April 1, 2014

Court Rules on Case Involving Lost Will

A New York Probate Lawyer said in this Will Contest proceeding, a motion was filed for the allowance of an attorney from testifying at an examination before trial, and for a further order precluding the respondent for failure to file an adequate bill of particulars.

A New York Will Lawyer said that in August 1980, the decedent consulted another attorney, in connection with the preparation of a new will which because of her death shortly thereafter was never prepared or executed. The lawyer has been briefly examined, the examination was interrupted in order to obtain rulings from the court in regard to the attorney-client privilege.
While an attorney will generally not be compelled to testify as to matters revealed to him by his client within the course of his professional employment, there are, however, several exceptions, one of which permits an attorney "to disclose information as to the preparation, execution, or revocation of any will or other relevant instrument" in an action involving the probate, validity, or construction of a will. The proponent argues that this exception clearly applies in the instant proceeding.

However,New York City Probate Lawyers said several cases contain dicta that the exception does not permit an attorney to testify with respect to a consultation with a client looking toward the drawing of a will when no will was actually prepared or executed. At the time the case law was decided the exception did not, as at present, permit the attorney to disclose information as to the preparation of "any will"; rather disclosure was only permitted as to the preparation of the "will so offered for probate or required to be construed or of any prior will." The case specifically prohibited the attorney "who neither directly or indirectly took part in the preparation or execution of the instrument offered for probate" from testifying. It is at least arguable that the result in the case should be confined to its interpretation of the former and not the present statute. Moreover in another case law, the conversation the attorney had with the decedent apparently sought legal advice about her existing will and it does not appear that there was any discussion of the preparation of a new will.

Manhattan Probate Lawyers said it has been argued that the modern trend towards freer admissibility of evidence should correspondingly limit the attorney-client privilege and that the direction should be towards a narrow construction and the development of further conditions and exceptions. Apparently reinforcing this trend, the proposed New York State Code of Evidence suggests that the exception should read as follows: "As to a communication relevant to an issue concerning the validity of, or intention with respect to, a deed of conveyance, will or other writing executed by a deceased client purporting to affect an interest in property."
As can be noted, there is no suggestion that the attorney as a precondition to disclosure must have involved himself in the preparation and execution of any will or other document.

Concededly the above discussion can be considered largely dicta since it is clear here that while the attorney did not prepare or supervise the execution of a new will, he at least had discussions relating to a revocation of the former will and presumably codicil. The statute specifically authorizes an attorney to disclose information as to "the * * * revocation of any will."
Admittedly the major significance of the lawyer's testimony to the petitioner are conversations with regard to the existence of her will at the time of their consultation. Apparently the decedent was told by the lawyer to bring her old will to his office when she returned to execute the new will in order to physically destroy it. While such testimony may not be barred because of privilege, it does not appear to be admissible at the trial under New York's traditional view of competency of evidence on revocation. Nevertheless there should be no objection to it being disclosed at a pretrial examination.

Accordingly the examination of the lawyer is directed to be continued on a mutually agreeable date, or failing agreement, on ten days written notice at which time he may disclose any and all information relating to the revocation of the decedent's will and codicil, and any other conversations surrounding such communications.

The motion to preclude is based on an allegedly defective bill of particulars, which was supplied by respondent to petitioner in accordance with 1830.19 of the Second Department Surrogate Court Rules. Respondent's answer to this is contained in paragraph 3 of his bill of particulars which states "The instrument purported to be the copy of the Last Will and Testament offered for probate is not signed by the deceased or attested to by the witnesses, nor is it the original of said Last Will and Testament which original was in the custody of the deceased. The presumption is that it is revoked." Petitioner claims that this answer is not responsive because it does not specifically state the time and means of any alleged revocation as required by § 1830.19(a)(3)(ii) of the Second Department Surrogate's Court Rules. § 1830.19(a)(3)(ii) states that if a contestant alleges that a will is not the last will, the proponent shall be entitled to a bill of particulars which shall state whether it is claimed that the instrument offered for probate was revoked and if so, state when and the method by which the revocation was accomplished. Respondent's reliance on the presumption of revocation implies when and how the revocation was accomplished and therefor it is a sufficient answer.

However, a copy of a lost will is only used to prove contents and cannot be probated. "The instrument offered for probate" actually refers to the lost original will which proponent is attempting to probate. Therefore respondent's answer is insufficient and respondent is ordered to supply a new answer as to whether it is merely claimed that the instruments offered for probate, the missing original will and the original codicil, were not executed in accordance with statutory requirements. Motion granted to the extent of requiring a further bill as indicated above and otherwise denied.

Probate is necessary in order to make the provisions of the will effective. Here in Stephen Bilkis and Associates, we have Nassau County Probate lawyers, who will represent the named executor of the last will and testament of the decedent. We also have Nassau County Estate attorneys for your other concerns. Contact us now for more details.

March 29, 2014

Petitioner Brings Case to Probate Lost Will

A New York Probate Lawyer said that a probate proceeding was brought by the Petitioner for the probate of a lost will purportedly executed by her decedent brother.

A New York Will Lawyer said that the decedent died in September 2005. A will executed on in 2003, which provided for his wife, and his three children was admitted to probate by this court in 2005. The petitioner in this proceeding seeks to admit a later instrument to probate as a lost will and revoke the earlier will's probate decree. The allegations contained in the petition may be summarized as follows. Before he died, in 2005, decedent sought the services of his long-time attorney to change the 2003 Will in light of changing circumstances with his wife, specifically her commencement of divorce proceedings against the decedent. As a result of his discussions with the lawyer, the decedent had a new will prepared, the final version of which was completed and then executed by decedent in August 2005.
The terms of the 2005 will differ significantly from the terms of the 2003 Will. The 2005 Will reduced the wife's share to her elective share, it left nothing to the decedent's two children and the terms of an option to purchase the decedent's businesses granted to decedent's son which existed under the 2003 Will as well, were much less favorable to him under the 2005 Will. Also, the 2003 Will provides for a single executor, while the 2005 Will provides for three executors, and petitioner. The petitioner in this lost will proceeding is the decedent's sister. Relevant to this motion is the nature of the relationship the decedent had with an individual.

Westchester County Probate Lawyers said the decedent had a longstanding personal and professional relationship with and individual who worked with him since 1979 in decedent's insurance business. In addition, the decedent allegedly resided with said individual at the time of his death. After the decedent's death, said individual was involved in litigation with several of the companies which resulted in a stipulation and "Confidentiality Order" issued in February 2007. The stipulation requires that documents and/or information that are designated "confidential" shall not be disseminated in any action or proceeding involving the plaintiffs in the aforementioned action, as well as the Estate of the decedent.

Suffolk County Probate Lawyers said that furthermore, said individual entered into several Settlement Agreements. These settlement agreements contain both confidentiality provisions, as well as the incorporation of the terms of the Confidentiality Order. The court notes that the Confidentiality Order was an "order" signed by a special referee in the Supreme Court. This fact will prove to be irrelevant to the reasoning of this decision.

The requirements to prove a lost will are set forth at SCPA § 1407 which provides that "[a] lost or destroyed will may be admitted to probate only if: (1) [i]t is established that the will has not been revoked, and (2) [e]xecution of the will is proved in the manner required for the probate of an existing will, and (3) [a]ll of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete."
In addition, when a will cannot be found after death and the will was in the testator's possession at the time of death there is a strong presumption that the will was revoked by the testator. It is the burden of the proponent to prove non-revocation of the lost will. The proponent can rebut the presumption using "facts and circumstances which show that the will was fraudulently destroyed" during the testator's lifetime.

For discovery purposes, New York courts have liberally construed the scope of disclosure for material that is "material and necessary." More specifically, the New York Court of Appeals has stated that "material and necessary" must be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy." Although CPLR 3101[a] allows for "full disclosure of all matter material and necessary in the prosecution or defense of an action." this provision is subject to a limitation, the test for which is one of "`usefulness' and `reason'". As long as the material sought meets this minimal limitation "pretrial discovery is to be encouraged" (Id.). CPLR 3101(a)(4) authorizes disclosure of material and necessary matter from non-party witnesses who do not otherwise fall within the scope of CPLR 3101(a)(3). Such disclosure may be had upon notice stating the circumstances or reasons disclosure is sought or required.

In the instant case, petitioner bears the heavy burden of demonstrating that decedent did not revoke his will prior to his death. Under SCPA § 1407 of the three requirements that petitioner must meet, the first requirement will be the most difficult to satisfy. The first requirement under SCPA § 1407 requires petitioner to prove that the will had not been revoked; petitioner seeks to meet her burden by demonstrating that the decedent's children, were responsible for the destruction or disappearance of the original 2005 Will. In support of this position, petitioner has subpoenaed for a deposition and for production of corporate documents relating to the corporations. Petitioner seeks the production of documents relating to the Net Annual Commissions and Unpaid Principal Balance to demonstrate that the probate of the 2003 Will was more favorable to decedent's children, thereby showing that the actions of decedent's children on the night of decedent's death were suspicious in nature, and therefore, explaining the disappearance of the original 2005 Will.
Through the subpoena, petitioner seeks the production of financial records of the corporations, more specifically, information relating to the Net Annual Commissions of the corporations and of the Unpaid Principal Balance of the corporations.
The objectants seek a protective order from this court preventing the production of documents which, they argue, are confidential and immaterial to the current proceeding before the court. The Confidentiality Order that the objectants base their argument on provides that "'Confidential Material' is defined as material designated as `Confidential Material' based upon a good faith assertion that disclosure of such material might adversely affect a Producer's competitive business revenues, profitability or operations". The subpoenaed information requested is limited in its nature; petitioner seeks only the Net Annual Commissions information from calendar year 2004 and all documents concerning the Unpaid Principal Balance of the Corporations, not all financial information from each of the businesses. The subpoenaed information would not appear to disclose any information relating to how the businesses operate, thereby obviating the concern that the companies will be adversely affected in terms of business revenues or profitability. To further quell any concern the objectants may have regarding disclosure of financial documentation of the corporations, petitioner's counsel noted in his affirmation that petitioner would be willing to enter a Confidentiality Order for this case to prevent disclosure of this financial information to any of the competitors of the corporations.

The objectants seek to prevent disclosure of the settlement agreements on the grounds that the settlement agreements are confidential and to prevent disclosure of trade secrets of the corporations. New York courts have no generally accepted definition of a trade secret, however, several courts have used the definition of trade secret set forth in the Restatement of Torts § 757, comment (b). Under the Restatement definition a trade secret is "any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it".
The objectants have the burden of establishing that the subpoenaed information consists of trade secrets. The objectants have simply stated that the settlement agreements contain trade secrets but have not presented any information that, in fact, the agreements do contain trade secrets of the corporations. Conclusory statements from the attorney for the party seeking protection from disclosure on grounds of trade secret are not generally sufficient to prevent disclosure.

The production of the financial records of the corporations, as well as the production of any settlement agreements may have entered into with numerous other parties as a result of the prior 2005 action are "material and necessary" under the CPLR's broad interpretation for the disclosure of relevant material in a proceeding. In this action, petitioner seeks to show that there is a plausible explanation for why the original 2005 will has not been located and that reason is that certain of the decedent's issue have either hidden or destroyed the original 2005 Will.
Petitioner seeks to demonstrate how much of a benefit the decedent's son, enjoyed when he exercised his option to purchase the decedent's businesses under the 2003 Will as compared to the 2005 Will. It should be noted that one need look no further than the terms of the 2003 Will versus the 2005 Will in order to see that the son would enjoy a significant benefit by exercising his option to purchase under the 2003 Will, however, the additional financial documentation sought by petitioner seems to be reasonably calculated in order to further support her explanation as to why the original 2005 Will could not be located.

A lost last will and testament may be proven and be the subject of probate if the requirements set forth by law are present. Here in Stephen Bilkis and Associates, our Nassau County Probate attorneys will help you implement the provisions in the will by filing a proper petition for probate. We also have Nassau County Estate Administration lawyers who will guide you on the proper steps to undertake in filing court actions related to estates.

March 29, 2014

Petitioner Requests Letters Testamentary

A New York Probate Lawyer said this probate proceeding, two of the three preliminary executors move for an order disqualifying their former attorneys from representing the objectants; the motion is opposed.

A New York Will Lawyer said that the decedent died in November 2010, survived by a spouse and two adult children. The decedent executed a will in 1990, a first codicil in 2003, and a second codicil in 2010. In the first codicil, the decedent appointed his son, his attorney, and his accountant, as co-executors and co-trustees. Objections have been filed by decedent's children only as to the second codicil, the only dispositive provision of which leaves the decedent's residence in Sands Point, New York to the decedent's spouse; the will had merely provided her with the right to occupy the decedent's residence for up to eighteen months after the decedent's death.

Nassau County Probate Lawyers said the lawyer and the accountant filed a petition for the probate of all three instruments and for the issuance of letters testamentary and preliminary letters testamentary to the two of them, to the exclusion of the son. As indicated above, the son and his sister objected to the probate of the second codicil, and also to the prayer for the issuance of preliminary letters solely to the lawyer and accountant. The dispute regarding the preliminary letters was resolved and preliminary letters testamentary issued to all three nominated executors in February 2011.
The son filed objections to probate the second codicil. The objections contain the usual allegations of: (l) failure of due execution; (2) lack of testamentary capacity; and (3) fraud and undue influence.

A Staten Island Probate Lawyer said during the pendency of the probate proceeding, the son, in his capacity as one of the preliminary executors of the estate, commenced a discovery proceeding against the decedent's spouse, alleging that she had wrongfully obtained certain assets of the decedent. The retained counsel of the son also prepared a separate letter, addressed to all three preliminary executors, acknowledging that the firm was not only representing all three of them in the discovery proceeding, but also representing the son and his sister as objectants to the second codicil.

The son's position in both the probate and discovery proceedings is that the decedent lacked capacity. If the co-executors had adopted this position in the discovery proceeding, it would conflict with their prima facie burden in the probate proceeding to establish the testamentary capacity of the decedent. In addition, the decedent's mental and physical conditions have a bearing on the allegations of fraud and undue influence which are common to both proceedings.
Despite the attempt by the firm to relegate the co-executors to the status of nominal petitioners in the discovery proceeding, they were, nevertheless, clients of the firm. The conflict which arose at the son’s deposition in the probate proceeding illustrated the inability of the firm to represent the proponents and the son simultaneously.

The son had previously testified that: (1) the lawyer refused to help him obtain information concerning the transfer of the bank accounts during the decedent's lifetime; (2) the decedent lacked testamentary capacity; and (3) this fact was known to Aiken and the surviving spouse.
At the deposition, counsel for the proponents argued that the bank accounts were the proper subject of inquiry as it was alleged in objectants' bill of particulars that the transfers were part of a plan to defraud the decedent. The examination was suspended to permit proponents' counsel to make this motion to disqualify. The surviving spouse supports the motion.
An attorney may not accept employment if it is likely that he will be representing differing interests. Disqualification can be mandated not only where there is simultaneous representation of conflicting interests in the same proceeding, but where there is simultaneous representation in separate proceedings. Proponents argue that the original representation was improper and the attorneys remain in a position adverse to their former clients.

The firm contend that any conflicts caused by the initial representation of adverse interests or the current representation of the son were obviated by the consent of all parties to dual representation. A consent to the simultaneous representation of adverse interests requires full disclosure of the implications of the representation and a reasonable belief on the part of the attorney that he is not in a position of divided loyalty. Neither of these requirements are met.
The objectants argue, in the alternative, that there is no prejudice to proponents as former clients as there were no confidential communications between the proponents and the firm concerning the bank accounts. A party seeking disqualification of an adversary's lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel; (2) that the matters involved in both representations are substantially related; and (3) that the interests of the present client and former client are materially adverse. Proponents have clearly satisfied this test.

Moreover, the rule relating to former clients does not apply under these circumstances. Where there is an initial simultaneous representation of adverse interests and a successive representation, the rule pertaining to simultaneous representation takes precedence. The attorneys must meet the higher standard of no actual or apparent conflict at the time of the initial representation.

It is not clear whether Steinberg's objections on behalf of the lawyer at the deposition were intended to protect the lawyer, or if the intent was to protect the interests of the son. In any case, the conflict caused by the dual representation was made clear at the deposition.
The court finds that the firm failed to establish that there was no conflict in their simultaneous representation of the proponents and the son.

Accordingly, the motion to disqualify is granted.

Here in Stephen Bilkis and Associates, we have Nassau County Probate lawyers who will help you file a petition in Courts for the probation of the last will and testament of a decedent. We also have Nassau County Estate attorneys who will inform and guide you on how to properly distribute your estate in accordance with law. Call us now for more information

March 27, 2014

Court Rules in Will Dispute

A New York Probate Lawyer said in this probate proceeding, petitioner, by motion, seeks an order vacating a stipulation of settlement and a renunciation and disclaimer purportedly executed to effectuate the settlement.
A Nassau County Probate attorney said that decedent was survived by his spouse (petitioner) and two children of a prior marriage (respondents).

A New York Will Lawyer said the petitioner filed a petition for probate of an instrument and preliminary letters issued to her. Decedent's son appeared by counsel in the probate proceeding and settlement negotiations ensued. The negotiations resulted in a stipulation of settlement which was "so ordered". The settlement provided that the assets be divided into three equal parts: 1/3 to the spouse, 1/3 to the respondent, respectively, in trust.

The will had provided that the corporation of the deceased be distributed 2/3 to petitioner, decedent's wife, and one-third to decedent's daughter. The will further provided that the residue of the estate was to be divided 65% to the wife, 25% to the daughter, and 10% to the decedent's sister.

New York City Probate Lawyer said decedent did not designate a beneficiary for the plan. Under the terms of the plan, petitioner became the beneficiary by default. Petitioner alleges that at the time of the execution of the stipulation she did not know that she was the beneficiary of the plan but believed instead that the estate was the beneficiary.

Manhattan Probate Lawyers said the respondents oppose the motion to vacate the stipulation alleging that (1) the agreement reflects the intention of the parties (2) the designation of the petitioner as beneficiary under the plan was irrelevant as petitioner agreed to divide testamentary and non-testamentary assets in three equal parts and (3) petitioner, as preliminary executrix, had access to the financial records of decedent and could have obtained and reviewed the terms of the plan prior to execution of the stipulation. Further, respondents contend that the renunciation executed by petitioner is irrevocable.

A contract entered into under mutual mistake of fact is voidable and subject to rescission if the mistake exists at the time the contract was negotiated. To entitle a party to rescission, the contract must rest upon the assumption of a fact as to which the parties were mistaken. A stipulation of settlement is an independent contract and the same standard applies to a motion to vacate a stipulation of settlement based upon a mutual mistake.

Petitioner's attorney, in a supplemental affidavit, now advances a different theory in support of the motion. It is now petitioner's position that the stipulation of settlement can be vacated without the necessity of establishing a mistake of fact.

Manhattan Probate Lawyers said the petitioner contends that the standard to be applied, where a final decree has not been signed, is whether the parties can be restored to the "status quo". The stipulation of settlement was "so ordered." It is both a contract and an order and can be set aside only upon a showing of fraud, collusion, mistake or such other factors as are sufficient to invalidate a contract.

Petitioner contends that the failure to vacate the stipulation of settlement would result in an injustice. Unjust enrichment is a factor to be considered on a motion to vacate a stipulation of settlement.

Respondents contend that petitioner's lack of knowledge was the result of negligence and her ignorance cannot be used as a ground to set aside the stipulation. A party bears the risk of a mistake when he is aware, at the time a contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient. A party cannot rely upon her ignorance of a condition which she could have discovered using ordinary care the court denied an application by the co-administrator of decedent's estate to reform a stipulation of settlement which provided for a distribution of the decedent's probate and non-probate assets after she later discovered that one of the non-probate assets was a trust for her benefit, finding that her failure to ascertain the beneficiary designation on the largest of the decedent's bank accounts could only be ascribed to negligence.

This court has recognized that "stipulations of settlement which put an end to litigation promote efficient dispute resolution and are essential to the litigation process". Also, stipulations are especially favored where, as here, the parties have been represented by counsel. The court finds no basis upon which to vacate the stipulation of settlement and the motion for that relief is therefore denied.

Even if a basis to vacate the stipulation did exist, vacating the stipulation would not achieve the result the movant seeks in any event. As indicated, the movant also seeks an order vacating the renunciation and disclaimer which she filed. A renunciation is irrevocable once properly served and filed, when the Legislature enacted EPTL 2-1.11, it obviously intended that renunciations be unquestionably irrevocable. This was done to ensure that renunciations under EPTL 2-1.11 would constitute qualified disclaimers for federal estate tax purposes.

A last will and testament is considered as an important document that a deceased executed before his demise. It provides for his last hopes and wishes after his death including the division of his estate. Here in Stephen Bilkis and Associates, our Nassau County Probate attorneys will help the executor to implement the provisions of the will. We also have Nassau County Estate lawyers for your other concerns regarding division of an estate.

March 22, 2014

Court Analyzes Will Due to Allegations of Undue Influence

A New York Probate Lawyer said that the complainant moves to dismiss the objections filed contending that they are not legally cognizable. A deceased woman's last will and testament nominated the accountant, her brother, as administrator of her estate and made him the beneficiary of the residuary that comprised 49% of the estate. The deceased's son, who received a 35% share of the estate in trust, contested the will which was denied after the jury found the proponent had exercised undue influence. Preliminary letters then issued to the complainant were subsequently revoked.

A New York Will Lawyer said sources revealed that the first objection interposed to the account must be dismissed as legally insufficient. Further, no statute compels a fiduciary, prior to judicial settlement of his account, to make application to charge the estate with counsel fees acquired in offering the will for probate with the exception of an attorney-fiduciary who does not have at least one co-fiduciary who is not rendering legal services. Furthermore, an affidavit of services having been filed, the opponent's claim that no documentation of the services rendered was presented lacks merit.

Queens Probate Attorneys said the center of the controversy revolves about the second objection which asserts the preliminary administrator has no right to recover commissions, or to charge the estate with counsel fees he incurred as the unsuccessful proponent.

Long Island Probate Lawyers said that based on records, a preliminary administrator is not entitled to commissions unless the last will is admitted to probate and letters testamentary are issued to him. Where the will is denied probate or the letters of the preliminary administrator are revoked during pendency of a probate proceeding, the fiduciary is relegated to such compensation, if any, as the court shall determine to be reasonable not to exceed the commissions to which an administrator would be entitled.

The last will here having been denied probate, the preliminary administrator is restricted to such compensation, if any, the court finds reasonable. Although the criterion for payment is the reasonable value of the preliminary administrator's services, the statute places a ceiling on the amount that may be awarded by directing his compensation shall not exceed the commissions payable to an administrator. By similarity, the instances in which the court, under the law, may refuse to award compensation to a preliminary administrator should fit together with those situations in which an administrator would be disallowed commissions. With that, the court found no compensation that is due with the accountant.

The withholding of compensation is consequently mandated, and the denial of attorney's fees is similarly in order with reference to services rendered in the contested probate proceeding.
The court stated that the purpose of the law is to enable the administrator named in a will to diligently and actively pursue his duty to present the last will for validation and to protect it from attack from any source. The circumstance that the nominated administrator is also beneficially interested as a legatee does not relieve him of his obligation nor does it preclude him from receiving an allowance for attorney fees. However, the operation of the law is not set in motion until triggered by a showing of good faith. Further, good faith is not demonstrated, as the complainant advocates, simply because the jury did not find fraud in addition to undue influence.
Sources revealed that it is not a case where the nominated administrator was not a party to the misconduct that affected the document .The proponent in the case was not only the named administrator and trustee but the beneficiary of nearly one-half of the assets. The finding of the jury that the proponent exercised undue influence over the deceased woman in procuring the execution of the last will, which largely favored him, is conclusive on the court.

Further, the action of the proponent in offering the will for probate is of itself an act of bad faith. The consequences intended to be accomplished by attempting probate is to deceive the court and to defraud the natural objects of the decedent's bounty from their rightful share of the estate. An allowance of attorney fees in such instance would constitute a perversion of justice. The attorneys must therefore look to their client for payment of their fee.

In the case, however, an examination of the request for attorney fees is required because not all the services rendered by the different attorneys employed by the complainant related exclusively to the contested probate proceeding. The various affidavits of services disclose that estate tax liens were released and an accounting filed. The said services are free from the taint of fraud, and would necessarily have been performed whether or not the last will was admitted to probate.
The first attorney engaged by the preliminary administrator has been paid $2,000 from estate funds, and it is the amount of compensation sought in the citation. Although his affidavit of services requests an additional $2,000, the allowable relief is circumscribed by the request set forth in the citation. The bulk of the first attorney's services being connected with the contested probate proceeding, compensation thereof is disallowed. However, to the extent he filed an affidavit form and obtained a release of estate tax lien, he is awarded an allowance of $600 which is without prejudice to any claim against the client. The complainant is surcharged the sum of $1,400, representing the balance of the fee paid, together with interest at the legal rate from the dates of payment.

A man acted as trial counsel in the probate contest and no compensation may be allowed to him for such services, but the said determination is without prejudice to any claim he may possess against the complainant.

The firm prepared the complainant's account, and handled the accounting contest which exclusively concerned the complainant's right to be awarded commissions and attorney fees. The said firm also obtained a transcript of the trial which it examined with a view towards taking an appeal.

Sources revealed that the circumstances lead the court to reduce the $4,281.25 fee requested to $2,500 to cover the filing of the accounting together with disbursements for filing and process server's fees in the sum of $332.50. The said allowance is also made without prejudice to any claim the firm may have against the complainant. The account shall be amended to reflect the aforementioned modifications and a decree submitted.

Consequently, the request for decision without trial is granted in favor of the complainant dismissing objections labeled as first that do not constitute a defense to the appeal. Further, objections designated as second set forth matter that constitutes in part a complete defense to that part of the petition and account seeking payment of administrator's commissions and attorney fees related to the contested probate proceeding. While, the motion searches the record, the opponents are awarded partial decisions dismissing the petition to that extent and the items of the account requesting that relief are disallowed. Moreover, legal services unconnected to the contested probate may be recovered.

Therefore, the allegations in the objections marked as second, which seek to deny such fees do not state a legal defense and are stricken except with respect to the amount that may be allowed on the accounting. The court, however, as noted, have fixed the value of such services on the assumption that the various affidavits of services and the objections made thereto were submitted for that purpose.

People who formulate last will and testaments trust the persons that they name to be beneficiaries and executors. If someone hinders the execution of your will probate application, ask the Nassau County Probate Lawyers together with the Nassau County Will Contest Attorneys from Stephen Bilkis and Associates to fight with you in the courtroom.

March 21, 2014

Petitioner Alleges Undue Influence Regarding Will Execution

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, the daughter of the decedent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated June 25, 2007 to probate. The objectant, who is the son of the decedent, cross-moves for summary judgment denying probate to the propounded will dated June 25, 2007.

A New York Will Lawyer said the decedent, died on August 2, 2008, survived by four children. The decedent's wife, predeceased the decedent, as did his daughter. The will offered for probate provides a $25,000.00 bequest to his son; the remaining amount of a private mortgage held by decedent for property located at 225 Hillside Avenue, Douglaston, New York is to be divided evenly among his daughters and the residuary is to be divided evenly among them. The will nominates the proponent as executor.

A Westchester County Probate Lawyers said that, the objectant has interposed the following objections to the propounded instrument: "1. the instrument propounded is not the last will and testament of the decedent. 2. The instrument is not the last will and testament of the decedent in that the signature affixed thereto, alleged to be the signature of decedent, is not, in fact, decedent's signature. 3. The instrument offered for probate was not duly executed by the decedent in that he did not affix his signature at the end thereof, nor was such signature made by the decedent in the presence of each of the attesting witnesses, or acknowledged by him to have been made, to each of the attesting witnesses, nor did the decedent declare the instrument to be his last will, nor did at least two attesting witnesses each sign their names to said instrument as a witness at the end thereof at the request of the decedent and in his presence. 4. The instrument offered for probate was not duly executed by the decedent in that he did not publish the same as her will in the presence of the witnesses whose names are subscribed thereto and that the said alleged witnesses did not sign as witnesses in his presence or in the presence of each other. 5. The instrument offered for probate was not freely and voluntarily made by the decedent. Upon information and belief, the instrument, and the signature thereto, was obtained and procured by fraud, duress and/or undue influence practiced upon the decedent by the proponent or by other persons acting in concert or privity with her whose names are presently unknown to respondent. 6. That on the 25th day of June, 2007, the said decedent, was not of sound mind or memory and was not mentally capable of making a will. 7. Said instrument purported to be the last will and testament of the decedent, was revoked, because decedent executed a second original will on the same day he executed the instrument being offered in this probate proceeding, and only said instrument has been produced and offered for probate."

A Suffolk County Probate Lawyers said that, in support of the motion to admit the will to probate, the proponent submits the deposition testimony of the attorney-draftsperson, the deposition testimony of witnesses to the will and the proponent. In opposition and, in support of the cross-motion to deny probate, the objectant submits his own affidavit, the same deposition testimony as proponent, the affidavits of the decedent's sister, the attorney-draftsman, annuity records, medical records and various documents. In further support of the cross-motion, the objectant submits the affirmation of counsel as well as affidavits and deposition testimony previously submitted.

The issue in this case is whether the will should be admitted to probate.

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 bound. 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 examination of the propounded will. This testimony was buttressed by the testimony of the attorney-draftsman who met the decedent to discuss the proposed distribution of his estate, including the members of his family.
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 absent any proof that at the date of the execution of the propounded will, decedent was incapable of handling his own affairs or lacked the requisite capacity to make a will. In particular, neither the documentary evidence submitted by objectant in opposition to the motion, including excerpts from the Congressional Record, newspaper articles and community service award announcement, all dated some 3 to 5 years prior to the execution of the propounded will, nor the affidavit of decedent's sister, raise an issue as to decedent's testamentary capacity at the time he executed the will in 2007.

Accordingly, on the issue of testamentary capacity, the proponent's motion is granted, and the objection of lack of testimony 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 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 and the attorney-draftsman prima facie establish due execution of the propounded instrument. The objectant's contention that the health care proxy, dated June 21, 2007, bearing the signatures of the attesting witnesses was either not witnessed on that date or that the witnesses may have witnessed the execution of the health care proxy and not the will, does not raise an issue of fact. Although the attesting witnesses in their affidavits could offer no explanation as to appearance of their signatures on the June 21, 2007 health care document, such failure does not, in the court's view, detract from their testimony as to witnessing the decedent's propounded will dated June 25, 2007. Absent from the record is any proof that the propounded instrument was not executed in conformity with the formal requirements of EPTL 3-2.1. 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 her to execute a will that disposed of her property in a manner contrary to that in which she would have otherwise disposed of it. 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 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 and accordingly, the objection of undue influence is dismissed.

It is well settled that where a will is executed in counterpart all counterparts constitute the will and revocation of one is a revocation of all. The failure to produce the copy of the instrument, last shown to have been the possession of decedent, raises a presumption that he destroyed it with the intent of revoking it.

Here, there is an issue of act as to whether decedent executed two original wills as to implicate the doctrine of revocation. While the attorney-draftsman asserts that only one will was fully executed by decedent, and, therefore, no other original exists, the attorney's own deposition testimony, excerpted above, raises an issue in that regard.

Objectant's assertion that the proponent's motion for summary judgment should be denied as discovery is not complete is without merit. Objectant notes that the proponent has failed to produce the power of attorney that decedent allegedly executed June 21, 2007 and contends that examination of that document is essential. The missing power of attorney, however, does not raise issues of fact as to the execution of the propounded instrument dated June 25, 2007 and, for the same reason that the health care proxy dated June 21, 2007 does not raise issues of fact, neither does the power of attorney. There has been no showing that facts essential to oppose proponent's motion may exist but cannot now be stated.

The proponent's motion for summary judgment is granted to the extent of dismissing the objections of lack of due execution, lack of testamentary capacity, fraud and undue influence and is otherwise denied. The objectant's cross-motion denying probate to the propounded will is denied as there is an issue of fact as to whether decedent executed two original wills. This matter will proceed to trial on the issue of revocation on December 13, 2010 through December 16, 2010. The attorneys are directed to appear for a pre-trial conference on April 28, 2010, at 9:30 a.m. Settle order on five days’ notice with five additional days, if service is made by mail.
If you wish to question the testamentary capacity of the testator, seek the assistance of a Nassau Will Contest Attorney and Nassau Estate Litigation Attorney at Stephen Bilks and Associates.

March 4, 2014

Court Discusses Case Involving In Terrorem Clause

A New York Probate Lawyer said a petition for the probate of an instrument dated 11 March 2008 was filed by the nominated executor before the court along with the recovery of property alleged to be an asset of the estate pursuant to SCPA 2103.

A New York Will Lawyer said the parties are: petitioner, the nominated executor; and, respondents, the children of decedent and children of a predeceased son.

The respondents seek: a stay of the probate proceeding pending conclusion of the SCPA 2103 proceeding; a stay of the probate proceeding pending a construction of the in terrorem clause in the instrument offered for probate; an order granting petitioner the right to depose the nominated successor executor prior to filing objections; and, an order granting petitioner the right to depose the nominated successor executor and attorney-draftsman of a prior instrument purporting to be the last will and testament of decedent, again, prior to the filing of objections.

New York City Probate Lawyers said that according to petitioners, respondents are attempting to circumvent the in terrorem clause by obtaining a court order directing discovery; the in terrorem clause violates public policy; an issue as to whether a provision of a last will and testament violates public policy must be resolved by construction of the instrument to determine the testator's intent and the effect of the provisions on the persons to be influenced; however, the court has no authority to construe a will before its admission to probate, thus, that branch of the motion must be denied.

A Westchester County Probate Lawyers said in Matter of Ellis [2d Dept.1998], lv. denied [1999], though valid and enforceable, in terrorem clauses are not favored by the courts and will be strictly construed. As provided for by EPTL 3-3.5(b)(3)(D), the preliminary examination under SCPA 1404 of the attesting witnesses, the person who drafted the will, the nominated executors and the proponents in a probate proceeding will not result in the forfeiture of any benefit under the will. Neither the nominated successor executor nor the drafter of a prior instrument of the testator are among those within this so-called statutory "safe harbor" of persons who may be deposed without fear of triggering an in terrorem clause.

