with the court presented a sufficient showing of the necessity for the conservation of the property at issue and the need to protect both parties' interests in that property.

Being in court is often a taxing actuality that no one has really prepared for. It could be much harder when the case you are involved in is against people you know or have known your whole life. Do not scrabble in the dark alone. Ask for the assistance of a professional and be properly represented. Contact Stephen Bilkis & Associates. Our expert and experienced legal teams are here to help you. Lessen your worries and ask for our assistance. We are well-trained in the intricacies and complexities of suits and we can present and argue your side flawlessly while we guide and explain to you the whole process. With us, you are assured of quality services.

April 11, 2012

Court Conducts an Accounting Proceeding

Before the Nassau County Surrogate Court is the Public Administrator's motion to dismiss the objections in a contested accounting proceeding.

The woman decedent, a resident and domiciliary of Nassau County, died testate. She was survived by her daughter and three sons.

Decedent executed a last will and testament bequeathing her residuary estate equally among her four children and appointed one of her son as executor. The son-executor filed a petition for probate of the will and for letters testamentary. Decedent’s daughter and executor were each represented by counsel while the other two sons appeared personally in the probate proceeding. The other children of the decedent objected to the appointment of the executor. The beneficiaries entered into a settlement, in open court, for the probate of the will and that they would appoint the Public Administrator as administrator of the estate. The will was admitted for probate and, at the same time, letters of administration were issued to the Public Administrator.

Later, the Public Administrator filed a petition for the settlement of account of the decedent’s estate within a two-year period after. The summary accounting presented by the Public Administrator is in the amount of $392,649.82. The court ordered all parties to discuss this matter with a member of the law department. In their conference the daughter and the Public Administrator were duly represented by their lawyers and the remaining parties appeared in their own behalf. Any objections as to the accounting of the Public Administrator were set to be submitted within a particular date. Objections were filed by two of the decedent’s son, one within the designated period while the other was six-months overdue.

The Public Administrator filed a motion for the dismissal of the aforementioned two objections for being without merit and summary judgment. The daughter’s attorney filed an affirmation in support of the Public Administrator. Nassau County Probate Lawyers said the two sons who filed the objections failed to submit oppositions in relation to the dismissal set forth by the Public Administrator.

The Nassau County Surrogate Court granted the dismissal of the objection, which was filed late by one of the two sons being a mere repetition of the other objection earlier filed.

The following are the issues raised by the decedent’s son in his objections filed in the probate proceedings, which the Public Administrator moves to dismiss: (1) validity of the appointment of the moving party as administrator, (2) the amount legal fees that the Public administrator is entitled to, (3) administrator’s power to sell estate’s property, (4) accountability as to the completeness of the inventory of assets and the list of expenses incurred such as funeral and administration expenses submitted by the Public Administrator, (5) legitimacy of payments for legal fees, attorney’s fees, fiduciary commissions, accounting fees and payments of claims against estate and (6) overall objection as to the accounting of the whole estate of the decedent made by the Public Administrator and the lawyers executing the estate.

A New York Probate Lawyer said that in accordance with CPLR 3212, summary judgment “may be granted only when it is clear that no triable issue of fact exists.” The moving party, Public Administrator, must establish a prima facie case that he is entitled to summary judgment as a matter of law. Absence of which, the motion must not be approved.

Manhattan Probate Lawyers said that in an accounting proceeding, the party claiming for the account of the estate has the burden of proving the nature of expenses incurred and substantiated to ascertain its reasonableness. For settlement of account of the estate, expenses necessary to protect its assets must be paid to the fiduciary, but these must be reviewed by the beneficiaries to warrant exercise of diligence by the trustee of its management.

The Nassau County Surrogate Court, in the case at hand, sustained the dismissal of the objection with reservation as to grant of legal fees prior to submission of the affirmation of legal services performed by the Public Administrator and to serve and file an affidavit bringing the updated account of the estate.

Several issues and objections may be raised during the pendency of a probate proceeding especially in the settlement of account of the estate. Here in Stephen Bilkis and Associates, our Nassau County Estate Administration Lawyers have the capabilities and know-how in the management of a decedent’s estate.

You may visit the office of Stephen Bilkis and Associates to discuss the matter of appointment of an administrator of an estate. Any of our Nassau County Probate Attorneys can assist you with the legal matters concerning the management of the estate of a decedent.

April 9, 2012

Court Determines if it has Subject Matter Jurisdiction

On 28 December 1993, the decedent died. On 28 January1994, The decedent’s Last Will and Testament was admitted to probate (no will contest) and letters testamentary were issued.

The issue here (estate litigation) is whether or not an order consenting to a transfer to the Nassau County court of an action currently pending in Supreme Court, New York County is proper.

The respondent has argued that the Nassau County court lacks subject matter jurisdiction of the dispute and that it is not the proper venue for the case.

The courts have ruled that a case involving two living parties (one being a fiduciary of a decedent's estate) and an eviction proceeding, that, "for the Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate (estate administration)". A New York Probate Lawyer said that here, it is not "abundantly clear that the matter in controversy in no way affects the administration of his [Decedent's] estate." It is readily conceded by the parties that decedent's sixty shares of a certain corporation are a major asset of the estate. In the accounting proceeding filed, the petitioner moved for an order confirming majority shareholder's corporate actions, compelling respondent, as vice president of such corporation, to comply with a demand to call a special meeting and, as director, to consent. In fact, a court decision regarding ownership of decedent's sixty shares of a corporation would undoubtedly affect the administration of his estate and is well within the court's purview. Therefore, the Court has subject matter jurisdiction to hear respondent's pending case insofar as the issue concerns ownership of the shares.

On the issue of venue, proceedings involving lifetime trusts can be properly heard where "(a) assets of the trust estate are located, or (b) the grantor was domiciled at the time of the commencement of a proceeding concerning the trust, or (c) a trustee then acting sides." Under the rules of court, "the proper venue for proceeding relating to estates is the county of the decedent's domicile at the time of his death " If it is disputed whether the case involves a lifetime trust or an estate asset, the rules give the Court the power "to determine property available for distribution under his [the decedent's] will and to determine the rights of any persons claiming an interest therein as between themselves, and to construe any instrument made by him affecting such property." Manhattan probate lawyers said that while the respondent asserted that a tontine trust between decedent, petitioner, and respondent governs the decedent's sixty shares, petitioner claimed otherwise, arguing that the shares pass under the decedent's will addresses the shares.

Because it is disputed whether a lifetime trust governs decedent's shares, the Court can make a determination as to whether the sixty shares are available for distribution. Moreover, not only was decedent's will admitted to probate by this court, but this court was subsequently involved in two accounting proceedings regarding the decedent's estate. While the court in a previous case was enforced after probate, there was no controversy over the existence of the inter vivos trust, and the Court was not involved in post-probate action between parties. There was, however, a controversy over the existence of a tontine trust, and the Court has been involved with numerous matters regarding the decedent's estate. Hence, Nassau County is the proper venue for respondent's pending case to be heard.

Nassau County Probate Lawyers said that since the subject matter jurisdiction and venue are proper, the transfer is also proper. The Nassau County court consents to the transfer of the pending if the Supreme Court of New York County be inclined to order its transfer.

Are you involved in a lawsuit or you want to file one but you don’t know where? Let us help you. At Stephen Bilkis & Associates, we have Nassau County Estate Lawyers who are at your service. We have competent lawyers who can assist you with your needs. Don’t waste time. Know your rights. Act now.

April 4, 2012

Court Says it has the Power to Compel Fiduciary to Produce Information

A testator died and his executrix successfully had his will admitted into probate. The executrix had already rendered an accounting of the properties of the estate and she was in the process of litigating claims for and against the estate. She is readying the estate for distribution to the distributees and heirs mentioned in the will.

The executrix was the wife of the testator’s attorney. He was also the same lawyer who drafted the testator’s will. It turns out that the husband of the executrix of the testator’s will had been the legal counsel for the testator for 40 years. The testator signed his will in the presence of the husband of the executrix. It was also uncovered that the lawyer opened a bank account into which the assets of the testator were transferred by the lawyer just before the death of the testator. The lawyer’s wife was named in that bank account as the person to whom the bank account shall be transferred upon the death of the testator. A New York Probate Lawyer said she document that transferred the assets of the testator to the lawyer’s wife was signed by the lawyer as a witness.