However, Suffolk County Probate Lawyers said in Matter of Singer [2009], reargument denied [2010], the Court of Appeals held that the "safe harbor" provisions of SCPA 1404 and EPTL 3-3.5 "are not exhaustive" opening the door to permit any number of depositions outside the confines of SCPA 1404 and EPTL 3-3.5, which would previously have been considered violative of an in terrorem clause.
In Matter of Singer, the decedent's will and lifetime trust substantially favored the decedent's daughter over the decedent's son. The will contained two in terrorem clauses, one aimed specifically at the son, and the other at any beneficiary. Under the second of the two clauses, it states that: "If any beneficiary shall, in any manner, directly or indirectly, contest, object to or oppose, or attempt to contest, object to or oppose, the 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." Without ever filing objections, the decedent's son noticed for deposition an attorney who had drafted several prior wills for the decedent but not the one offered for probate. Despite an admonition from the daughter/proponent's attorney that conducting such a deposition could result in the forfeiture of the son's bequest, he insisted the deposition go forward. After learning at the deposition that the decedent's immediate prior will also contained an in terrorem clause, he indicated that he would make no objection as to the will's admission to probate. After the will was admitted to probate, the daughter brought a construction proceeding for a determination of whether her brother's conduct violated the in terrorem clause, thus resulting in forfeiture. At that time, it was noted by the Surrogate that an attorney who prepared a prior will of the decedent is not identified in SCPA 1404 as a person whose deposition may be taken without fear of triggering the in terrorem clause. The Surrogate then held that by conducting the deposition, the decedent's son violated the in terrorem clause and forfeited his bequest.

Thereafter, in Matter of Singer [2d Dept.2008], a four-judge panel of the Appellate Division, Second Department, affirmed the Surrogate’s ruling.

After granting leave to appeal, Matter of Singer [2009], a unanimous Court of Appeals reversed the order of the Appellate Division and held that the son's conduct did not violate the in terrorem clause. According to the court: "Both the purpose of testator's in terrorem clause and the general public policy were satisfied here, since Alexander's investigation led him to the conclusion that there was no basis upon which to file objections or contest the will. A broader construction of these clauses as manifesting testator's intent to preclude the examination of this witness would essentially cut off all other persons from being asked for information, no matter the potential value or relevance of that information-even as to the medical or psychological condition of the testator at the time the will was executed. Interpreting these clauses narrowly will allow Surrogates to address on a case-by-case basis whether the conduct undertaken is in keeping with the testator's intent."

Apparently, the Court would permit in the first instance the deposition of any person with information of "potential value or relevance". The court would then leave it to the Surrogates to determine on a case-by-case basis whether the conduct of such a deposition results in the forfeiture of a legacy of the person conducting the deposition, upon a determination of whether it would be "in keeping with the testator's intent."

Accordingly, pursuant to the holdings of the Court of Appeals, the branches of the motion seeking the depositions of the nominated successor executor and the drafter of the decedent's prior will were granted.

However, since the court must also follow the holdings of the Appellate Division, Second Department, there can be no determination, prior to the will's admission to probate, whether the conducting the requested examinations violates the in terrorem clause in the decedent's will. Thus, while the motion to conduct the examinations was granted, the respondents must conduct them at their own peril.

On the request for the stay of the probate proceeding pending a determination in a related SCPA 2103 discovery proceeding wherein the turnover of at least $19.5 million from the respondent WSW Corporation, a closely-held family corporation, was sought by the preliminary executor, it must be noted that based on the moving papers, 40 percent of the decedent's residuary estate passes under her will to 18 grandchildren, 6 of whom are minors. The aforementioned in terrorem clause contains a provision whereby if any beneficiary, or any beneficiary's parent, directly or indirectly objects to the will's admission to probate, such beneficiary's legacy under the will is forfeited.

Here, if the in terrorem clause is valid, the decision by one of the decedent's children to object to the will could have severe repercussions for the objectant's own child or children, especially if the discovery proceeding is successful and the residuary estate is enhanced by nearly $20 million. The petitioner, the preliminary executor, failed to show any substantial prejudice to the estate by the court's granting of the respondents’ application.

However, granting a stay of the probate proceeding would effectively stay the examinations discussed. Thus, the application was granted to the extent that the movants' objections to the propounded instrument, if any, was ordered filed within 30 days of the court's determination of the SCPA 2103 discovery proceeding, or until further order.

For more information regarding legal issues similar to the one discussed, contact us at Stephen Bilkis & Associates. Our Nassau County Last Will and Testament Attorneys, Nassau County Probate Attorneys and Nassau County Estate Attorneys are experts on the matter and can very well help you if you are in the same situation. Call us or visit any of our offices.

February 26, 2014

The issue in this case is whether the United States estate tax should be allocated against legacies bequeathed in the Mexican will of the decedent.

A New York Probate Lawyer said that, the decedent was a citizen of the United States, domiciled in Mexico City, who possessed substantial assets in New York and in Mexico. On May 14, 1965 she executed a will in New York which disposed of all of her property 'wheresoever’s situate', directed that, regardless of her domicile at death, her will be offered for probate in New York County, that the administration of her estate be conducted subject to the jurisdiction of this court, and that her will and all dispositions therein be construed and regulated by the laws of the State of New York. The residuary estate administration was bequeathed in equal shares to two friends, one of whom resided in Brooklyn and the other in El Paso, Texas. The latter is the objectant here.

A New York Will Lawyer said that, on January 20, 1966--approximately eight months after the execution of her will in New York--the decedent executed a notarial will in Mexico City. An English translation of the Spanish text is incorporated in the probate decree of this court. The will contains several general legacies expressed in Mexican currency and 'for the remainder of her estate (the testatrix) institutes as her sole heirs in equal one-third shares' three individuals, all residents of Mexico City. This instrument made no mention of the New York will and no reference at all to estate taxes. It declares that 'the testamentary provisions contained in this instrument shall apply only to the property or money which the testatrix has in the Mexican Republic', and it appoints Mexican executors. A second notarial will was executed in Mexico on April 25, 1966. It is actually a codicil to the January will, revoking one general legacy and also the institution of one of the three as an heir, leaving the other two persons 'as the sole heiresses in equal parts.' This instrument also is silent with respect to estate taxes and their impact.

A Westchester County Probate Lawyer said that, the decedent died in Mexico on April 22, 1967. Her New York will and the two notarial instruments were offered for probate in this court. Preliminary letters testamentary were issued to the executor named in the New York will on June 2, 1967. By decree dated June 5, 1968 this court found that the will dated May 14, 1965 had been duly executed, that the instruments in the Spanish language dated January 20, 1966 and April 25, 1966 had been duly established as testamentary instruments in accordance with the laws of Mexico, and that the English translations offered for probate were true translations of the Spanish original. A New York Probate Lawyer said that, it decreed that the three paper writings be admitted to probate 'as together constituting the last will and testament of the said Bessie Owen, deceased. Letters testamentary were directed to issue to Bankers Trust Company, the executor named in the New York will, 'provided that such letters testamentary, and the authority, responsibility and accountability of Bankers Trust Company thereunder, shall not extend to property, money or matters administered in Mexico but shall otherwise be unlimited.' Such letters were issued on June 7, 1968.

A Suffolk County Probate Lawyer said that, the executor paid to the Internal Revenue Service a Federal estate tax of $311,689.75. It was paid in full from the New York residuary estate. The objectant asserts that the Mexican property constituted approximately 46% of the taxable estate. She contends that the executor was obliged to allocate a pro rata share of the Federal estate tax against the property disposed of in the Mexican will, and that the failure to make the allocation and to collect the pro rata share of the tax was a breach of fiduciary obligation for which the executor is liable to the objectant. She argues that New York law, as well as Mexican law, requires that the tax be equitably allocated.

The issue in this case is whether the United States estate tax should be allocated against legacies bequeathed in the Mexican will of the decedent.

The court in deciding the case said that, there is difference of opinion over the characterization of the Mexican instruments, whether they are properly referred to as codicils to the New York will, or as a separate will disposing of a separate and distinct fund.
The affidavits and the argument of counsel indicate that there were discussions during the administration of the estate in respect of the possibility and the propriety of allocating estate taxes against the Mexican property. Both the executor and the objectant consulted Mexican counsel and, not unexpectedly, they received divergent opinions. The executor's counsel made some attempt to work out an amicable agreement with the Mexican beneficiaries, but that effort was not successful.

Much of the argument is based upon section 2--1.8 of the Estates, Powers and Trusts Law (formerly Decedent Estate Law § 124). This statute is not generally applicable to non-domiciliaries. However, it is argued that this decedent made the disposition of her property subject to the laws of the State of New York and has directed that her New York will be construed in accordance with New York law; hence that her intent is to be read against the background of this statute.

When the decedent drew her will in May, 1965, it unquestionably embraced and disposed of all of her property, wherever located. She said so in explicit terms. She must have been fully aware of her property in Mexico. At all times pertinent here her domicile was in Mexico. It is true that in directing probate and administration in New York County, she gave as her reason 'the fact that my securities are managed and physically situated in said County of New York and I maintain monies on deposit in a bank or banks in the City of New York.' That text, standing alone, might lead one to infer that the decedent was thinking in terms only of her New York assets and was disposing only of them. Such an inference, however, cannot fairly be drawn when other portions of the will are examined. In any event, the declaration of intent in the fourth paragraph of her will is so clear as to leave no room for argument. She directed that 'any and All estate taxes' which her executor was required to pay, 'whether based on the value of property passing under this will Or otherwise', be paid out of her residuary estate 'without apportionment.' The disposition of her residuary estate immediately followed. Her executor is required by statute to pay the entire estate tax to the Government. Distribution of the impact of the tax among beneficiaries is a matter of State law. This decedent turned her attention to this tax burden and clearly said how it was to be borne.

We may try to guess whether at the time of making the New York will, the decedent had actually planned to make a Mexican will upon return home, or whether the Mexican will was an afterthought. We may speculate whether she remembered what she had said in her New York will about estate taxes and stood firm on that directive, or whether she had forgotten about estate taxes or may not have been advised that a United States tax would be imposed upon her Mexican estate. But all this would be pure guesswork, and the only safe and sure guide to what was in her mind is the written expression of intent in plain and simple words.

We are not unmindful of the inequitality of treatment of the two classes of what we call residuary legatees and what in the translation of the notarial will are called the 'sole heirs'. Inequality naturally follows when the impact of taxes is lifted from one and imposed upon another who takes the burden without the benefit, but everyone takes through decedent's bounty, and she may give or withhold or give on condition, as she pleases. When the impact of taxes is explicitly directed by her, we may not disregard her command in order to serve what we think is a more fair division of her property.

It is argued that the New York residuary clause originally covered the Mexican property, that this body of property was removed from the compass of the New York will and fitted within the terms of a different dispositive instrument, with the result that neither the residuary clause nor the tax clause of the New York will continued to govern the Mexican property. Every codicil--or what is its equivalent, a later limited disposition of property--does take something from the residue because of the very nature of a residue. However, in this case a later disposition does not take anything from the tax clause because of the wide scope of the wording of that provision.
The Estates, Powers and Trusts Law is cited as authority which requires each instrument to contain its own tax apportionment directive. That statute says: 'Any direction as to apportionment or non-apportionment of the tax, whether contained in a will or a non-testamentary instrument, relates only to the property passing thereunder, unless such will or instrument provides otherwise.' Here the will does explicitly provide otherwise. Much is made of the failure of the Mexican will to deal with estate taxes. It is not necessary that the Mexican will confirm the New York provision or even advert to it. One instrument could hardly mandate a burden on a fund disposed of in a different instrument, and hence the Mexican will could do nothing with respect to taxes paid in New York except to assume its own burden or to keep silence, letting it fall where it may. The dispositions outside the New York will--and this includes those in the Mexican will--were relieved of the tax burden by the New York will. Had the Mexican will assumed its own share, we would, of course, have read both wills together as revealing an over-all purpose. Its silence on that subject does not justify this court in reading the Mexican will against the background of policy expressed in a New York statute, especially where the New York will has spoken in clear terms on that subject.

It is also argued that, regardless of the New York law on that question, the law of Mexico would require the Mexican executors to pay to the New York executors their pro rata share of the tax. The question was never submitted to a Mexican court for decision. Contradictory opinions of two Mexican attorneys have been submitted. These letters represent nothing but the mere opinion of the writer that a share of the tax was or was not collectible.

Accordingly, the court held that the objections 1, 2 and 3 are, therefore overruled. Objection 4 is directed to the attorneys' fees. All issues were submitted on affidavits and memoranda, a hearing having been waived. In view of the size of the estate, the time spent, the complications and the unusual features, the court finds that the sum of $30,000 is reasonable compensation for all services rendered, including services in the present accounting proceeding. Objection 4 is overruled.

The executor has a personal claim for custodial fees up to the date of the decedent's death. A more complete affidavit in support of that claim must be filed. The court will determine that claim upon settlement of the decree. There being no objection, the assets reported as worthless in Schedule B may be abandoned.

If you have an opposition in the probate of a will, seek the help of a New York Will Contest Attorney and New York Probate Attorney at Stephen Bilkis and Associates.

February 25, 2014

Court Decides Case Regarding Rhode Island's Non-claim Statute

A New York Probate Lawyer said that, plaintiff was a patient of the decedent doctor, a general dentist. He died on September 12, 2005. Although he lived in New York at the time of his death, a probate estate was commenced in Rhode Island where he possessed property and where, over a decade earlier, he had executed his will. On December 8, 2005, the decedent’s brother (who happens to be an attorney), was appointed as Executor of the Estate of the decedent ("the Executor") In late December 2005, he sent plaintiff care of her attorney, a "Notice of Commencement of Probate," which set forth information regarding the decedent’s Rhode Island probate estate.

A New York Will Lawyer said that, plaintiff commenced this dental-malpractice action against the Executor in June 2006. In her Verified Complaint, she alleges that the decedent committed malpractice while rendering dental treatment between September 11, 2004, and February 15, 2005. The Executor's Verified Answer (dated August 24, 2006), includes the affirmative defenses of failure to "timely file a claim against decedent's estate" pursuant to Rhode Island General Laws §§ 33-11-4, 5, 9 and "insufficient service of process."

A Nassau County Probate Lawyer said that, pursuant to CPLR 3211, defendant Executor of the Estate of the decedent moves to dismiss this dental malpractice action commenced by plaintiff, arguing that plaintiff failed to comply with Rhode Island's non-claim statute and failed to properly serve him. Plaintiff opposes the motion and, as a precautionary matter, cross-moves for an extension of time to properly serve the Summons and Verified Complaint.

The issue in this case is whether the claim should be dismissed on the ground that plaintiff failed to comply with Rhode Island's non-claim statute and failed to properly serve the executor of the estate.

A Staten Island Probate Lawyer said on October 2006, the Executor made this motion to dismiss. He urges, among other things, that New York courts must apply Rhode Island's "statute of non-claim," which provides: "Claims against a Rhode Island estate shall be filed within six (6) months from the first publication of notice of the appointment of either an executor or administrator. Claims not filed within six (6) months from the publication shall be barred; provided, that a creditor who, by reason of accident, mistake or any other cause, has failed to file his or her claim, may, at any time, before the distribution of the estate, petition the probate court for leave to file his or her claim, and the probate court, after notice to the executor or administrator of the estate and a hearing on the petition, may in its discretion, grant leave to file the claim upon the terms, if any, as the court shall prescribe, which claim, if allowed, shall be paid out of the assets remaining in the hands of the executor or administrator at the time of the receipt by him or her of notice of the pendency of a petition."

Shortly after being served with this motion, plaintiff petitioned the Probate Court of the City of Providence to allow for the late filing of a claim. In December 2006, the Probate Court found that insurance coverage was sufficient to satisfy any judgment and ordered that plaintiff "could file her claim by December 22, 2006, in accordance with Section 33-11-5 of the Rhode Island General Laws authorizing the Court to allow the late filing of a claim whenever there is reason by accident, mistake, or other cause; however, no assets of the estate other than the aforesaid insurance shall be available to satisfy any judgment which may be rendered in her favor." The Order further set forth that the "Executor may disallow the claim as may be filed by plaintiff on or before January 13, 2007.

Subsequently, plaintiff filed a claim against the decedent’s estate in Probate Court in Rhode Island. On December 26, 2006, the Executor disallowed the claim, and after that point, plaintiff did not take any further action to pursue her dental-malpractice case in Rhode Island's courts. The Executor now argues that plaintiff's action must be dismissed because plaintiff cannot "ignore the Rhode Island Probate Court's Order and pursue her claim in this Court, rather than proceed in conformity with those remedies made available to her pursuant to the Probate Court's Order and Rhode Island's non-claim statute." The Executor argues that Rhode Island law required plaintiff to either timely sue in Rhode Island Superior Court, or to proceed with a proof-of-claim hearing before the Probate Court.

Plaintiff counters that, pursuant to Rhode Island law, once the Executor disallowed her claim her only recourse was to proceed with her action before the Probate Court, City of Providence. "Such a requirement," she argues, "is not only illogical, unfair and unjust, but impossible to effectuate" because "the Probate Court lacks subpoena power and cannot conduct a jury trial."
The court held that although plaintiff is wrong, her action will nonetheless survive. It is well-settled that a plaintiff suing the personal representative of an out-of-state estate must comply with the jurisdiction's statutory requirements for commencement of an action regardless of the strong New York contacts associated with the case.

The objective of Rhode Island's non-claim statute is to "produce a speedy settlement of estates, and the repose of titles derived under persons who are dead." Accordingly, Rhode Island's non-claim provision requires that any claim against an estate administration be filed with the Probate Court within six months of publication of the identity of the estate's personal representative. A claim against a Rhode Island estate can only be filed later if the estate has not been distributed and the claimant receives the Probate Court's permission to file a late claim.

After a claim is properly filed, the executor of the estate can timely disallow it in whole or in part. If there has been no disallowance and the estate is solvent then the executor "shall pay" the claim. As to disallowed claims against a solvent estate, Rhode Island General Laws § 33-11-48 authorizes: "suit on claims disallowed may be brought within thirty (30) days after notice is given to the claimant that the claim is disallowed."

Although the Executor disallowed the claim, plaintiff’s suit was brought well within 30 days of the disallowance. In fact, her suit—which the Executor undoubtedly knew about all along— was commenced in New York even before the claim was disallowed in Rhode Island. Because the Executor was well aware of the pendency of the action, there was no need for plaintiff to commence yet another action after the disallowance.

The Executor, moreover, has not demonstrated that Rhode Island General Laws § 33-11-48 mandates that a claimant's post-disallowance suit be commenced exclusively in a Rhode Island court. Though Rhode Island cases construing the provision state that after disallowance a suit can be commenced in Rhode Island's Superior Court, there is absolutely no indication either in the cases or in the statute that suits in other courts are prohibited. Here, by contrast, neither plaintiff nor her dispute have any connection whatsoever to Rhode Island and the Executor has not established that her "suit on [a claim disallowed" cannot be brought in New York in accordance with General Laws of Rhode Island § 33-11-48.

There has been full compliance with the letter and spirit of Rhode Island's non-claim law. Plaintiff properly filed a claim against the decedent’s probate estate. The Executor had notice of the claim, which will not deplete the value of the estate because pursuant to the Rhode Island Probate Court's Order—to be given full faith and credit in New York—recovery will be limited to the decedent’ liability insurance proceeds. Finally, immediately after the Executor's disallowance he unquestionably knew of the pendency of this dental-malpractice suit to resolve the merits of plaintiff’s claim against the estate. Under these circumstances, it would be wholly inequitable to dismiss her suit. Thus, the Executor's motion to dismiss for failure to comply with Rhode Island's non-claim statute is denied.

The Executor also moves for dismissal of the action based on improper service of process. He swears under oath that on "July 27, 2006, he found a copy of the Summons and Verified Complaint in this matter in an envelope taped to the door of his residence located at 334 Smith Street, and that he did not receive a copy of the Summons and Verified Complaint by first class mail at his residence, which is also his actual place of business." For that reason (among others), he correctly argues, that there has not been compliance with CPLR 308(4)'s "nail and mail" provision.

CPLR 306-b authorizes this Court to grant an extension of time to serve the summons and complaint in the interest of justice. The "interest of justice standard" contemplates accommodation of late service due to a mistake, confusion or oversight, so long as there is no prejudice to the defendant. It requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the causes of action, the length of the delay in service, the promptness of a plaintiffs request for the extension of time, and prejudice to defendant."
Plaintiff diligently attempted (if not effected) service within the time frame allotted by the CPLR. Until this motion was made, she had no concrete reason to believe that service may have been improper and that her process server's affidavit may have been faulty. Additionally, without an extension of time to serve, some of her allegations may be barred by the statute of limitations (those alleging malpractice in connection with treatment dates more than two and a half years ago—unless there was continuous treatment).

The Executor, moreover, had actual knowledge of the lawsuit within the statute of limitations and would not be prejudiced by an extension of time to serve (it is unlikely that the Executor has any relevant substantive information anyway—there is no real fear that between the time service was supposed to have been effected and now his memory may have faded.
Thus, in the interest of justice, plaintiff's cross-motion for an extension of time to serve the Executor is granted and plaintiff must properly serve the Executor within 30 days of the date of this Decision and Order.
Accordingly, the court held the that the defendant’s motion to dismiss is denied; and it is further ordered that plaintiff's cross-motion is granted to the limited extent that pursuant to CPLR 306-b she is granted 30 days from the date of this Decision and Order to properly serve the Executor; and it is further ordered that the parties are to appear for a preliminary conference on May 1, 2007 at 10:30 a.m.

If you have a claim against the estate, seek the assistance of a New York Probate Attorney and New York Estate Litigation Attorney to timely file your claim. Call us at Stephen Bilkis and Associates.

February 24, 2014

Court Decides Validity of German Will

In this proceeding the petitioner requests probate of a will executed in 1955 while the decedent was domiciled in New York County. A New York Probate Lawyer said that the petitioner is an appointed executor of a will which bequeaths the residuary estate to a New York charity. Decedent journeyed to Bavaria, West Germany in 1965 and executed a holographic will while still there in 1967; that will provides that it revokes all prior wills. She died, still in Germany, having neither home nor presence in New York from after departure in 1965 until her death in 1968.

A New York Will Lawyer said that Respondent cross-petitioner is the sole legatee under the later will, which was established in court proceedings in West Germany in 1972. Respondent cross-petitioner moved for summary judgment dismissing the petition and denying probate to the prior 1955 will. Respondent further petitions for ancillary letters c.t.a. on the basis of the 1967 will.

A Staten Island Probate Lawyer said that the court finds that judicial decrees, not administrative certificates, were rendered by courts of record in Germany in the establishment of the 1967 holographic will of the decedent. Furthermore, the 'Certificate of Inheritance' issued by the District Court in Germany constitutes a final decree and not merely an interlocutory determination. In addition a finding of German domicile was essential to the establishment of the 1967 will in Germany. On the basis of the recognized rules of comity, this court gives full recognition to the establishment of the 1967 will of the decedent in the German courts.

Queens Probate Lawyers said that experts in German law testified for both parties and clarified the procedure for probate of wills in Germany. Both experts agreed that the establishment of a will is a judicial court procedure and their testimony and other evidence established characteristics of such procedure. A District Court is the only element of the German State court system which deals with probate. This procedure is characterized as 'voluntary' rather than 'adversary', even though the will can be contested during this proceeding. The preliminary determination, which is a judicial decision, can be appealed to the Superior Court.

The court finds, upon undisputed testimony, that the District Court and the Superior Court are judicial courts of record which issue judicial decrees. It is true that under German law the decrees issued cannot be called 'final judgments' because a final judgment can only result from an 'adversary', not a 'voluntary', proceeding. It is this court's understanding that all the proceedings to establish this will in Germany were 'voluntary' even though contested, and that the judicial determinations are legally effective, as is the certificate of inheritance. Indeed, the judicial decree of the Superior Court is stamped 'final', and is no longer subject to appeal.
With respect to the second issue, the court finds, upon consideration of the expert testimony and other evidence that the certificate of inheritance awarded to respondent cross-petitioner is not an interlocutory determination. Experts for both sides are in agreement that the decree rendered by the Superior Court is final in the sense that it cannot be appealed.

Petitioner has argued that a certificate of inheritance cannot be termed 'final' in the sense that it is Res judicata in New York, because 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 undisputed testimony before this court revealed that the certificate of inheritance is given full force and effect in Germany. This court finds that the capacity of the District Court to revoke a certificate of inheritance in no way mitigates the legal effectiveness of the certificate, certainly not unless and until so revoked or recalled.

The court has also considered the effect of further litigation 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. An 'adversary' action may be brought in Superior Court, as a court of original jurisdiction, which is a plenary procedure concluding in the issuance of a decree or judgment which is characterized as 'final'.

In the case at bar, the petitioner, executor of the earlier will, after instituting this proceedings before this Surrogate's Court, made application to the Augsburg Superior Court to initiate such an 'adversary' action, but withdrew the action shortly thereafter, assertedly without prejudice, because costs of $39,000 were imposed as a condition. If it is still open to the petitioner to recommence, or commence De novo, such adversary action in the Superior Court, and in the unlikely event that the Superior Court should overrule itself or the Supreme Court of Bavaria should reverse the current 'final' ruling, then, and only then, perhaps we would be presented with newly discovered judicial 'evidence' superseding what is now 'final'.

It is, therefore, quite clear that the certificate of inheritance issued to respondent cross-petitioner is legally effective and enforceable at the present time, and is no longer appealable. Furthermore, the decree of the Superior Court upholding that certificate upon appeal is a final decree and not an interlocutory decree.

The third issue upon which evidence and testimony was given at the hearing is whether a finding of German domicile was essential to the establishment of the 1967 will in Germany. The evidence submitted is conclusive that both the District Court and the Superior Court dealt thoroughly with questions of domicile and that the issue was indeed a necessary aspect of those proceedings.

The District Court took testimony and received evidence upon the question of domicile and determined that decedent was domiciled in Germany at the time of her death. Testimony of the experts on German law revealed that the concept of domicile in Germany is comparable to the concept of domicile in the United States. The Superior Court reviewed the issue of domicile as well, enlisting the aid of German experts in international law. Testimony clearly showed that it was requisite for this certificate of inheritance, as a statutory requirement, to establish domicile in West Germany. It is uncontested that a finding of such German domicile was essential to the establishment, that is to say, probate, of the later will in Germany.

In the case at bar, the evidence clearly established that the decrees of the District and Superior Courts of West Germany have been rendered by courts duly constituted under the laws of West Germany, with jurisdiction 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 Aichach, Germany, and the appellate decree of the Superior Court in Augsburg, Germany, establishing the 1967 will of the decedent.

February 14, 2014

Court Rules on Accounting Proceeding

A New York Probate Lawyer said this is an accounting proceeding in which the court is asked to determine whether assets of the estate located in New York should be distributed directly to legatees or whether they should be transmitted to the California administrator for distribution there. A New York Estate Lawyer said that, the deceased until three years prior to his death had been a New York resident. He had prepared a will here naming the Chase Manhattan Bank executor. He then moved to California, purchased real estate, established his residence and executed three codicils to the will. The codicils disposed of his California realty, enlarged the legacy of a niece, a California resident, dropped one of the named executors but retained the Chase Manhattan Bank. Most of the estate is here in New York.

A New York Estate Will Lawyer said that, after decedent's death, the executor petitioned for the probate of the will and codicils in this jurisdiction. A contest ensued which was subsequently settled and the objections were withdrawn. Letters testamentary were then issued to the Chase Manhattan Bank. Shortly thereafter, the decedent's niece, a legatee, applied to the Los Angeles Probate Court for letters of administration. That court granted letters to the Public Administrator of Los Angeles.

A Nassau Probate Lawyer said that, although the letters issued to the Chase Manhattan Bank were in form letters of original probate, it would appear that in reality the deceased being a resident of California the domiciliary administration is there and the administration here is therefore in its nature ancillary. The Public Administrator of Los Angeles as administrator c.t.a. has objected to the proposal of the executor to distribute the assets in its possession to the legatees directly rather than to remit them to the domiciliary representative in California for distribution by him.

A Staten Island Probate Lawyer said the issue in this case is whether assets of the estate located in New York should be distributed directly to legatees or whether they should be transmitted to the California administrator for distribution there.

The court in deciding the case said that, Section 164 of the Surrogate's Court Act requires an ancillary representative, unless otherwise directed, to transmit property in his hands to the state where the principal letters were granted. Section 165 provides that a surrogate may by a decree direct distribution of assets to the 'legatees or next of kin or otherwise dispose of the same, as justice requires'. Therefore, the question is, should the court in its discretion order distribution to be made here.

There are a number of factors which require this court to direct that there be a distribution by the executor here rather than a transmission of the assets to the domiciliary jurisdiction.

First, the expressed or implied intention of the testator as indicated in the will. Here, the sole executor is the Chase Manhattan Bank. Since the bank cannot act in California, by implication testator might be said to have contemplated a New York administration. Second, the residences of the legatees. There are nineteen legatees who are New York residents or charitable organizations located in New York. In addition, two non-resident legatees have requested local distribution. The executor is in a position to make almost immediate distribution. A considerable delay would be caused by remitting the assets to California. Delay and circuity should be avoided. Third, almost all of the legatees have appeared in this accounting proceeding. Fourth, a large saving of fees and commissions would result by direct distribution. The objection of the administrator c. t. a. is, therefore, overruled.

Another objection to the account has arisen over the legacy to, a predeceased cousin of the testator. The attorney for the executor has taken the position that this legacy has lapsed. She was survived by a son, who claims the legacy. Since the deceased was admittedly a resident of California at the time his death, the law of California must be applied to determine whether or not the legacy lapsed. Section 92 of the Probate Code of California, which is broader than section 29 of our Decedent Estate Law insofar as it applies to any kindred of the testators, provides that where: 'a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails except that when any estate is devised or bequeathed to any kindred of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, or is dead at the time the will is executed, but leaves lineal descendants surviving the testator, such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator'.

As no question has been raised as to the status of the son as the son of cousin of the testator, the named legatee, the objection is sustained and he is entitled to the legacy bequeathed to his mother. Submit decree on notice settling the account accordingly.

If you want to contest the probate of a will, seek the assistance of a New York Will Contest Attorney and New York Probate Attorney at Stephen Bilkis and Associates. Call us now.

December 24, 2013

Petitioner Seeks to Amend Charitable Trust

A New York Probate Lawyer said that, the testatrix died on April 7, 1970. Her will, dated January 30, 1967, was admitted to probate on June 9, 1970 and letters testamentary issued on June 24, 1970. In Paragraph SIXTH thereof she created a perpetual charitable trust to be known as 'THE MEMORIAL FUND', hereinafter referred to as the Trust. The beneficiary was the husband of the testatrix and died on February 6, 1961.

A New York Will Lawyer said that, the executors apply for a decree directing that testatrix' will be deemed to be amended, or, in the alternative, construed to contain certain provisions which will comply with the changes made by Title I, Section 101(a) of the Tax Reform Act of 1969 which added Section 508(e) to the Internal Revenue Code of 1954. It became effective on December 31, 1969. Petitioners allege that the Trust will initially receive funds from three sources, i.e.: (a) an undetermined sum from this estate; (b) approximately $550,000 from the trustees of an Inter vivos trust created by this decedent by agreement dated October 9, 1967; and (c) $200,000 from the trustees of the decedent’s estate by virtue of the power of appointment in his will which was executed by this decedent in favor of the Trust.

The issue in this case is whether the petition to amend the testatrix should be granted.
Although testatrix created a trust, it comes within the purview of Section 501(c)(3) of the Internal Revenue Code and was intended to qualify as an organization described therein which would be exempt from federal income taxes. Contributions to it would be deductible by the donors as provided in Section 170 of said Code. Bequests, legacies, devises, transfers or gifts to it would be deductible for federal estate or gift tax purposes under the provisions of Sections 2055, 2106 and 2522 of said Code.

Section 508(e) of the Code reads as follows: 'Governing Instruments.-- (1) General rule.--A private foundation shall not be exempt from taxation under section 501(a) unless its governing instrument includes provisions the effects of which are-- (A) to require its income for each taxable year to be distributed at such time and in such manner as not to subject the foundation to tax under section 4942, and (B) to prohibit the foundation from engaging in any act of self-dealing (as defined in section 4941(d)), from retaining any excess business holdings (as defined in section 4943(c)), from making any investments in such manner as to subject the foundation to tax under section 4944, and from making any taxable expenditures (as defined in section 4945(d)).

Since this decedent did not die until April 7, 1970 and her will creating the Trust was not admitted to probate until June 9, 1970, it appears that the saving provisions titled 'Special rules for existing private foundations' do not apply to it. Manhattan Probate Lawyers said the petitioners allege that since the Trust is a 'private foundation' within the meaning of Section 508(e) of the Code, it will have no status as a tax exempt organization unless or until its governing instrument, i.e. the will of the testatrix, includes the provisions referred to in said section. Petitioners have been informed that the income to be received from the Inter vivos trust will be subject to federal, state and city income taxes. Similarly as the executors of this estate and the trustees under the will of the decedent are presently accumulating income, it will be subject to income taxes unless the Trust is qualified.
Ruling 70--270 (1970 Internal Revenue Service Bulletin No. 22 at 8) states: a private foundation shall not be exempt under section 501(a) unless its governing instrument includes provisions the effects of which are: (A) to require its income for each taxable year to be distributed at such time and in such manner as not to subject the foundation to tax under section 4942, and (B) to prohibit the foundation from engaging in any act of self-dealing (as defined in section 4941(d), from retaining any excess business holdings (as defined in section 4943(c), from making any investments in such manner as to subject the foundation to tax under section 4944, and from making any taxable expenditures (as defined in section 4945(d).'

Petitioners seek to have the trust deemed amended so as to include certain provisions in conformity with Internal Revenue Service Treasury decision 7040 (1970 Internal Revenue Bulletin No. 23 at 20) which states: '(a) In general. Under section 508(e) of the Internal Revenue Code of 1954 a private foundation (as defined in section 509 of the Code) generally, shall not be exempt under section 501(a) of the Code unless its governing instrument contains certain provisions. New York City Probate Lawyers said that these provisions, generally, must require or prohibit, as the case may be, the foundation to act or refrain from acting so that it shall not be liable to the taxes imposed by sections 4941, 4942, 4943, 4944 and 4945 of the Code. Private foundations organized before January 1, 1970, are not subject to the requirements of such section 508(e) with respect to taxable years beginning before January 1, 1972. (b) Manner of satisfying requirements of section 508(e).