For these reasons, the Surrogate’s Court issued a subpoena to the executrix’s husband for him to come to court and bring the documents regarding the opening of the bank account in the name of the testator just before his death; those documents that transferred ownership of the account from the testator to the executrix and all other documents mentioned in the order.
The lawyer resisted the order of the Surrogate’s Court stating that he cannot be summoned to give any evidence in the estate proceedings because he is not a party to the probate proceedings. NY Probate Lawyers also said he also asserts that since the will had already been admitted to probate and there was no more pending petition before the Surrogate’s Court, the Surrogate’s Court has no power to compel him to come to court to bring documents. This is also the very same issue brought before the Supreme Court.

The Supreme Court found that the executrix’s husband was really a fiduciary of the testator even if he was not named as such in the will. He carried out acts which showed that he was really managing the estate of the testator long before the testator had died and in those few days immediately before the testator died.

As the manager of the estate of the testator, he is subject to the Surrogate’s Court. He must be examined and he must give an account of his management of the estate of the testator.
The Surrogate’ Court is well within its powers to compel a fiduciary or estate manager to supply information concerning assets or business transactions of the estate. Even if the lawyer were thought of as a non-party, the Surrogate’s Court can still summon him because the Surrogate’s Court has powers to compel anyone to disclose facts to help in bringing an action. Nassau County Probate Lawyers said it can compel anyone to preserve information that will bring to light the value of the estate or the nature of all of its assets.

In this case, the beneficiaries of the estate had already expressed a desire to bring an action to remove the executrix if they are able to find proof that the executrix and her husband connived to hide and divert the assets of the testator’s estate.

The Surrogate’s Court did not exceed its power when it issued orders to the lawyer to appear in court and bring those documents because the documents he was called upon to produce are material and relevant to the administration of the estate of the testator.

Any distribute or beneficiary of a will can bring a case against the executor of a will for wrongful management of the assets of the testator’s assets. New York Estate Litigation attorneys can present proof to show that the executor failed in his trust to truthfully render an accounting of all the assets of the estate. Our legal team can bring suit against an executor for failing to preserve the assets until they are delivered to the beneficiaries of the will. Call Stephen Bilkis and Associates and speak to any of their New York Litigation lawyers today.

April 3, 2012

Court Discusses Fraud Allegations

Queens Probate 19

New York Probate Lawyers said this is a case being heard in the Second Department, Appellate Division of the Supreme Court of the state of New York. The action before the court is to recover the possession of real property. The defendant is appealing an order made in the Supreme Court of Queens County that granted the plaintiffs motion for summary judgment that dismissed the defendant’s counterclaims to impose a construct trust for the subject property and the proceeds of a bank account.

Case Background

The plaintiff of the case owned a two story house with her son, who is the deceased husband of the defendant. The plaintiff and her son were the joint tenants of the property with the rights of survivorship. The defendant wife continued to live in the home after the death of her husband and contests the plaintiff’s right to possession of the property.

The defendant alleges fraud in the matter stating that the plaintiff forced her deceased husband to sign the joint tenancy agreement rather than a tenancy in common with her, thereby depriving the defendant of any right to the home.

A Staten Island Probate Lawyer said the plaintiff has established her immediate right to possession of the home and states that the defendant has been living in the home illegally. The plaintiff states that the defendant has withheld possession of the home from her.

Case Discussion and Decision

The defendant has issued counterclaims in the matter seeking the imposition of a constructive trust for the property. However, these claims are time barred as the home was purchased in 1985 and the counterclaims were not issued until 1995.

Nassau County Probate Lawyers said the counterclaims alleging fraud made by the defendant are also time barred as the defendant was apprised of the sufficient facts of the matter at the time of her husband’s death.

For these reasons, the court is dismissing the appeals in this case and the respondent is awarded a bill of costs in this matter.

Stephen Bilkis & Associates can help you through any legal issue that you have. Contact one of our New York City officers to speak with one of experienced lawyers. A free consultation will be provided to discuss your case.

April 1, 2012

Court Decides Jurisdiction Issue of French Will

This case started in 1951 when one of the heirs of the decedent applied for ancillary letters of administration concerning holographic will that was said to be executed in France. In his petition, it was alleged that the decedent was a resident of France who died in the same country and left properties within the jurisdiction of the New York court. The petitioner also alleged that the will was made according to French law and that the same was recognized and established accordingly under the laws of that country. This claim of the applicant for estate administration of the decedent became an issue particularly with regards to the claim of domiciliary. The question was put forward by the New York state Tax Commission and by another party who in the end filed a motion to stop the proceedings of the court. This latter party had an interest in the case because according to him, the decedent owed him money for the legal services he rendered and which amount he wanted to recover from the property of the decedent. It is worth noting that this same party is the executor named by the decedent in a will and a codicil allegedly executed by the decedent in New York. Thus, it appears the decedent executed two wills and a codicil while he was living.

While the question of the real domicile of the decedent was still pending, the executor pushed through with the estate litigation of the will and a codicil executed by the decedent. The executor named in the will declared that the decedent was a resident of New York at the time of his death. According to a New York Probate Lawyer, the proponent of both the will and the codicil, who is also the executor designated in the will, argued that he was obligated to apply for the settlement of the properties of the decedent because he truly believed that the decedent was a domiciliary of New York and that if the decedent indeed transferred his domiciliary to France, that he has no sufficient information with regards to that and adding further that he was not given the opportunity to establish the veracity of the later will which was probated under French law.

The proponent with his lawyer went to France and there gathered information regarding the domicile of the decedent and also talked to witnesses relating to the will that was executed there. Nassau County Probate Lawyers said it was in France that the proponent was able to claim the money that he wanted to get from the probate proceeding in New York. When he returned to New York, he moved that the probate proceeding be discontinued claiming among others that based on his findings, there is very little chance of them succeeding in proving the New York residency of the decedent and as such, there is no more reason for the proceeding to push through. The proponent also asked the court that the services of his lawyers be paid including the one that he contracted in France.

The court in ruling upon the motion of the former proponent of will contest, declared that he is not entitled to any fees from the estate of the decedent. Queens Probate Lawyers said that the court argued that it is only authorized to grant payment for costs and expenses when a decree is made by the court based on the conflicts attendant to the proceedings of the will. It further stated that it was the decision of the proponent to go to France and nobody told him to spend a lot of money while being there just to find answers to questions that he had about the real domicile of the decedent. Finally, the court argued that it simply does not believe the expenses declared were incurred solely in relation to the estate of the decedent.
Surrogate Courts always encounter conflicts when it comes to the settlement of the properties of the decedent. In such a situation, it is important to be represented by an expert New York Probate Lawyer. Stephen Bilkins and Associates has members who are seasoned New York Estate Lawyers and they can provide the legal expertise that is needed by anybody who encounters a legal issue regarding wills and succession.

March 31, 2012

Court Determines Will Contest Issue

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

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

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

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

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

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

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

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

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

March 29, 2012

Courts Decide Will Contest Regarding German vs. American Wills

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

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

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

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

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

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

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

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

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


March 23, 2012

Court Determines Jurisdiction of Conflicting Wills

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

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

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

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

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

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

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

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

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

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

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

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

March 17, 2012

Court Decides Will Jurisdiction Issue

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

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

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

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

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

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

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

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



March 13, 2012

Validity of a Will Questioned

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

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

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

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

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

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

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

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

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

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

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

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

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

March 9, 2012

Authenticity of Will Questioned

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

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

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

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

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

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

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

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

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

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

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

March 8, 2012

Petitioner Disputes Will Jurisdiction

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

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

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

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

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

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

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

March 5, 2012

Court Decides Will Contest Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

February 28, 2012

Court Decides Will and Trust Dispute

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

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

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

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

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

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

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

In adopting the procedures of the uniform act to the case for the decision, it appears that a filing of an authenticated copy of the order of the man’s residency court with any county clerk in the state of New York, together with the required affidavit stating the amount due and other required information would give such order the status of a decision of the Supreme Court of the State of New York immediately enforceable by execution. Under the terms of the act the foregoing result would apply despite the fact that the order of the other court, without additional suit and reduction to judgment in the superior court is unenforceable in that state. In brief, the provisions of the uniform act would improve the effect and finality of the order of the man’s residency court over that accorded it in the state of rendition. Whether or not the legislature of the State of New York envisioned any such peculiar result, it has, nevertheless, clearly provided for it.

Brooklyn Probate Lawyers said that reassessment by the legislature of the act and possible amendment thereof might be in order.

Based on records, the uniform act then provides in detail for the effect of a foreign judgment, decree or order filed in accordance with the recited provisions for the effect of a foreign judgment, decree or order filed in accordance with the recited provisions.

The order of the man’s residency court has been submitted as a part of the set facts. After reciting that an account of the trustee had been revealed to the court for payment, it ordered a hearing to be held on the payment of the account. It further ordered that notice of such hearing be given both by publishing a copy of this order in a newspaper having a circulation in said district, and by mailing a copy of the order, postage prepaid, to the beneficiaries under the trust to the legal representative of those who have died and other at their last known addresses. In addition, it is important to note that the trust company, as legal representative did not appear in person or through an attorney in any proceeding in the man’s residency court relative to the accountings of the trustee. The set facts indicate clearly that the representative bank was in default of appearance in any and all such proceedings.

It is not claimed or argued that the New York legal representative of the properties committed a tortuous act either within or without the State of the deceased man. The asserted legal basis for liability of the legal representative for the return of trust income voluntarily paid, but alleged to be subject to trustee's commissions is unjust improvement. The proceedings giving rise to the asserted liability is grounded in the areas of equity. Further, it is not asserted that the New York legal representative was engaged in business in the State of the deceased, nor in interstate commerce. Similarly, it appears that the accounting proceeding did not involve real property within the State of the deceased.

The court holds that the applicable principle of law of the State of New York in force at the death of the man was that the payment of all trust income without condition of trustee's commissions on such income constituted a waiver of commissions on the income. The court further holds that the trust in issue was made subject to the principle of law.

Given that it is factually set that the trustee did pay out all income without the condition of commissions. The decision of the court is that the claim of the trustee for the return of commissions is invalid, an order of the court of the man’s residency to the contrary notwithstanding. But, such order is void for the want of jurisdiction. Comity should not be accorded an order which improperly construes the applicable New York law. The claim of the trustee is rejected. Decision is for the executor.

It is important that we choose who to entrust with our properties with. Legal issues arise when we are not aware whether or not our legal obligations are taken cared off. If you or anyone you know get into this kind of situation, call the New York Estate Administration Lawyers at Stephen Bilkis and Associates.

February 27, 2012

Court Decides Will Contest

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

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

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

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

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

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

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

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

Stephen Bilkis & Associates with its legal team will help you to know your rights and the rights of your love ones.

February 23, 2012

Court Decides Extensive Will Dispute

This issue was brought to the court to extend the time to file objections in validation of the will and a motion for construction of the provision. This is concerning the legal proving of the will of a woman who died, leaving a taxable estate of almost two million dollars. The most recent will dated, two weeks before his death has been offered for validation by the appointed representative. However, the prior will has been filed with the court. Petitioner and several other interested parties have examined the witnesses. The court has extended the time for filing objections pending a decision on the construction issue.

The petitioner to the recent will, prays for a resolution that the no-contest provision does not apply to the other heirs, who include a foundation itself and a number of charities. The other organization supports the foundation's position and has submitted an affidavit containing information that the no-contest provision is not directed to the charities. The woman’s grand-niece and other beneficiary have opposed the requested relief.

A New York Probate Lawyer said the recent will contains several gifts to individuals and charities of either specific dollar amounts, or items of tangible personal property, or a combination of both. In addition, the will sets up trust for her grand-niece and places another in trust for her sons. The grand-niece receives tangible personal effects and the house.

Under the will, the residue of the woman’s estate to a company as trustee for the foundation to be held as a continuous charitable fund in memory of the woman and her late husband. Nine charities are designated as income beneficiaries of fund assets .In addition, the will states that if the foundation or any of the other named organizations fails to qualify as a charity as defined in the internal revenue code, that organization's portion of the fund's income shall be distributed to such other qualifying charities as the trustee shall select.

Nassau County Probate Lawyers said that written on her will that if any beneficiary under this, that in any manner oppose the attest of this Will or any of its provisions in any manner whatsoever, then in such event any share or interest in her estate given to such beneficiary under this Will is hereby revoked and shall be disposed of in the same manner provided herein as if such contesting beneficiary had predeceased her None of the parties has raised this issue in its written submissions.

Based on the record, the court is of the opinion that a refusal to interpret the provision under the will until after the verification. In light of the particular facts and circumstances surrounding the will's preparation and execution, would tip the balance heavily against the petitioner and subject it and any other potential charitable opponent to risk. The lack of clarity of the particular provision itself creates an additional and excessive risk for the petitioner and a risk beyond that inherent.

Brooklyn County Probate Lawyers said that the court finds that there are good and compelling reasons to proceed and render a construction in the instant case before admitting the will to rightfully validate. This situation is factually distinguishable .The maker of the will was an elderly, chronically ill, and was hospitalized during the time she had made extensive changes to her will. Less than two months before she died, she abruptly left her legal counsel with whom she worked for almost two years and put her legal affairs into the hands of another attorney, not previously known to her. In the twenty-four months prior to her death, she did no fewer than six wills. Her last will was signed only two weeks before she died.

The court also concerned that the will offered for validation seem to depart substantially from several of the woman’s primary estate planning goals, saving estate taxes and benefitting her charitable interests, as embedded in prior wills and articulated to her former counsel. Calculations provided by several of the parties indicate that because the recent will made by the deceased considerably increases gifts passing to certain individuals at the expense of the charitable organizations, the property will be subjected to considerable property taxes. The property now must pay two, rather than one, representative commissions.

The court considers that the almost unique facts and circumstances of the instant case give rise to such a present need. And therefore, the court interprets the recent will of the woman before making any determination about its verification.

Accordingly, the court finds that the will reflects a clear intent to benefit various charitable organizations is very important to the woman and her late husband, as well as numerous relatives and friends.

The court recognizes that the intention to benefit charitable institutions is a consistent and prominent feature in the decedent's estate plan, as indicated by a comparison between the prior will and filed with the court, and the recent will offered for verification. The provision, containing the charitable trust, is carried over almost unchanged from the first will to the recent one. Indeed, by affidavit filed in this proceeding, the attorney-draftsman of four previous wills, states that in each of the wills he drafted as per request of the deceased woman, the residue was left in a perpetual charitable trust.

The court point out that the deceased woman intended the no-contest provision to extend to such beneficiaries, she could have added specific language to the will. The deceased woman did not specifically relate the no-contest provision to non-human beneficiaries evidences an intention that it does not apply to such entities.

The court is particularly troubled by the fact that, if indeed, as respondents argue, that the woman wished to include the charities in the forfeiture provisions, she left the ultimate distribution of the shares of unsuccessful charitable contestants completely in doubt. It requires too great an assumption to find in that the disposition of a share or shares, for that matter, in the event of an unsuccessful challenge. And, the woman cannot have intended to leave open the possibility that the entire residue could pass by intestacy if the foundation unsuccessfully contested, especially in light of the desire, consistently articulated in this and in prior wills, to create a lasting charitable memorial to herself and her late husband.

The court is aware of the fact that the will was drafted by a legal counsel who is an experienced counsel in properties practice, who could be expected to anticipate and make provision for such contingencies. Wills that are prepared by experienced attorney-draftspersons must be more strictly interpreted than instruments created by laypersons. And, therefore, the court do not interpret the absence of specificity and the failure to provide for the ultimate distribution of shares forfeited by charitable opponents, but rather deliberate reflections of the deceased woman’s desire that the no-contest clause have no applicability to the charitable foundations.
The court finds that, taken together, the language of the provision clause itself, with its lack of specific reference to charitable entities, the first appearance of the section in the recent will, positioned just after the pre-residuary gifts, to which substantial changes had been made, and the overall properties plan, consistently articulated in this and prior wills, clearly indicate that the deceased woman did not intend the provision to apply to the charities.