Specifically the petitioners seek the following relief by way of amendment or construction, any other provisions of the will notwithstanding: (a) That the income of the trust for each taxable year shall be distributed at such time and in such manner as not to become subject to the tax on undistributed income imposed by Section 4942 of the Internal Revenue Code of 1954, or corresponding provisions of any subsequent federal tax laws. (Section 4942 imposes a tax of 15% On the undistributed income of a private foundation which has not been distributed by the end of the tax year following the order of receipt. If the distribution is not made within a defined correction period, an additional tax of 100% Of the undistributed amount is imposed);

(b) That the trustees shall not engage in any act of self-dealing as defined in Section 4941(d) of the 1954 Code or corresponding provisions of any subsequent federal tax laws. (Section 4941(d) treats with the subject of 'self-dealing', defined as direct or indirect dealing between a private foundation and its managers and directors in such matters as sale, exchange, etc., of property, lending of money or extension of credit, furnishing of goods and services, and payment of compensation. Substantial taxes are imposed for each of self-dealing; (c) That the trustees shall not retain any excess business holdings as defined in Section 4943(c) of the 1954 Code or corresponding provisions of any subsequent [65 Misc.2d 744] federal tax laws. (Section 4943 deals with 'excess business holdings' and imposes taxes on a foundation which holds a controlling interest in a business enterprise); (d) That the trustees shall not make any investments in such manner as to incur tax liability under Section 4944 of the 1954 Code, or corresponding provisions of any subsequent federal tax laws. (Section 4944 imposes a tax on a foundation where its investments are made in such manner as to jeopardize the carrying out of any of its exempt purposes); (e) That the trustees shall not make any taxable expenditures as defined in Section 4945(d) of the 1954 Code, or corresponding provisions of any subsequent federal tax laws. The citation issued to the four charitable organizations named in Paragraph SIXTH of the will and to the Attorney General of the State of New York. One charity has appeared but has taken no active part. The Attorney General has appeared. He has filed an answer in which he alleges that it is his responsibility to represent charitable beneficiaries and his duty to enforce and protect their rights by appropriate proceedings in the court.
He avers that under the Tax Reform Act of 1969, it will be necessary for him to take action, both administrative and legal, to correct any violations by foundation or charitable trust administrators of the Internal Revenue Code, Sections 4941 to 4945 inclusive. He recites that this court has inherent and statutory general supervision of the administration of trusts and authority to authorize the relief sought herein; and that the relief is in accord with the general doctrine of trust law of the State of New York pertaining to such matters as self-dealing by a fiduciary, accumulation of income, diversification of investments, avoidance of conflict of interest, speculative investments, the prudent man rule, and the invalidity of a trust for political purposes. He asserts that it is essential for the protection of the ultimate charitable beneficiaries of this trust that a decree be entered directing that the will be deemed to be amended, or in the alternative, be construed to contain the aforesaid provisions required by the Internal Revenue Code. He supports the prayer of the petitioners.

It must be noted that some prohibited transactions under the Tax Act are transactions forbidden to trustees generally, such as self-dealing. Other transactions are prohibited to the trustees of this trust by virtue of the testator's declaration of intention, expressed thrice in this one paragraph of the will, that only charities exempt from Federal and State income tax shall be eligible beneficiaries under his will. There is the implicit mandate to his trustees to administer the trust in a manner in keeping with this frequently declared purpose. Nevertheless what is sought in this proceeding is a decree specifically limiting and directing the trustees to act as required by the Tax Act, because of the belief that the prohibitions and directions must be set forth in the charter of the Trust, which, of course, is the will as construed by this court, or as amplified or restricted under the Cy pres power.

In order to give effect to the charitable intentions of the testatrix and to enable the trust to comply with the requirements of said Section 508(e), the court directs the trustees to administer the funds now or hereafter in their hands under Paragraph SIXTH of the will pursuant to the following conditions with the same force and effect as if there provisions were contained herein, and for all purposes said provisions shall be deemed to be contained in paragraph SIXTH of the will, anything to the contrary appearing elsewhere in said will notwithstanding. The changes thus effected are as follows:

(a) The income from the trust for each taxable year shall be distributed at such time and in such manner as not to become subject to the tax on undistributed income imposed by Section 4942 of the Internal Revenue Code of 1954 or corresponding provision of any subsequent federal law. There is no difficulty in complying with this requirement. The will explicitly authorizes the trustees 'to distribute any part of, or all of, the principal, free of trust, to any one or more of the organizations then entitled to receive the income therefrom', limiting the trustees only to the proportionate share of each charity, and it also clearly states the testatrix's intent to maintain exemption from State and Federal income taxes in the distribution of income and principal.
(b) The trustees shall not engage in any act of self dealing as defined in Section 4941(d) of said Internal Revenue Code or in corresponding provision of any subsequent federal tax law; (c) The trustees shall not retain any excess business holdings as defined in Section 4943(c) of said Code or corresponding provision of any subsequent federal tax law; (d) The trustees shall not make any investments in such manner as to incur tax liability under Section 4944 of said Code or corresponding provision of any subsequent federal tax law; and (e) The trustees shall not make any taxable expenditures as defined in Section 4945(d) of said Code or corresponding provision of any subsequent federal tax law.

Accordingly, the court held that the compensation of the attorneys for the petitioners will be fixed upon the submission of an affidavit of services together with the decree hereon upon notice.

A will must be subject to probate, in order to assist you with the probate proceedings, seek the assistance of a New York Estate Attorney and New York Probate Attorney at Stephen Bilkis and Associates.

October 30, 2013

Court Hears Claim of Undue Influence in Execution of Will

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 Bronx Probate Lawyer 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.

A Westchester County Probate Lawyer 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..

New York City Probate Lawyers said 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 11, 2013

Court Discusses Validity of a Will

A New York Probate Lawyer said that, petitioner-appellee, instituted a proceeding in the county judge's court, seeking construction of the will of the deceased as to her rights under that instrument. She asserted her status as surviving pretermitted spouse of the deceased and alleged that she was entitled to distribution of the estate as if the deceased had died intestate, or distribution as his sole surviving heir-at-law. A Bronx Probate Lawyer said that, the probate court, after hearing, entered the order appealed from, adjudging that the petitioner, as the surviving pretermitted spouse, was the sole distributee of the estate and that she should receive that portion of it which she would have received had her husband died intestate.
A Bronx Estate Administration Lawyer said that, the Will in question, dated February 9, 1955, was admitted to probate November 18, 1959, and petitioner was appointed as Administratrix Cum Testamento Annexo on January 29, 1960. At the hearing, she was the only witness to appear before the court. The estate was valued at approximately $114,000.00. There were no lineal descendants, the only blood relative of deceased being a sister.

A New York Will Lawyer said that, the testator, in the will, directed that he be interred near the remains 'of my beloved wife, with terms of endearment being employed elsewhere in the will in reference to her. One of the bequests in the will gave: '(d) the sum of Thirty Thousand ($30,000.00) Dollars to the petitioner, now residing at 2610 Grand Avenue, Bronx, New York.' The person bequeathed was one and the same person as the petitioner. Other bequests in the will ranged from $2,000.00 to $25,000.00 left to various friends of testator, to his sister, and to nine different charitable institutions.

A New York City Probate Attorney said that, in 1955, when the will was executed, appellee was the wife of a physician and friend of testator, and was the mother of a child born to that marriage. Prior to the death of testator's wife, referred to in his will, the testator and the physician were friends, and afterwards the friendship between testator and the physician continued. Shortly after becoming a widower, testator moved to Florida. Later, testator’s wife also came to Florida, was divorced from Levites on March 1, 1957, and was married to testator toward the latter part of that month, the two of them thereafter residing together as man and wife until testator's death on November 23, 1958. There was no marriage contract between them and no change was made in the last will and testament of the deceased.

Manhattan Probate Lawyers said the issue in this case is whether the erred in deciding that petitioner was the sole distributee of the estate and that she should receive that portion of it which she would have received had her husband died intestate.

The probate judge in his order stated the question for decision by him to be simply whether or not the provision made for petitioner in the will constituted provision for her as the surviving spouse of the decedent, within the purview of section 731.10, Florida Statutes, F.S.A.

Section 731.10 reads: '731.10 Marriage after execution of will. When a person marries after making a will, and the spouse survives the testator, such surviving spouse shall receive a share in the estate of the testator equal in value of that which such surviving spouse would have received if the testator had died intestate, unless provision has been made for such spouse by marriage contract, or unless such spouse is provided for in the will, or unless the will discloses an intention not to make such provision. The share of the estate which is assigned to such pretermitted spouse shall be raised in accordance with the order of appropriation of assets set forth in this law.'

Appellants urge that by the emphasized portion of the quoted statute, appellee had been provided for in the will, and thus was specifically excepted from the thrust of the statute, so that under the circumstances she could not claim an intestate's share. Appellee counters by referring to the right of a pretermitted spouse to receive an intestate share of her deceased's husband's estate unless 'such spouse' is provided for by the testamentary document. She contends that the bequest to her must have been made in contemplation of marriage in order to proscribe her claim to an intestate's share in the estate and states that in 1955 the testator had only recently become a widower, while appellee was a married woman with a husband and child. She points out that over two years passed between the time of the execution of will and her marriage to testator.

No Florida cases have been discovered bearing directly upon the problem now before this court. An examination of the law of other jurisdictions reveals that the authorities diverge as to the propriety of permitting a pretermitted spouse to claim an intestate's share under these circumstances. The diversity of opinion indicated by case decisions may be partially attributable to the variation in the language of the statute as to the rights of the pretermitted spouse and the circumstances considered appropriate for the granting to her of an intestate share in her deceased husband's estate. Under the statute of the State of Washington, for example, a subsequent marriage of a testator is deemed to totally revoke a prior executed will, unless certain exceptions to operation of the statute are found to be present. On the other hand, in Florida, by operation of section 731.10, Florida Statutes, F.S.A., a ruling in favor of a pretermitted spouse revokes or invalidates a will only as to the spouse, and all other provisions remain valid. A similarity exists in the enactments of the states of New York and California. Thus, in these jurisdictions, the statutes comport more closely with the policy of the law to hold, whenever legally possible, that a will is valid.

Since the statutes of the states of New York and California bear likeness to that of Florida, the cases from those jurisdictions may be looked to. A case which closely resembles the one at bar is one wherein a testator made a bequest to one who was then the wife of another. Four years later, two years after the death of the husband, she and testator were married. The court resolved that she was entitled to an intestate's share of the estate under the circumstances, indicating that the references to her in the instrument was not made to her in the prospective status as wife of the testator, but rather merely as a friend. A general discussion in some detail of the pertinent decisions may be found in Annotation.

In the cases urged by appellants, it appears either that there was a difference in the respective statutes construed or that there was evidence to demonstrate that where provision by will was made for a person who later married the testator; it was done in contemplation of marriage. No evidence was offered here to support the view that testator contemplated marriage to appellee at the time of the execution of his will; there was no marriage contract; nor did the will itself contain an expressed intention of the testator not to make a provision for the surviving spouse, petitioner herein. Thus, this court is unable to say of the surviving spouse that the statute precludes her right to distribution as the surviving pretermitted spouse, through any one of the phrases, 'unless provision has been made for such spouse by marriage contract,' 'unless such spouse is provided for in the will,' or 'unless the will discloses an intention not to make such provision.'

Accordingly, the court held that the order of the probate court is affirmed.
If you wish to contest the validity of a will, seek the help of a Bronx Will Contest Attorney and/or Bronx Estate Attorney at Stephen Bilkis and Associates. Call us for free legal advice.

September 29, 2013

Court Hears Case for Will Contest Between Brother and Sister

A son of the decedent, who is the objectant in a probate proceeding, petitions for the issuance of limited letters of administration to himself in order to obtain the decedent's medical records and to commence an SCPA (Surrogate’s Court Procedure Act) discovery proceeding against the decedent's daughter with regard to real property purportedly transferred by the decedent to her shortly after the decedent executed the instrument propounded in the probate proceeding. A New York Probate Lawyer said the daughter, who is the proponent of the instrument, filed objections only to that branch of the application seeking limited letters to commence the discovery proceeding. She argues that the son is going on a fishing expedition and any claim he might make concerning the realty transfer is barred by the statute of limitations.

The decedent died and was survived by the daughter, the petitioner and another son who post-deceased. A New York Will Lawyer said the executed propounded instrument gives the daughter a one-half interest in real property located in the Bronx, with the other half of that property divided equally between the two sons; however, a few weeks later, the decedent purportedly transferred the same property to the daughter and post-deceased son as joint tenants with rights of survivorship.

A Manhattan Probate Lawyer said limited letters of administration are issued pursuant to SCPA and in those instances where, as here, it is unlikely that the person who is the nominated or appointed fiduciary would pursue a claim either because it is against herself or against another party that the fiduciary would not be inclined to pursue.

The daughter's contention that any grant of letters to the petitioner would be futile as any alleged claim would be barred by the applicable statute of limitations is premature until such time as the petitioner has completed disclosure and served a pleading requesting specific relief against her. Nonetheless, the court, in granting limited letters to the petitioner, is not authorizing him to use estate assets to pursue the claim, so his pursuit of the claim will initially be at no expense to the estate. In the event that the petitioner is ultimately successful in recovering assets on behalf of the estate, he may then seek to be reimbursed from estate assets for his expenses in litigating the claim.

Accordingly, a New York City Probate Attorney said the daughter's objections to the issuance of such limited letters to the petitioner are dismissed and the petition is granted in its entirety. The dismissal of the objections is without prejudice to the daughter's right to interpose any defense that she deems appropriate in the event that relief is sought against her individually.

In another probate proceeding, the executor seeks an order authorizing the payment of an infant's $5,000 testamentary bequest directly to the infant's mother in full satisfaction of the terms of the bequest under the will.

The decedent died and her will was admitted to probate by decree. The will includes a bequest of $5,000 to the infant, the decedent's grand nephew, upon attaining the age of 25. The infant is approximately six years old. The infant resides in Greece with his mother. Article IV of the will, entitled “Executor Powers,” gives the executor the right to administer the estate using “informal,” “unsupervised” or “independent probate or equivalent legislation” designed to operate without unnecessary intervention by the probate court.

In support of his petition, the executor notes that SCPA allows the payment of a bequest that does not exceed $10,000 to the parent of an infant. He notes that no guardian has been appointed for the infant in the United States or Greece, and the will does not designate a trustee or create a trust. Finally, he notes that EPTL (Estates, Powers and Trusts Law) allows for the termination of uneconomical trusts in a manner that effectuates the intent of the testator.

Although the bequest to the infant when the infant reaches the age of 25 does not create a formal trust, and title to the funds vests in the beneficiary, the executor, as the donee of power during minority, is granted the authority to manage the infant's bequest during his minority. As the donee of a power during minority, the executor is a fiduciary for the infant, and he is subject to the provisions of EPTL and the Prudent Investor Act.

Several County Surrogate's Court cases address the authority of a donee of a power to manage an infant's property, including the power to transfer the property to another under similar circumstances.

In this case, the provisions of the will create a donee of a power during minority, and it appears to be in the best interests of the infant for the executor to exercise that power by paying the modest bequest to the infant's mother for the infant's benefit. Accordingly, the application is granted in its entirety.

When beneficiaries of a last will are minor, choosing the right person as their guardian is making sure that their best interest is still protected. If you want to explore your legal options in a will related proceeding, consult a Bronx County Will Contest Lawyer or a Bronx County Probate Attorney from Stephen Bilkis and Associates.

September 24, 2013

Court Discusses the Surrogate's Court Protection Act

A New York Probate Lawyer said the decedent woman died leaving a will dated April 5, 1999 (the 1999 will) and two prior wills dated June 5, 1998 (the 1998 will) and November 26, 1997, all of which were filed with the court. All three wills nominate the decedent's sister and the decedent's nephew as co-executors.

The 1999 will provide that the decedent woman's residuary estate shall be distributed 50% to her sister and 50% to her nephew and his wife. A New York Will Lawyer said that th 1998 will, however, provides that 50% of the residuary estate will be distributed to her sister, 25% to her sister’s son and his wife, and 25% to her nephew and his wife. All of the wills contain an in terrorem clause and dispense with the filing of a bond. An in terrorem clause is a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off or given only a dollar, instead of getting the full gift provided in the will.

Manhattan Probate Lawyers said the petition filed with the court, the decedent’s nephew offered the 1999 will for probate. The decedent’s sister, although named in the 1999 will as a co-executor has failed to join in the petition. Thereafter, by petition filed with the court, the sister applied for preliminary letters testamentary based upon her nomination as co-executor under the 1998 will. In her prayer for relief, the sister asked that preliminary letters issue solely to her alleging that the nephew has made no attempt to have a preliminary appointment made in the matter. By petition, the decedent’s nephew petitioned for preliminary letters testamentary based upon his nomination as co-executor under the 1999 will. The nephew requests that preliminary letters issue solely to him since the decedent’s sister may object to admission of the 1999 will to probate because her son would receive a portion of the residuary estate under the 1998 will.

A New York City Probate Attorney said a person named as executor has a moral obligation to offer a putative will for probate. That moral obligation, however, does not rise to a legal obligation. Further, a nominated fiduciary need not offer for probate a will which he believes to be invalid. In the instant case, Audrey Sandler has chosen not to join in the petition for probate of the 1999 will or to seek preliminary letters on the basis that she is named as a co-executor under the 1999 will, presumably because she will be challenging the validity of the 1999 will.

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

Although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator's will. A person not named as an executor has no standing to seek preliminary letters. Moreover, SCPA provides that where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters such as a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters is mandatory upon due qualification. If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.

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

SCPA affords an executor named in a later will a priority over an executor named in an earlier will. Where competing wills are offered, the court may, however, issue preliminary letters to the executor of the earlier will for good cause shown. Good cause shown has been found to exist where the circumstances surrounding the execution of the later will are so suspect that issuance of letters to the executor of the earlier will will better protect the parties.

Here, the decedent’s sister has requested that preliminary letters issue to her as a co-executor under the 1998 will, not as a co-executor under the 1999 will. Thus, the nephew as a co-executor named in the later will, has a prior right to letters pursuant to the provisions of SCPA. Under SCPA, preliminary letters must be issued to the nephew in the absence of good cause shown or serious misconduct which renders him unqualified.

The decedent’s sister argues that preliminary letters should issue solely to her because the nephew neglected to apply for preliminary letters in a timely fashion. Here, the decedent died and the 1999 will was offered for probate by petition. The nephew avers that the 1999 will would have been offered for probate sooner but for the uncertainty of whether the sister would be joining in the petition. Moreover, because the prior wills were filed with the court, service of process must issue to all persons adversely affected by the 1999 will. Thus, the nephew has the task of locating a number of persons who were beneficiaries under the prior wills. The nephew's counsel states, by affidavit, that substantial effort has been made to locate such persons. Here the record does not indicate that the delay in this proceeding was the result of any neglect on the nephew's part.

The sister’s allegation that the nephew is not qualified to act as a fiduciary fails to go beyond conclusory allegations which are clearly insufficient to provide a basis for the denial of preliminary letters testamentary. She has failed to demonstrate good cause or serious wrongdoing which would permit the court to nullify the testator's choice of fiduciary. Accordingly, the sister's application for preliminary letters testamentary predicated on her nomination as a co-executor under the 1998 will is denied, and the nephew's application for preliminary letters testamentary as a co-executor under the 1999 is granted. However, should the sister join in the petition for probate of the 1999 will, she would have an equal right to preliminary letters and may, at such time, make an application to the court asking that the preliminary letters be extended to her.

The 1999 will dispenses with the filing of a bond. Pursuant to SCPA, even if the will dispenses with the filing of a bond, the court may require a bond if extraordinary circumstances exist. There are no such extraordinary circumstances here.

When a person makes a will, the intention is to benefit the names that appear on the document. If you want to make sure that you get what is due of you as stated in the will, approach a Nassau County Probate Lawyer or a Nassau County Will Contest Attorney. Stephen Bilkis and Associates can also provide you with a Nassau County Estate Lawyer if you need one.

September 6, 2013

Court Reviews Legal Fees In Estate Administration Case

Submitted for decision in this intermediate accounting proceeding is the issue of fees and commissions.

On 6 October 1999, A died. She left a will dated 8 August 1997. On 11 April 2000, the will was admitted to probate and on the same date, a letters testamentary was issued to B, her son. B died on 6 May 2002. This is an intermediate accounting by C as executor of the estate of the deceased executor B. The accounting covers the period from 6 October 1999 through 6 May 2002. The summary statement shows charges to the accounting party of $2,384,134.60.

A New York Probate Lawyer said that with respect to the issue of attorney fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate as held in Matter of Stortecky v Mazzone. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily as held in Matter of Brehm.

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

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

With regard 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 as held in Matter of Graham. In Matter of Coewith, the court discussed the allowance of charges for photocopies, telephone calls, postage, messengers and couriers, express deliveries and computer-assisted legal research. The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in Matter of Herlinger. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

The attorney for the executor of the estate of the deceased fiduciary has supplied the court with an affirmation in support of his fee. The attorney seeks a total fee of $6,283.87, of which $1,500.00 has been paid by the petitioner personally. The proposed fee includes time the attorney anticipates as necessary to bring this matter to a conclusion. The attorney performed services at the hourly rate of $175.00. It appears from a review of the time records that 1.6 hours on 8 January 2007 was spent on preparation of the affirmation in support of counsel's fee, which is not compensable as held in Matter of Farrell. Accordingly, the court fixes the reasonable value of the services rendered by counsel in the amount of $6,003.87, $1,500.00 of which has been paid by the accounting party personally and shall be refunded to her by the estate.

Concerning the disbursements paid, it appears that total disbursements in the amount of $1,828.97 were paid consisting of $1,250.00 in filing fees paid by the accounting party personally, $500.00 to an accounting firm for "Review Estate Accounting, Summary Report Issued", $35.45 for postage and $43.52 to the Morris County Sheriff. The fee for postage is disallowed. With respect to the accountant's fee, normally accountant's services are not compensable out of estate assets unless there exists unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. As pointed out by Warren's Heaton on Surrogate's Court Practice, at §93.08, the purpose of this rule is to avoid duplication. Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee. Here, there appears to be no duplication of services. Accordingly, total disbursements in the amount of $1,793.47 are approved. The filing fees of $1,250.00 shall be refunded to the accounting party out of the estate.

The court has been supplied with an affidavit of legal services by the attorney for the deceased executor concerning the services rendered to him in his capacity as executor. According to him, attorneys and legal assistants in her firm rendered approximately 437 hours of legal services to the estate for a total of $95,391.80, all of which has been paid. The firm also incurred disbursements of $2,037.00. Counsel states that, during the course of estate administration, a number of complicated and unforeseeable issues arose that took a great deal of time to resolve. The services counsel performed included the following: prepared the probate petition and petition for preliminary letters testamentary, conferred with guardian ad litem appointed in the probate proceeding, assisted with marshaling estate assets and establishing brokerage and checking accounts, advised executor of his duties, conferred with executor's financial advisers, procured agreement among beneficiaries as to the division of the decedent's tangible personal property, prepared letters of authorization to allow brokers and potential purchasers to enter the decedent's home, assisted with the sale of the decedent's house including arranging for renovations in connection with the sale, advised the executor in obtaining his sister's cooperation in connection with the sale, negotiated and prepared the contract of sale and attended the closing, researched possible cause of action for wrongful death, analyzed post-mortem tax planning, prepared and filed federal and New York State estate tax returns, represented the executor in the audit of the decedent's federal estate tax return, conferred with the accountant with respect to the decedent's final income tax returns and the estate's fiduciary income tax returns, prepared a receipt and release for the charitable bequest, and assisted the beneficiaries of the decedent's IRA as to the payouts.

According to counsel, a great deal of time and attention was devoted to addressing issues raised by E's irresponsible and difficult behavior. Counsel states that because of the beneficiary's behavior, her firm performed services that far exceeded those typically required in estate administration. This additional work included convincing E to vacate the premises and assisting her in finding a suitable home.

The guardian ad litem appointed in the accounting proceeding for the trust has submitted a report wherein he states that in order to perform a comprehensive review of the trust accounting, it was necessary for him to review the estate accounting. The guardian ad litem comments that the estate should have been a relatively simple estate to administer and that there appeared to be no unusual legal problems.

It appears that some of the work performed was executorial in nature. The law is clear that an attorney will not be allowed legal fees for performing executorial services as held in Matter of Jones. Considering all these factors, the court fixes the fee of counsel to the deceased fiduciary in the amount of $90,000.00. Any sums paid in excess of that amount shall be refunded to the estate. Disbursements for photocopies, facsimile charges, and ordinary postage are disallowed. Accordingly, disbursements in the amount of $1,394.18 are approved.

Do you find yourself similarly situated? If so, call our toll free number or visit our firm at locations near you. Nassau County Probate Lawyers, Nassau County Estate Litigation Lawyers or Nassau County Will Contest Lawyers at Stephen Bilkis & Associates are ready to help. Consultations with us are free of charge.

August 21, 2013

Petitioner Files a Petition to Compel an Accounting

Decedent, by codicil, nominated his attorney and that attorney's accounting partner as co-executors of his estate. It was apparent from the outset of the probate proceedings that this estate was of sufficient financial magnitude as to fall within those provisions entitling each fiduciary to seek a full commission.

According to a New York Probate Lawyer, decedent died in November 1976, and permanent letters were issued by decree. The five objectants constitute decedent's widow and four children, all of whom comprise the primary beneficiaries of this estate. Probate was accomplished without objection to the nominated fiduciaries. Decedent's youngest issue, then an infant, was represented by a guardian ad litem. It does not appear that decedent's three adult issue were individually represented by counsel in the probate proceedings. The fiduciaries' administration of this estate continued without objection until the filing of their final account. This account was filed subsequent to the bringing on of a petition to compel an accounting. The examination of the schedules constituting this account indicates an administration with some complexity.

A New York Will Lawyer said the objections which the accounting parties seek to have dismissed relate to the right of the two fiduciaries to each seek a full commission. The issues relative to the co-executors' administration of the estate and whether that administration would justify some form of reduction in their compensation is not presently before the court. More particularly, it is now claimed that the co-fiduciaries, one of whom was the attorney draftsman of the codicil containing his appointment, "negligently, unethically, improperly, and/or fraudulently" failed to inform the testator of the standards for two full commissions and that two commissions should, therefore, not be paid.

As heretofore noted, from its inception, the estimated value of the assets of this estate provided a base for each fiduciary to seek a full commission. A Manhattan Probate Lawyer said that absent some cause arising during the administration of the estate which would warrant a reduction in statutory compensation, the mandatory provisions of SCPA 2307(1) would require the payment of the commissions established by that statute. Equally, it is the rule that where an attorney draftsman without proper disclosure to the client gains nomination as the fiduciary, such could constitute a form of constructive fraud and provide justification to preclude counsel from appointment to the office of fiduciary.

What these objections and this motion now bring to the court is the question of whether the issues presented in another case are limited to the probate proceeding. That is, may a party who has acquiesced in probate without invoking a claim of fraud be permitted to later be heard to raise the issue of constructive fraud on the final accounting? Certainly, this presents conflicting equities which may themselves vary with subtle changes in the supporting factual pattern. New York City Probate Lawyers said that assuming a case of overreaching, should an attorney/fiduciary ever be permitted to benefit from his or her own fraud, constructive or otherwise? Should the victim of that overreaching be permitted to take advantage of the circumstances to the end of gaining services without having to respond with recognized compensation? Is it significant that the party alleged to have overreached is an attorney whose conduct is further subject to the strictures of the canons of professional responsibility? Should it matter when the overreaching first became known to the victim of the act? The court believes that these and other considerations are vital to the ultimate resolution of the question raised by the motion to strike the objections. To this end it is first noted that although this motion is for summary relief, neither the moving papers nor those submitted in opposition are made by a person having knowledge of the facts. This circumstance is ground enough to deny the present request for partial judgment either in favor of or against the moving parties.

Notwithstanding this procedural insufficiency and with perception of the ultimate issue, the court is, nevertheless, satisfied that the questions raised by objections 1(d) and (e) may properly be raised within the accounting proceeding. As the objections are in the form of pleadings only, the court presently is unable to factually determine whether there was overreaching and, if so, whether the objectants should in the circumstances be estopped to complain by reason of their own conduct or delay. These issues must await a plenary hearing.

The court is prepared to rule, however, that whereas here, the allegations concern counsel, the objections, unless ultimately foreclosed by some countermanding compelling equitable reason, may be heard post-probate and upon the final accounting. The Code of Professional Responsibility prohibiting an attorney from consciously influencing his or her designation as fiduciary is not a matter for casual concern. Attorneys are charged with the public's confidence and held to higher levels of propriety. To conclude otherwise would serve to undermine the public trust in the profession charged with the responsibility of maintaining our system of justice. The Bar must be prepared to withstand scrutiny of their professional conduct and particularly so when they have failed to avoid the appearance of impropriety by becoming personally interested in the event for which they are retained as counsel. Professional responsibility is also premised upon standards greater than the simplicity of procedural rules or evidentiary practices. An attorney cannot be permitted to insulate his or her conduct from review solely upon the argument that time has resulted in the investment of additional services, irrespective that such claim could result in a form of windfall to the client. Held to this higher standard, the court does not as a doctrine without post-probate vitality. Further, the court observes that it is not unmindful of the holding in a case, cited in support of summary relief. To the extent that this authority may be viewed as finding an attorney's conduct in securing his or her nomination beyond scrutiny post-probate, this court respectfully disagrees since statutory provisions hold otherwise. Once appointed, a fiduciary is subject to removal irrespective of the status of the administration and where "the objection was not taken before the letters were granted."

On the contrary, probate was accomplished, but the conduct of the nominated fiduciaries was such "... as to preclude their serving as executors of his will." It is thus seen that the question was a qualification issue which only coincidentally was raised during probate but not necessarily exclusive to that stage of the estate proceedings.

Accordingly, the court finds that objections 1(d) and (e) may properly be raised upon the final accounting and the ultimate substantive issues asserted with the claims of overreaching as well as any opposing equitable arguments must await a factual hearing.

Probate of a will is a means which a last will and testament of decedent will be implemented. But in implementing the provisions of the will, the provisions must be in accordance with the law. Here in Stephen Bilkis and associates, our Nassau County Probate lawyers will determine if the provisions embodied in the will is legally possible or can be implemented. Our Nassau County Estate attorneys will determine as to the amount of share of each heirs.

July 24, 2013

Petitioner Claims Decedent Lacked Capacity in Will Contest Action

The decedent, a former court reporter, died at the age of 78 following an almost two-week hospitalization. The propounded instrument was executed one day prior to the decedent's death, while he was hospitalized. A New York Probate Lawyer said the amended probate petition indicates that the decedent's distributees are four first cousins, each of whom was served with process. One of the cousins requested that a subpoena duces tecum be "so ordered" by the court in order to obtain the decedent's hospital records, and her time to file objections was extended to 10 days after the completion of the SCPA 1404 examinations. Ultimately, she did not file objections.

According to a New York Will Lawyer, a judicial subpoena duces tecum issued for the production of the decedent's hospital records. In addition, SCPA 1404 examinations were conducted of the witnesses to the propounded instrument, as well as of its drafter, a non-attorney who also works in the court system and was a friend of the decedent and the movant. Prior to conducting SCPA 1404 examinations, the objectant filed initial objections asserting that the decedent lacked testamentary capacity, the propounded instrument was not properly executed pursuant to EPTL 3-2.1, and was procured by the undue influence of the movant.

New York City Probate Lawyers said the non-attorney drafter testified at her SCPA 1404 examination that the decedent first spoke about leaving everything to the movant about three years prior to his death, upon his return from a California trip. According to the drafter, the decedent always stated that he knew he should have a will, but he was "superstitious" and believed that, if he signed one, he would die. The decedent also stated repeatedly that the movant was "like a son" to him and he wanted to leave his estate to the movant. Over the years, particularly when the decedent did not feel well and raised the subject, the drafter encouraged the decedent to retain a lawyer to draw up a will or, alternatively, to complete a Blumberg form will and she gave him blank forms, noting that he did not have to sign any draft or form until he felt death was imminent. The drafter, the decedent and the movant were all friends and used to dine together, and the drafter considered the movant to be like "family." Specifically, although the decedent and the drafter were friendly, each of them had a closer relationship with the movant.

Manhattan Probate Lawyers said that during the decedent's last hospitalization, the drafter did not go to the hospital but she often spoke with him by telephone; the decedent knew he was dying, and was always alert and coherent in those conversations. During the same conversations from the hospital, the decedent asked her to type the propounded instrument because he did not believe that the handwritten instrument on a Blumberg form looked official.

The medical records annexed to the motion reveal that while hospitalized, the decedent underwent several gastrointestinal procedures. The decedent was verbally responsive, in no acute distress and alert and oriented "x3" although he received Percocet for pain. Thereafter, on the date of the propounded instrument, a Foley Catheter was removed and "discontinued," and fluid was drained from the decedent's abdomen at 8:45 a.m. By 8 p.m. that evening, the decedent was in renal failure and, by that time, he complained of pain in his abdomen and refused Percocet, stating that he wanted stronger medication; as a result, at 9:32 p.m., he received morphine intravenously. Other than those instances of receiving Percocet and morphine, the record notations for January 1, 2009 through the morning consistently indicate that the decedent made his needs known, denied pain, was conversant, "awake, alert and oriented x3," "eyes bright" and responsive to commands, with no acute distress. Thereafter, the discharge plan for the decedent was "home;" however, by after several days, the notes indicate that the decedent had executed a "DNR" order and the discharge plan was "Calvary."
Following SCPA 1404 examinations and the receipt of the medical records, the objectant filed supplemental objections.

In his motion for summary judgment, the movant relies on the foregoing examinations and documents and annexes his own affidavit in support. He urges that the medical records demonstrate that the decedent had the capacity to make a will and knew its contents and the decedent was always awake and alert to the date of his death.

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.

As an initial matter, the court notes that to the extent that the movant's affidavit relates to personal transactions or communications with the decedent, CPLR 4519 bars its consideration in support of a summary judgment motion.

The proponent has the burden of demonstrating by a preponderance of the evidence that a purported will was duly executed. A presumption of regularity or validity may arise where the propounded instrument contains either an attestation clause preceding the genuine signatures of the attesting witnesses. Nonetheless, before admitting a will to probate, the court must be satisfied that the execution of the will was valid, even if no interested party files objections to its validity.

Here, the propounded instrument was not attorney-drafted or supervised; however, it contains both an attestation clause and a self-proving affidavit signed by three witnesses, giving rise to a presumption of regularity and validity. Although the objectant contends that proof of publication is lacking because the provisions of the propounded instrument were not read aloud during the execution ceremony, there is no requirement that an instrument be read aloud during the execution ceremony. In any event, there was substantial compliance with the publication requirement as evidenced by the testimony of the attesting witnesses, that the decedent stated he understood they were there to witness him sign the instrument and refused an offer to read its contents aloud, stating that he knew its contents and just wanted to get the instrument signed. As the proponent met his burden of proof with respect to due execution and the objectant failed to raise any issue of fact for trial, the proponent is granted summary judgment dismissing that objection.

With respect to testamentary capacity, it is well settled that the proponent has the burden of proving by a preponderance of the evidence that the decedent possessed sufficient testamentary capacity by demonstrating that the decedent: (1) understood the nature and consequences of executing a will; (2) knew the nature and extent of the property being disposed of; and, (3) knew the natural objects of his bounty and his relations with them. Where there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, the issue of capacity is one for the jury.

Here, the movant met his burden of establishing the decedent's testamentary capacity with the self-proving affidavit of the attesting witnesses stating that the decedent was of "sound mind, memory and understanding and not under any restraint" and was not in any respect incompetent. The SCPA 1404 examinations, the medical records and the affidavits that may be considered, collectively, demonstrate that the decedent knew and understood the consequences of making a will, the nature and extent of his property and the natural objects of his bounty, and that he consciously decided not to make a bequest to relatives.

The objectant has the burden of demonstrating by a preponderance of the evidence the exercise of undue influence. A finding of undue influence requires proof of "a moral coercion, which restrained independent action and destroyed free agency...". To meet the burden of proving undue influence, the objectant must establish not only motive and opportunity, but also the actual exercise of undue influence, either through direct evidence or through significant circumstantial evidence of specific instances in which the undue influence was actually exercised.

Other than pointing to the possibility that the movant may have had a motive and opportunity to influence the decedent, the objectant failed to proffer any direct or circumstantial evidence, significant or otherwise, of the actual exercise of any alleged undue influence. As the objectant has the burden of proof on the issue of undue influence and she failed to make a prima facie showing that undue influence was actually exercised, the proponent is entitled to summary judgment dismissing the undue influence objection.

In summary, the guardian ad litem was clearly correct in vigorously exploring the validity of the propounded instrument in light of the following: (1) it is a "death-bed" will; (2) there were questions with respect to the need for the January 9, 2008 instrument as its predecessor by eight days, contains similar provisions; and, (3) the will was prepared by a person who was not an attorney, but was a close friend of the sole beneficiary who was not related to the decedent. Nonetheless, after a diligent inquiry into all of the circumstances surrounding the execution of the will, a cousin and alternate beneficiary under the will, opted not to file any objections. There are no triable issues of fact in view of all of the uncontroverted proof adduced, including the following: (1) the will was executed in accordance with all statutory formalities required by EPTL 3-2.1; (2) the decedent remained competent from the time he entered the hospital until he executed the will on January 9, 2009 and it was only much later in the evening on that day that there might have been any reason to question his testamentary capacity; (3) the sole beneficiary and the decedent enjoyed an extremely close relationship akin to a father-son relationship for a period of approximately two decades; and, (4) the reason the decedent waited for such a long period of time to effectuate his long-standing intent to name his friend as the sole beneficiary of his estate was that he was superstitious about making a will and it was only when he was convinced that his death was imminent, regardless of whether he made a will, that he executed a will.

Accordingly, the motion for summary judgment dismissing the objections is granted.
A person making a will should be of sound mind when executing such instrument, since it is a disposition of property. Here in Stephen Bilkis and Associates, our Bronx County Probate attorneys examine carefully on the soundness of mind of the decedent when the latter executed his will. Our Bronx County Estate lawyers render their advice to our client as to drafting a will and embodying the provisions thereof.

July 3, 2013

Court Discusses Public Policy Concerns Regarding Rent Stablization

A New York Probate Lawyer said this is an action for breach of an illegal oral contract to issue plaintiff a rent-stabilized lease and lease renewals, in perpetuity. The complaint filed in April 2004 asserts a right to a renewal lease under a tenancy created by a purported 1992 verbal agreement with defendant landlord's principal. Plaintiff allegedly paid $50,000 in consideration of "his understanding and agreement that he would have the right to remain in the apartment for as long as he cared to rent it," in apparent disregard of whether the apartment was to be used as his primary residence. Defendant alleges that plaintiff maintains his primary residence in Florida.

A New York Estate Litigation Lawyer said that, defendant previously brought a holdover proceeding on non-primary residence grounds, which had been pending in Civil Court for two months when plaintiff commenced this action alleging breach of the parol agreement and seeking specific performance and monetary damages of $500,000. A New York Estate Litigation Lawyer said that, plaintiff's first cause of action seeks specific performance and a permanent injunction against his eviction. The second and third causes of action allege breach of the 1992 oral agreement and seek monetary damages of $500,000 against defendants, respectively, for failing to offer plaintiff a renewal lease in January 2004 and for refusing to extend the term of the lease. The fourth cause of action seeks recovery of the $50,000 paid by plaintiff in 1992, asserting that such payment constitutes an illegal rent overcharge.

A Westchester County Probate Lawyer said that, in the pending Civil Court holdover proceeding to recover possession of the subject dwelling unit, defendant alleged that plaintiff does not use the premises as his primary residence and, apparently, never has. However denominated, the present action seeks to impose upon defendant the obligation to continue the statutory tenancy indefinitely. Because the right to lease renewal can be adjudicated in the Civil Court proceeding and because it is dispositive of the asserted breach of contract, the complaint was properly dismissed on the ground that there is another action pending.

On appeal, New York Estate Administration Lawyer said that, plaintiff maintains only that his second and third causes of action should not have been dismissed as untimely under the six-year statute of limitations applicable to breach of contract (CPLR 213) because the breach of the purported parol contract occurred when defendant failed to renew the lease in January 2004. However, because the contract bestows a rent regulated lease on an individual who is not qualified for rent stabilization protection in exchange for an illegal payment of $50,000, it is unenforceable in the courts as a matter of public policy; thus, what are denominated in the complaint as plaintiff's second and third causes of action seek damages that are unrecoverable.

A Suffolk County Probate Lawyer said the issue in this case is whether plaintiff is entitled for damages due to the breach of an oral illegal contract.

The parties do not dispute that plaintiff paid $50,000 for a rent-stabilized apartment that plaintiff was not obligated to maintain as his primary residence. Thus, the contract sought to be enforced by plaintiff is in clear violation of the Rent Stabilization Law and Code in two material respects. First, the payment of $50,000 to obtain the lease constitutes excessive. By waiving the statutory protection against excessive rents, the contract contravenes Rent Stabilization Code (9 NYCRR) § 2520.13, which expressly prohibits a tenant from waiving any benefit bestowed under rent stabilization, rendering it statutorily void and unenforceable as a matter of public policy. Second, the agreement is calculated to evade requirements for obtaining statutory protection, particularly, that the apartment be used as the tenant's primary residence.

The majority fails to acknowledge the illegality of the agreement, reasoning that because the parties did not seek to rescind or reform the contract,5 the issue is not before us. With respect to enforceability, it is irrelevant that, the parties "freely entered into and acquiesced in [the contract] for more than 10 years," as the majority asserts. Rather, it is axiomatic that a party cannot seek to recover damages on an agreement that violates public policy and is statutorily prohibited. However, plaintiff entered into the asserted oral agreement of his own volition and, the record suggests, with the advice of counsel, availing himself of the benefit of his bargain for more than a decade. Thus, he is estopped to contest his willing participation in the arrangement.

It is immaterial that neither party previously raised the issue of illegality of the contract. As this Court has noted, "There is a long-standing policy of refusing to assist in the enforcement of agreements that are injurious to the public". Moreover, plaintiff has not submitted any evidence to prove the terms of his alleged verbal agreement with defendants principal. "The party seeking to enforce a contract bears the burden to establish that a binding agreement was made and to prove the terms of the contract". The only proof of the agreement between the parties is its part performance. However, plaintiff does not explain how such part performance can be distinguished from adherence to statutory requirements governing the rent-stabilized tenancy so as to be deemed "`"acts of part performance which go along with, relate to, and confirm the agreement”. Finally, plaintiff does not allege that the parol agreement contemplates recovery of extraordinary damages beyond the usual and customary remedy of directing the issuance of a renewal lease.

This action is nothing more than a landlord-tenant dispute involving defendant's obligation to offer plaintiff a renewal lease, which is an issue governed by the Rent Stabilization Law and Code. The Court of Appeals has made clear that "Civil Court has jurisdiction of landlord tenant disputes and when it can decide the dispute, as in this case, it is desirable that it do so". As Post notes, "If the tenant is unable to obtain complete relief in Civil Court, then the jurisdiction of Supreme Court is still available". Neither the parties nor the majority offer any reason why the issues raised by this controversy cannot be resolved in the summary proceeding before Civil Court. Since plaintiff asserts no basis for injunctive or declaratory relief available only in Supreme Court, this action is merely an artifice to prevent the dispute from being decided in the designated forum.

Plaintiff's claim that the oral agreement was breached by the failure to renew (or extend) his lease involves only a single breach of contract. The several alternative remedies of injunction and monetary damages that he seeks all arise from the claim that he is entitled to indefinite renewal of his lease and are not severable. Merely because counsel might draft a complaint to restate a single claim under various theories of contract—and even tort—does not serve to create distinct causes of action, as this Court has repeatedly held.

Plaintiff may assert his purported contract right to renewal of his lease in defense to the holdover proceeding pending in Civil Court. Because the Housing Part must decide whether defendant is obligated to renew plaintiff's lease, determination of this issue will have collateral estoppel effect. Permitting multiple actions to go forward predicated on the same breach of contract (failure to offer plaintiff a renewal lease) offends the rule that a cause of action may not be split to advance different theories of recovery or to pursue different forms of relief and creates the potential for conflicting rulings on an identical issue.

In view of this analysis, it is unnecessary to reach defendant's argument that this action is barred by the terms of a 1992 written release, in which plaintiff agreed to hold defendant harmless for any adverse consequences resulting from actions taken by him to obtain the subject leasehold. It need only be observed that the existence of this document hardly strengthens plaintiff's case for recovery of damages against defendant.

The motion court erroneously dismissed the second and third causes of action, which it stated are based on a purported 1992 agreement, as time-barred. Such causes, however, are based on defendants' refusal to offer plaintiff a renewal lease when his original lease expired on January 31, 2004. It was this refusal that was the breach that triggered the running of the statute of limitations. Thus, this action, which was commenced some four months later, was timely commenced. The court also finds no merit to defendants' claim that the March 4, 1992 letter bars the present action.
With regard to the separate dissents, plaintiff has not appealed the dismissal of his first cause of action for specific performance of the alleged 1992 agreement, the same relief sought by the plaintiff in a 2006, appeal dismissed, and an injunction barring defendants from maintaining a holdover proceeding against him on the ground that the apartment is no longer his primary residence. Thus, it is not the subject of this appeal and has been relegated to Civil Court for determination. Nor does he appeal from the dismissal of the fourth cause of action for recovery of an alleged $50,000 illegal rent overcharge. Rather, he limits his appeal to the dismissal of the second and third causes of action. Nevertheless, the dissenters, although agreeing that plaintiff may assert his purported right to a renewal lease in defense of the pending holdover proceeding where the enforceability of the parties' agreement, an issue raised for the first time on appeal, will be decided, both seek to prejudge the issue.

In any event, even though a violation of public policy may be raised for the first time on appeal and defendants have raised the issue of unenforceability on that ground in their brief, this case is readily distinguishable from the 2006 case since, as already noted, plaintiff's cause of action for specific performance of the alleged agreement has been relegated to Civil Court for determination and is not the subject of this appeal. There is also no claim that plaintiff obtained anything more than a valid rent stabilized lease and neither party seeks reformation or rescission of the alleged contract, which was freely entered into and acquiesced in for more than 10 years before being finally challenged, as the tenants sought to do in a 2002 case decision. Rather, plaintiff, in his second and third causes of action, is seeking damages for defendants' refusal to renew or extend his lease of the subject rent stabilized apartment. As noted by this Court, even where a lease is void, a tenant may pursue a claim with respect to profits obtained by a landlord in violation of the Rent Stabilization Law.

Accordingly, the court held that the order of the Supreme Court, New York County, entered August 29, 2005, which insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the second and third causes of action for breach of contract, reversed, on the law, without costs, the motion denied and such causes of action reinstated.

It is well-settled law that parties to a fraudulent or illegal transaction who are in pari delicto may not invoke judicial aid to undo the consequences of their illegal acts. Rather, it is axiomatic that a party cannot seek to recover damages on an agreement that violates public policy and is statutorily prohibited. There is a need for the assistance of a New York Estate Litigation Attorney and New York Estate Attorney in order to be acquainted with the rule. Call us at Stephen Bilkis and Associates for free legal advice.

May 30, 2013

Petitioners Seek to Revoke Probate Petition

The Facts of the Case:

On 26 October 2000, a decedent died with a Last Will and Testament dated 23 March 1995. Under the will, the decedent left her estate to her two sisters, A and B, or the survivor; named A as executor and B as successor. A predeceased the decedent without issue, thus, the entire estate passed to B.
Sometime in 2005, B petitioned for the appointment of a guardian of her property. The court, finding that B had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, X, a niece, and Y, Esq., as guardians of B’s property. Consequently, in May of 2007, the judge authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. The affidavit of X stated that she located the copy among the decedent’s important papers after her death; that while the decedent must have had the original will, her house had been sold and the purchaser threw away all of her papers. The affirmation of Y also stated that after the decedent’s death, her home was taken over by a former handyman of B, who threw away all of the decedent’s papers. Allegedly, the instrument was prepared by an attorney, who supervised its execution and was a subscribing witness, and has filed an affirmation of due execution.

However, a New York Probate Lawyer said the second subscribing witness cannot be located. Thus, the petitioners now move to withdraw their probate petition and ask that the Court issue letters of administration to them (for the purposes of estate administration in an estate litigation). They allege that they are unable to probate the instrument because of the unavailability of the second subscribing witness; and that the distributees have executed agreements waiving their intestate rights so as to mirror the testamentary plan set forth in the subject Last Will & Testament.

The Issues of the Case:

Brooklyn Probate Lawyers said the main question that must be resolved by the court is whether or not the petitioners may withdraw their probate petition and move for the issuance of letters of administration instead; and, if not, the next issue that must be resolved is whether or not the facts stated and the evidence presented are enough to continue with the probate proceedings.

The Ruling of the Court:

Under the law, Long Island Probate Lawyers said where 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. The law gives to every person a right to dispose of his property in any manner that best suits him, and, so long as he was possessed of sufficient mental capacity and observed in the execution of the instrument the required legal formality and acted freely, it is his wishes which must be respected, and his testamentary disposition given effect, regardless of the contrary wishes of his heirs at law and next of kin or beneficiaries respecting his property. The Court's obligation in this regard is a matter of public policy. This is reflected in the authority reposed in the Surrogate's Court to ensure the validity of instruments offered for probate and case law requiring the Surrogate to pass on the validity of testamentary instruments offered for probate. This duty is not relieved by the parties’ agreement to arbitrate the dispute or consent to probate. It is normally 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. Where the nominated fiduciaries have died or are under a disability, any person designated in the will as a legatee or devisee, or guardian for such person, may petition to probate the instrument.

However, the courts have recognized exceptions to this duty where probate would be futile or otherwise unwarranted. 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. 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.

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

Here, none of the aforesaid exceptions to excuse probate have been presented. It must be noted that 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 decedent, this presumption may be rebutted where, as here, there is a natural explanation for the failure to locate the original and the copy is found among the decedent's important papers.

Moreover, the drafter is an attorney who supervised the execution of the instrument and is a subscribing witness, giving rise to a presumption of due execution. The inability to locate a subscribing witness does not bar probate, since the testimony may be dispensed with upon a showing of a diligent search to locate the witness, without success. Furthermore, all of the distributees agree that the decedent's testamentary wishes should be adhered to. For these reasons, the Court cannot agree to the abandonment of the probate proceeding. Nonetheless, the Court cannot force the petitioners to pursue probate if they chose not to do so; thus, in that case, the Court authorizes the Public Administrator of Kings County to pursue probate.

In sum, the petitioners' motion to withdraw the probate petition is denied; the petitioners are directed to complete their papers in support of the petition, including an affidavit showing diligent search for the second subscribing witness; and, upon failure to do so, the Public Administrator is directed to file a petition to probate the subject instrument in their place.

Death of a loved one is hard enough, but getting involved in court litigations is much harder. In this case, it is wise that the legal representative you choose is competent enough to represent your interests. A part of your burden shifts to the legal counsel chosen and his acts, before courts of law, will be your acts as well. Thus, it is vital that such legal counsel fight for your cause in every possible manner.
For the assistance of well experienced lawyers in the field of estate administration or probate proceedings like the above, get in touch with Stephen Bilkis & Associates. You can visit us at any of our offices located around the metropolitan or you can call us at our numbers. Our consultations are free of charge and you may discuss you legal issues or dilemmas with our highly skilled and competent Suffolk County Probate Lawyers, Suffolk County Estate Litigation Lawyers, Suffolk County Estate Administration Lawyers, among others. With us, you are assured of the best legal advice and the best legal representation. Nothing beats the well prepared.

May 28, 2013

Court Decides Appropriate Legal Fees in Estate Litigation Case

The Facts of the Case:

On 2 October 2005, a resident of Sands Point died with a will dated 6 June 1996. He is survived by his wife, his children, A, B and C, and his granddaughter, X, the infant daughter of a predeceased son, D. On 21 September 2006, the will was submitted for probate (will contest proceeding) and letters testamentary issued to the decedent’s wife, the decedent’s daughter, A, and the decedent's brother. On 23 April 2008, A and the decedent’s brother filed their account, which was subsequently amended and supplemented. Thereafter,a New York Probate Lawyer said a guardian ad litem was appointed by the court to represent the interests of X. The administration and the account reflect ongoing discord between the wife and the decedent's other fiduciaries, A and the brother, dominated by conflict over the computation of the wife’s elective share. Ultimately, the parties executed a stipulation, receipt, release and refunding agreement which resolves all of the disputed issues other than the legal fee paid from estate assets to an attorney, who provided legal services to A and the brother at the onset of the administration but whom they later replaced. The stipulation provides that for purposes of calculating the wife’s elective share, the gross estate is valued at $2,115,942.00; that the expenses paid to date, plus the amount reimbursable to the wife for administration expenses which she incurred, total $438,817.00. The parties agreed that the fees of their current attorneys and that of the guardian ad litem be fixed by the court.

The Issues of the Case:

The court is requested to determine the fees of the three lawyers who rendered their services in the estate administration, whose services were engaged by the three co-executors of the decedent’s estate; and the fee of the court appointed guardian ad litem to represent the interests of the decedent’s granddaughter before the court.

The Ruling of the Court:

A New York Will Lawyer said in determining the cost of legal services or the fee of attorneys for the estate, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate. The rules provide that, while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily. The court may consider a number of factors and these include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of estate litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements. The legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. The size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. However, when multiple co-executors conflict and are represented by separate counsel, it has been the court’s experience that the legal fees requested may be cumulatively higher than would typically be charged against a comparably sized estate. Duplication of services is almost inevitable, and legal services may be rendered in opposition to co-fiduciaries rather than in furtherance of the estate administration. Nonetheless, it remains the responsibility of the court to ensure that the amounts charged to the estate reflect the principles laid out in its previous rulings considering several factors which direct the court to review the type of legal services provided, and examine the benefit provided to the estate by such services. Generally, the total legal fees incurred by co-fiduciaries who engage separate counsel should not exceed the fee that would have been charged had one attorney represented all of the fiduciaries. While normally it has been said to be the right of co-fiduciaries to employ separate counsel, the practice tends to lead to excessive fees which the Surrogates have sought to discourage by limiting fees to those which would be deemed reasonable for the services of a single attorney representing all the fiduciaries. Courts have made an exception to this single fee rule where the adversarial positions taken by the co-fiduciaries necessitate separate counsel and additional fees.

On the fee of lawyer-one:

Well settled is the rule that Surrogate's Court is vested with discretion to authorize and determine reasonable compensation for an attorney who has rendered legal services to an estate and a hearing is not required.

Here, a New York Estate Litigation Lawyer said lawyer-one initially represented two of the three nominated co-executors, A and the brother, for a total period of eleven months, and submitted an affirmation of the legal services he rendered to the estate, stating that he devoted 107.75 hours to the estate administration, at a rate of $350.00 an hour, resulting in a total fee of $37,712.50, all of which has been paid. Assuming that lawyer-one’s affirmation accurately reflects the amount of time devoted to the estate, the time spent is not the sole determinant of the fee. The difficulty of the work is also a factor to be considered in setting a legal fee. So, in order to justify a fee in connection with the initial months of an administration, the attorney would have to show that the work was particularly complex or demanding. However, despite the adversarial nature of the administration, its most complex and contentious issue, that of calculating the elective share, was not addressed substantively during the time frame of lawyer-one’s representation. Thus, the court finds that the affirmation submitted by lawyer-one is insufficient to justify the amount of legal services charged to the estate; the reasonable charge for lawyer-one’s services is $12,500.00.

Notably, A and the brother did not object to the fee charged by lawyer-one; they paid it out of estate assets, and are therefore not entitled to a refund of the excess portion of this fee. The court disallows only that portion of lawyer-one’s fee allocable to the residuary shares of the wife and X. Thus, lawyer-one need only return one-half of the excess fee or $12,606.25, half of which shall accrue to the wife and the other half to the trust for X’s benefit.

On the fee of lawyer-two:

Here, A and the decedent’s brother subsequently engaged the services of lawyer-two who rendered 165.67 hours of legal services for a period of three years. The firm seeks a fee of $41,417.50 plus disbursements of $2,136.64, of which $5,000.00 has been paid and $38,554.64 remains unpaid, which includes the computation of the elective share and the collating documents or preparing affirmations. The court finds that the positions taken by lawyer-two in connection with the computation of the elective share were apparently without precedent, yet that does not dictate a finding that the positions were meritless. However, the court cannot approve a legal fee for collating documents or preparing affirmations in support of one's own fees. Thus, the court fixes lawyer-two’s fee in the amount of $37,900.00 plus disbursements of $2,136.64, of which $5,000.00 has been paid and $35,036.64 remains unpaid.

On the fee of lawyer-three:

Here, the wife engaged the services of lawyer-three; lawyer-three’s firm has received payment in the amount of $35,000.00 for legal services rendered for a period of almost four years; and, while the firm's actual outstanding balance of fees is $70,753.18, including disbursements, the firm has agreed to accept the lower amount of $55,000.00, for a total fee of $90,000.00 which represents a discount of approximately 15%. The wife is also a co-executor, as are A and the brother. While it is true that the wife would benefit if her attorney would successfully argue for the minimization of set-offs, it is equally true that A and the brother, as beneficiaries of the estate, would personally benefit from the maximization of set-offs against the surviving spouse's elective share. However, it does appear in the affirmation of services submitted that at least a portion of the legal services accrued to the benefit of the wife alone and not to the benefit of the estate. It must be noted that legal services rendered to a fiduciary in her capacity as a beneficiary of the estate are to be paid by the fiduciary out of her personal funds, and not from estate assets, but if it can be shown that the services rendered on behalf of a beneficiary also served to benefit the estate, the fee may be payable from estate assets. Thus, the court fixes the fee of lawyer-three in the amount requested, and directs that 80% of the fee shall be paid from the estate, $72,000.00 less $35,000.00 already paid, and 20% or $18,000.00 shall be paid by the wife personally.

On the fee of the guardian ad litem:

Here, the guardian ad litem's affirmation reflects 16.25 hours of services on behalf of decedent's granddaughter X. Clearly, the efforts of the guardian ad litem assisted the court and the other attorneys in reaching the agreement which ultimately brought resolution to the contested administration. Thus, the court fixes the fee of the guardian ad litem in the sum of $5,600.00.
In sum, the court approves the stipulation of settlement, orders that A and the brother amend their account in accordance with the terms of the stipulation and the decision of the court in fixing the legal fees, and submit a decree settling the account on notice. On another note, in view of the multiple court appearances and conferences, and the diligent efforts of the lawyers to resolve the complex issues raised, the court acknowledges such outstanding work which led to the just settlement of the case.
Family disputes often arise in cases of estate litigation or estate administration. When a loved one dies and leaves a sizable amount of estate, the family members often cannot come into agreement and questions the share a relative receives, and the charges made upon the estate, like the above mentioned case. In such cases, the burden of losing a loved one becomes more burdensome when litigation before a court becomes necessary to resolve the issues. Thus, to ease this burden, one must choose only the most competent and independent legal counsel.

At Stephen Bilkis & Associates, we only have the best. We now offer free legal consultation services. Contact us now and find out the appropriate remedy applicable to you legal problems. We have our Suffolk County Probate Attorneys to assist you with issues concerning wills. We also have our Suffolk County Estate Administration Attorneys if your legal issues only concern that of the administration of a decedent’s estate. We have specialized attorneys who can help you with specific concerns. Call us and be advised by the best legal counsels in the country.

January 25, 2013

Probate Court Discusses Hold Over Proceedings

In a court proceeding, a complainant filed a motion to stay pending the determination of an appeal from an order of the civil court. Upon the papers filed in support of the motion and the papers filed in opposition, the court consequently ordered that the motion is granted on condition that the appeal will be completed. New York Probate Lawyers said the complainant however was directed to pay the opponent any and all arrears in rent and/or use and occupancy at the rate previously payable as rent within 10 days from the date of the decision. They also need to continue to pay the opponent’s use and occupancy at a like rate as it becomes due. The court further ordered that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or the opponent may move to vacate the stay on three day’s notice.
In another case, another appeal was also filed from an order of the civil court. The order, insofar as appealed from, denied the branch of the tenants' motion in seeking an award of attorney's fees.

The landlord initiated the holdover proceeding after terminating the tenancy based upon the tenants' failure to cease using the basement portion of the apartment as a living room. Based on records, the said usage had resulted in the issuance of a violation by the department of buildings. Thereafter, the parties entered into a condition, contained in which was an agreement that tenants had cured the breach to landlord's satisfaction by moving their furniture and personal items, and the matter was marked off the calendar so that the department of buildings could re-inspect the basement.

Later on, the landlord commenced a nonpayment summary proceeding against the tenants. The tenants however request for a decision dismissing the petition in the holdover proceeding based upon the landlord's commencement of the nonpayment proceeding, and for attorney's fees.
The civil court awarded the tenants the decision dismissing the complaint, but did not award them attorney's fees. The court stated that the tenants were not entitled to an award of attorney's fees under the situation presented, even though the petition was dismissed. In view of that, the order, insofar as appealed from, is affirmed.

In another trial, the order of the Supreme Court which denied the complainant's motion for partial decision without trial was consequently reversed, on the law, without costs. The motion restored to the calendar and the matter remanded for further proceedings, including disposition of the motion on the merits following the parties' submission of papers.
Based on records, the court erred in denying the complainant's properly filed request for decision without trial. The submission of the opponent’s affidavit in opposition to the motion showing the facts essential to justify the opposition may exist but cannot then be stated. Indeed, the opponent failed to make any evidentiary showing that the completion of outstanding discovery will yield material and relevant evidence.

Similarly in an estate litigation proceeding, an application of the complainant to enlarge the time to perfect an appeal and cross appeal from an order of the Supreme Court was appropriately determined.

The court then ordered that the application will be granted. It is also ordered that the complainant's time to perfect the appeal will be enlarged. In addition, a Staten Island Probate Lawyer said the joint record on the appeal and the complainant's brief must be served and filed on or before the ordered date. The court also ordered that the complainant shall serve and file the answering brief, including the points of argument on the cross appeal, in accordance with the rules of the court.

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January 24, 2013

Landlord Commences Nonpayment Summary Proceeding Against Tenants

In a court proceeding, a complainant filed a motion to stay pending the determination of an appeal from an order of the civil court. New York Probate Lawyers said that upon the papers filed in support of the motion and the papers filed in opposition, the court consequently ordered that the motion is granted on condition that the appeal will be completed. The complainant however was directed to pay the opponent any and all arrears in rent and/or use and occupancy at the rate previously payable as rent within 10 days from the date of the decision. They also need to continue to pay the opponent’s use and occupancy at a like rate as it becomes due. The court further ordered that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or the opponent may move to vacate the stay on three day’s notice.

In another case, another appeal was also filed from an order of the civil court. The order, insofar as appealed from, denied the branch of the tenants' motion in seeking an award of attorney's fees.

The landlord initiated the holdover proceeding after terminating the tenancy based upon the tenants' failure to cease using the basement portion of the apartment as a living room. Based on records, the said usage had resulted in the issuance of a violation by the department of buildings. Thereafter, the parties entered into a condition, contained in which was an agreement that tenants had cured the breach to landlord's satisfaction by moving their furniture and personal items, and the matter was marked off the calendar so that the department of buildings could re-inspect the basement.

Later on, the landlord commenced a nonpayment summary proceeding against the tenants. The tenants however request for a decision dismissing the petition in the holdover proceeding based upon the landlord's commencement of the nonpayment proceeding, and for attorney's fees.
The civil court awarded the tenants the decision dismissing the complaint, but did not award them attorney's fees. The court stated that the tenants were not entitled to an award of attorney's fees under the situation presented, even though the petition was dismissed. In view of that, the order, insofar as appealed from, is affirmed.

In another trial, the order of the Supreme Court which denied the complainant's motion for partial decision without trial was consequently reversed, on the law, without costs. The motion restored to the calendar and the matter remanded for further proceedings, including disposition of the motion on the merits following the parties' submission of papers.

Westchester County Probate Lawyers said that based on records, the court erred in denying the complainant's properly filed request for decision without trial. The submission of the opponent’s affidavit in opposition to the motion showing the facts essential to justify the opposition may exist but cannot then be stated. Indeed, the opponent failed to make any evidentiary showing that the completion of outstanding discovery will yield material and relevant evidence.

Similarly in an estate proceeding, an application of the complainant to enlarge the time to perfect an appeal and cross appeal from an order of the Supreme Court was appropriately determined.

The court then ordered that the application will be granted. It is also ordered that the complainant's time to perfect the appeal will be enlarged. In addition, New York Probate Lawyers said the joint record on the appeal and the complainant's brief must be served and filed on or before the ordered date. The court also ordered that the complainant shall serve and file the answering brief, including the points of argument on the cross appeal, in accordance with the rules of the court.

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December 28, 2012

Court Applies the Business Judgment Rule

The plaintiffs own 1 of 20 lots comprising a subdivision known as Estates at Brookview. As such, the plaintiffs are members of the Estates at Brookview Homeowner's Association (hereinafter the Association) and subject to its bylaws and "Declaration of Restrictions, Covenants, and Easements" (hereinafter the Declaration). A New York Probate Lawyer said that in the fall of 2004 the plaintiffs constructed a shed on their property. Upon inspection of the completed structure by the Town of Chester's Building Inspector, the shed was approved and the plaintiffs were issued a certificate of compliance.

After complaints about the shed were received by the Board of Directors of the Association, the plaintiffs received a document entitled "Determination and Notice of Violation" (hereinafter the DNV), issued by the Board, advising them that their shed violated certain provisions of the Declaration. The plaintiffs contend that the Board lacked the authority to issue the DNV.

As a result, a New York Estate Litigation Lawyer said that, plaintiffs filed an action for summary judgment, declaring that the document entitled "Determination and Notice of Violation" issued by the Board of Directors of the Estates at Brookview Homeowner's Association is null and void. A New York Estate Litigation Lawyer said that defendants filed a cross motion for summary judgment and for an award of an attorney's fee pursuant to the Association's bylaws and "Declaration of Restrictions, Covenants, and Easements.

New York City Probate Lawyers said that, the Supreme Court granted the motion and declared that the document entitled "Determination and Notice of Violation" is null and void and denied defendants’ cross motion for summary judgment and for an award of an attorney's fee pursuant to the Association's bylaws and "Declaration of Restrictions, Covenants, and Easements.
The issue in this case is whether the document issued by the Board of Directors of the Association, entitled “Determination and Notice of Violation” is null and void.

The Court in deciding the case said that, in reviewing the actions of a homeowners' association and its board of directors, "absent claims of fraud, self-dealing, unconscionability or other misconduct, a court should apply the business judgment rule and should limit its inquiry to whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the corporation".

Manhattan Probate Lawyers said that the Court held that, the business judgment rule protects the board's business decisions and managerial authority from indiscriminate attack. At the same time, it permits review of improper decisions, as when the challenger demonstrates that the board's action has no legitimate relationship to the welfare of the development, deliberately singles out individuals for harmful treatment, is taken without notice or consideration of the relevant facts, or is beyond the scope of the board's authority".

In the case at bar, the plaintiffs established their prima facie entitlement to summary judgment declaring that the DNV is null and void. The relevant provisions in the Declaration are unambiguous and require that each lot owner "prevent the development of any unclean, unsightly or unkempt conditions of buildings or grounds on such lot which would tend to substantially detract from the natural beauty and residential character of the subdivision." They do not give the Board the authority to regulate the type or shape of a building, such as the shed, erected on a homeowner's property and conforming to the applicable zoning laws and regulations, only the condition of such building. Since the defendants cannot point to any other basis for the Board's authority for issuing the DNV, and since they failed to raise a triable issue of fact, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment declaring that the DNV is null and void, and denied the defendants' cross motion for summary judgment and for an award of an attorney's fee.

Accordingly, the Court ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Orange County, for the entry of a judgment declaring that the document entitled "Determination and Notice of Violation" is null and void.
The business judgment rule protects the board's business decisions and managerial authority from indiscriminate attack. If you felt that there was a violation of this rule, seek the advice of a New York Estate Attorney and/or New York Estate Administration Attorney to help you with your case and declare certain documents in violation of such rule as null and void. At Stephen Bilkis and Associates, we have reliable New York Estate Litigation Attorneys that can handle your case.

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 26, 2012

Court Interprets Labor Law Sect. 240(1)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), entered September 2, 2009, which, upon a jury verdict, and upon the granting of the motion of the defendant Swiss Ranch Estates, Ltd., in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), upon the denial, in effect, of his motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence, is in favor of the defendant Swiss Ranch Estate, Ltd., dismissing the complaint insofar as asserted against that defendant.

A New York Probate Lawyer said the plaintiff, who was preparing to install insulation at a home being constructed on property owned by the defendant, Swiss Ranch Estate, Ltd. (hereinafter Swiss Ranch), fell and was injured when a set of stairs connecting the first floor of the home to the garage collapsed beneath him as he stepped onto it.