Stephen Bilkis & Associates with its legal team will help you regarding last and will testament of your loved ones. Better to seek advice and know your rights with our lawyers and we will make sure that your estate will be protected as you would want it to be.

February 22, 2012

Court Rules on Validity of Will

The petitioners of this probate case wanted to withdraw their petition and requested the court to issue letters of administration. The petitioners wanted to abandon their action placing on probate the alleged copy of the testament.

According to the last will and testament of the decedent, the remaining estate will go to her sisters. The decedent named one sister as the executor of the will while the other one was named as the successor. The said executor had predeceased the testator and no issue was raised. The whole estate was passed on to the successor of the will which was also the other successor.

The successor had filed a petition for a guardian to be appointed for her property. Since the court has found that the successor cannot to be relied on managing her own properties, a guardian was appointed. The petitioners of the case were the appointed guardians.

A New York Probate Lawyer said the guardians, also known as the petitioners, were granted by the court to place the will for probate. During that time, the original copy of the will and testament cannot be found. With this information, the petitioners filed for a probate on the copy of the original will. The original will was found later on among the important documents of the deceased. It was assumed that buyer of the house once owned by the deceased threw away the papers, thinking they had no value. One of the guardians confirmed this information in her statement that a former hand had taken possession of the house and discarded the papers in question.

The petitioners have now asked the court to abandon their initial probate petition and issue letters of administration instead. In their petition, the guardians have alleged that they cannot submit the will for probate since they lack a second subscribing witness.

Nassau County Probate Lawyers said that according to the provisions of the law, the court has to respect the wishes written by the testators in their last will and testament. The obligation of the court should be a public policy matter. Under normal circumstances, it is the obligation of the executor of the will to take the necessary steps in order to obtain probate. The nominated executor has to ward off any form of attack against the will. The law further states that if the nominated executor is disabled or dies, the person who is named as guardian may take the duty to petition the will for probate.

However, the court has taken note of exceptions to this rule in which there are instances in which petitioning for probate becomes futile. If the executor believes that the will being petitioned for probate is not the original one, the executor has no right to submit it for probate. Another exception to this obligation is when the will becomes ineffective. Brooklyn Probate Lawyers said the executor does not have the duty to submit the will for probate when the legacies indicated in the will have expired. The will becomes ineffective when the executor did not act on the will or has died.

The law also states that even if the last will and testament is valid, the same instrument does not have to be petitioned for probate if the proof is deemed to be doubtful. According to the law, the court can grant letters of administration in cases when the probate of the instrument is delayed. When all the parties interested in the estate will agree that the will should not be under probate, the court does not have the authority to order the admission of probate.

In this case, the exceptions to the rule are not presented. The nominated executor in this will is still alive. The petitioners filing for probate acted on her behalf as the guardians. Based on the provisions of the law and review of the petition, the court has decided to deny the petition to withdraw probate.

A lawyer will provide assistance in your petition for probate. Contact the offices of Stephen Bilkis & Associates today.

February 20, 2012

Court Rules on Allegations of Undue Influence

The petitioners in this case have filed a motion for summary judgment which will dismiss the public administrator’s objections. The petitioners are also seeking the admission of the testator’s will for probate.

Before the death of the testator, he had been living in a facility for the elderly for many years. One of the two petitioners in this case is the current administrator of the elderly home. The other petitioner held the position of director of the same place. As co-executors of the will, the entire estate of the decedent will go to them.

Upon learning of the will, the petitioners have filed for probate but the public administrator prevents the action. The public administrator is obliged under the law to become one of the parties in litigation. The objections were raised because during that time, the decedent allegedly did not have the ability to draft a testament. Nassau County Probate Lawyers said that the public administrator also made allegations that the contested will was only written because of the undue influence of the petitioners.

A New York Probate Lawyer said that the preliminary letters were issued to petitioners but these were later revoked because the petitioners failed to comply with the requirements. During that time, the court has ordered them to pay the bond. The public administrator was appointed by the court as the temporary executor while the petitioners’ case is pending.

The motion filed by the petitioners was due to a recent discovery. The petitioners’ statement is supported by their respective statements, the affirmation of the lawyer and various evidences. The deposition testimony was also presented as evidence. Under the provisions of the law, the petitioners for the summary judgment have the burden of providing proof that they are entitled to the motion. The petitioners must present sufficient proof that the issues raised by the public administrator have no legal basis.

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

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

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

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

The next day, the decedent went for a psychiatric exam. The exam was performed with the petitioners inside the room. After the results were obtained, the physician ruled that there were no signs of dementia. According to the doctor, the patient only showed slight memory problems. He also confirmed that the patient was fully capable of making financial decisions.
The public administrator also presented another expert opinion from the state psychiatrist who interpreted the exam results. The physician claimed that the decedent was also suffering from dementia thus he is incapable of making any decision regarding his money. The conflicting opinion of both doctors has created a significant issue.

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

A New York Probate Lawyer is always available to assist you in your time of need. Talk to Stephen Bilkis & Associates for advice and guidance.

February 18, 2012

Court Rules on Bank Fraud Allegations

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

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

The testimony concerning what occurred at that conference is completely contradictory. Postponing for the moment a discussion of the completely opposing testimony, it is agreed that both the living brothers each signed a form of Waiver and Consent to Probate. These waivers were retained by the father-in-law of the associate attorney.

Later that day, both brothers journeyed to the office of a counsel. The next day, both were present in the Trust Company when a search for a will was made on the safe deposit box of their deceased brother. Among the assets were somewhat over 3,000 shares of IBM stock, then worth in excess of $1,000,000.00.

There were two supplements attached to the will. The first affected only the inheritances to both and the second affected the interests of all excess recipients. All the excess recipients became necessary parties to establish the validity of the will. Eventually it developed that these excess recipients would number over 250 people, most of who lived in Switzerland.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When a family member left you their hard earned assets, Stephen Bilkis & Associates with its skilled legal team will work hard with you to obtain what the law dictates.

February 15, 2012

Court Rules on Complex Will Matter

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

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

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

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

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

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

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

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

Stephen Bilkis & Associates with their legal team will help you to know your rights and the rights of your love ones.

February 12, 2012

Court Rules of Letters of Administration Issue

The following estate litigation was filed by the proponent. The proponent in this case is one of the three daughters of the testator. In her petition, she wanted to revoke the administration letters that were given to her sister. Because of this incident, the two sisters of the proponent had filed a motion against the proponent in to prevent her from submitting the testator’s will for probate.

The mother and now the deceased had resided in another country. One of the daughters of the deceased had requested letters of administration. In her petition, the sister had asserted that her mother was named as the distributee of the property of the proponent’s brother. According to a New York Probate Lawyer, the petition also indicated that the bank handling the estate administration did not perform its duty to distribute the proceeds of the estate to the others.

The two sisters gave consent to the appointment of their brother. The letters of administration were sent to the petitioner while the other sister defaulted since she was not in the city during that time. But she did receive the letter.

The sister who received the letters of administration filed a petition to have the bank explain why it failed to distribute the estate of their brother. After a few months, the proponent in this case has requested the foreign country in which her father resided, to have the last will and testament to be subjected for probate proceeding.

The will and testament contained instructions to give her husband all her assets. If the husband had passed away before she did, the other sisters will receive equal shares of the estate while the other will get a dollar. The father died in the foreign country of residence specifically Israel. His last will and testament was on probate there. Under that will, the deceased father named the proponent of this case as the executor of his last will and testament.

According to a Nassau County Probate Lawyer, the respondent filed her objections to the probate of the will under probate in another country. She relied on the grounds that her mother lacked the ability to make a testimony. She also filed for a proceeding in that foreign country which expressed her intentions of abandoning the probate on the testament of her father.
The proponent of this case then proceeded to file an objection to the letters of administration given to the respondent. The proponents of the case had contended that the decedent had a testament. They also said that their sister was not capable of acting as distributee. Based on their statements, there were also errors in the letters of administration. According to the sisters, the letters of administration may contain misstatements that may have been interpreted by the courts as true information. Misstatements are misleading and can lead to errors in judgment on the part of judicial authority.

A Staten Island Probate Lawyer said that based on the provisions of the law, an injunctive relief is sought may be granted according to the court’s discretion. For the petition to have legal basis, the petitioner will have to prove that he or she has merit and possesses the equities necessary for the remedy. The injunctive relief in this case is said to be a drastic solution.
If the courts in this city will not allow nor accept the comity rule to accept the probate of the will pending in a foreign court, there will be no reason for the same court to deny the petition based on the letters of administration.

The injunctive relief sought by the proponent in this case is denied. There shall be no foreign court proceeding that will submit the instrument for probate.

Get in touch with Stephen Bilkis & Associates for sound legal guidance. Our legal team is your solution to problems concerning estate matters.

February 10, 2012

Court Rules on a Will Contest Matter

The matter of Max Zurkow’s estate, his daughter had filed a motion for the court to wait on admission of a decision regarding the probate of the last will and testament. She also asked for a time extension to file objections and time to be able to examine the proponent and for an interpretation of the effect of the terrorem clause or no-contest clause that is included in the will.

On the return day of the hearing for the original matter, the daughter showed and the proponent was directed to change the petition because the adoptive daughter of Mr. Zurkow’s predeceased son was not mentioned. Another data that a New York Probate Lawyer obtained was the daughter was not served with the supplemental citation and is claiming she only received a day’s notice that a decree on the admission of the will to probate is going to be presented to the court. The daughter got an immediate order to show cause to wait in making a decision on the decree.

The daughter had checked witnesses who are verifying the proposed will and now wants to examine the proponent of the will. Her allegation was that the son of the testator, who is also an attorney at law, acted as the decedent’s attorney, and the will being executed in his office. Further, she is claiming that the provisions of the will were altered to assign other benefits to the proponent and his family at her expense. A Queens Estate Lawyer cited that the daughter was as well saying that her father was 80 years old at the execution of the will and was relying on other for his physical needs.

The last will and testament of Mr. Zurkow say that if anyone opposes the probate of his will, that person and any participant will rescind his right to any bequest. The daughter asked that court that before they grant or deny her request for the examination of the proponent, they first interpret this part of the will. A Nassau County Probate Lawyer said that the court will not be able to construe any part of the will before it is in probate. In can however, check if the examination of the proponent is part of the public policy of declaration. This means that the action that will be done is does not tantamount to a breach of the terrorem clause.

In this case, the court said it is their practice that if the person who drafted the will or a member of his firm and/or his family will receive a part of the estate in probate of a proposed will, he is required to submit an affidavit explaining that the will was free and voluntary made. He needs to explain in the same affidavit why he or his family is receiving a special treatment under the will. If it is a member of his firm who drew up the will then he will need to explain if he had any connection the actual making of the will and the person who actually made it should have his own affidavit saying that he acted in behalf of the decedent and not the proponent.

The affidavits will be carefully scrutinized by the court. It will not be examined for as long as there are unexplained suspicious circumstances. In this case, the proponent submitted applications that showed he will be receiving more of the will goes into intestacy or going without a valid will. It appeared, however, that the daughter of the proponent, the granddaughter of the decedent will receive a substantial amount that is more than what she will receive in intestacy as she is not considered as an heir to the estate. The court then granted the request of the daughter to examine the proponent with regard to any matter regarding the will.
Being sure of what the law will or will not allow you to do when matched by a condition of a will may be hard. You would not want to lose any of your rights a beneficiary. This is where a knowledgeable and experienced legal counsel comes in. They will go through the will with you and review the rule of law with you to determine the proper plan of action in making sure you are getting your due.

When looking for a lawyer who would handle your case properly and with care in New York or Long Island, you have Stephen Bilkis & Associates. We will not only check on the conditions of the will but see to it that we have exhausted the options provided in the law to get your fair share. You can get a free consultation with us at 1-800 NY - NY- LAW.

February 7, 2012

Can an Appeal that was Never Filed Serve as Notice of a Will Contest

On June 28, 1975, a man died in West Monroe. He left a last will and testament dated November 27, 1972. The will was submitted to probate in November 1, 1977 and letters were issued to a family member as the executor of the estate and sole descendant. Prior to the settlement of the affairs, this family member died. This was November 5, 1981. In January 15, 1982, the nephew of the deceased executor petitioned the court for letters of administration. The court granted this petition in January 19, 1982.

In January 7, 1983, nephew asked the court to rule on whether the decedent exercised his personal right under the excessive gift to charity. By May 4, 1983, a hearing was held to present evidence.

The decedent, upon the death of his mother contacted a lawyer regarding some of the provisions in his mother’s will. The nephew also asked if these certain stipulations in his mother’s will can be broken. He expressed his discontent with his mother’s will especially in the paragraph that allocates any remaining estate to be given to Hospital North. Hospital North at the time of decedents death was non-existent. In a letter dated January 12, 1982 from an attorney for the Hospital North, it was said that the Hospital North was never created and will never be created.

The nephew at some point retained a lawyer with regard to the decedent's estate. The lawyer advised him that he could make a petition to determine an excessive gift to charity. This was executed by the nephew in March 8, 1978, which is within six months being appointed as executor. The lawyer then notarized and sent the petition via first-class mail, prepaid, properly addressed to the Surrogate's Court together with a cover letter dated March 8, 1978, requesting the Court Clerk to file the notice of election. The petition, according to a New York Probate Lawyers, was never received. The court never knew of it until the nephew filed this appeal.

The question that the court needed to address first is if an appeal that was executed but not filed be considered as a notice of election to contest a charitable disposition. Should it be treated as such and given effect?

The court then reviewed the terms of the law covering the contest of charitable donation through a will, and they have determined that even if there are no preceding cases the filing should be treated like the spouse’s right of election. The contest should be filed within six months and since twelve months have passed since the letters have been issued then the right no longer exists. A Brooklyn Probate Lawyer said that the court deems this requirement as mandatory and indispensable.

The court could grant relief if the time that has passed is less than twelve months. Any rights that the nephew had were extinguished with the lapse of the twelve months after the letters were issued. Although the actions of the nephew would show that he intended to contest the will, according to a Nassau County Estate Lawyer, the court considered it as unfiled as the law states that the filing with the court is not optional so the mailing is not filing.

Continue reading "Can an Appeal that was Never Filed Serve as Notice of a Will Contest" »

February 6, 2012

Court Rules on a Workers Compensation Claim in a Wrongful Death Matter

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. A New York Probate Lawyer 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. A Queens Probate Lawyer got information that the fund appealed.

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 says a New York Workers Compensation Lawyer 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.

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. A Nassau County Probate Lawyer 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 a lawyer. This may have been harmful to their claims. Skilled legal counsel make sure that your claims are protected even after you get the benefits.

Stephen Bilkis & Associates will fight for your rights to benefits not only from the employers and insurance companies that neglect their obligation in providing compensation. Whether you have an estate litigation matter, or have suffered injury because of the actions of another, we are here to help. We handle claims from all over New York and Long Island. If you have encountered a legal problem, you can contact us online or at 1-800-NY-NY-LAW. We also have offices all over New York.

February 5, 2012

Court Rules on a Will Contest Matter

Bessie Schlanger filed an appeal with the Surrogate Court to require payment of a legacy. Ms. Schlanger was to receive 4% of the remaining estate after taxes and fees of Sarah Pasternack. She claims that if the part, which is $10,000, is not paid to her account most likely she will not be able to enjoy any of it. She is saying she is old and needs the legacy. A New York Probate Lawyer mentioned that Ms. Schlanger said the other beneficiaries have received their legacies.

The answer given by the executor of Ms. Pasternack’s estate is that Ms. Schlanger in not entitled to be paid because she violated the terrorem clause of the last will and testament. It stated in the sixth paragraph of the will that if any of the beneficiaries or people mentioned in her will contests or does an act to contest the will, they will forfeit their right the bequest. It further states that if they testify against the probate of the will, then they will lose their right to the legacy. Their part will be, in effect, put back to the remaining interest and shared by the other recipients.