A Suffolk Estate Litigation lawyer said that, the plaintiff commenced the instant action alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6). At trial, the Supreme Court granted Swiss Ranch's motion, in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), and denied, in effect, the plaintiff's motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action. The jury returned a verdict in favor of Swiss Ranch on the remaining cause of action, which alleged a violation of Labor Law § 241(6). The plaintiff moved to set aside the verdict and the Supreme Court denied his motion. A judgment was entered in favor of Swiss Ranch and against the plaintiff, dismissing the complaint insofar as asserted against it. The plaintiff appealed.

The issue in this case is whether plaintiff is entitled to recover damages against the defendant.
The Court said that the set of stairs in the instant matter "was not being utilized as a ladder, scaffold, hoist, or other safety device for the benefit of the injured plaintiff in his work". Rather, the plaintiff was attempting to use it as a passageway at the worksite and, thus, it was not within the purview of Labor Law § 240(1).

Accordingly, under these particular facts, the Supreme Court properly granted Swiss Ranch's motion, in effect, pursuant to CPLR 4401, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), and properly denied, in effect, the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on that cause of action.

Long Island Probate Lawyers said the plaintiff's challenge to the Supreme Court's denial of his motion to set aside the verdict is without merit, as there was a valid line of reasoning and permissible inferences which could lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial. Moreover, the jury verdict was supported by a fair interpretation of the evidence.

The plaintiff's remaining contention is unpreserved for appellate review and, in any event, without merit. Queens Probate Lawyers said the Court ordered that the judgment is affirmed, with costs.

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December 25, 2012

Court Discusses Liberal Interpretation of Lien Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 23, 2012

Court Rules on Complex Estate Litigation Matter

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

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

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

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

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

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

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

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

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

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

December 18, 2012

Court Rules on Violation of Labor Law Section 240

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), entered September 2, 2009, which, upon a jury verdict, and upon the granting of the motion of the defendant Swiss Ranch Estates, Ltd., in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), upon the denial, in effect, of his motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence, is in favor of the defendant Swiss Ranch Estate, Ltd., dismissing the complaint insofar as asserted against that defendant.
The plaintiff, who was preparing to install insulation at a home being constructed on property owned by the defendant, Swiss Ranch Estate, Ltd. (hereinafter Swiss Ranch), fell and was injured when a set of stairs connecting the first floor of the home to the garage collapsed beneath him as he stepped onto it.

A New York Probate Lawyer said the plaintiff commenced the instant action alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6). At trial, the Supreme Court granted Swiss Ranch's motion, in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), and denied, in effect, the plaintiff's motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action. The jury returned a verdict in favor of Swiss Ranch on the remaining cause of action, which alleged a violation of Labor Law § 241(6). The plaintiff moved to set aside the verdict and the Supreme Court denied his motion. A judgment was entered in favor of Swiss Ranch and against the plaintiff, dismissing the complaint insofar as asserted against it. The plaintiff appealed.

The issue in this case is whether plaintiff is entitled to recover damages against the defendant.
The Court said that the set of stairs in the instant matter "was not being utilized as a ladder, scaffold, hoist, or other safety device for the benefit of the injured plaintiff in his work". Rather, the plaintiff was attempting to use it as a passageway at the worksite and, thus, it was not within the purview of Labor Law § 240(1).

Accordingly, under these particular facts, the Supreme Court properly granted Swiss Ranch's motion, in effect, pursuant to CPLR 4401, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), and properly denied, in effect, the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on that cause of action.

Westchester County Probate Lawyers said the plaintiff's challenge to the Supreme Court's denial of his motion to set aside the verdict is without merit, as there was a valid line of reasoning and permissible inferences which could lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial. Moreover, the jury verdict was supported by a fair interpretation of the evidence.

The plaintiff's remaining contention is unpreserved for appellate review and, in any event, without merit. Thus, the Court ordered that the judgment is affirmed, with costs.

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December 16, 2012

Co-Executors File Motion for Eviction in Estate Litigation

The Facts of the Case:

On 30 December 2006, the decedent died a resident of Nassau County leaving a last will and testament dated 13 July 2006. On 19 March 2007, the will was admitted to probate and letters issued to A and B as co-executors and co-trustees. After making some specific bequests, the decedent left her residuary estate to her four daughters, A, B, C, and D, in equal shares; and placed C’s share in a Supplemental Needs Trust under her name created pursuant to Article Fourth of the will. Under the will, the trustees were given discretion in distributing income and principal to C; that at C’s death, the remainder of the trust, if any, will pass to C’s son, CC; and D is the named successor fiduciary. The estate contains approximately $125,000.00 in personal property and three homes, which are valued in the aggregate at $1,285,000.00.

Thereafter, five miscellaneous proceedings were filed with the court in connection with the estate administration and that of the trust. On 10 December 2008, some of the issues raised were resolved in a stipulation of partial settlement entered into by all the interested parties, viz: that A and B, as co-trustees of the supplemental needs trust, would enter into a contract for the purchase of property-two which C and CC agreed to use as their long-term primary residence; that C and CC, who were residing in decedent's real property, property-one, would vacate that property and move to property-two; and that the fiduciaries are obliged to put property-one up for sale within 90 days after respondents move out. Pursuant to the agreement, the co-executors purchased property-two and made it available to respondents as of 16 March 2009.

Nonetheless, respondents refused to move out of property-one, and the agreement does not specify a date by which they are required to do so.

Consequently, a New York Probate Lawyer said the co-executors filed a motion for eviction and asked that the court issue: a decree directing C and CC to vacate property-one; a warrant of eviction directed to the Sheriff of Suffolk County, where the property is located; and a decree surcharging the supplemental needs trust for the benefit of C for all of the costs and expenses relating to the proceeding and eviction, including attorneys' fees, sheriff fees and expenses, and related storage expenses.

Respondents filed a verified answer and argued that since the stipulation did not include a specific date for respondents to move out, there cannot be one added thereafter. A reply to the answer was then filed by petitioners and they argued that the stipulation is essentially irrelevant to the proceeding before the court, as the legal basis underlying petitioners' order to show cause and petition is the right of the co-executors to evict respondents from an estate asset, in order that it may be liquidated. The matter was submitted for decision, but subsequently, respondents filed an answer to the reply on 6 June 2009 where they asked that: the court deny the motion for eviction; impose sanctions on petitioners for frivolous litigation; and revoke petitioners' letters testamentary. Petitioners objected to the court's consideration of this sur-reply on the grounds that: the court doesn't allow sur-replies without authorization; the matter had already been submitted for decision; and respondents advised the court that they will not vacate property-one without a court order, forcing petitioners to bring the instant proceeding.

The Ruling of the Court:

New York Probate Lawyers said the question whether petitioners are empowered, in their capacity as co-executors of the estate or as signatories to the stipulation of settlement, to evict C and CC from property-one, depends, in part, upon the nature of the interest held by C and CC in the occupied property. As a rule, when a residuary estate includes real property, and there are two or more residuary beneficiaries, the beneficial interest of each is that of a tenant in common. However, an executor has the right to possess and manage the decedent's realty so that he may sell the property in accordance with the statutory authority with which estate fiduciaries are imbued, as well as to collect the rentals thereof, and otherwise preserve the asset and make it productive to all those with a beneficial interest therein. This right is superior to that of a beneficiary. Here, it is not C or CC individually who holds a tenancy in common in property-one, along with A, B and D. Rather, it is the co-trustees of the supplemental needs trust, viz., A and B, who are tenants in common with the other three residuary beneficiaries, A, B and D, in their individual capacities. Neither C nor CC has any direct title or interest in property-one. Thus, the removal of C and CC from property-one is warranted.

The court need not reach the question of whether the absence of a specific date in the agreement empowers C and CC to reside at property-one indefinitely since it has been established that petitioners have the right to evict C in their capacity as co-executors; and the court also need not consider any of the other issues raised in the responsive papers filed, some of which may be addressed within the context of the two ongoing accounting proceedings.
In sum, a judgment of possession and a warrant of eviction are ordered. New York City Probate Lawyers said the motion is granted to the extent of an award of possession together with a warrant of eviction; the respondents are granted a thirty (30) day stay of the execution of the warrant; the respondents are prohibited from interfering in any manner with the possession, control or management of said premises by the co-executors of the estate for the purpose of selling the premises, which the executors are authorized and empowered to do; however, insofar as petitioners seek recovery from the supplemental needs trust of all of the costs and expenses relating to the proceeding and the eviction, including attorneys' fees, sheriff fees and expenses, and related storage expenses, that part of the application is denied.
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December 13, 2012

Petitioner Claims Undue Influence in Estate Litigation Case

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. 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. A New York Probate Lawyer said 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:

Long Island Probate Lawyers said 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. Queens Probate Lawyers said 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, 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:

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 and Suffolk County Probate Attorneys.

December 5, 2012

Court Determines Motion for Summary Judgment is Premature

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

Court Discussion

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

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

Court Decision

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

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December 3, 2012

Court Decides Contested Probate Proceeding

Queens Probate 25

This is a case being heard in the Appellate Division of the Supreme Court of the State of New York, Second Department. The case involves a contested probate proceeding. The proponent is appealing an order that was made in the Surrogate’s Court of Westchester County. The order is dated the 24th of July, 2009 and denied the proponent a motion for summary judgment on the ground that it was premature. The order was made without prejudice with the opportunity to renewed.

Case Discussion and Decision

A New York Probate Lawyer said at the time the proponent filed his motion for summary judgment the two week court ordered period for depositions had not yet been completed. The objectant in the case had not been given the opportunity to complete her depositions of non party witnesses and had not received all of the documents that had been requested from the proponent.

The court finds that the Surrogates Court was correct in denying the proponents motion as premature, without prejudice for renewal. The order is hereby affirmed and costs are payable by the estate.

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December 2, 2012

Petitioner Contends Undue Influence

Queens Probate 26

This is a probate proceeding being held in the Second Department, Appellate Division of the Supreme Court of the State of New York. In this case the residuary legatee, who was named in a will dated December of 1955, offered it for probate as the last will and testament of the decedent. The legatee is appealing a decree that was made in the Surrogate’s Court of Queens County. The decree denied probate for the will on the ground of lack of testamentary capacity and undue influence.

Case Discussion

The evidence in this case supports the fact that the decedent lacked testamentary capacity at the time the will was executed. However, the evidence fails to support that the will was the result of undue influence.

Case Decision

A New York Probate Lawyer said the decree is modified on the law and the facts in the case. The fourth paragraph of the provision that adjudicated that the will was the result of undue influence is struck out and a contrary adjunction will replace it. The decree as appealed from is affirmed with costs to all of the parties that filed briefs. The costs will be paid from the estate.

Two of the judges in this case have agreed to the modification, but dissent in regard to the issue of the decedent lacking testamentary capacity and vote to reverse the decree in its entirety.

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December 1, 2012

Court Decides Whether Opening a Bank Account Constitutes a Settlement

This is a case of appeal regarding probate. The case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. The appellant is appealing a decree that was made in the Surrogate’s Court of Queens County. The decree admitted a will to probate and allowed the opening of a savings account by the testator in trust for his son that was born after the will was executed and constituted a settlement within the meaning of section 26 of the Decedent Estate Law. The appellant also states that the after born son is barred from taking an intestate share of the estate.

Case Discussion

A New York Probate Lawyer said when reviewing the case it is this court’s opinion that the Surrogate did not have the authority to determine the rights of the after born infant under section 26 of the Decedent Estate Law. The question of whether opening a bank account constituted a settlement within the meaning of section 26 should not have been decided without notice and without an opportunity for the interested parties to be heard.

The appeal is properly before the court on behalf of an infant who is seeking relief through a general guardian after his special guardian that was appointed by the Surrogate failed to appeal on his behalf.

Court Decision

A Staten Island Probate Lawyer said the decree will be modified by striking the last two paragraphs. The decree as appealed from is unanimously affirmed with costs to each party that filed a separate brief in the matter. The costs are payable from the estate.

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November 29, 2012

Court Explains Powers of an Executor

The case is being heard in the Special Term of the Supreme Court located in Queens County part 1.

Motions

A New York Probate Lawyer said there are several motions made in regard to this matter. The plaintiff is seeking that separate defense be struck out and the counterclaim against the plaintiff be dismissed on the ground that the court does not have jurisdiction over the counterclaim, the defendant does not have the legal capacity to sue, there is another action pending over the same cause, and the counterclaim does not state facts that are sufficient for a cause of action.

Manhattan Probate Lawyers said the defendant has motioned for an order to dismiss the complaint on the ground that the plaintiff has not cause of action by the mortgage while the contract was in effect and that the plaintiff is estopped from foreclosing the mortgage. The defendant is also seeking to strike the answer provided by the Public Administrator based on the ground that it is sham.

The Public Administrator has motioned for the defense to be stricken on the account that it is a sham and dismissing the counterclaim on various grounds.

Case Background

On the 12th of June, 1952, the decedent passed away at Kings Park State Hospital. She was a resident of Queens County. On the 21st of January, 1953, Letters of Administration were issued to the Public Administrator. At the same time a last will and testament was discovered.

The last will and testament made a charitable bequest of $500 and the rest of her estate was left to the defendant. The only asset of the estate appears to be a parcel of real property located in Queens County that is encumbered by a mortgage.

Not long after the letters testamentary were issued to the Public Administrator, the P.A. was made a party defendant to an action regarding the foreclosure of the mortgage. The defendant, who was living in the premises, was made a party respondent in the case.

The surrogate court authorized the Public Administrator to sell the property and the contract of sale was made by the plaintiff.

Court Discussion and Decision

When the facts of the case have been reviewed it becomes quite evident that the defense, counter claim, and cross complaint are all sham. New York City Probate Lawyers said the Public Administrator obtained an order from the court before proceeding with the sale of the home. This order was affirmed in the Appellate Division.

The defendant being forcibly evicted occurred as a result of the execution that was issued on the judgment that declared he had no present interest in the real property. This judgment was also affirmed in the Appellant division.

Just because a will is found and filed does not mean that the person who is named as the executor of the estate is valid. It is the probate of the will that gives it validity. Until the will has gone through probate, defendant is a complete stranger until otherwise determined.

All of the claims, cross claims, and complaints in this matter are hereby dismissed.

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November 26, 2012

Court Makes Ruling When Original Will Missing

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

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

Probate Proceeding

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

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

Stephen Bilkis & Associates offers free consultations to those in need of legal advice. If you are in the middle of probate or any other legal matter, contact one of our New York City offices to set up an appointment with one of our expert litigators. We will be happy to discuss you case with you to determine your best course of legal action.

November 24, 2012

Court Looks at Proper Jurisdiction for Estate Administration Issue

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

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

Case Discussion

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

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

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

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

Court Decision

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

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

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

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November 24, 2012

Public Administrator Files Petition for the Temporary Letters of Administration

This case is being heard in the Second Department, Appellate Division of the Supreme Court of the State of New York.

The petitioner and appellant in the case is appealing an order made by the Surrogates Court of Queens County. This order was dated the 17th of April, 2008 and granted a petition and ordered temporary letters of administration for the estate of the decedent to the Public Administrator of Queens County.

Case Background

On the 9th of April, 2003, the decedent, allegedly executed a will that left his property to his former wife of over 35 years, the appellant in this matter. The will named the appellant as the executor and in the event that she did not qualify as executor, another was named to take over the duty as executor.

On the 29th of October, 2004, the decedent passed away. When he passed away he was living with the appellant at their former marital residence. The marital residence made up the sole asset passed under the will.

Upon his passing the appellant filed a petition for the will to be admitted for probate. At this time, the Public Administrator for Queens County moved to have the petition dismissed based on the grounds that the appellant did not join the brother of the decedent as a party to the probate proceeding.

On the 17th of January, 2008, the Surrogate granted the motion to dismiss the will for probate. A New York Probate Lawyer said the court’s decision was based on the ground that the appellant had falsely represented the decedent’s mother by saying that she did not have any other children. The court ruled that this false representation disqualified the appellant as the fiduciary of the estate on the ground of misconduct.

The Public Administrator then filed a petition for the temporary letters of administration. The alternate executor of the will, objected to the petition made by the Public Administrator for temporary of letters of administration and filed a petition of his own. The Surrogate Court granted the petition to the Public Administrator as they thought this was in the best interest of the estate.

Court Discussion and Decision

Manhattan Probate Lawyers said the appellant argues that it was unnecessary for the court to appoint a temporary administrator for the estate as she is currently residing in the property and paying all of the bills. She argues that even if it was necessary to appoint a temporary executor, appointing the Public Administrator was not appropriate.

New York City Probate Lawyers said when reviewing the facts of the case it is found that the Public Administrator may not be disqualified as serving as the temporary administrator of the estate. However, in these particular circumstances the Public Administrator should be limited so she may not sell the real property of the estate.

The court rules that in the best interest of the estate the order is amended to preclude the Public Administrator for selling the property located at 28-24 212th Street in Bayside, Queens, New York.

Stephen Bilkis & Associates have offices located throughout the city of New York. We are happy to discuss any legal issue that you may have. Contact one of our offices to set up an appointment for a free consultation with an expert New York estate lawyer.

November 17, 2012

Court Decides a Guardianship Issue

This is a case being heard by the Queens County Surrogate’s Court. The subject of this case involves the guardianship of three children. The mother of the children passed away in October of 1975 and the father died on the 24th of May, 1976.

Case History

Before the father passed away, he and the children lived with his mother and his brother. After he passed away, the children continued to live with their paternal grandmother and uncle. The uncle was married in September of 1976 and since this time the children have lived with their uncle and his wife.

The will left by the father appointed his brother as the guardian of both the person and property of his children. Before the will was admitted for probate, a guardianship proceeding was started. The maternal grandmother offered a verified petition against the paternal grandmother. The paternal uncle was added as a party respondent in the matter.

The Judge overseeing the matter requested an investigation by the probation department and a report from an independent psychiatrist that was to be chosen by both of the parties.

A New York Probate Lawyer said not long after the petition was filed in the family court regarding custody, the will of the father was submitted for probate. The petition for appointment of the nominated testamentary guardian was filed in August of 1976. At this point the matter from the family court regarding custody was transferred to the Surrogate’s court for further proceedings.

Case Discussion and Decision

The right of a parent to be able to appoint a testamentary guardian is not a common law right, but is granted through statute. Under Domestic Relations Law sections 81 and 82 it is provided that upon the death of a mother or father the surviving parent of any child under the age of 21 may deed or last will the custody and tuition of the child to any person or persons that they see fit. This appointment of guardian by will shall be effective and valid when the will is admitted for probate.

In cases where guardianship is contested a hearing must be held. In this case the maternal grandparents are an interested party and the case must be heard in the Surrogate Court so an appropriate decision can be made.

A New York City Probate Lawyer said then the petition for custody was first filed in the family court the issue was whether the paternal grandmother was fit to take care of the children. However, when the will was admitted for probate the paternal uncle was named as the guardian. The petitioners challenged his qualifications as well.

When reviewing the facts of the case the court finds that the children would be well cared for by both the paternal uncle and the maternal grandparents. A Manhattan Probate Lawyer said however, the wishes of the father must be considered and for that reason custody is given to the paternal uncle. However, the court is ordering both parties to work out a visitation schedule so the children do not lose contact with their maternal side of the family.

Stephen Bilkis & Associates can help you through any legal issue that you may have, whether you need a will, trust or have a guardianship issue. Contact one of our New York City offices to speak with a qualified attorney in regard to your issue. We will help you through your case to ensure that all of your legal rights are protected. You will be provided with a free consultation upon your first visit to one of 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.

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November 14, 2012

Appellant Requests Letters of Administration

This is an appeal case being heard in the Second Department, Appellate Division of the Supreme Court of the State of New York. The petitioner in this case is appealing an order of decree made in the Surrogate’s Court of Queens County. The order is dated the 2nd of May, 1980 and admitted to probate a will from March 7th of 1978 and also failed to order his application for letters of administration.

Case Discussion and Decision

The records for the case show that the will that was dated the 7th of March 1978 was properly admitted for probate over the challenge from the appellant. However, the Surrogate did make an error by denying the petition for letters of administration made by the appellant because of a conflict of interest.

The persons who are entitled to letters are fixed under the law and there is no discretion under the scheme to pass over one class in favor of another. For this reason, the motion for the appellant for the issuance of letters of administration that was denied is hereby reversed. A New York Probate Lawyer said the application will be remitted to the Surrogates Court for further proceedings.

If you need any type of legal advice, contact Stephen Bilkis & Associates. Our offices are located throughout the city of New York for your convenience. You may contact us at any time to speak with an expert lawyer regarding your case. A free consultation will be provided to you on your first visit to our offices.

November 13, 2012

Appellants Appeal Facts from a Previous Decree

This is a matter being heard in the Supreme Court of the State of New York, Second Division of the Appellate Court. The issue involves a probate proceeding where the contestants are appealing the facts from a decree made in the Surrogate’s Court of Nassau County. The order in question was entered on the 23rd of May, 1962 on a jury verdict that admitted the propounded instrument for probate as the decedent’s will and revoked the letters of administration that were issued previously.

Case Discussion and Decision

The court finds if favor of the appellant and the decree is reversed on the law. The costs to the contestants are to be paid from the estate. The motion made by the contestants to set aside the jury verdict and deny probate of the propounded instrument is granted and the petition is dismissed. A New York Probate Lawyer said the letters of administration will be reinstated and the entire matter will be remitted to the Surrogates court.

The court finds that the evidence in the case is insufficient in the matter to support the findings that were made by the jury and is thus equal to no evidence. On the basis of the proof that has been provided to the court the ruling is found in favor of the contestants.

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November 12, 2012

Appellant Claims Undue Influence

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

Court Discussion and Decision

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

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

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

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

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November 11, 2012

Court Decides Jurisdiction of Will

This is a probate case being held in the Surrogate’s Court of Queens County. The testatrix in the matter died a resident of Connecticut. She left both tangible and intangible personal property in Queens County. Her will states that her entire estate is to be divided equally between her two sons who are non residents. The oldest son is named as the executor of the estate and has filed a petition for probate in this court. After this proceeding was commenced, the younger brother who knew about the will received letters of administration from his mother’s estate in Connecticut. The youngest son is now moving to dismiss the petition in this court for lack of jurisdiction.

Case Discussion and Decision

A New York Probate Lawyers said while it is inarguable that the testatrix was a resident of Connecticut and the two legatees are non residents, the court has the discretion to permit the original probate of a will of a non resident who dies outside of the state that leaves personal property within this county.

A Staten Island Probate Lawyer said the executrix named her older son as the executor of the estate. Although he is not a resident of this state, he has petitioned to probate the will of his mother in this court. There are no persuasive reasons given as to why he should not be permitted to do so. For this reason, the motion to dismiss the present proceeding is denied. The petition and papers will be deemed to be amended so as to limit the relief of probate of the will of personal property.

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November 10, 2012

Court Decides Disposition of Real Property

In a discovery hearing held before the Surrogate’s Court of the City of New York located in Nassau County the estate is seeking to establish the existence of a leasehold interest in commercial real property and to enforce its provisions. A New York Probate Lawyer said the petitioner has submitted an application to the court for preliminary injunction.

Case Background

The decedent passed away on the 2nd of May, 2004 and is survived by three children, one who is the respondent in the case. A petition has been filed for probate of an instrument that was dated the 2nd of July, 2002.

The preliminary letters testamentary were issued to the petitioner. The instrument provides both of his daughters with a 25% interest in the residuary estate trust. The remaining balance of the trust is bequeathed to several grandchildren in varying amounts.

The decedent was the sole shareholder of a corporation located in Woodside, New York. The shares of the corporation are part of the residuary estate. In addition, the decedent owns the real property where the building of the corporation is located. Long Island Probate Lawyers said this property was sold by the decedent in 1997 for 1.15 million dollars. The president and owner of the corporation that bought the property is also the vice president of the corporation the decedent left behind. He receives a salary as well as a share of profits as stated in a written agreement dated the 26th of June, 1995.

The current owner of the land states that there was never a lease between the owner of the real property and the corporation and that the occupancy of the corporation is based on month to month tenancy. The petitioner is seeking to establish that there is in fact a lease.

The president that the land was sold to issued a thirty day termination notice to the decedent’s corporation. This discovery proceeding was started after this notice was issued. Queens Probate Lawyers said the petitioner argues that if this corporation is successfully evicted from the premises the value of the corporations shares to the residuary beneficiaries will be diminished severely, if not entirely.

In October of 2004, a hearing was held to determine if the petitioner has the right to a preliminary injunction and the matter has been submitted for decision. During the hearing the attorney for the petitioner stated that the course of conduct between the companies indicated that there is a lease possible.

Court Discussion and Decision

In order for a preliminary injunction to be permitted there must be reasonable belief that there is a likelihood of success based on the merits for the case. The standing of the petitioner in this case is dependent on a lease existing between the two corporations.

The petitioner is seeking a deposition from the defendant as well as the records from the corporation. The petitioner should be given the rights to both of these things.

In this case there is a temporary restraining order in effect, so the deposition must take place quickly. The order will remain in effect until a decision in this matter is made.

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November 5, 2012

Petitioner Challenged Bequest of Retirement Account

This case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. A New York Probate Lawyer said this is an appeal made by the petitioners of the matter. The petitioners are appealing an order that was made in the Surrogates Court of Queens County. The order denied their motion for summary judgment on their petition and determined that the bequest of a certain retirement account to others.

Court Discussion and Decision

The petitioner’s contend that the Surrogates court made an error in finding that the bequest was a specific bequest. However, this contention is contrary to the findings made in this court. The subject bequest was reviewed by this court and it is found that the Surrogate’s court made the correct decision in this matter.

The order is affirmed and the costs are to be paid by the petitioners personally. All of the remaining contentions of the petitioners are found to be without merit.

Stephen Bilkis & Associates offers free consultations when you first visit our office for legal advice, whether you need a will, trust, or are involved in an estate litigation matter. We have a team of expert lawyers at each of our offices in New York City. They are happy to sit down with you to discuss your legal issue and help you determine your best course of action regarding your personal needs.

November 4, 2012

Executor Petitions for Judicial Settlement

This is a case being heard in the Second Judicial Department of the Supreme Court of the State of New York, Appellate Division. The case is a probate proceeding where the executor of the estate petitioned for judicial settlement of the decedent’s estate. A New York Probate Lawyer said the objectant is appealing an order made in the Surrogates Court of Queens County that granted the motion for summary judgment by the petitioner to have the objections dismissed. The order that judicially settled the account, made by the same court, is also being appealed.

Court Discussion and Decision

The court is ordering that the appeals be dismissed with all costs payable by the appellant personally.

The appeal from the intermediate order must be dismissed because the right for direct appeal ended with the entry of the decree in the proceeding. The issues that were raised on appeal from the order would have been brought forth during the appeal from the decree. Additionally, the appendix that was filed by the appellant is inadequate to allow this court to make an informed decision on the merits of the appeal. For this reason, the court is dismissing the decree from the second appeal as well.

Stephen Bilkis & Associates offers free consultations to those that are in need of legal advice and visit one of our offices for the first time. We have offices all over New York City for your convenience. Contact one of our offices to set up an appointment to discuss your legal issue with one of our experienced New York lawyers, whether you are involved n a will contest or estate litigation matter..

November 2, 2012

Court Finds Executors Pay Excessive

This is a case being heard in the Surrogate’s Court of Queens County. The court has started this proceeding in regard to its own administrative rule that requires an account to be filed within a year of the date a fiduciary is appointed who is also an attorney.

Case Background

In this case the attorney/fiduciary was ordered to file an accounting with this court no later than one year after the date of the decree and failure to do so will result in the letters being revoked. The executor has filed his account within the set time limit.

The papers that have been submitted for accounting have raised issues with respect to the reasonableness of the legal fees and the accuracy of the commissions charged by the attorney/fiduciary. These issues are now set for a hearing before the court.

Case Discussion and Decision

A New York Probate Lawyer said the administrative rule was as outlined above was enacted by the discretionary authority of the court to supervise the charging of fees for legal services that are provided, even when there are no objections. The court has the authority to determine what a fair and reasonable amount for the services offered by the attorney shall be regarding each case.

New York Probate Lawyers said this rule mainly came to be because of the numerous complaints throughout the years that involved the nomination and performance after the appointment of an attorney as the fiduciary of an estate. This particular case shows why this rule is necessary.

The decedent of the estate passed away in February of 1984. The will of the decedent was admitted for probate without contest. The entire estate was left to his daughter in law, who is a resident and domiciliary of Canada. As a non-resident, she was ineligible to receive the letters testamentary. For this reason, an attorney was nominated as the alternate executor of the estate.

The attorney filed the accounting for the estate with this court as directed. It is shown that the bulk of the estate consists of two bank accounts that total $25,938.74 and a family home that was sold for $16,000. The value of the furniture and other personal items was set at $23,000. This valuation was not the result of an appraisal, but rather a guess made by the attorney. New York City Probate Lawyers said this estimate is suspect considering the modest means of the decedent. However, the fiduciary is not seeking a commission for distributing these assets so it is not in question in this case.

When the suspect valuation of the personal effects is subtracted it is found that the total value of the estate is $47,614.44. The account shows that the attorney/fiduciary took a total of $7,307.54 for fees and commissions. It is also shown that $4500 was paid to a real estate firm as commission for the sale of the house.

When looking at the records the court found that the attorney had in fact paid himself $11,807.54 since he was the real estate broker that sold the home.

The court finds that this amount is excessive and rules that a reasonable amount for the services offers should be fixed to $1200 with a permissible legal disbursement of $256.45. The total corrected amount to be paid from the estate is $2380.72 including the appropriate real estate fees. The attorney is directed to repay the estate in the amount of $7970.37.

Contact one of the New York City offices of Stephen Bilkis & Associates to discuss any legal issue that you may have. One of our expert New York lawyers will be happy to discuss your case with you during a free consultation.

October 30, 2012

Siblings Fight Over Deceased Parent's Bank Accounts

This is a case being heard in the First Department, Appellate Division, of the Supreme Court. This issue being appealed in this case is whether the petitioner, who is the son of the decedent and the ancillary executor of the estate, has overcome the presumption that certain joint bank accounts that were established by the decedent were intended to vest property rights to his sister who is named as the joint account holder, which would constitute testamentary substitutes that would pass outside of the will.

Case Background

There are five joint bank accounts at issue in this proceeding out of a total of 16 accounts that were opened by the decedent. Of the total of 16 accounts, eight of the accounts have her daughter designated as the joint tenant. A New York Probate Lawyer said the amount of these accounts comes to $216,842. The other eight accounts designate the petitioner as the joint tenant and amount to $223,782.

The decedent also left a will that left a burial plot and her residual estate, including a home located in Whitestone, Queens, to her children.

The issue of the accounts came into question when the petitioner moved his mother to Alabama to live near him. During this process he attempted to relocate all of the decedent’s bank accounts to Alabama as well. This is when the joint accounts of his mother and sister were found. His sister then moved the money from the accounts into separate accounts until a ruling could be made in regard to their proper place.

New York City Probate Lawyers said hearings have been conducted regarding this issue and the Surrogate found that the joint accounts in issue were accounts of convenience. The respondent has stated that these accounts were created as a way to pay for her mother’s expenses. The respondent is simply seen as the accountant for her mother. She moved the five accounts as a way to protect her interest after she saw that her brother had closed the other three accounts that she shared with her mother.

Court Discussion and Decision

When reviewing the record of appeal in this case the court finds that the behavior of the petitioner is simple avarice. Whatever motives that he had it is clear that his conduct was the cause of the disputed transfer of funds by his sister.

The Surrogates Court granted the petitioner’s motion for the five bank accounts to be released and turned over to him. After reviewing the facts of the case, the court is reversing this order. The previous decree is vacated and the accounts will be turned over to the sister. All of the eight accounts that were joint in name by the sister and the decedent are released to the sister.

If you need legal advice and live in the New York City area, contact Stephen Bilkis & Associates. Our offices are conveniently located throughout the city. You may contact us at any time to set up an appointment to speak with an experienced New York attorney regarding your issues.


October 27, 2012

Defendant Claims Plaintiff has No Legal Capacity to Sue

This case is being heard in the Special Term of the Supreme Court of the State of New York in Queens County. The defendant has moved to dismiss the complaint against them on the ground that the plaintiff has no legal capacity to sue and that the court lacks legal jurisdiction over the matter.

A New York Probate Lawyer said the action is for a declaratory judgment on a fire insurance policy that covers the home, its contents, a garage, and the loss of use and rental value. The defendant issued the policy in the name of the Estate as the insured. The plaintiff is a devisee of the property under the will of the decedent. The will is currently un-probated as it is being contested and has not yet been heard in the Surrogates Court of Queens County.

Case Background

The insurance policy in question contains a clause to limit any action commenced within a year of the date of the fire, which occurred on the 16th of August, 1962. The defendant did not disclaim liability under the policy until the 22nd of July, 1963.

The plaintiff and the defendants are the only children and heirs of the decedent.

The plaintiff is suing in her individual capacity, joined by her brother who is named as the executor in the will that has yet to go through probate, and her sister, who has filed objections to the will, as interested parties in order to comply with the twelve month limitation implied by the policy. The action was commenced within the one year limitation.

The plaintiff contends that the policy was intended to cover the risk of fire for the benefit of the interested persons of the estate of the decedent and the defendant knew that the will had not been probated and was aware of the plaintiffs status as an heir and the estate proceeding.

Court Discussion and Decision

During her examination the plaintiff fully disclosed her interest and the consent of all of the interested parties in the estate. The individual defendants, her sister and brother, have provided answers are looking for the same relief has the plaintiff.

The defendant brother has submitted an affidavit stating that he has received the preliminary letters testamentary for the estate of the decedent. Queens Probate Lawyers said as the preliminary executor of the estate it is his duty to protect all of the assets of the estate and this includes the property that was insured by the defendant.

When reviewing the facts that have been provided to the court the motion to add a proper plaintiff to the complaint is granted. The claim against the defendant is open to allow the plaintiffs their day in court. The motion for dismissal by the defendant is held in abeyance until further considerations can be made.

Stephen Bilkis & Associates offer free consultations to anyone in need of legal advice. Contact one of our New York City offices to set up an appointment. One our experienced New York lawyers will be happy to sit down and discuss your case with you during a free consultation.

October 26, 2012

Will Submitted to Probate

This matter deals with the last will and testament executed by the testatrix on the 26th of August, 1964. The matter is being handled by the Surrogate’s Court of Queens County. The instrument appears to be natural and leaves her entire estate to her husband. If her husband predeceases her the estate is split between her two adult daughters.