In the response, it is alleged that Ms. Schlanger violated in two ways. She tried to have Ms. Pasternack declared incompetent when she was still alive. This was the first instance. The second instance is in the probate proceedings, where even if she did not appear to contest herself, she conspired with another to have the will disallowed. This, a Nassau County Probate Lawyer maintains, can be considered as a violation to the terrorem clause.

In the conclusion of the competency hearing of Ms. Pasternack, the Court of Appeals dismissed the case. The claim was that the competency hearing was to discredit any will that will be executed by Ms. Pasternack during her lifetime. The court’s ruling on this was it is not in violation of the ‘no contest’ clause. It is because it was done while the testatrix was still alive, and the provisions of the will regarding the contest only applies once the will is already presented in probate.

As for the second reason wherein she is charged of being in cohorts with another person to have the will disallowed. Suffolk County Probate Lawyers found out that son of Ms. Schlanger, Michael Schlanger, filed an objection to the will as a beneficiary of an earlier will. The executor said there should be a hearing that will allow them to present proof of conspiracy between Ms. Schlanger and her son in contesting the probate of the case.

In a letter submitted by Ms. Schlanger, she says that she said that she did not violate the terrorem clause of the will. She said she did not file objections, did not actively prosecute a contest and did not testify as a witness. For this case though, the court says that they will consider her as have acted in concert and conspiracy with her son. While the son was the main party, the court considered her as the real challenger of the will. In Page on Wills, the rule states that 'A beneficiary who procures and obtains another heir to institute proceedings to contest a will, forfeits his interest under such a condition.' The court is not assuming that Ms. Schlanger really did the said act as it can only be determined by a hearing. The court is following the rule that they must consider the facts of the allegation as being done even if it is improbable. These allegations are deemed true. They set a hearing for the issues raised, and the petition for payment was denied.

A scrupulous legal counsel would plan all actions by a beneficiary who would want to get what should be for them. They would know from the start what actions they would take and what consequences may arise if it is done. They would have prepared for such consequences or avoided them.

For sounds legal guidance, speak to Stephen Bilkis and Associates. Our lawyers ensure that before they make a step with you regarding your concerns they have already checked on everything. You can get a free consultation for any case in New York or Long Island by calling 1-800 NY - NY- LAW.

February 4, 2012

Court Rules on a Will Contest Matter

Joseph Alexander died November 23, 1975, leaving his adopted son, Ronald Alexander. After the probate of his will, his son filed a petition contesting the amount given to charities as in excess percentage amount allowed by law. Executors were placed to check if the claim was valid, and the courts were asked to determine the effect of the ‘no contest’ clause of the will.

In his will, he gave all his properties, a flat in Switzerland and $25,000 per year to his son. In the event that his son dies before the end of the trust then the remaining amount will be put back to his estate.

Joseph Alexander also included in the will that in his lifetime, he had provided his son loans. He had paid indebtedness acquired by his son from other people. He expressly states in his last will and testament, from what a New York Probate Lawyer gathered, that if his son directly or indirectly oppose the probate of his will, Ronald Alexander will not getting any part of his estate and will only get $1 per annum.

The contest of the charitable bequest, according to the executors had no standing, because he will not receive any pecuniary benefit if the contest was successful. The executors cited the Cairo case where the grandson was expressly disinherited. Although, there was another case that was reconsidered by the Court of Appeals, which was Eckhart, this case is more similar to the Cairo case.

In this case, the will specifically state the loans and payments the testator has made for his son. According to a Nassau County Probate Lawyer, the executors also were pushing the ‘no contest’ clause of the will. The court also does not favor the ‘no contest’ clause. The Court of Appeals has held that the challenge to the validity of an excessive charitable gift cannot result to have a person disinherited. So the filing of the case is not a violation to the terrorem clause.

According to Brooklyn Probate Lawyers, he law still maintains that if the testators wish is expressly to disinherit a relative, then it will be upheld. New York Estate Lawyer said that in this case, Joseph Alexander only explicitly stated that if his son contests the probate, then he will forfeit his share in the will. The son did not contest the probate. In was within the probate that the son expressed his concern on the amount of the bequest to charity. The question is if he will get monetary compensation if the contest is successful. This was determined to be missing. Even if the contest is successful as per the will, his son still gets the fixed amount per annum and the flat in Switzerland.

The law has a different treatment for children born within wedlock and outside wedlock when it comes to claims for support from a deceased parent. Out of wedlock minors are given support in the amount determined by Surrogate court up until the age of 21. This is taken from the deceased parents’ estate. This is typically not greater than what was determined before the parent died as their support. These are not available minors born within wedlock.

Ronald Alexander was not to be disinherited because of the case he filed to have the gift to charity checked as may be more than the half of the estate. He is still entitled to his legacies whatever the outcome of the contest is.

Determining how the ‘no contest’ clause applies in a will contest action can sometimes e tricky. You will need to have a sharp Will Contest Lawyer to assist you for it. Some people may think that contesting a will should not be done, but it is not always the case.

Stephen Bilkis & Associates have a legal team who know that contesting wills can be difficult, let alone contesting wills that have ‘no contest’ clause. They make sure you do not lose anything if the will is contested. If you need assistance, come see us anywhere in New York or Long Island, you can get them at 1-800 NY - NY- LAW. We will give you a free consulation.

February 3, 2012

Court Rules on a Case Against the Government

Plaintiffs filed a motion against New York State Department of Taxation and Finance for their Statewide Offset Program. A New York Probate Lawyer says that the plaintiffs are taxpayers who are saying that in allowing the offsets, the defendants have violated their rights to notice under the due process and their right to oppose the debts where they offset the refunds. They allege that the program allows the offsetting of their income tax refund to any debt owed by the taxpayer to the New York State Office of Temporary Disability Assistance (OTDA). The plaintiffs are asking for relief and a class certification.

The Court in determining the granting of the motion of the plaintiff’s for class certification determined that issues and facts that are common to the wished-for class outweighs the concerns that are specific to the individual class members. Queens Probate Lawyers mentioned that the court found the question of the violation of OTDA to the due-process clauses of the Constitutions of the United States and New York by certifying debts to DTF without giving plaintiffs' adequate notice or a meaningful opportunity to contest the underlying debts is common to all the members of the proposed class.

The general position of the defendant is that the plaintiffs would not be entitled to recover any damages. They would not be compensated for the government’s violation of their due-process rights if the violation is not the reason for the plaintiff’s losses. The plaintiffs were not able to show evidence of the loss that they are claiming to have incurred because of not having the opportunity t contest the main debt. The court agrees with the defendant’s position on the compensation not being granted if the loss is not a direct result of the violation. The plaintiffs though, ask for the offsets plus interest. A Nassau County Estate Lawyer stated that the opposition indicates that if the opportunity to contest the debt is granted, each plaintiff will have to prove his or her individual case.

The court usually decides on the cases against the government based on previous instances and decisions. In this case, the harm is not perceived but is claimed to have already happened. Under these conditions, a precedent in the favor of an individual plaintiff will not matter in the remaining plaintiffs' cases. The petitioners asked for a leave in court so that they can amend their complaints. The court states that the defendants will not be prejudiced by the amendments and there will be no new allegations to be added. The defendants also have failed to show that the amendments are without merit. With the four month limitation period for the plaintiff’s case, the defendants have not revealed any dispute saying that the claims are not timely.

Sometimes you will be a casualty not only of an individual or a company that has not followed the rule of law when it comes to dealings with you. You may also experience this with government agencies. If you feel that you have suffered because a government office has not followed due process when dealing with your concerns, you need legal counsel that can protect your rights under the constitution. They will be able to grant relief or compensation where it is due. It may be individually or as a group complaining.

In your regular dealings with government offices, if you feel like they have neglected to follow the rules, contact Stephen Bilkis & Associates for guidance. Whether you are contending with a governmental agency, need estate planning advice, or are contesting a will, we will ensure that your rights are protected. Come in to any of our conveniently located offices throughout New York for a free consultation.

February 1, 2012

Court Rules on Terrorem Clause

John A. Stiehler died on July 29, 1984. At the time of his death he had a wife and three adult children from prior marriage. The executor of his estate filed his last will and testament, dated May 16, 1973, and an addition to his will dated September 8, 1982 for probate. He stated in his will that since his wife likes his home in Florida so much, she is given right and privilege to it as long as she lives or until she gets married again. The codicils are also to her benefit. A New York Probate Lawyer obtained information the will stated that since he has been generous to his wife, a contest of the will or any of its supplements will result to her forfeiting her right to the benefits of the will.

The wife filed objections to probate on January 2, 1985. She objected to both will and codicil. After which, she amended her petition to ask for an addition to the will dated July 24, 1984 be added to probate. This codicil did not include the terrorem clause and the limitation with regard to the remarriage. She ultimately withdrew her will contest and contested to the probate of the May 26, 1973 will and the September 8, 1982 codicil but reserved the right to petition for probate of the instrument dated July 24, 1984. In a later document, she also withdrew the petition for probate for the July 24, 1984 codicil. In this case, the wife is asking for an advance to the bequest that is due to her. In an instant proceeding, she asks for the property in Florida.

The executor of the estate contested that the wife had violated the no-contest clause of the codicil and therefore, is not entitled to any of the bequests. The court determined that the first issue to address is if the wife violated the terrorem clause of the will. For this, according to Nassau County Probate Lawyers, they need to establish the intention of the testator. It appears that he had wanted his wife and children to be provided for. The court said that contest can mean different things depending on the case. There are cases wherein the simple filing of an objection even if it was not tried was considered a contest. There are also cases where in order to be deemed a contest the protest should have pushed through in litigation.

The court determines the reasonable interpretation is that the testator would not want an objection filed and subsequently withdrawn to be the cause of forfeiture of the rights of his beneficiary. Brooklyn Probate Lawyers mentioned this is consistent with the general rule that terrorem clauses must be precise in wanting to disinherit. The court also cited that the terms in the codicil presented by the wife showed probable cause. For this case, thought it was not determined if that instrument was valid. Their decision is therefore, to grant the property to the spouse with the remarriage limitation. This is still subject to a renewed application.

The intention of the testator is a large part of any determination of a last will and testament. This is the reason why the court as a general rule requires that a terrorem clause or a no-contest clause be specific on what it aims to do. In wills like this where it shows that in fact the decedent wants his beneficiaries to get their due.

If you find yourself in a position like this where you are torn from filing an objection or not knowing if the document or instrument that you have is valid, speak to Stephen Bilkis & Associates. They will go through the words of the will with you. They will also go through the law to give you the best route to take. If you find yourself in this situation, walk in any of our offices in New York or contact us at 1-800 NY - NY- LAW for a consultation. You can find us online as well and make an appointment from there.


January 29, 2012

Court Rules on a Will Contest Matter

Alexander Singer filed an appeal with the court with regard to him violating the terrorem clauses of his father’s will. When his father, Rabbi Joseph Singer, died, his last will and testament was dated April 15, 2003. The will put his daughter, Vivian Singer, as the executor of the will. With a trust agreement bulk of his personal property, his home in Brooklyn and $200,000 was to be given to his daughter. The will stated that the bequest was for his daughter’s unusual dedication, and he realizes that his daughter gave her life to take care of him. To his son, he gives $15,000 and the remainder of the estate will be divided between his son and his daughter equally.

Rabbi Singer’s will have two terrorem clauses. The first, as a New York Probate Lawyer said is like any standard ‘no contest’ clause. "If any beneficiary shall, in any manner, directly or indirectly, contest, object to or oppose, or attempt to contest, object to or oppose, the probate of or validity of this Will or the revocable trust agreement created by me, or any part of my estate plan or any gifts made by me, or any of the provisions of this Will or of the revocable trust agreement created by me, in any court or commence or prosecute any legal proceeding of any kind in any court to set aside this Will or the revocable trust agreement created by me or any part of my estate plan or any gifts made by me, then in that event, such beneficiary, and all of such beneficiary's issue, shall forfeit and cease to have any right or interest whatsoever under this Will or under the revocable trust agreement created by me, or in any portion of my estate, and, in such event, I hereby direct that my estate and the trust estate under such revocable trust agreement shall be disposed of in all respects as if such beneficiary had predeceased me without issue."

The second one was specifically for his son Alexander. This condition expressly states that his son should not contest any part of the will, the trust agreement, any of the estate plans and gifts made by Rabbi Singer. It further says that his son should not take his daughter, Vivian, to a Bet Din. A Bet Din according to a Queens Probate Lawyers is a religious court. If his son resorts to any of these proceedings, he will lose his right to any part of the estate, either through the will or the revocable trust agreement.

March 25, 2004, Vivian submitted the will for probate. The following day Alexander filed a notice of discovery and inspection. He asked for various documents and the deposition of certain witnesses, including Rabbi Singer’s attorney, Joseph Katz. Vivian’s lawyer wrote to Alexander stating that Mr. Katz was not a proper witness for the discovery and inspection procedure. Nassau County Probate Lawyers got the information that the lawyer even stated that he will be contesting the will under the terrorem clause and will forfeit any inheritance due to him. Alexander’s attorney disagreed and deposed Mr. Katz.

In Mr. Katz's testimony, he said that Rabbi Singer was capable and that Vivian did not influence the will. He also stated that even in the older will that was drafted the ‘no contest’ clause was already included to make sure Alexander does not contest the estate plan.

The will was submitted to probate with no contest. Vivian then filed a case to declare that Alexander violated the terrorem clauses of the will. In the surrogate court, it was found that he did. Hence, the appeal to reverse that ruling. In the examination of the Appellate Court, they stated that the examination of the witness or documents does not construe a contest. This is for an informed decision, whether they have a stand to contest the procedure or not. The court also said the discovery and inspection is not exclusive to estate, and the will does not state that the deposition of Rabbi Singer’s lawyer automatically forfeits the inheritance.

The terrorem clauses in this case did not prohibit inquiry just the contest of the will or any part of it. The court reversed the decision of the surrogate court and granted that Alexander get his share.

There are often animosities that exist between siblings. In estate cases any old issues make the contest personal. This is where levelheaded legal counsel is needed. They will be the ones to make sure the decisions made are not just emotional but correct and well founded.

You do not only need skilled legal counsel, but also ones that know where to position your point of view and make sure you get all the information first, and Stephen Bilkis & Associates have them. If you need a consult, you can them 1-800 NY - NY- LAW, and they handle cases in New York and Long Island.

January 26, 2012

Estate of Julia Eckart

This is a case regarding the Estate of Julia Eckart and the claims of her children regarding each of their shares in the inheritance. According to reports given to a New York Probate Lawyer, the children of the deceased filed a case against the last will and testament of their mother because of the insufficiency of their inherited amount against that of which will go to other people, entities and charities.

Unbelievably, according to a Manhattan Probate Lawyer, Julia Eckart left each of her children the amount of $50 each. According to her will, she also left no other cash or property to the rest of her surviving relatives. That is why the surviving children, Charlotte Anna Eckart, Frank Darmody and Frank Darmody filed a case in court that says that their mother made an excessive contribution to charity and that they were left with nothing except for the $50 each that were provided to them by her last will and testament. The rest of Julia Eckart’s estate, including her real and personal property have been assigned to the Watch Tower Bible and Tract Society of Pennsylvania, which is a non-profit corporation in Brooklyn, New York.

Reports that reached the desk of a Nassau County Probate Lawyer said the court thoroughly examined the case according to the petition filed by the children. There was also a similar case before when a grandson was expressly disinherited on the will that was left by his grandfather. This was the Cairo case which was a long and hardly fought battle in court which now became a source of other similar cases as well. But according to the court, there should be two elements present in a case before it can be ruled as excessive charity. First, there should really be the intension to give too much of her estate to charity. Second, there is the intention to disinherit immediate family members like the spouse or children by the one executing the last will and testament.

In this case, it was proven that there was truly intent to give too much to charity because practically the Bible Watch Tower became Julia Eckart’s primary beneficiary. As for the second factor which is the intent to expressly disinherit her children, the court studied this angle carefully. Although there was a $50 inheritance, it is not the amount determined by law to which a person will already survive on a daily basis. That is why, after a long discussion and trial, the court was able to determine that the two factors were present to make this case an excessive charity.