Case Discussion and Decision

The two daughters have signed waivers and consent to the will being admitted for probate. The will consists of three pages. A New York Probate Lawyer said the testatrix signed the will at the bottom of the second page. The final page appears to be an attestation clause that is signed by three witnesses and the signatures are notarized.

The affidavit reads that the three witnesses are sworn and depose to say that the testatrix in the presence of the witnesses subscribed within the will on the 26th day of August, 1964. The affidavit further provides the address were the execution of the will took place.

As there seem to be no legal issues in regard to how the will was executed it is hereby submitted for probate.

Suffolk County Probate Lawyers said any probate cases can be handled without issue such as the above case. However, there are many wills that are contested and in order to protect your rights it is necessary to contact a lawyer. Stephen Bilkis & Associates will provide you with an experienced New York probate lawyer to help you through any issue that you may have. Contact one of our offices in New York City to set up an appointment for a free consultation

October 20, 2012

Court Hears an Accounting Proceeding

This case deals with the accounting of Ann Feely Schmidt who is the administrator C.T.A. of the estate of Walter Peter Schmidt who is deceased. The case is being heard in the Surrogates Court of Suffolk County. This is an uncontested administratrix’s accounting proceeding. There has been a stipulation submitted to the court for approval and incorporation into the provisions of an intermediate accounting decree.

A New York Probate Lawyer said the jurisdiction over the necessary parties in this case has been obtained and there is no one appearing in opposition to the relief that has been requested by the petitioner in this case.

Case Background

The decedent passed away testate on March 17th, 1980. The decedent is survived by his spouse and an infant daughter who was born of the marriage between himself and his former wife who also survived him. The last will and testament of the decedent was dated the 6th of December, 1972. The will bequeathed his real and personal property along with the maximum amount allowable as the marital deduction under federal law to his former spouse. The rest of the estate was disposed of in trust for the benefit of his former spouse during her lifetime. Upon the death of his said spouse the decedent directed that the principal of the trust estate continue to be held for the benefit of his daughter until she reached the age of 30. The trust would be paid to his daughter outright at that time if she is living and if she is not living then to her living issue and if she had no living issue the trust would be given to a named charity. There were no provisions in the will for his second wife. As a consequence, the decedent’s daughter became the sole beneficiary of the estate by virtue of the divorce between him and his former spouse on the 19th of October, 1979.

The former spouse of the decedent as the guardian of the infant daughter filed a petition with the court to request probate of the decedent’s last will and testament and for the issuance of letters of administration to her. New York City Probate Lawyers said the surviving spouse of the decedent opposed this motion. The objections made by the spouse were denied and the former spouse was issued with the letters of administration.

Around three months later the surviving spouse filed a notice of election against the estate. A discovery proceeding was commenced by the fiduciary against the decedent’s spouse and was discontinued with prejudice.

Case Discussion and Decision

Two years later the decedent’s surviving spouse sought a determination of her elective share against the estate. The fiduciary initially contested the petition, but eventually the two parties resolved their differences and a settlement were reached.

Manhattan Probate Lawyers said the instant accounting proceeding was filed with the court requesting judicial allowance for claims filed against the estate, approval of a payment for claims that are allowed, fixation of counsel fees, and authorization to pay the administrators commissions in the amount of $6634.03.

After reviewing the case the court has determined that the legal fees will be set at $25,000 to be paid out of the estate, of which $15,000 has already been paid. The court finds that the settlement that was made to the decedents surviving spouse is fair and is confirmed.

If you are in need of legal advice of any kind, including a probate case, contact the Law Offices of Stephen Bilkis & Associates. Our offices are located around the city of New York for your convenience. You may call us at any time to set up an appointment with one of our qualified New York lawyers to discuss your case. A free consultation is provided to each of our clients on their first visit to our office.

October 13, 2012

Court Dicusses How a Will must be Executed

This is a case being heard in the Surrogates Court of the State of New York in Nassau County. The matter before the court deals with the last will and testament of Robert Cohen, who is deceased. This is a contested probate proceeding. The petitioner, Beatrice Cohen has moved for an order to dismiss the objections to probate that were filed by Meryl Kovit and for a summary judgment in the matter to be granted. She also moves to admit to probate the last will and testament of Robert Cohen. The motion is opposed by Ms. Kovit.

Case Background

The decedent, Robert Cohen passed away on the 26th of December, 2007. He left behind a will that was dated the 28th of October, 2002. Survivors of Mr. Cohen include his wife, who is the petitioner in the case, and a daughter from a previous marriage who is the objectant of the case. The will names the petitioner as the executor of the will and the decedent’s attorney John C. Sullivan as the alternative executor.

A New York Probate Lawyer said the terms of the will left the residuary estate to the petitioner if she outlived him. The will states that the residuary estate is to be the petitioners absolutely with the exclusion of any of his children. However, if the petitioner had not outlived the decedent the residuary estate was bequeathed to his children Meryl Kovit, Jonathon Horn, and Jacqueline Horn. Jonathon and Jacqueline are the children of the petitioner. The estate was left in equal parts to all three of the children.

Case Facts

The petitioner and the decedent were married in November of 1982. The will was drafted by John Sullivan in 1993. Manhattan Probate Lawyers said a mirror will was drafted by Mr. Sullivan for Beatrice at the same time. In 2002, the couple went to the Washington Mutual Bank and executed new wills. An IRA beneficiary change form was executed by each of them. The decedent made Beatrice the primary beneficiary and the children contingent beneficiaries. Beatrice made Robert the primary beneficiary and the children the contingent beneficiaries.

Case Discussion and Decision

The testimony of the attesting witnesses is unclear about what when on the day the will was executed. There is no record that the procedures that were used during the execution ceremony were conducted within the requirements of the law. For this reason a summary judgment for the issue cannot be granted.

There are issues of fact in the case regarding the requirements of how a will must be executed in order to satisfy the court as to its genuineness. For this reason, the court is required to honor the wishes of the testator who memorializes in writing, with the help of an attorney, a testamentary scheme that is designed to carryout out the intention of the testator. For this reason, the execution ceremony must be fully examined. A New York City Probate Lawyers said the conference for the case will be scheduled.

If you need any type of legal advice regarding a probate matter, contact Stephen Bilkis & Associates to speak with an expert probate attorney. We have offices in New York City, located throughout the area for your convenience. You may contact us at any time to set up an appointment to come in and speak with one of our lawyers. A free consultation will be provided on your first visit to our offices.

October 5, 2012

Plaintiff Moves for a Preliminary Injunction

This case involves Joanne Cornell May as the plaintiff and Craig May as the defendant. The case is being heard in the Supreme Court of the State of New York in Suffolk County. This action made by the plaintiff started with the filing of a verified complaint made around the 24th of September in 2007. The plaintiff is seeking to recover possession and occupancy of a property located on Old Town Road in Setauket, New York. The defendant in the case is the son of the plaintiff’s husband, John May, who passed away in September of 2007. A New York Probate Lawyer said that there are nine causes of action set forth in this particular case.

Case Background

In this case the nine causes of action include ejectment, recovery of value of use and occupancy of the subject premises, treble damages, conversion, intentional infliction of emotional distress, tort, fraud, conversion, and unjust enrichment (estate litigation). The plaintiff is seeking a permanent injunction that enjoins that defendants use of the subject premises and money for damages.

The submissions made to the court show that the plaintiff and the decedent owned the subject premises as tenants by the entirety. The couple acquired the deed to the premises in October of 1997 from John May to John May and Joanne Cornell May. The basis of the complaint is that the defendant has seized the property to the detriment of the plaintiff and has forcibly prevented the plaintiff from entering the property. The plaintiff alleges that the defendant has changed the locks on the home and prohibits her from entering. She states this was done in August of 2007, around two weeks before John May passed away. She further alleges that the defendant unduly influenced the decedent to enter into a lease for the premises in question.

New York City Probate Lawyers said the lease that was entered provides the defendant with the property for 99 years at a rental rate of a dollar per year. The plaintiff alleges that the property has been converted for the defendant’s own use without the plaintiff’s consent. Additionally, the plaintiff states that there is a tenant in the home at a monthly rent of $1200 per month and the defendant has been collecting this rent.

The plaintiff is seeking a preliminary injunction seeking the following relief: restraining and prohibiting the defendant from entering or occupying in any way the subject premises. She also requests that the defendant not be allowed to collect rent from said property.

The defendant argues that the plaintiff stole the previous will made by the decedent and that the deed to the subject premises was fraudulently induced by the plaintiff. Manhattan Probate Lawyers said the defendant further argues that the decedent had power of attorney for the plaintiff and was given the right to lease the subject premises to whomever he wished.

Case Discussion and Decision

The plaintiff has demonstrated the necessary facts in this case to support her injunction. The plaintiff is the owner of the subject premises and has the right to use the property as she sees fit. The defendant has not provided any support for his case.

For these reasons, the court is ordering that the motion made by the plaintiff for a preliminary injunction is granted. The plaintiff will post an undertaking in the amount of $100,000 and a preliminary conference in the case will be scheduled for a later date.

Stephen Bilkis & Associates offers free consultations to those in need of legal advice. Contact one of our New York City offices to set up an appointment with one of our experienced New York lawyers.

September 10, 2012

Court Discusses Marital Trust Connected with a Will

This matter deals with appointing the trustees of the trust for the benefit of Gertrude Feil under the fifth article of the last will and testament of Louis Feil who is deceased. The Surrogates Court of the State of New York located in Nassau County is overhearing this case.

Petitioner’s Motion

A New York Probate Lawyer said the petitioner has motioned for an order to grant the following relief: to dismiss the affirmative defenses that were interposed in the two proceedings, to grant a summary judgment to the petitioner and dismiss the answers and grant the petitions, and to have the letters of trusteeship issued to Jay I. Anderson in connection with the marital trust that was established in the fifth article of the will of Louis Feil and to issue letters of trusteeship to Jay I. Anderson, Erika Feil Lincoln, and Leonard Boxer in connection with the Charitable Lead Annuity Trusts that were established under the sixth article of the will of Louis Feil.

Case Background

Louis Feil passed away on the third of February, 1999. He was a resident of Nassau County at the time of his passing and his will was submitted for probate to the Surrogate’s Court of Nassau County. The two trustees of the marital trust and the charitable lead annuity trusts are Jeffrey Feil and his sister Carole Feil. Jeffrey is attempting to appoint additional trustees for the trusts, but his sister has refused. This brought forth the relief that is being requested in the amended petitions.

In the will the power to appoint additional trustees is given in the ninth article that states that Jeffrey, if acting as fiduciary of the estate or if not, the individual fiduciaries by unanimous action may appoint additional and successor fiduciaries from time to time. Any individual, bank, or trust company can be appointed.

The will goes further to give Jeffrey the power of having to vote in the majority of any action or decision that takes place in regard to the estate.

The will further provides that Jeffrey and Carole will be entitled to receive compensation allowed to a sole executor and any other fiduciary that is named will be entitled to reasonable compensation, which may be more or less than that which is allowable by law.

Case Discussion and Decision

Based on the foregoing powers, Jeffrey has designated additional trustees and because of Carole’s opposition to this has began these two proceedings to confirm these appointments. Jeffrey seeks to have the appointments approved and for the court to rule that only two trustee’s commissions be payable from each of the trusts and these commissions be shared equally among the existing and added trustees.

A Staten Island Probate Lawyer said when reviewing the language of the will it is clear that Jeffrey is acting within his power to add additional trustees. For this reason, this portion of his petition is approved and the additional trustees are added. However, in regard to the commissions, Jeffrey does not have the power to divide up the portion of Carole’s commissions as she is entitled to the full amount. He does have the right to divide his portion of the commissions among the other trustees or to distribute further commissions from the trust as necessary.

Any matter of probate can become complicated quickly. Contact Stephen Bilkis & Associates to speak with an experienced New York City probate lawyer. Our offices are located conveniently around the city. You may come in and speak with one of our lawyers in a free consultation at any time.

September 3, 2012

Probate Court Hears Case Filed by Fiduciary

Queens Probate 18

This is an uncontested administratix’s accounting proceeding taking place in the Surrogate’s Court of Suffolk County. A New York Probate Lawyer said a stipulation has been submitted to the court for approval into the provisions of an intermediate accounting decree.

Case Background

The decedent died on the 17th of March, 1980. The decedent was survived by a spouse and an infant daughter who was born by himself and his previous wife who also survived the decedent.

The will of the decedent was dated the sixth of December, 1972. In the will he bequeathed all of his real and personal property along with the maximum allowed as a marital deduction to his former wife. The rest was disposed of in a trust for the benefit of his former wife during her lifetime. If the spouse were to pass away the principal of the trust would remain to be held and benefit his daughter when she reaches the age of 30. There were no provisions made in the will for his second wife. As a consequence, his daughter became the sole beneficiary of the estate by the decree of divorce from his ex wife.

The decedent’s former wife entered a petition with the court for the probate of the last will and testament of her ex-husband. Bronx Probate Lawyers said the surviving spouse opposed the petition unsuccessfully. Around three months later the surviving wife of the decedent filed a notice of election against the estate. A discovery proceeding was started by the fiduciary against the decedent’s spouse, which was discontinued with prejudice.

Two years later a petition for an accounting of the estate was filed by the surviving spouse of the decedent seeking a determination of her elective share of the estate. Brooklyn Probate Lawyers said the fiduciary initially contested the application, the differences were resolved, and the proceeding was withdrawn in accordance with the terms of a stipulation of settlement that required the fiduciary to file her account with the court within six months from the date of the agreement.

Court Discussion and Decision

The fiduciary filed the instant accounting proceeding on the fifth of June, 1985. The fiduciary requests the rejection of various claims made against the estate, approval of a payment of those claims that are allowed, a fixation of counsel fees in a stated amount, and authorization to pay the administrator’s commission in the amount of $6,634.03.

The record for this proceeding shows that all of the parties that have appeared in this case are adult and competent. They have all consented to and signed the agreement in the matter. Additionally, the parties that have not appeared in the case have been notified of the settlement and they have not appeared in opposition to the relief being requested in this case.

The court has agreed to the stipulations in regard to the agreement. However, the amount being requested to pay the attorneys from the estate is being lowered from the requested amount of $70,000 down to a sum the court finds to be more reasonable of $25,000.

If you are involved in a probate matter, contact Stephen Bilkis & Associates. Our offices are located all around New York City. You can contact us at any time to speak with an expert attorney regarding your legal issue. You will be provided with a free consultation on your first visit to our offices.

August 6, 2012

Multiple Parties Seek to be Executor of Estate

This is a matter of probate concerning the will of Evelyn May Hoelzer. The case is being heard in the Surrogate Court of the City of New York in Nassau County. The judge overseeing the hearing is John B. Riordan.

Probate Applications

This is a pending probate proceeding involving the will of Evelyn Hoelzer. There are currently two applications set before the court for preliminary letters testamentary. A New York Probate Lawyer said tne application is from Jeanne Schieck and the other is Richard Hoelzer. Jeanne is the decedent’s niece and Richard is the decedent’s brother.

Jeanne has been nominated as the contingent executor of the estate under the will and testament of the decedent that is dated the fifth of September, 1986. In this will, Richard is named as the executor and the nephew of the decedent, Arthur C. Schilling, Jr. is the first contingent executor unless they fail to qualify, predecease the decedent, or of the office of the executor is left vacant. Arthur passed away before the decedent.

Case Background

Evelyn May Hoelzer passed away on the 13th of October, 2006. She did not have a spouse or any children at the time of her passing. Richard and Jeanne have filed separate petitions for admitting the will for probate. A New York City Probate Lawyer said each is seeking to be named as the executor of the estate.

Jeanne’s Case

In support executor application, Jeanne makes the allegation that Richard is dishonest, lax, and duplicitous. Manhattan Probate Lawyers said she also states that when the decedent was debilitated with dementia, Richard and his brother John conspired to isolate the decedent from her family and friends. She also alleges that the brothers exerted influence over the decedent as well as robbed her of property and had the intention of depriving the decedent’s family and friends of their rightful share of the estate.

Jeanne states that the preliminary letters testamentary should be immediately provided to her so she can protect the assets that belong to the estate before John and Richard can destroy them. As part of Jeanne’s exhibit for her application she provides an affidavit from Marjorie Hoelzer Schilling, the decedent’s sister, that supports her application. Marjorie makes the same accusations against Richard as made by Jeanne.

Richard’s Case

Richard opposes the application made by Jeanne. He denies all of the allegations made against him by both Jeanne and Marjorie. He states that he has every intention of discovering all of the assets of the estate, even if the assets were moved from the decedent’s name before she passed away.

Case Discussion and Decision

Both Richard and Jeanne both have created petitions to be appointed as the preliminary executor of the estate. In this case, the preliminary letters must be issued to Richard as he was named as the executor of the estate in the will, unless good cause to show a serious misconduct has occurred to render him unqualified.

In this case, Jeanne has not submitted enough evidence to demonstrate good cause of a serious wrongdoing committed by Richard. This is the reason that the preliminary letters are issued to Richard and the application submitted by Jeanne is denied.

If the allegations made by Jeanne are true, they are quite serious. It is recommended that an appropriate remedy in this case is for Jeanne to commence a discovery proceeding to claim assets she believes to be a part of the estate of the deceased.

If you are having any type of legal trouble, contact the law offices of Stephen Bilkis & Associates. Our offices are located in New York City. You may call us to set up a free consultation any time.

July 22, 2012

Court Decides Guardian Ad Litem Fee

This is a hearing in the matter of the last will and testament of the deceased Joseph R. Drab. The probate case is being heard in the Surrogates Court of the state of New York in Nassau County.

Probate Proceeding

The decedent of the case was survived by his spouse, his son Richard, who is the petitioner in the case, four grandchildren, and a predeceased child. The spouse of the decedent is disabled and is therefore represented by a guardian ad litem that has been appointed by the court.

The respondents in the case have demanded 1404 SCPA examinations in the case, but these have not been conducted. The reason is that the parties have entered settlement negotiations in the case.

The will and testament of the decedent left the entire estate to the lifetime trust. The trust leaves the estate to the petitioner, the son of the decedent, excluding the wife and the grandchildren.

A stipulation of settlement has been entered in the case and is waiting approval from the court. A New York Probate Lawyer said the settlement permits the will to be entered into probate and guarantees an elective share to the wife of the decedent and distributes the rest of the assets of the estate into two parts. The first part will be given to the petitioner and the other is to be divided among the grandchildren equally. The court is satisfied with this proposal of settlement and approves.

Guardian Ad Litem Fee

It is now up to the court to determine the appropriate fee to be paid to the guardian ad litem. It is up to the court to determine and approve any legal fees that are to be charged to an estate. Long Island Probate Lawyers said the court has the discretion to determine what is considered to be reasonable compensation for the legal services that were provided during the course of administration of an estate.

There are several factors that a court may consider when determining the appropriate amount of legal fees. These include the time that was spent on the case, the complexity of the issues, the nature of services that were provided, the amount of litigation that was required and the complexity of it, the benefit of the services provided, the experience and reputation of the lawyer, and the customary fee that is charged by the Bar for services of a similar nature.

In this particular case the value of the estate of the decedent at the time of his death was roughly $506,000. The debts and expenses total around $44,400, which leaves a net of about $461,600. The settlement provides the wife with $154,000, which is more than her one third allotted shares. The guardian states that he has spent approximately 31 hours working on this matter. The services provided include interviewing witnesses, visiting his ward, determining the value of his wards share of the estate, ascertaining the value of the estate, participation in settlement negotiations, appearing in court three times, and preparing and filing interim and final reports in the case.

Considering all of the factors in the case, the court has determined that the guardian ad litem will be paid $7500. NY Probate Lawyers said this amount will come from the elective share of the spouse.

There are many legal facets to consider during a probate case. If you are in this type of situation contact the law offices of Stephen Bilkis & Associates for help. Our team of lawyers will sit down and discuss your case with you and determine the best course of action. Our offices are located throughout the city of New York for your convenience. You may set up a free consultation at any time.

July 16, 2012

Court Finds Clear Error in Will

This is a matter involving the estate of Eugenia C. Herceg who is deceased. The petitioner is represented by the law firm of Levene, Gouldin & Thomas, with John H. Hartman for counsel.

Case Background

In the will of Eugenia Herceg there is a residuary clause that is dated the second of December, 1999. This clause states that at the time of her death all of the rest of her personal and real property the same will situate. There is no name of a beneficiary given. In all practicality, this residuary clause only refers to 10% of her estate as the other 90% of the estate is bequeathed to others.

The executrix of the will, Colomba Pastorino has petitioned for the construction of the will to have the residuary clause to read the same as the clause from the will that was written in 1997. A New York Injury Lawyer said the 1997 will left this portion of the estate to the decedent’s nephew, Sergio Pastorino and in the event of Sergio Pastorino passing before her the portion would go to his wife, Colomba Pastorino.

Sergio Pastorino died just before the decedent. This means that the person who would take the estate intestacy would be her niece Josephine D’Angelo and her great nephew, Sergio Rossello. Josephine D’Angelo has filed consent in the matter and Sergio Rossello has defaulted.

The attorney and draftsperson of the will states that when the will was redrafted in 1999 a computer was used and there were some lines of the residuary clause that were deleted accidentally.

Court Discussion and Decision

It is obvious that there has been a mistake made in this manner. The question is how to correct this mistake. NYC Probate Lawyers said the court feels that the testator had intended the residuary beneficiary of the estate to be Colomba Pastorino, the wife of the decedent’s nephew. It is believed that her name should have been inserted into the will.

The issue in a case such as this is that when the name of the beneficiary is missing and cannot be supplied by reconstructing the will it is difficult to know who the proper recipient should be. In essence this causes the will to have to be interpreted to determine the intention of the testator. The issue in this case is that the court is not supposed to supply information that the testator has not, whether there is extensive evidence to support it or not. The second line of the law comes to the conclusion that everything possible should be done in order to avoid intestacy and to act out the last wishes of the testator.

Long Island Probate Lawyers said there is a substantial amount of evidence to support that the residuary beneficiary was in fact Colombo Pastorino. This evidence includes the fact that Colombo was named as the alternate executrix of the will, which proves that she had not fallen out of grace with the decedent. The consent of the niece states that she realizes that it was a mistake for the name to be left out of the will and she feels that her aunt intended to name Sergio or Colombo as the residuary beneficiary. For these reasons, the court has determined that the residuary beneficiary in the case is Colombo as Sergio preceded the decedent in death.

If you need to talk to a lawyer, contact the offices of Stephen Bilkis & Associates. You can call any of our offices located in New York City to set up a free consultation with one of our expert litigators. We will discuss all of your legal options with you and determine the best step to take.


July 13, 2012

First Wife Petitions Will

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

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

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

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

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

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

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

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

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

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

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

June 27, 2012

Court Discusses Decedent's Endowment Fund

The wife of a chemical engineering professor left a piece of real property which comprised a substantial portion of her estate worth around $2,800,000 to a polytechnic university. She also left the sum of $2,000,000 as a charitable endowment gift to the same polytechnic university provided that it shall be used as an award to the Distinguished Professorship of Chemical Engineering. A New York Probate Lawyer said the rest of her estate was given as a gift to be used to fund graduate research fellowships or an endowment fund. According to her last will and testament, these cash sums should be restricted to the uses she had enumerated and trusts should be created and the income from the trusts can be used by the same university for general purposes to construct or acquire a building in the name of her late husband.

The woman’s husband was a professor of chemical engineering at the polytechnic university; they lived in the university and spent most of their lives at the university. She also left one quarter of her residual estate worth $126,000,000 to the university as a gift under the same conditions.

The will was probated and the executors rendered their accounting in 2003. In total, the polytechnic university received over $130,000,000 under the woman’s will and the university held $70,400,000 in an endowment fund in her husband’s name with the restrictions stated.
The university was located in Brooklyn and with the cash gift and endowment, the university expanded and improved its facilities; the university upgraded its status to a residential university. The university took out a loan from New York City in the amount of $90,000,000 to construct new dorms, new lecture halls, new laboratories, new research laboratories and improvements to the University facilities.

The loan was granted provided that the University has sufficient funds from tuition fees and other revenues equal to the amount they needed to pay for the loans. Queens Probate Lawyer said if their income from tuition fees fall below amount they needed to pay for the loan, the university will be in default.

The problem was on September 11, 2001, two airplanes crashed into the World Trade Center which sent alarm throughout the country. Students who had applied to the university withdrew their applications and went elsewhere for their college studies. The enrollment at the university dropped substantially. Also, the dot.com crash made information technology and computer engineering courses unpopular and the enrollment further decreased.

The University’s enrollment dropped and so did its revenues. Its total income from tuition fees and other revenues did not equal the amount it needed to pay for its loan from New York City.
Another problem generated by the drop in university attendance was that the University had to dip into its reserves and savings. NY Probate Lawyers said it’s eligibility to give out federal education loan programs and scholarships was endangered because it was about to lose its status as an educational institution that is financially responsible.

The University implemented cost-cutting measures by reducing staff, reducing pensions and holding off salary increases. The university was able to say at least $12,000,000.00 which helped ease the financial worries of the university but still the university was running on deficit. Its accountants project that if the enrollment does not improve, the university will be out of cash by 2007.

The University then went to the same surrogate court that probated the will and asked that the restriction imposed on the charitable gift be relaxed so that from being funds restricted for the sole benefit and use of faculty and student scholarship endowment, it can also be used for general purposes such as ensuring that the University remain liquid, meet all of its debt obligations, continue operations until student enrollment gradually goes back to normal levels.
The Surrogate Court held a hearing to determine if under the terms of the will, the restrictions imposed on the charitable gift of cash sums can be removed until such time as the university has improved its financial affairs.

The Court held that the woman’s last will and testament was one which had a discernible general charitable intent. The woman’s gift to the University was for the purpose of allowing the University to continue to provide quality education to students as well as to provide incentives to its teaching staff to remain teaching and to engage in research which will further the field of engineering.

The charitable intent of the testatrix will be nullified if her gifts were to be rendered useless because the University closes down. When this occurs, the law gives the courts jurisdiction and power to relax the restrictions on the gifts as provided in the will so that the general charitable intent of the testatrix will be given effect.

The Court explained that before the courts can relax the restrictions on the trusts created in the will, the university must prove that the gift was really charitable in nature; the testatrix has shown a general charitable intent when she created the trust and gave the gifts to the university in her will; and that circumstances have changed after the gifts were given that will make the university’s compliance with the restrictions impossible. That is to say, that the university’s financial health has been so affected by circumstances beyond its control that the university cannot comply with the restrictions imposed upon the gifts by the testatrix in her will that the university risks closing down and ceasing all its operations.

The Court held that the University has discharged its burden of proof. It has satisfactorily shown the grave financial straits it has fallen into without fault or irresponsibility on its part. The University has also shown its good faith and best efforts to reduce its operation costs. It has show that it has done all it could do to prevent the drain of its financial reserves, but to no avail.

The University has also proven to the satisfaction of the court that when it reclassifies the cash gifts of the testatrix, the funds will not be spent. The cash gifts will only stand in the books of account of the University as cash reserves only so that the University will not lose its eligibility status as a university through which federal loans may be granted. The University has also satisfactorily shown that only $5,000,000 of the testatrix’s charitable gift will be classified in its books and only so that it will not be considered by its creditors as in default of its loan obligations.

The Court granted the University’s petition to relax the restrictions on the cash gifts created as trusts in the testatrix’s will. It has also proven that it is on the verge of losing its status as a university through no fault of its own. And the relaxing of the restrictions is for a limited time only until the university’s financial problems are resolved.

Are you childless? Are you not on good terms with your relatives that you feel that they should not benefit from your estate? Are you considering making a trust of your estate and giving it as a grant to fund a charitable, religious or educational institution? At Stephen Bilkis and Associates, their New York Probate lawyers can not only research for you the viability of converting your estate as a trust through your will, their legal team can also help you word your will so that it can only be used for charitable purposes. Call Stephen Bilkis and Associates today and find out how you can create a trust out of your estate to benefit a charitable institution.


June 26, 2012

Ex-Wife Files a Claim Against the Estate

The Facts:

On 3 March 1994, a decedent died. He was survived by his ex-wife and their four children. Under the decedent’s will dated 3 August 1988, he left his estate to the daughter (“the daughter”) of one of his sons (“son-one”).

On 3 November 1994, the will was admitted to probate and letters testamentary were issued to the son-one’s wife, the nominated executor.

The primary asset of the estate was his one-half interest in his former marital home, located at Hampton Bays, New York (the "Hampton Bays property"). The other one-half interest was owned by the ex-wife.

A New York Probate Lawyer said that on 18 October 1995, the ex-wife died testate and her will was admitted to probate in Suffolk County. Under the ex-wife’s will, she left her one-half interest in the Hampton Bays property in trust for the benefit of her son (“son-two”) who is a person under a disability. Upon son-two’s death, the property passes equally among the three remaining children. Son-three was named executor and trustee. In addition, he has been appointed guardian for his brother, son-two. Since the ex-wife’s death, son-three and son-two have resided in the house. They have not paid any rent for the occupancy, although they paid the current charges.

The claim proceeding:

The decedent and the ex-wife were married twice. They were first divorced on 8 August 1985. In the divorce decree, the decedent was ordered to pay the ex-wife per week maintenance beginning 10 May 1983. On 8 August 1984, the ex-wife obtained a judgment against the decedent in the amount of $7,000 for arrears for the period from 10 May 1983 to 7 August 1984. The decedent and the ex-wife remarried on 10 February 1986. They were divorced for the second time on 7 July 1988. The second divorce decree required the decedent to pay the ex-wife maintenance of $60 per week, beginning one week after the judgment of divorce. The divorce decree provided that th ex-wife was to have exclusive use and occupancy of the Hampton Bays property for herself and their son, son-two, as well as custody of him.

Sometime in April 1995, the ex-wife filed a claim against the estate for $ 143,684.63. Included in the claim were $7,000 owed under the judgment, an additional $7,800 unpaid maintenance under the first divorce decree, $14,406 in unpaid maintenance under the second divorce decree, $44,014.32 for the decedent’s one-half of the real estate taxes, mortgage payments, insurance and capital improvements the ex-wife paid on the Hampton Bays property, $ 10,000 for her share of refunds on joint tax returns the decedent allegedly received and $23,000 for her share of the settlement proceeds of a personal injury action the decedent allegedly received.

By petition verified 10 September 1996, and filed 2 October 1996, son-three, as executor of the ex-wife’s estate, brought a proceeding to determine the validity of the claim. The petition sought payment of the ex-wife’s claim, with a number of modifications. The claim for back maintenance sought interest at the legal rate. The claim for contribution for expenses was increased to $47,067.57 and son-three asked for reimbursement of $2,580 allegedly paid for funeral expenses of the decedent. The total claimed was $111,853.57.

Son-one’s wife filed objections to the petition. NYC Probate Lawyers said she denied that the estate owed the ex-wife’s estate for the claims arising from the judgment and first divorce decree, on the ground that the re-marriage negated any alimony arrears. Son-one’s wife denied that the $14,400 alimony, due as a result of the second divorce, was not paid. She denied any knowledge of the facts on which the claims for one-half of income tax refunds and personal injury settlements were based. She denied that the ex-wife’s estate was owed any monies for the expenses on the Hampton Bays property, on the ground that the ex-wife had been living in the residence and receiving alimony. Finally, son-one’s wife alleged that if the ex-wife’s estate did have the right to reimbursement for one-half of the ex-wife’s expenses, the decedent’s estate was entitled to one-half of the fair market rental value of the property, alleged to be $126,000, as an offset. Son-one’s daughter was cited in the proceeding. She was a minor and a guardian ad litem was appointed to represent her.

Sometime in December 1997, son-one’s wife moved for summary judgment denying the ex-wife’s claim and granting son-one’s wife her counter-claim of $126,000. For the first time, son-one’s wife asked that the Court authorize her to bring a partition action to sell the property and receive 50% of the proceeds, as executor of the decedent’s estate. Son-three opposed the motion. A Staten Island Probate Lawyer said there were a number of court conferences to settle the proceeding. As part of the settlement negotiations, an appraisal was made of the Hampton Bays property, which showed that the fair market value of the property, as of 10 January 200 was $155,000. After it became clear that the parties would not be able to settle their differences, the parties agreed to forego a decision on the motion for summary judgment and to have the claims and counter-claim adjudicated before a court attorney-referee. The matter was then set down for a hearing on 12 November 2002.

The 12 November 2002 Stipulation:

The parties entered into a stipulation in settling the claim and counterclaim (the "2002 Stipulation"). Pursuant to the stipulation, son-three agreed to pay son-one’s wife, as executor of the decedent’s estate, $70,000 to purchase the decedent’s interest in the Hampton Bay property. The claim and counter-claim would be withdrawn. The $70,000 was to be paid to the attorney of son-one’s wife within sixty days. After the stipulation was read into the record, the court conducted an allocution of the parties to assure that the agreement was entered into voluntarily and that the parties understood its terms.

Thereafter, the guardian ad litem filed a report recommending the settlement and a decision was entered dismissing the proceeding and fixing the fee of the guardian ad litem. The guardian ad litem prepared a decree incorporating the stipulation which was signed on 16 January 2003.

The Guardian Ad Litem’s Motion for Contempt:

Son-three arranged to obtain the $70,000.00 due under the settlement from his brother, son-one. Son-one gave son-three a cashier's check for the amount due, payable to son-one’s wife. Son-three then forwarded the cashier's check to his attorney for transmittal to the attorney of son-one’s wife. The cashier's check, however, was payable to son-one’s wife, personally and her attorney refused to accept the check. He agreed to accept a replacement check, payable to him, as provided in the stipulation. The replacement check, however, was never sent. Instead, son-three sent the cashier's check to son-one’s wife.

When the guardian ad litem tried to confirm the receipt of the settlement proceeds, son-one’s wife claimed to have returned the check to the maker. The guardian ad litem then brought a motion to hold son-three in contempt. Son-three’s attorney filed an affidavit in opposition, stating that he sent the $70,000 check to son-one’s wife directly and that she had cashed it. Subsequently, son-three filed a copy of the $70,000 check showing that it had been negotiated by son-one’s wife.

The guardian ad litem then moved to hold son-one’s wife in contempt for refusing to place the funds in the estate account. Son-one’s wife appeared by a new attorney. The matter was set down for a hearing on the two motions on 14 June 2005. At the hearing, son-one’s wife was represented by a third attorney. Son-one testified that he provided the $70,000 check paid to his wife pursuant to the settlement. Son-one testified that son-three asked him to provide the money to purchase the decedent’s interest in the Hampton Bays property pursuant to the stipulation and that he agreed to do so, in the belief that he was purchasing the decedent’s one-half interest. Later, after he realized that he was only advancing the funds for the benefit of the trust under the ex-wife’s will, and that he would receive only his pro rata share of the Hampton Bays property when the trust terminated, son-one changed his mind. Son-one testified that he told son-three that he was not going to provide the $70,000 under those circumstances. He then told his wife that she should consider the $70,000 check already received as a gift from him to her for her and their daughter's benefit.

At the conclusion of the hearing, son-three stated that he did not realize that son-one had reneged on his agreement and that he was willing to pay the $70,000. A stipulation was placed on the record, requiring son-three to pay the $70,000 previously agreed to, plus interest at the legal rate, from the original date of the stipulation until the funds were delivered. Son-one’s wife agreed to this but insisted on preserving her right to challenge the original stipulation. The parties agreed to allow her to challenge the stipulation, on the proviso that the motion be made within sixty days. Son-one’s wife then made the instant motion to set aside the 2002 stipulation, the decree entered on 16 January 2003, based upon the 2002 stipulation, and the 2005 modification of the 2002 stipulation entered into in open court on 14 June 2005. Son-three’s attorney has submitted an affirmation in opposition to the motion as has the guardian ad litem.

The Ruling:
Son-one’s wife challenges the 2002 stipulation, as modified by the 2005 stipulation (hereinafter referred to collectively as the "stipulation") on a number of grounds.

One: that the 2005 stipulation gave her the unilateral right to void the earlier stipulation.
Such a construction would give son-one’s wife the option of agreeing to the stipulation (or not), depriving the stipulation of any binding force.

As defined by law, a stipulation is a contract. As such, it is subject to the rules governing the construction of contracts for its interpretation and effect. The court's task, as in the interpretation of any contract, is to determine the intent and purposes of the stipulation. To glean the intent, the court must examine the record as a whole. Whether an agreement is a binding contract or an option is to be determined, like any other issue of contract interpretation, from the four corners of the agreement.

Here, there is nothing in the 2005 stipulation that indicates an option-a bargain to merely give son-one’s wife time to decide whether to agree to the stipulation or not. If the parties truly intended to grant her such an option, there would have been no need to provide for interest until the time for her to exercise her option and disavow the settlement had elapsed. There would have been provision for what was to happen if she did disavow the stipulation. The only reasonable construction of the stipulation is that the parties were modifying the original stipulation solely to provide for interest so as to make the estate of the decedent whole for the unintentional delay in receiving the settlement proceeds. The record shows that son-one’s wife agreed to the stipulation but wished to preserve her right to move to vacate it.

Thus, the motion to construe the 2005 settlement as giving son-one’s wife the unilateral right to disavow the settlement is denied.

Two: that the stipulation is void because son-three never furnished a check payable to her attorney, in breach of the stipulation. Instead, son-three delivered the check to her, payable to her.

Here, the provision for payment to the attorney of son-one’s wife and deliver it to such attorney, was primarily for the benefit of her attorney, to ensure that he was paid. There is no basis for her to complain if she received the check directly.

When son-one’s wife received the check, she did not return it to son-three or protest that it was payable to the wrong payee. Instead, she deposited the check into her personal account.

As a party and a fiduciary, son-one’s wife had an obligation to accept the check in settlement and deposit it into an estate account or to inform son-three why she was not accepting it. Instead, she deposited it into her personal account on the advice of his husband without informing son-three.

The failure of son-one’s wife to be candid to the guardian ad litem compounded the confusion. This was a breach of her duty to act in good faith as a party to the contract. As with all contracts, there is an implied covenant of fair dealing and good faith between the parties. A party cannot use her own breach of contract as a basis for cancelling the contract. A party in breach of her duty under a contract cannot complain of breach by the other side, especially where the other side had no knowledge, or reason to know of the original breach. When a party breaches an executory contract, the other has the choice of treating the contract as breached and to immediately sue for breach of contract or continue to treat the contract as valid.

Once it was established at the June 2005 hearing that son-one had disavowed funding the settlement, son-three agreed to provide a new check for the settlement proceeds, with interest from the date of the first settlement. The provision for interest was intended to protect the estate of the decedent for the loss of income until payment was received.

Thus, son-one’s wife’s claim that the stipulation is void because of the breach of son-three is denied.

Third: the stipulation should be vacated because the consideration was grossly unfair.

This is not one of the usual grounds to vacate the settlement. As with any contract, a stipulation of settlement should not be set aside absent fraud, collusion, mistake or duress. The burden is on the party challenging the stipulation.

In this case, the record shows that son-one’s wife has not acted in good faith in this matter. When the guardian ad litem sought to ensure that the settlement proceeds were received, son-one’s wife denied that she received the settlement check and later claimed that she returned the check to the maker. Not until the hearing on the motion for contempt did she admit that she received the check and deposited it in her personal account. Finally, son-one’s wife had no objection to her ex-husband (or herein referred to as husband) purchasing the decedent’s share for $70,000. Only when it was clear that the $70,000 was to be used for all of their children (of son-one’s wife) did she claim that the stipulation was unjust.

Thus, son-one’s wife has failed to establish a claim for unjust enrichment.

Fourth: that the equitable doctrine of laches acts as a bar to enforcing the stipulation.

Here, the only element of laches alleged is the passage of time. However, the mere passage of time is insufficient to establish laches.

Fifth: that the settlement should be vacated because her daughter had become of age by the time the stipulation had been entered into, so that the guardian ad litem was without authority to agree to it.

The law is not clear whether the guardian ad litem's authority ceases once the ward reaches eighteen years of age. The rule adducible from authorities is that where no suggestion or motion is made during the pendency of the action, the validity of the proceedings or the judgment entered will not usually be affected by the failure to strike out a guardian for an infant party who has become of age.

Here, the court need not reach a determination of which rule to apply in this motion because, on the facts of the case, the validity of the stipulation does not depend solely on the authority of the guardian ad litem, for a number of reasons. First, it is not the daughter who has moved to set aside the stipulation, but her mother or son0one’s wife. There is no basis to allow the fiduciary to try to nullify her own actions by asserting the rights of the former minor. Second, even if the guardian ad litem lacked authority to represent his or her ward, the stipulation is not void. It is at most voidable, subject to the election of the former infant. This election must be seasonably made. Finally, the stipulation is not subject to attack by the daughter because her consent was not required. This was, after all, a proceeding to determine the validity of the claim, which was settled. Son-one’s wife, as executor of the estate of the decedent had full authority to settle the claim.

Son-one’s wife claims that her authority is limited by the fact that legal title to the decedent's interest in the Hampton Bays property devolved to the daughter as a matter of law upon the death of the decedent. This is not determinative of the authority of the fiduciary. While the court agrees that title to real property is deemed to pass to the devisee as a matter of law, such devolution is always subject to the right of the executor to sell real property to pay debts, funeral expenses and administrative expenses. The law expressly authorizes an executor to sell real property on such terms as the fiduciary deems beneficial to the, even if the beneficiary objects.

The question of whether the realty should be sold and under what terms is a matter of business judgment. Every fiduciary has the obligation to pay expenses of estate administration or estate litigation.

It is not disputed that the only funds to pay administration expenses and claims was from the sale of the property. Therefore, even if the guardian ad litem was without authority to bring the motions for contempt, son-one’s wife still had full authority to agree to the stipulation to settle the claim and pay the administration expenses, including the fee of the guardian ad litem.

Stipulations are favored by the courts and not lightly case aside especially where the stipulation was agreed to in open court. Stipulations are especially favored by the courts when counsel represented the party seeking to vacate the stipulation. Stipulations not only provide litigants with predictability and assurance that courts will honor their agreements, but also promote judicial economy by narrowing the scope of issues for trial. To achieve these policy objections, a stipulation is generally binding on parties that have legal capacity to negotiate, do in fact freely negotiate their agreement and either reduce their stipulation to a properly subscribed writing or enter the stipulation orally on the record in open court.

Henceforth, the motions of the guardian ad litem for contempt are denied and the motion of son-one’s wife to vacate the stipulation is denied.

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June 15, 2012

Family Questions Mental Capacity of Decedent

On this contested probate proceeding, the guardian for the infant beneficiaries seeks for authorization to retain a medical expert to be paid from the assets’ proceeds.

It was initiated when a man died at the age of 88 and he was survived with seven children and two grandchildren. Afterwards, a man was appointed as the guardian for infant grandchildren of the deceased. Separate objections have been filed by the deceased children and the guardian on behalf of his charges. Based on records, the gross estate is estimated between $26 million and $35 million, consisting primarily of silver holdings, a yacht, farmland and real properties in New York and Connecticut.

Consequently, the proposed will was completed three weeks before the man died from lung cancer. It is offered for validation by the attorney-drafter. Under the proposed will, the deceased made pre-residuary inheritance of specific property, his interest in a corporation to some of his children, devised real property to one child, made monetary reward to his caretakers and disposed of his residuary estate to one of the charitable foundation he established in 1974.

The proposed will departs markedly from four prior wills under which the deceased made pre-residuary rewards to his caretakers and disposed of his estate to his children and grandchildren. The children find it mysterious that their father would depart from his testamentary plan, claiming that their relationship with him was at all times close and devoted.
The children and the guardian allege that at the time that the deceased signed the proposed will he was lacked of the requisite capacity to make a will. They contend that the man has suffered from insane delusions caused or exacerbated by his abuse of prescription steroids. A New York Probate Lawyer said such abuse, coupled with deceased's advanced cancer, ongoing aggressive chemotherapy treatments and recent surgery, impaired his capacity to make a will.

In detailed objections, the children allege that during the final months of his life the deceased man became delusional believing that he was a central figure in the struggles with the Middle East. The deceased asserted and told his psychologist that he was going to trade his life for Osama Bin Laden's and save the world by becoming a target for a terrorist attack. The children also assert that the deceased's home care attendants and the charitable foundation’s employees also became alarmed by his erratic and aggressive behavior.

Westchester County Probate Lawyers said the guardian refers to interviews with the deceased's home care attendants, employees and family members as confirmation for his filing for objections to validate the will. He considers the retention of a medical expert essential to establish that the deceased's lack of capacity or the suffering from insane delusions.

The professor has written extensively on the subject of steroid dementia syndrome and is considered an expert on the behavioral effects of steroid use which the deceased is alleged to have abused. The guardian seeks an award of $40,000 to retain the doctor for an initial consultation and review of the deceased's medical records. The guardian has not yet obtained a precise statement of the time that the doctor will require, but estimates it will take up to 100 hours. The doctor charges between $400 and $450 per hour.

The proponent opposes the request on the grounds that there is no precedent for such relief and that the grant of the application would be inequitable inasmuch as the children may benefit from the expert's advice.

Consequently, the application is granted. Suffolk County Probate Lawyers said the guardian is also authorized to retain an expert for purposes of reviewing the deceased's medical records and to consult with the guardian concerning the findings. The guardian shall obtain an estimate from the expert of the time required for such services. Upon receipt, the guardian shall settle an order providing for payment to the expert in the estimated amount.

If you have doubts about the last will and testament of your parent or someone closely related to you, you can seek assistance of the Kings County Probate Attorneys. If you want to be sure and feel secured about the legalities of your bequests, ask from the Kings County Estate Attorneys or Kings County Estate Administration Attorney at Stephen Bilkis and Associates so that they can provide you enough understanding and legal guidance.

June 13, 2012

Court Decides Status of Real Estate in Decedent's Estate

The Facts:

On 31 May 1988, a man (the testator) executed a last will and testament in which he devised and bequeathed a life estate interest in premises located at Hopkins Avenue, County of Kings, State of New York, (Hopkins Avenue property) to defendant, including the right for her to collect all rents as they become due for her own use and benefit.

On 25 November 1988, the testator died. On 17 March 1989, letters of administration of the estate of the testator were issued to the testator’s relative. Thereafter, as administratrix, she entered into a contract to sell the subject premises to a Brokerage Corp.

On 29 January 1991, the Surrogate's Court, Kings County, issued an order authorizing the administratrix to proceed with the sale of the Hopkins Avenue property.

New York Probate Lawyers said the defendant has continuously resided at the Hopkins Avenue property, from sometime in 1975, to the present date. Since the death of the testator, she has collected rent from the occupant of the other apartment in the subject premises.

On or about 15 March 1991, an officer (the officer) of the Brokerage Corp., visited the subject premises and endeavored to speak to defendant. He gave her his business card. He also spoke to the tenant on the second floor who informed the officer that he was paying his rent directly to defendant. Thereafter, NYC Probate Lawyers said the officer received a telephone call from a lawyer who advised the officer that he represented defendant and that the testator had executed a will prior to his death in November of 1988 in which the testator gave defendant a life estate interest in the subject premises.

Plaintiff-one was verbally informed by the officer, at least two days prior to the closing of title, that there were some problems in the transaction. Plaintiff-one did not make any further inquiries as to the specific nature of the problems.

On 16 April 1991, title to the subject premises was conveyed by the administratrix, to the Brokerage Corp (the first mortgage). Manhattan Probate Lawyers said that plaintiff-one advanced all funds that were required for the purchase of the subject premises, a total exceeding $38,000. Despite the fact of the actual amounts outlaid, the mortgage note and mortgage delivered to the lender plaintiff-one were in the amount of only $28,000. No payments on the note and mortgage have been made. Plaintiff-one and the officer, acting on behalf of the Brokerage Corp., agreed that upon the resale of the premises, the plaintiff-one would be paid the monies he advanced at the original closing. The officer also agreed to pay the plaintiff-one approximately 43% of the expected profits from the resale.

Meanwhile, on 10 May 1991, a second mortgage has been executed by defendant Brokerage Corp. to plaintiff-two to secure the payment of $25,000.

On 21 October 1991, the last will and testament of the testator was filed in the Probate Department of the Kings County Surrogate's Court. Thereafter, letters of administration c. t. a. were issued to defendant.

Now, plaintiff-two, individually and as executor of his father, deceased, moves for an order dismissing the defendant’s affirmative defenses and granting him summary judgment against the defendant; and for an order appointing a Referee to compute the sums due under the note and mortgage.

The defendant cross-moves for an order denying the plaintiff-two’s motion for summary judgment; and granting her summary judgment to the extent of finding that any foreclosure is subject to her life estate in the subject premises.

The instant action is an action to foreclose on the second mortgage.

On the foreclosure action brought by plaintiff-one, in which plaintiff-one was named as defendant but did not appear:

The action has been concluded on 19 November 1997 and determined that the first mortgage was subject to the life estate of the defendant; that plaintiff-one, the first mortgagee, had both actual and constructive notice of the life estate; that defendant was in actual, visible, open and notorious possession of the property; that the first mortgagee had both actual and constructive notice; that the first mortgagee's actual knowledge of the life estate has no bearing on the finding with respect to the defendant’s possession of the premises.

The Ruling:
Here, the subject mortgage was entered into prior to the will through which defendant claims her interest was made part of the public record. The mortgage was executed on 10 May 1991, and the will, as previously noted, was filed for probate in October 1991; for estate administration or estate litigation.

Moreover, the affidavit submitted by the certified real estate appraiser (the Appraiser) is not probative. The appraiser testified at an examination before trial that he had no recollection of visiting the premises or who he saw at the premises; that since the appraisal report signed by him is written in somebody else's handwriting, he might not have been the person who inspected the premises; that the bank requires him to inspect both apartments in a two-family house; that if he cannot obtain access to the second apartment he might ask the tenant of the apartment he gained access to about the second apartment, or assume that the second apartment is similar to the first apartment; that there is no way of telling from the report whether access was gained to the second apartment, since he would not list this information in the report because the bank would give him problems; that he generally does not interview the people who provide him with access; that the report was prepared for another entity and not the plaintiff-two; that he refused to sign the first affidavit that was prepared for him because it listed details that he had no recollection of; and that he should have not signed the second affidavit because he had no recollection if he ever spoke to anybody at the subject premises.
Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to the entire world, of the existence of any right which the person in possession is able to establish.

In addition, plaintiff-two and his father had sufficient facts to impose on them a duty to inquire as to defendant’s tenancy. Where a tenant is in possession of the property at the time of purchase, or in this case, at the time the mortgage was executed, the purchaser or mortgagee is required to inquire about the title. Where a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of some right or title in conflict with that he is about to purchase, he is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim, to be considered as a bona fide purchaser.

The information listed on the appraisal report, on which plaintiff-two admits reliance, indicates: the first unit occupant is listed as "owner" with "0" lease, and "0" rent paid. The second unit occupant is listed as "tenant" with "no lease" total rent "$775." In order for the appraiser to have listed the interest of the first unit as "owner", he had to have knowledge of some possessory interest in the premises by defendant as that other than as tenant.

Here, the appraisal report is sufficient to put plaintiff-two on inquiry as to the existence of some right or claim of title, and, at such time, the duty to inquire is imposed on plaintiff-two to decipher the extent, if any, of the adverse claim.

On the claim that only possession which is inconsistent with the title of the apparent owner imposes a duty of inquiry; and that defendant’s possession was not on its face inconsistent with that title:

Although the appraisal report indicates otherwise, taking plaintiff-two's argument to its logical conclusion, a mortgagee would never have to inquire about the tenant's interest in a property, since the mere possession by a tenant of an apartment in a house would not by itself indicate that the tenant has an interest in the estate. A mortgagee cannot enter into a mortgage with blinders on. A mortgagee has to inquire about the possessory interest of the tenants of the subject premises.

Here, plaintiff-two has failed to show that he made any inquiry at all. Plaintiff-two has failed to demonstrate any affirmative steps taken in an effort to determine the validity of title at the time of this transaction. Rather, it appears that plaintiff-two simply relied on the appraisal report which was conducted in relation to the initial purchase by the Brokerage Corp., one month prior to the second mortgage.

Plaintiff-two cannot avoid the operation of the rule that defendant’s occupancy of the premises and the appraisal report listing "owner" as one of the two occupants put him on notice as to her interest in the property. The fact that defendant may not have told people who came to inspect the apartment about her life estate is of no consequence. Plaintiff-two has failed to show that defendant had a duty to impart this information to these unknown persons. Rather, plaintiff-two had a duty to inquire as to defendant’s interest in the property.

What's more, a search of the title record would have indicated that the subject property, with a value of over $100,000, had been purchased from the administratrix of the testator’s estate for less than $40,000. This would have put plaintiff-two on notice that there might be a cloud on the title.

The cases cited by plaintiff-two in support of his contentions are distinguishable from the herein case.

In the first case cited, the record owner provided in the contract of sale that it was subject to a month-to-month tenancy. Such a tenancy is not inconsistent with the title of the apparent owner. In the case at bar, the plaintiff-two had no information with respect to defendant’s tenancy, and failed to make any inquiry.

In another cited case, the Court found that the mortgagee had priority over the defendant occupant's claim to the property. Defendant had been present during the negotiations to arrange consolidated refinancing for the property and had not imparted her possessory interest to plaintiff. The Court found that defendant's silence, coupled with her consent to the subordination of her four prior judgment liens against her ex-husband, belied her future claim to a possessory interest in the property superior to plaintiff. In the case at bar, the defendant did not take part in the mortgage process.

Henceforth, the court finds that plaintiff-two is not a bona fide mortgagee and defendant’s life estate has priority over the second mortgage. Plaintiff-two's motion for an order striking the affirmative defenses of the defendant is denied; the defendant’s cross motion is granted to the extent of finding that her life estate has priority over plaintiff-two's mortgage; plaintiff-two is granted a judgment of foreclosure subordinate to the life estate of defendant.

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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.

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June 3, 2012

Petitioner Requests Preliminary Letters

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

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

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

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

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

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

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

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

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

June 2, 2012

Court Decides Jurisdiction Issue

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

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

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

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

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

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

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May 31, 2012

Petitioner Requests a Contingent Executor

The Facts:

On 13 October 2006, a decedent died without a spouse or children and leaving a will dated 5 September 1986. Under the will, in the event that one of the decedent’s brothers (“the brother”), who is the nominated executor, and the decedent's nephew, the first named contingent executor, predeceased the decedent, failed to qualify, or if the office of executor is otherwise vacant, the decedent’s niece is nominated as the contingent executor.

The first named contingent executor did, in fact, predecease the decedent. Thus, the decedent’s niece is nominated as the contingent executor.

New York Probate Lawyers said separate petitions for the will's admission to probate have been filed by the nominated executor and the contingent executor, each seeking to be appointed as executor; cross-application for preliminary letters testamentary pending the probate proceeding (estate litigation or estate administration). The propounded will dispenses with the filing of a bond.

In support of the contingent executor’s application for preliminary letters testamentary, the contingent executor alleges that the nominated executor is duplicitous, lax and dishonest. She also alleges that, while the decedent was incapacitated by dementia and Alzheimer's Disease, the nominated executor conspired with his brother, brother-two, to isolate the decedent from her friends and family, exerted undue influence over her and robbed her of her property with an intention to deprive her family and heirs of their rightful share of her estate.

It appears that decedent appointed brother-two as her attorney-in-fact on 25 March 2006. Long Island Probate Lawyers said in his capacity as her attorney-in-fact, brother-two conveyed title to the decedent's residence to himself, his daughter, and the nominated executor shortly before decedent's death.

The contingent executor asserts that preliminary letters testamentary should be issued to her immediately so she can discover and protect the assets she asserts belong to the estate before the aforesaid brothers can conceal and destroy them. Further, Manhattan Probate Lawyers said she presented the affidavit of the decedent’s sister which essentially makes the same allegations as her.

The nominated executor opposes the contingent executor’s application for preliminary letters testamentary. He denies the allegations of impropriety and states that he intends to fully investigate and discover all assets belonging to the decedent's estate, whether or not said assets were transferred from the decedent's name prior to her death.

The Ruling:

Under the law, a testator's wishes regarding the appointment of a fiduciary even on a temporary basis will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Preliminary letters may be denied, however, where the nominated executor's eligibility is at issue. When there is a clear showing of undue influence or other serious misconduct or wrongdoing, the court can decline to appoint the nominated fiduciary as preliminary executor on the grounds that dishonesty makes him ineligible. Generally, however, mere conclusory allegations that a nominated fiduciary is unfit are insufficient to deny preliminary letters.

Here, the nominated executor and the contingent executor have petitioned separately to be appointed the preliminary executor, each to the exclusion of the other. Here, however, under the law, preliminary letters must issue to the brother alone as the nominated executor in the absence of good cause shown or serious misconduct which renders him unqualified. The contingent executor has failed to demonstrate "good cause" or serious wrongdoing that would permit the court to nullify the testator's choice of fiduciary. Accordingly, the brother’s application for preliminary letters testamentary is granted and the contingent executor’s application is denied.

The allegations raised by, if true, are serious. It appears that the more appropriate remedy would be for the contingent executor, as special administrator, to commence a proceeding to discover assets that she claims should be part of the decedent's estate.

Henceforward, based upon the court’s broad equitable powers to convert or fashion a remedy upon the facts alleged, the contingent executor’s application is deemed as one for the issuance of limited letters of administration to her. Thus, limited letters of administration with respect to the decedent's estate shall issue to the contingent executor upon duly qualifying according to law, without bond; said letters to be limited to prosecuting a discovery proceeding.

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May 25, 2012

Court Concludes Petitioner Has No Jurisidiction Over Will

This case is being heard in the Surrogate’s Court of New York County. The case is regarding the estate of Marvin G. Connally. The executors of the estate are George H. Ryniker & Morgan Guaranty Trust Company of New York. The others involved in this case are Jean M. Denis, and Donald T. Mullane who is acting as the special guardian for Mary S. Hicks and the others who are infants.

Case Background

A New York Probate Lawyer said the testator died on the 26th of December in 1960. On the 9th of January a petition for probate was filed in this court. This included two testamentary instruments. The petition stated that the testator lived at 475 Park Avenue in New York City. It also stated that the distributees were his three children.

Jean M. Denis had been married to the testator, but they were divorced. The petitioner did not believe that she was a distributee of the testator. It is shown that $50,000 was given to Jean M. Davis and named her the guardian of the infant son of the testator, Robert M. Connally. A Staten Island Probate Lawyer said that Jean M. Davis was given a paper requesting her appearance in probate. She waived the service of this citation and gave consent for the instruments to be admitted into probate. Her attorney filed an authorized notice of appearance on behalf of the infant, Robert M. Connally. The special guardian in charge of the infant recommended probate and there were no objections to this.

On the 5th of June, 1961, Jean M. Denis as the guardian of Robert M. Connally and individually filed a petition that asked that the probate decree be opened, vacated, and set aside. The basis for this request is that the testator was not a resident of New York County, but resided in Suffolk County. She states that when she gave consent she did not realize that probate was being held in New York County and this is why she did not come forward with these facts at that point.

Court Discussion and Decision

In reviewing the facts of the case the court is dismissing the petition made by Jean M. Denis to have the probate opened, vacated, and set aside. In the question of jurisdiction over the case, there is no evidence to support these claims. The probate is already being handled and there is no reason to vacate the proceedings.

The reason that the court is dismissing the petition is because Ms. Denis is not a ditributee of the testator. For this reason she has no position to oppose anything that is in the will. Additionally, as a legatee, it is in her benefit to have the will sustained.

The argument made by the plaintiff is that the decedent was not a resident of New York County at the time of his death. However, Queens Probate Lawyers said there is nothing that is considered in the probate where this would come into issue. There have been no arguments in probate and no dissatisfaction with the way the case has been handled. There is ultimately no reason for vacating the original decree made in this particular case.

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May 25, 2012

Peittioner Challenges Jurisdiction of Probate Proceeding

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

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

Facts of the Case

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

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

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

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

Court Discussion and Decision

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

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

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May 21, 2012

Court Discusses HUD Rules

On March 29, 2010, a building owner from 1165 Evergreen Avenue in the Bronx, New York filed a motion to evict the resident of one of their apartments. A New York Probate Lawyer said the property owner claims that the person who leased an apartment from them has failed to pay her rent from April 2006 until March 2010. Apparently the leaser had been making only partial payments and at the time of the motion, the renter was $1183.94 behind on their rent. When the property owner filed the motion they also stated that the rent had been $25.00 short each month during the time listed. The property owner stated that if the amount was not paid by April of 2010, that the amount would need to be raised to $1418.94 which would include the late rent and $210.00 for legal fees.

The court set a hearing date, however the renter did not appear for that hearing. The property owner filed a motion for summary judgment. The court decided to review the litigation history between the parties and discovered that there had been four other cases filed between these two parties during the time span going back to 2006 which is also covered by this particular petition. A Staten Island Probate Lawyer said the court determined that the renter would only be behind in rent that was left unpaid through May of 2010 of $375.00. The court decided not to issue an eviction notice for five days so that the renter could have time to pay the amount determined by the court. On May 26, 2010, the renter applied for an order to show cause to cancel the default judgment.

The renter filed three more motions trying to keep from being evicted from the apartment. On August 11, 2010, the renter applied for an additional order and supported the approval of the original $1308.94. The court granted the motion on August 25, 2010. Both parties at that time agreed that the renter owed the property owner $1308.94. That amount would cover any amount that was not paid to the property owner through August.

In November of 2010, the renter applied for an order stating that she had been trying to pay the property owner the rent, but that the property owner had refused to accept the payment. The renter in December applied for the court to give her the opportunity to hire an attorney to represent her. The motions were put off until December 29th. However, the renter did not come to court on that date and the court decided to wait to make a final determination. The property owner then filed a request for an order to vacate the order of August 25, 2010 based on mutual mistake of fact.

The property owner not states that the renter lives in a Section 8 HUD subsidized building. Her original share of the rent was $25.00 a month. However in June of 2010, the renter failed to re-certify to qualify for the apartment at that rate, and the property owner failed to adjust the status on her account. The HUD representative gave an affidavit to the court that stated that the renter due to her loss of HUD support, actually owed the property owner $3,117.94 through August. Queens Probate Lawyers said the HUD representative stated that the renter has since re-qualified and that her rent would be lowered in November of 2010. The court evaluated the motion and stated that the property owner knew about the error in HUD payments prior to the initial filing and failed to enter the correct information. However, the renter was not aware of the error and of the fact that she was required to re-certify in order to continue to get her reduced rent. Since only one of the parties was familiar with the mistake, it cannot be a mutual mistake. Therefore, any motion to vacate based on mutual mistake would be in error and the court will not allow it.

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May 21, 2012

Court Interpretes Zoning Ordinance

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

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

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

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

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

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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.

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May 5, 2012

Defendant Files Motion for Appeal

The petitioner for this particular case is Carlton Estates, Inc. The respondents of the case are Humberto Cruz, et al. The case is being heard in the Second Judicial Department of the Supreme Court of the State of New York Appellate Division. The judges that are hearing the case are Sheri S. Roman, JJ, Plummer E. Lott, L. Priscilla Hall, and Peter B. Skelos, J.P.

Appeal

A New York Probate Lawyer said Uumberto and Lise Cruz have created a motion for appeal for a case that was originally heard in the Kings County Civil Court in January of 2010. The case was appealed on the 12th of May in 2011 in the Judicial districts, two, eleven, and thirteen. The respondents, Humberto Cruz and Lise Cruz are appealing both of these decisions.

Decision

The court has read the papers that have been filed to support the motion for appeal. The court has also read all of the papers supplied by the petitioner in the case to oppose the motion for appeal. After thoroughly investigating the case and the previous rulings, we find that the there has not been enough evidence supplied in order to support a cause for the motion to be granted.

The overall ruling of the court is hereby in favor of the petitioner. We will deny the motion for appeal based on the evidence that has been provided to the court from both sides of the case. There is not significant enough evidence to show reason to overturn the judgments that were made by both the Civil Court in the City of New York, in Kings County and backed by the Appellate terms of the judicial districts, two, eleven, and thirteen.

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May 5, 2012

Appellant Requests Extension for Filing Appeal

In this case, Plaro Estates, Inc. is the appellant. The Town of Clarkstown and the Clarkstown Central School district are the respondents.

History

A New York Probate Lawyer said Plaro Estates moves to expand the time allowed for perfecting its appeal. They move for this based on 22 NYCRR 670.8(d)(2). The original appeal's deadline stems from the Rockland County Supreme Court's ruling which was dated on the 15th of April, 2011.

The only papers that were filed in regards to this request for an extension were filed in support of the motion. With no reasonable opposition filed or served, the requested is granted.

Results

Plaro Estates were given more time to work on the appeal. The new deadline for perfecting the appeal was January 24th of 2012. Any records that need to be served involving the appeal and the brief itself must be served by the 24th of January 2012 at the latest.

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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.

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May 3, 2012

Lawyer Removes Himself from Case

In this case Leslie Lerman and Lois Lerman were both plaintiff-s appellants. Summerhill Estates, Inc., Michele A. Keagle, Allen M. Robinson, Marleen L. Robinson and Adam C. Robinson are the defendants. Cayuga County is a defendant-respondent.

History

A New York Probate Lawyer said the representation for the appellants put forward a motion which requested that the appellants be given more time to perfect an appeal. The appeal referred to is from an order of the Supreme Court. It was originally logged in the County of Cayuga Clerk's Office on July 1, 2011. The representation also asked for permission to remove themselves as the legal counsel of the appellants.

On December 8th, 2011 and December 20th of the same year, Alan J. Pierce, Esq. Wrote and filed an affirmation of proof of service. J. Ryan Hatch, Esq. also filed an affirmation which was dated December 19th of 2011. The affirmations submitted by these two were considered by the court in coming to its conclusion.

Result

The court granted the motion that requested that Hancock Estabrook, LLP be allowed to remove themselves as the appellant’s legal representation. Bronx Probate Lawyers said an amendment was also made to the original order of the court which was issued in regards to the original appeal. The date that was originally listed on the order dated October 25th, 2011 as the deadline for perfecting the appeal was December 27th, 2011. That date was removed and replaced with the new deadline of March 5th, 2012.

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May 2, 2012

Motion to Dismiss Appeal Granted

In this case, the Sharrots Estates Homeowners Association, Inc. is the appellant. Mitchel Eilenberg et al. are listed as the respondents.

A New York Probate Lawyer said this case took place in the Supreme Court of the State of New York. The Appellate Division in the Second Judicial Department heard the case, and it ruled on the matter on January 18th of 2012.

Case

In this case, the appellant, the Sharrots Estates Homeowners Association moved to withdraw an appeal that was placed before the Supreme Court of Richmond County. The appeal had been dated August 6th, 2011.

The appellants filed papers to support this application, but no papers were filed to oppose the motion to dismiss the appeal.

Results

As no opposition was made to the request, the motion is granted. The appeal will be withdrawn from the Supreme Court of Richmond County.

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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.

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May 1, 2012

Plaintiff Injured at Construction Site

In this case, Michael J. Spence was the plaintiff. The defendants were the Island Estates at Mt. Sinai II, LLC, Gessin Contracting Co., Inc., and Island Estates. Island Estates at Mt. Sinai II and Gessin Contracting were also third-party plaintiffs while Lakeville Industries was listed as a third-party defendant.

History

A New York Probate Lawyer said the primary plaintiff in this case, Michael J. Spence was injured in 2005 when making a delivery of a countertop to a property at the Mount Sinai Island Estates. In the course of the delivery, a rut in the ground caused him to trip, resulting in an injury. Lakeville Industries was the employer of Spence at the time. There are other complaints, separate from this which alleges negligence and violation of labor laws against Lakeville and the third-party complaint accuses Lakeville of negligence and breach of contract, among other things related to improperly protecting and insuring their employees.

The defendants in this case sought to have a summary judgment made which would dismiss the case. In order to support this motion, they submitted the bill of particulars submitted by Spence, the construction agreement involved in the job, the pre-trial examinations of Spence, Jim Meyn, and Richard Sirlin.

The original contract between Lakeville and Mt. Sinai II involved Lakeville agreeing to cabinetry to the homes in the development. Island Estates, the primary contractor was to be held legally harmless in their insurance policy. NYC Probate Lawyers said the company was also to provide liability insurance and worker's compensation coverage. According to this same agreement, it was the responsibility of the subcontractor to inspect and report any safety issues.

At the time the injury occurred, Spence was driving the delivery truck for Lakeville. With the help of his assistant, he had loaded a 20-22 foot long and 4 foot deep countertop into his truck. It weighed somewhere between 800 to 900 pounds. He was instructed to get assistance from someone at Island Estates to help unload the delivery because it was so large and heavy. The truck was able to be parked approximately 20 feet from the truck on a muddy surface. There was no path to the house where the delivery needed to go, and construction debris littered the site. The ground was also uneven with ruts cut into the mud. He, his helper and the Island Estates worker planned to pull the counter off the truck and carry it together. While walking, his foot caught in one of the ruts which caused the load they were all carrying to unbalance. Although the delivery was completed, he says that he felt pain in his left side shoulder and arm, as well as along his neck and back. He states that the rut had tire tracks in it, and that he had made deliveries and noticed the ruts previously, although he hadn't complained of them.