The court will determine further the exact condition of the estate, its value and everything that will affect their ruling. They will do the proper accounting before determining the fair amount that will be given to Julia Eckart’s children as well as to the Watch Tower Bible and Tract Society of Pennsylvania.

Continue reading "Estate of Julia Eckart " »

January 24, 2012

The decedent died a childless widow

On December 20, 1952, the decedent died a childless widow. She left a supposed last will and testament that is dated April 29, 1929. This she tried to dispose of her estate and exercise a power of appointment granted to her by the will of her father. Another document dated September 13, 1929 was added and confirmed the April 29th will. According to a Staten Island Probate Lawyer, after a trial by jury both wills were denied probate. The reason given was that the testator lacked the capacity or competency to execute a will. She was not of sound mind. The Appellate Court also affirmed this decision.

The question now is if there was an error in the surrogate court to admit into evidence the statements of two witnesses, now deceased, in a prior lunacy proceeding. The Surrogate court relied on the Civil Practice Act that the statement of a deceased witness in a former trial or hearing may be used as evidence in a following hearing of the same subject-matter. The hearing for lunacy was presumptive. There was no other evidence so it was admissible but not conclusive.

This is the history obtained by a New York Probate Lawyer about the decedent . Her husband died in 1927, when she was 53 years old. Before long, she was showing erratic and distraught behavior. She was presenting abnormal habits and conduct, which included alcohol abuse. Her condition became so bad that between 1927 and 1929 she had been a voluntary patient at a mental hospital several times. Her condition still progressed and she was no longer able to take care of herself or her affairs. In September 24, 1929 she was admitted to a care facility as a voluntary patient because of this. She stayed there until she died 23 years later.

The testator’s brother started the lunacy proceedings in November, 1929. Two nephews, and the sons of the petitioner who are also people supporting the objection for the will were present in that hearing. They did not oppose the petition. A doctor who was previously consulting physician at the hospital testified as to the mental state of the decedent, which went undisputed.

The lunacy proceedings and the testamentary capacity hearing may not be different in the fundamentally in substance, but their purpose differs. Nassau County Probate Lawyers say that the incompetency in one instance like in managing one’s affairs does not necessary mean incompetency in making a valid last will and testament. The statute that asks for the subject-matter to be the same has not been satisfied. There was also no mention of Mrs. White’s condition before the proceedings for the determination of her lunacy. The court determined that being unable to facilitate ordinary affairs does not mean lack of testamentary capacity. There are the ones who are deemed wholly incapacitated, and they are also seen as lacking capacity to make a valid will. Even with this, there may be an exception as there is what is called a lucid interval. People who are also seen as mentally incapacitated may be unable to protect themselves because of their mental capacity, and that is it. In the same hearing, the testator nor her guardian were not able to present and question as to what will happen if there is a will contest.

The court has determined that the beneficiaries of the will should have a day in court. It should not be concluded by testimonies from a previous hearing that were uncontested. Another investigation to the testatrix capacity should be done as is governed by a different law with a different proceeding. The order was therefore reversed, and a new trial granted.

When you find yourself a beneficiary of a person considered as mentally incapacitated, you may automatically think that you are not eligible for any legacies from them.

Continue reading "The decedent died a childless widow" »

January 22, 2012

It is a sad occurrence when children are orphaned by both parents

It is a sad occurrence when children are orphaned by both parents in a very short span of time. This is what happened when a modern painter of high reputation, died on February 25, 1970 followed by his wife on August 26, 1970. They left two children. The daughter was already of age and the son Christopher was still a minor. Before the mother died, she already gave the court her petition to contest the will as the children’s guardian saying the bequest to the charitable institution was more than one-half of the estate.

The term of the will, from what a Nassau County Estate Administration Lawyer found was that the wife gets $250,000 plus their house and all its contents. Five of his paintings are to be given to the Tate Gallery, London. The remaining part of his estate is bequeathed to an art foundation, a non-profit organization. It contained additional stipulation where if his wife dies, or they subsequently die, their children get $250,000 and the house in New York, including all its contents in equal shares.

The executors still followed through with the proceedings to determine if the claim for the will contest is valid. The daughter appeared with her lawyer and the son with his guardian. The court has found out the paintings of the testator is valued at several millions of dollars. There is another court hearing in which the contract executed for one-eighth of the decedents works was valued at $1,800,000 was still being contested as not enough. The court has said it is definitely more than half of the residuary estate of the testator that was assigned to charity. A Nassau County Estate Litigation Lawyer said the court gave out is a decision in favor of the children on July 13, 1970.

In the law, the spouse, children, parents, even grandchildren of a decedent can contest a will if the bequest to charity is more than one-half of the residuary estate, granted that they will be gaining financially with a successful contest. A New York Probate Lawyer says this is not an assurance though, because if the will expressly state that the testator wants to disinherit his children, even if they are infants then they will be disinherited. The question before was why when a person is alive, they are not allowed to neglect their children but when they are dead, they can. This was addressed by another rule through the Family Maintenance Act were in the Surrogate Court will have the power to enforce reasonable provisional support in all solvent decedent’s estate. This means that the children who have lost their parents will not automatically be public charges. The child will be able to support himself until he reaches the age of maturity or can support himself, whichever comes first. In this case, it means that the court will take equitable portions from each gift to support the minor child. The remainder of the will upon the child reaching legal age or when he can already support himself will be distributed according to the will.

Continue reading "It is a sad occurrence when children are orphaned by both parents " »

January 20, 2012

Court Rules on a Will Contest Regarding Charitable Donation

On June 28, 1975, the decent died in West Monroe. He left a last will and testament dated November 27, 1972. The will was submitted to probate in November 1, 1977 and letters were issued to an executor of the estate and sole descendant. Prior to the settlement of the affairs, the executor died. This was November 5, 1981. In January 15, 1982, the nephew of the decedent petitioned the court for letters of administration. A New York Probate Lawyer said that the court granted this petition in January 19, 1982.

In January 7, 1983, the petitioner asked the court to rule on whether the decedent exercised his personal right under the excessive gift to charity. By May 4, 1983, a hearing was held to present evidence.

The decedent, upon the death of his mother contacted a lawyer regarding some of the provisions in his mother’s will. From the information a Nassau County Probate Lawyer got, the petitioner also asked if these certain stipulations in his mother’s will can be broken. Petitioner expressed his discontent with his mother’s will especially in the paragraph that allocates any remaining estate to be given to a hospital. The hospital at the time of the decedent's death was non-existent. In a letter dated January 12, 1982 from an attorney for the Hospital Planning Association, it was said that the the hospital was never created and will never be created.

The decedent, at some point retained a lawyer with regard to the decedent's estate. The lawyer advised that he could make a petition to determine an excessive gift to charity. This was executed by the Petitioner in March 8, 1978, which is within six months of the petitioner being appointed as executor. The lawyer then notarized and sent the petition via first-class mail, prepaid, properly addressed to the Surrogate's Court together with a cover letter dated March 8, 1978, requesting the Court Clerk to file the notice of election. The petition however, was never received. The court never knew of it until the petitioner filed this appeal.

The question that the court needed to address first is if an appeal that was executed but not filed be considered as a notice of election to contest a charitable disposition. Should it be treated as such and given effect?

The court then reviewed the terms of the law covering the contest of charitable donation through a will, and they have determined that even if there are no preceding cases the filing should be treated like the spouse’s right of election. The contest should be filed within six months and since twelve months have passed since the letters have been issued then the right no longer exists. A Nassau County Estate Litigation Lawyer said that the court deems this requirement as mandatory and indispensable.

The court could grant relief if the time that has passed is less than twelve months. Any rights that the petitioner had were extinguished with the lapse of the twelve months after the letters were issued. Although the actions of the petitioner would show that he intended to contest the will, the court considered it as unfiled as the law states that the filing with the court is not optional so the mailing is not filing.

This problem would not have happened if full attention was given to the contest when applied. A prudent lawyer would have taken care of it. They would check with the courts if it was received or sent it via courier to make sure it was received by the court clerks.

Continue reading "Court Rules on a Will Contest Regarding Charitable Donation" »