Mr. Meyn testified prior to the trial's beginning that he had been an employee of Island Estates for 27 years. Queens Probate Lawyers said he worked each day at the housing site where the injury happened where his duties include construction, as well as supervising the site and keeping the log. He knew that employees sometimes had to help with Lakeville deliveries, but had not been aware of the delivery in question. He also mentioned that another contractor was responsible for maintaining the cleanliness of the site.

Sirlin is the President of Lakeville. He said that typically Lakeville delivers only much lighter laminate counter tops rather than heavy stone ones. He did not have an invoice to verify what type of countertop was delivered that day.

Results

The defendants that moved for dismissal of the case could not present sufficient evidence to dismiss with a summary judgment. Too many questions remain; including who the contractor was that was supposedly responsible for the cleanup of the site. It is also not clear who the general contractor in charge of the site was at the time of the incident. The other motion to dismiss which was put forward by Lakeville and Sirlin was also dismissed due to a lack of compelling and clear reasons why a summary judgment should be issued.

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April 30, 2012

Court Decides Legality of Real Estate Contract

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

History

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

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

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

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

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

Results

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

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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.

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April 28, 2012

Defendant Requests More Time for Appeal

This case involved Plaro Estates, Inc. as the appellant. The Assessor, et al. and the Town of Clarkstown were respondents, while the Clarkstown Central School District #1 was the nonparty-respondent.

History

Under the terms of 22 NYCRR 670.8(d)(2), the appellant made a request to gain more time for an appeal. A New York Probate Lawyer said the request was in regards to an order from the Supreme Court in Rockland County. The original order was issued on April 15th of 2011, and the appellant requested more time to perfect their appeal.

Papers were filed to support this application by the counsel for the appellant. The counsel for the respondent made no such filing in opposition to the movement to extend the time needed to perfect the original appeal.

Results

The court ruled that more time could be allowed to perfect the appeal. The original deadline was moved up to February 23rd, 2012. It was ruled that the brief for the appellant, along with the appendix for the original appeal, must be filed with the court and served anytime before, but no later than February 23rd, 2012.

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April 27, 2012

Court Orders Consolidation of Cases

In this case, Homewood Garden Estates, LLC is the respondent, while Dena Kirby is the Appellant.

The Case

In this case, the appellant moved to have other appeals consolidated. The two appeals in question were both logged in the Civil Court of the City of New York in Kings County. A New York Probate Lawyer said the respective dates of the two orders in question were January 6, 2011 and February 17th of the same year.

Papers where filed in order to support the motion, but not papers were filed which opposed the motion put forward to consolidate the previous cases in question.

Results

First, the court ordered that the two appeals should become consolidated as requested in the original motion before it. However, it is also granted only to the degree that the appeals should be put on the same calendar in the court, and that the verbal arguments presented for each may be put before the court at the same time.

In addition, an extension was granted to the amount of time allowed for the appellant to perfect appeal No. 2011-1611 K C. The new date for perfecting the appeal was March 2, 2012. However, if that appeal is not perfected by the prescribed date, the appeal may be dismissed by the court. The respondent will also be given the option to serve an application in person to have the appeal dismissed on three day's notice if March 2nd passes without the appeal being perfected.

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April 25, 2012

Was Fraud Involved in Will Execution?

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

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

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

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

Based on records, at the expiration of the ten day adjournment, no objections had been filed on behalf of the daughter, and the court having received a communication from the counsel on behalf of the youngest son, which informed the court that he did not intend to move to set aside the waiver of citation executed by him consenting to the validation of the will, and that he did not intend to file objections to the validation. Thereupon the will was duly admitted to validation and letters testamentary on that date granted to the eldest son, the executor named in the will.
A petition has now been presented to the court signed by the youngest son and filed with the court, wherein the petitioner prays that an order be granted, addressed to the executor, directing him to show cause why the petitioner should not be permitted to withdraw his waiver of citation and cancellation of evidentiary letters and for such other relief as to which the petitioner may be entitled. The petition verified by the youngest son is supported by an affidavit signed by the grandson of the deceased and the son of the petitioner. The petition alleges, among other things, that the letter referred to from the firm representing the youngest son, was unauthorized; that fraud and misrepresentation were exerted upon the Petitioner by the petitioner's brother who is the executor named in the will, is alleged in the petition, substituted the will offered for validation in the place of one which had been exhibited to the petitioner by his brother dated January 26, 1956; and that the petitioner when he signed the waiver of citation in the office representing his brother, thought he was consenting to the validation of a will dated January 26, 1956, instead of the one presented for validation dated December 19, 1955, although the waiver of citation signed by the petitioner, plainly and clearly describes the document being offered for validation as having been dated December 19, 1955.

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

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

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

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

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

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

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

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

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

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

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

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

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April 24, 2012

Court Rules on No Contest Provision of the Will

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.

A New York Probate Lawyer said 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.

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. New York City Probate Lawyers said 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.

Furthermore, 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. Manhattan Probate Lawyers said the lack of clarity of the particular provision itself creates an additional and excessive risk for the petitioner and a risk beyond that inherent.
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.

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April 23, 2012

Court Decides if Decedent was Under Undue Influence at Will Signing

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

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

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

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

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

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

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

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

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

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

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

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

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April 19, 2012

Petitioner's Request for Injunctive Relief Denied

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. 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.

A New York Probate Lawyer said 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. Queens Probate Lawyers said 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.

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. NY Probate Lawyers said 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.

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.

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April 18, 2012

Appellants Contend that Court Does Not have Proper Jurisdiction in Prior Ruling

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

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

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

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

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

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

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

The court also notes that the appellant’s legal counsel has obtained a copy of a letter written to the respondent by the foreign court commissioner. The letter contained instructions that the daughters of the testator were authorized to manage the estate of the deceased in that country. The letter has named the testator’s daughters as the administrators of the estate.
The court has requested for a notarized copy of the letter. If the document is indeed valid, the will would revoke the past testament. The next step of that instance would have to the filing of a legacy case. In that scenario, the daughters of the testator would have been declared as the rightful owner of one fourth of the testator’s profits from the estate.

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

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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.

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April 9, 2012

Court Questions Appointment of Guardian ad Litem

This case is not about estate litigation but about the petition of a guardian in Vermont County for ancillary committee designation covering the properties of his ward in New York County. The Guardian ad Litem in New York questioned the appointment of the petitioner as guardian of the old woman who was declared an incompetent due to old age and sickness and who is also a known resident of New York with substantial assets and properties therein. The guardian ad litem in particular questioned the proceedings conducted by the Court of Vermont County. He also poised an issue whether the New York court should assume jurisdiction and whether a resident committee should be assigned to act on behalf of the old woman with regards to her properties in New York. The question was also raised about the propriety of the petitioner particularly on how he became the guardian of the old woman.

A New York Probate Lawyer said that before the petitioner was assigned by the Vermont court as a guardian, he first acted under a general power of attorney for the old woman. This involved paying her dues and managing her finances that included signing checks for the old woman who is already suffering from mental illness. The Vermont County appointed the petitioner as guardian under the application made by the niece of the old woman and it started when the court required the appearance of the old woman to a probate hearing. Since the old woman is already bed-ridden and could no longer move around much less travel, the niece who is residing in Canada decided to apply to the court that the petitioner be appointed as guardian-adult which application was granted by the court of Vermont County. Upon appointment as guardian or committee, the petitioner then applied to a New York Court as ancillary committee covering all the properties of the old woman in New York.

In deciding the issues raised by the guardian ad litem, the court answered the same point by point. On the issue of whether the Court of Vermont County has jurisdiction over the person of the old woman who is a known resident of New York the court said that the findings of the Vermont court is not binding and this also applies to the appointment of a guardian. The Supreme Court of New York however also said that the proceeding in Vermont is not invalid totally and that there is reason to agree based on the findings of the Vermont court as testified by witnesses during the proceedings in that court, that the old woman is indeed no longer capable of managing her affairs due to old age and mental sickness.

As to the recommendation of the guardian ad litem, the court also assumed jurisdiction under Mental Hygiene Law. With regards to the application of the petitioner to become ancillary committee in the estate administration, the Supreme Court said that even though the appointment given to him by the Vermont court is valid, the same does not necessarily dictate his appointment as ancillary committee in the State of New York. New York City Probate Lawyers said the Tribunal instead decided that a resident guardian be appointed as committee in the State of New York to look after and manage the estate of the old woman. The court reasoned that this must be the case because the old woman has substantial properties and other assets in the State, that she was a New York resident and there was no evidence that she actually changed her residence, and to avoid possible conflict of interest on the part of the petitioner. The court directed the appointment of a New York committee and not an ancillary committee with the petitioner as a co-committee having in mind that it will serve the best interest of the old woman.

There are a lot of legal technicalities involved in guardianship proceedings and as such, there is a need to get the services of NY Probate Lawyershttp://http://estatelawyer.1800nynylaw.com/lawyer-attorney-1556373.html to handle the case. There are also some differences on how various States deal with will contest so the Need for expert New York Estate Administration Attorneys comes into play. Stephen Bilkins and Associates can provide the needed legal assistance in this technical field of law profession.

April 7, 2012

Can a Witness to a Will Signing Also be a Beneficiary?

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

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

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

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

New York Estate Administration Lawyers are needed when it comes to making sure that you get the right legal assistance in estate settlement proceedings. At Stephen Bilkins and Associates, they have expert New York Probate Lawyers that can readily handle cases and petitions involving cases in New York.

April 6, 2012

Court Determines of Undue Influence Involved in Will Case

A lady testator co-owned an apartment building in New York with her two sisters. The bulk of her estate came from her share in the rent income she derived from the apartments and the value of the apartment building and its premises. She executed a will on September 16, 1997 naming her two sisters as co-executors with their neighbor. She gave legacies to her seven nephews and nieces, the children of her two sisters but she provided that the remainder of her estate will be shared equally by the three executors and in the event that her sisters die ahead of her, the estate will go to their neighbor.

As it turned out, the testator’s two sisters died ahead of her. The testator herself lived until she was 93. She died on June 18, 2006. Their neighbor brought the petition for probate of her will.
The nephews and nieces of the testator all object to the probate of the will on the grounds that it was not genuine; it was not validly executed; it was executed by mistake; it was executed without testamentary capacity; it is the product of their aunt’s neighbor’s undue influence on her; it is the product of duress exercised by their aunt’s neighbor on her; and it was procured by the neighbor’s fraud.

A New York Probate Lawyer said the neighbor filed a motion for summary judgment asking that the objections be dismissed. The Surrogate’s Court granted the summary judgment on the objection that the will was procure through fraud and mistake because the nephews and nieces failed to adduce evidence of fraud and mistake.

The court also granted the motion for summary judgment on the ground that the will was not validly executed or that the will presented for probate was not genuine. The Surrogate’s Court found that the neighbor presented the affidavits of the attesting witnesses; he presented the attestation clause of the will; and he also offered proof that a lawyer supervised the execution of the will.

The only remaining issue is whether or not the neighbor exerted undue influence and duress on the testator. This is the same issue before the Supreme Court.

The testator, her sisters and their families all lived in apartments in the apartment owned by the testator’s family. A Staten Island Probate Lawyer said one of the lessees in the apartment building threw out their teen-aged son. The sisters took pity on the young boy and allowed him to live in one of the empty apartments. This boy grew up and became the indispensable helper of the three elderly ladies. He was their neighbor who was made the executor of the testator’s will.

The neighbor had a sister whom the elderly ladies also took pity on. They gave her financial support from time to time so she could finish her studies. The neighbor hated her sister and he often got angry with his sister whenever she came to visit the ladies in the apartment. He also got angry with the elderly ladies, especially with the testator whenever she gave his sister money. He yelled at them and threatened his own sister with bodily harm in front of the elderly ladies.

On three occasions, the neighbor punched his sister in front of the testator and told his sister that he would kill her if he asked any more money from the testator.

The sister testified against her own brother during the probate and noted how the testator was lightly built and was crippled with polio while her own brother was muscular and knew martial arts.

The neighbor’s sister testified that she remembered one particular afternoon in September 1997 when the testator told her that she had done something stupid. She told her that she had named her brother (the neighbor) as the testator’s executor. When the neighbor’s sister learned that, she told the testator to go back to her lawyer and change her will but she refused saying that the neighbor might kill her and kill the sister, too. The testator said that she couldn’t change her will without the neighbor knowing and that she was afraid that he might hurt her. The neighbor’s sister said that she would contact the lawyer for the testator but the testator wouldn’t let her lest the neighbor hurt his sister as well.

The Court held that the issue of whether or not undue influence or duress was exerted on the testator by the actual threats made by the neighbor; or by the threat with bodily harm that he exhibited himself capable of inflicting on others, even his own sister; all these issues are issues of fact that have to be tried by a jury.

For this reason, the Supreme Court remanded this sole issue to be tried by the Surrogate’s Court. But in remanding the issue of undue influence and duress, the Supreme Court explained what constituted undue influence and duress.

The Supreme Court has held that it is that kind of influence that destroys the free agency of the testator. New York City Probate Lawyer said the amount of undue influence must be judged on the basis of the circumstances of the strength or weakness of the mind of the testator, the impairment of the mind or the body of the testator due to age, sickness, disease or any other cause. There must be proof that the testator had a dependency on the person who exerted the undue influence.

There must be proof that the testator was under a moral coercion which restrained her action and that the coercion could not be resisted or that the testator was too weak to resist the coercion. The moral coercion cannot be motivated by love, affection or the desire to gratify the wishes of another. It cannot arise from attachment arising from consanguinity or from kind acts. The motive of the person unduly influencing the testator must be shown to stem from force or fear.

It must also be a mental coercion that led the testator to carry out the wishes of another instead of her own because the testator was too weak to refuse or to resist. The undue pressure on the testator may consist of playing with the testator’s emotions, passions, fears, weaknesses or hopes. It may consist in appeals to the testator’s prejudices or it may consist of flattering the testator. Whatever the way the undue influence began, it slowly and gradually caused the testator to be controlled by the person influencing her.

In this case, the testator was not alienated from other people in her life by the neighbor. The neighbor was constantly in her apartment and assisted her and made arrangements for her daily but there were many others in the testator’s family that she depended upon for support. The testator was not so weakened in mind or body so as to be controlled by the neighbor.

But there is evidence of duress. The neighbor committed illegal acts of violence against his own sister in the presence of the testator. The neighbor threatened his own sister with further violence and even threatened to kill her, all in the presence of the testator. There is evidence that the testator was afraid to change the terms of her will to favor the neighbor’s sister because of what the neighbor might do to his sister. This testimonial proof points to the existence of duress which must be properly tried and established in a trial before a jury.

Contesting a will involves evidence of circumstances that show undue influence or duress on the testator. A New York Will Contest Lawyer can help you present testimonial and documentary proof to substantiate your objection of undue influence and duress. At Stephen Bilkis and Associates, an experienced legal team is ready to stand with you and argue your objections.

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 4, 2012

What are Appropriate Legal Fees in an Estate Case?

On 4 July 2009, the decedent died prompting the petitioner to employ the services of a lawyer. A retainer Agreement was entered into by the parties stipulating the amount of attorney’s fees to be paid. Thereafter, the petitioner questioned the amount billed by the lawyer as his attorney’s fees alleging a wrong calculation of the estate as the basis, among others.

How much should, actually, be the attorney’s fees? What should be included or excluded?
A New York Probate Lawyer said the court has ruled that the ultimate responsibility for approving legal fees that are charged to an estate and the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate lies with them. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the court is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

In determining the cost of legal services, several factors are considered and these include - time spent; complexity of the questions involved; nature of the services provided; amount of litigation; amounts involved and the benefit resulting from the execution of such services; lawyer's experience and reputation; and, customary fee charged by the Bar for similar services. The fee must be the result of all the elements set forth, in balance. The legal fee must also bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. The size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.
NY Probate Lawyers said the burden of proof as to the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are of importance.

An attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, messengers and couriers, express deliveries and computer-assisted legal research and other items of the same matter. 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 by previously decided similar cases. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

A Queens Probate Lawyer said that the retainer agreement was unclear at best. It states a fee of five percent of the gross estate for the "probate" (estate litigation or will contest) of the decedent's will. The administration of the estate (estate administration) was not addressed. The billing records submitted to the court were prepared after the petitioner commenced this proceeding; they were not prepared contemporaneously. The bill included entries of 2.3 hours for the "trip to the Court to file the petition - the payment of the filing fee, ".45 hours for the "trip to the Post Office - mailed out notices certificates mail return receipt" and for other services that are not properly billable as attorney's fees, such as faxing. Additionally, the time spent on many items exceeded that which would be expected for the tasks listed. A good example was when the respondent billed 1.75 hours of time on a meeting with a process server to "review and discuss[] service." There was no delineation of disbursements.

All the same, the respondent did perform certain services that resulted with the will being filed for a probate proceeding and the estate administered. Based on the benchmarks set forth above, the court fixed the respondent's legal fee at $18,000.00, inclusive of disbursements. The respondent was ordered to refund to the petitioner, as executor of the estate, the amount of $17,375.00 (difference between the amount paid and the amount allowed).

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April 3, 2012

Court Decides Jurisdiction Between French and NY Wills

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.

A New York Probate Lawyer said that 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. 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. 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. NY York Probate Lawyer said 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. 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, Queens Probate Lawyers said 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.

April 1, 2012

Court Rules on Fees to be Paid to the Guardian ad Litem

The decedent, a resident of Nassau County died on January 24, 2006 who on October 24, 2003 created the Revocable Trust U/A during which he executed his will now offered for probate. The instruments were drater by the long time attorney who supervised the execution of both documents. Bulk of the assets were transferred to the trust while he was alive, thus, the will is attributed as “catch all” document. The probates estate is counted at $10,000.00 while the trust holds asets is close to $1,000,000.00.

The guardian ad litem for the decedents daughter claims for his services in the amount of $2,828.00, he rendering 7.2 hours which shall be taken out of the estate. The statute governing the compensation of guardian ad litem provides tht fee is payable in the following consideration:

1. the estate
2. the interest of the person under disability
3. for good cause shown, any other party

the probate proceedings involves a will that pours over into a pre-existing inter vivos trust at which the guardian ad litem shall review and invetigate both the will and the trust. Thus, any remainder in the testamentary estate should there be any after everything is bequeath shall be made the source of the funds to pay the guardian ad litem.

A New York Probate Lawyer said it is the ultimate responsibility of the court to approve fees that are charged to the estate and has the discretion to determine what constitute reasonable compensation for legal services rendered in the course of the administration of an estate. It is a settled rule that while there is no clear cut rule in calculating the compensation to an attorney in every case, the court is required to exercise thhe authority with reason, proper discretion and not arbitrarily .

It is a settled rule in jurisprudence that in evaluating the legal services, the court considers the following: 1) the time spent; 2) the complexity of the questions involved; 3) the nature of the services provided; 4) the amount and complexity of litigation required; 5) the amounts involved and the benefit resulting from the execution of such services; 6) the lawyers experience and reputation; 7) the customary fee charged by the Bar for similar services. Additionally, the value of the estate shall be taken into consideration in order to fix the reasonable compensation. Thus, a sizeable estate permits adequate compensation.

NYC Probate Lawyers said herein the court cannot apply only selected factors but should be strike a balance by considering all the elements. Next, a legal fee must commensurate to the probate estate size and to the interest of the ward of the guardian ad litem as well as the time spent by the guardian in fixing the reasonable compensation.

All told, the fee for the services of the guardian ad litem may be charge to a party or to the estate. In legal fee, the value of the services lies on the reasonable value of legal services rendered by the attorney(s) in the case. Contemporaneous time records plays a part and absence of which little weight is given to estmates of time after services has been performed. The same principle applies to guardian ad litem.

In view of hereof, the fee requested by the guardian ad litem in the amount of $2,828.00 is approved and ordered that the same be paid within 30 days from the date of this decision.

Brushing aside ones claim is brushing aside the efforts surrounding the claim. Suffolk County Probate Lawyers said that in order to compensate the effort extended, the certainty in the claim and action instituted shall be clear and unequivocal. New York Estate Litigation Lawyers bears the highest reputation with regard to proving the value of the efforts of guardian ad litem and lawyers reasonable services in cases litigated in any tribunal. Here at Stephen Bilkis and Associates our experienced legal team can ensure that your rights are protected and you legal matter is handled with care.

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 30, 2012

Courts Discuss Bond Provisin in Estate Documents

On 4 February 2007, a resident of Nassau County died leaving a will dated 20 September 2006. She was survived by her two (2) children, a grandchild and two (2) minor grandchildren. Such will has been offered for probate by the nominated executor (decedent’s husband).

The will created a trust to be funded with the "exemption amount." The trust shall terminate upon the death of the decedent’s husband who has a limited testamentary power of appointment over the trust principal. If or to the extent that the decedent’s husband failed to exercise the limited power of appointment, the remaining trust principal is payable to the decedent’s husband 1993 Insurance Trust. The residuary estate is then payable to the decedent’s husband. The decedent’s husband and the children are named under the will as trustee and successor trustees, respectively. Also, "no bond or other security shall be required of any Executor for the faithful performance of such person's fiduciary duties in any capacity." Thereafter, the attorney-draftsman submitted an affidavit and averred that he inadvertently used the word "Executor" instead of "fiduciary." Apparently, the decedent's prior will dated 2 April 1993, which contained one trust, dispensed with a bond in the case of any "fiduciary."

In the instant case (estate litigation or estate administration) there is no will contest. However, the court is asked to dispense with the filing of a bond by the nominated trustee due to a purported scrivener's error in the will.

The rules mandate that a testamentary trustee post a bond unless the will provides otherwise. The bond filed by the testamentary trustee shall be "in such amount as the court directs." A testamentary trustee is required to file a bond where the will does not exempt the trustee from this requirement unless clear and convincing reasons are presented to dispense with the bond or to fix it at a reduced amount. Such clear and convincing reasons might be the consents or a showing that the filing of a bond is not economically feasible." The court did not dispense with the filing of a bond by the trustee. The court reasoned that "a will is required to contain written directions as to a decedent's intent and to be executed with certain formalities to avoid speculation with regard to the last wishes of the decedent". A New York Probate Lawyer said that although the court noted that it had no doubt that the decedent trusted the proposed trustee since he did in fact nominate him, it concluded that it could only speculate as to whether the decedent would have dispensed with a bond if he had known the cost. Moreover, the court declined to dispense with the bond based upon the consent of the income beneficiary. The court reasoned that if the income beneficiary failed to live until the trust terminated, there would be no bond to protect the interests of his issue, who were either too young to give their consent or were not yet in existence.

NYC Probate Lawyers said the court ruled that reformation of a will may occur simultaneously with a will's admission to probate where the provision in question clearly makes no sense as drafted and appears to be the result of a scrivener's error. "Generally, extrinsic evidence may not be used to show that a provision was inadvertently omitted from a will, but [the court] should admit extrinsic evidence if there is an ambiguity on the face of the will.

Clearly, the bond provision is evident and does not appear on its face to be the obvious result of a scrivener's error. Queens Probate Lawyers said that hence, the court has declined to reform the will. On the other hand, based upon the attorney-draftsman's affidavit, clear and convincing reasons have been presented to dispense with the requirement of a bond by the trustee (upon submission of consents by the decedent’s children and their respective spouses, the grandchild of legal age and the trustee of the 1993 Insurance trust).

Do you know what a bond is and when it is required? At Stephen Bilkis & Associates, we explain everything to you. Know what you need to know when you need to know them. Our Nassau County Estate Lawyers are more than ready to answer your questions. Protect yourself. Know your options.

March 30, 2012

Court Determines Who Letters Testimentary Should Be Issued To

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

To whom shall the letters testamentary be issued?

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

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

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

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

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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 28, 2012

Court Rules on Will Jurisdiction Issue

An American citizen domiciled in France died leaving behind bank accounts in New York worth less than $1,000.00, real properties worth a few hundred thousand dollars in France and almost a million dollars worth of money and personal property in Switzerland. At the time of his death he was married to a French national and they had one minor child. Prior to his death in 1972, the decedent executed a will sometime in 1970 in New York and this same will was presented for probate by two persons who were not main parties to the case. The New York will stated that half of the entire estate of the decedent must go to the wife and the other half should be held in trust in favour of the minor child. The will specifically directed that the same should be probated in New York.

It was also learned that aside from the will executed in New York, the decedent also executed a deed of donation which will specifically take effect upon his death. This deed of donation was executed in 1972, or 25 days before the death of the testator/Donor and in front of a notary public in France. The deed directed that all the estate of the testator be disposed and transferred in favour of the surviving spouse with a proviso that the minor child’s legitime be protected under French law. The deed of donation then is contrary to what the 1970 New York will provides.

Upon the death of the decedent, a proceeding was instituted in the court of New York for the disposition of the properties of the decedent according to the will executed in New York and at the same time a litigation is also pending and awaiting trial in France disputing the validity of the deed of donation. A New York Probate Lawyer said the proponents of the New York proceedings argued that the New York will should be given preference and that New York law should be applied in distributing the properties of the decedent. They also brought to the attention of the court that there was a pre-nuptial agreement between the spouses limiting the share of the wife to $10,000.00 in case of the husband’s death and that there was agreement between them that the laws of New York should be applied in the distribution of his estate.

The widow filed a motion to contest the proceedings in the New York court arguing that for the proper settlement of the estate administration of the decedent, it is more convenient for the French court to take cognizance of the same and not the New York court. The widow believed that the French court is more convenient and would be in a better position to rule on the case.

In ruling on the proceedings initiated and the motion filed by the widow, the court declared that under the circumstances, the French court is the proper forum to hear and try the estate litigation. Westchester County Probate Lawyers said the court stated that the validity of the New York will can be better determined by the French court and this is because there is already a trial about to be commenced in that jurisdiction. To court stressed that since a trial is about to start in France regarding the validity of the deed of donation, then the matter regarding the will contest or validity of the New York will must be submitted before the French court rather than commence a simultaneous proceeding in New York and France.

The court also elaborated that although the decedent is still an American and has not renounced citizenship, he nevertheless never maintained any residence in the country and that the only address that he has was the one that he used in opening an account with Chaste Manhattan Bank and which address is not actually in New York but in another county so therefore New York County has no jurisdiction to begin with but it should be with Queens County which was the address that he used with his Chaste Manhattan accounts. NY Probate Lawyers said in view of the foregoing, the court ruled in favour of the motion filed by the widow and the motion to dismiss the probate proceedings was granted.

Matters concerning the settlement of estates of deceased persons are not ordinary in many sense and that is why the services of a New York Probate Lawyer are needed. Stephen Bilkis and Associates is a law firm that has expertise in the field of both testamentary and intestate proceedings and as such, they can provide the expertise one may need in this area. A New York Estate Lawyer will handle all your legal requirements when it comes to wills and succession as well as other legal concerns peripheral to this field of discipline.

March 26, 2012

Estate Executor Brings Action for Lack of Payment

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

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

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

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

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

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

March 25, 2012

Court Stays Estate Proceedings until Criminal Case is Resolved

Three probate proceedings in the estate of the deceased woman moves for an order for a partial stay or a protective order directing that the surviving son’s obligations to respond to all discovery demands that have been served on him temporarily be stayed until related criminal charges pending against him are resolved. The Library and the Museum, two charitable beneficiaries under the wills of the deceased woman oppose the motion. The District Attorney moves for an order granting him the right to intervene in the proceedings and upon intervention, granting a stay of all proceedings pending the resolution of the criminal charges pending against the surviving son. The motion is opposed by the surviving son, the Library and the Museum. The Attorney General of the State moves for an order granting a stay of all proceedings or in the alternative, a stay of all discoveries except document discovery and setting a date for a conference.

A woman was survived by her only child. Three sets of paper writing claiming to be wills of the deceased woman were filed in court. The first paper writing is a will dated January 30, 2002, along with a first, second and third supplement. The second paper writing is a will dated February 2, 2001 with a sole supplement. The third paper is a will dated January 8, 1997, also with a sole supplement.

A New York Probate Lawyer said the trust bank filed a petition for the validation of the 1997 will. The surviving child of the deceased filed a petition for the validation of the 2002 will and the first two supplements only. He also filed a petition for the validation of the 1997 will.

By order, Westchester Surrogate’s Court established a schedule for the taking of document discovery. The order included dates for the exchange of documents and the depositions of witnesses.

On November 27, 2007, an arraignment was unsealed against the surviving child and the drafter of the third supplement to the 2002 will. NYC Probate Lawyers said the arraignment alleges acts of various crimes which took place from about 2001 to 2007. It charges the surviving son with crimes concerning the offering of the second supplement for validation, and the attorney’s drafting of the third supplement. At the arraignment, the surviving son’s plead was not guilty.

By notice of motion, the surviving son moved for a partial stay and a protective order to suspend his obligations to respond to the discovery demands until such time as the criminal proceeding was terminated. In opposition, the Library and the Museum argue that the surviving son is not entitled to a stay or a protective order. The Library and the Museum claim that they are concerned about the delay and possible prejudice due to the surviving son’s advancing age. The Library and the Museum insist that the surviving son should be required to serve his documents subject to a privilege log and he could move for a protective order.

By notice of motion the District Attorney moved to intervene and upon intervention, to stay all proceedings pending the resolution of the criminal charges pending against the surviving son and the drafter of the supplement. In support of his motion, the District Attorney argues that of the 18 counts contained in the arraignment, seven relate directly to wills before the court in the said proceedings. He also argues that the other counts are likely to relate to the issues of the proceeding, and many, if not all of the parties to be deposed will be called as witnesses in the criminal proceedings.

The Library and the Museum do not object to the intervention but argue that a blanket stay of discovery is not necessary. They also object that document production should continue in order to assess the value of any settlement proposals they may receive and that a stay of no more than six months should be granted to allow the criminal proceeding to progress.

By notice of motion, the Attorney General moved for a stay of all trials or in the alternative, a stay of all discoveries except document discovery and setting a date for a conference after the issuance of the stay. Bronx Probate Lawyers said the Attorney General argues that the District Attorney's application is reasonable because the surviving son would be unfairly privileged in his criminal defense if allowed civil discovery. He also argues that the parties to the civil proceedings would not be unduly discriminated by a stay of a limited duration and that they might benefit a resolution in the criminal proceeding.

In his reply, the surviving son motions now consents to the District Attorney's request for a stay provided that the parties currently in default of production of the documents pursuant to the court's discovery order be ordered to make production prior to the stay.

The District Attorney moves to intervene. The court finds no basis for intervention as of right. However, the court exercises its discretion to grant intervention based on the common questions of fact and law between the criminal and civil proceedings.

A law provides that a court may grant a stay in a proper case. The pendency of a criminal proceeding does not automatically stay a related civil proceeding. The issuance of a stay in the civil proceeding is directed to the sound discretion of the trial court. In deciding whether to issue the stay, the court may consider the risk of inconsistent adjudications, application of proof and potential waste of judicial resources. The court may also consider whether a party will invoke the Fifth Amendment privilege against self-incrimination in the civil proceeding.

Based on the above, the court grants a stay provided that the obligations of the parties under the October 17, 2007 order are stayed except that the parties shall complete document discovery as set forth in paragraph one of that order by January 28, 2008. Also included in the provision is that until any non-party subpoena to appear in court served have not been returned prior to the date of the decision and order, the production there under is stayed, and the stay is effective until further order of the court. The parties, including the District Attorney, shall appear which the court will entertain oral argument on whether or to what extent the stay should be lifted.

The parties have expressed an interest to pursue the settlement negotiations during the postponement of the criminal prosecution and the document production among the parties will facilitate the process. The court rejects the argument of the District Attorney that production of the documents will necessarily benefit the surviving son in the criminal proceeding. At a conference with the parties, the court was advised that most of the documents demanded among the parties had either been produced or had been made available for inspection. In addition, by order of the Supreme Court, New York County, the record of the guardianship proceedings of the deceased was unsealed, and those documents are now available to the parties.

The surviving son’s motion for a protective order is denied on record. The court rejects the surviving son’s argument that he will be unfairly prejudiced if he is made to produce his documents because of the negative inference of asserting the Fifth Amendment privilege against self-incrimination. He will produce his documents by the date set by court. Any claims of privilege shall be the subject of a motion for a protective order which must be made returnable on or before February 13, 2008. The documents which the court determines are subject to the Fifth Amendment privilege against self-incrimination will not be produced until further order of the court. Given the issuance of the stay, no inference will be drawn from whatever privilege he will seek to assert. The motions are denied except as otherwise provided.

A criminal proceeding will take a lot of your time, resources and patience. When dealing with legal issues concerning last will and testaments, you can count on the legal team at Stephen Bilkis and Associates. The team of dependable lawyers will provide you with sound legal advice that will guide you on journey to winning your lawsuits.

March 24, 2012

Court Determines Case Filed by Executor

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

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

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

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

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

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

If problem concerning your family member’s last and will testament troubles you and you can’t think of possible solution, our skilled lawyers at Stephen Bilkis & Associates are ready to give you credible answers on your predicaments. If you want sound legal assistance or advice, feel free to call or visit our offices all throughout the NY Metropolitan Areas.

March 22, 2012

Court Determines Jurisdiction Question with French Will and Trust

An American citizen who was a successful business man in New York got married to a French woman and thereafter bought a home in France where he lived together with his wife and daughter. Every now and then, he comes back to New York to look after some concerns about the business that he sold particularly because the said payment has not been fully paid. Whenever he was in New York, he would stay from time to time in a Flushing apartment which was especially provided to him by the corporation that he previously owned before selling it to his business partner.

It was also in New York that he executed a will in 1970 covering his estate and stated that the said will must be probated in the courts of New York when the proper time comes. Embodied in the will are provisions ceding to his wife all his personal properties and personal effects as well as a weekly allowance. The will also provided for an allowance to his brother which would come from the residuary trust. The daughter of the testator was also provided in the will and she was supposed to receive the income from a trust fund up to the time that she reaches the age of 35. He named as executor his long-time business partner for whom he sold his entire business interest in New York.

A New York Probate Lawyer said a few weeks before the death of the testator in 1972, he also executed before a French notary public, a deed of donation. Said deed of donation is in the form of inter vivos donation which will take effect upon the death of the donor. In the said Deed of Donation, he is leaving the entire estate administration and ownership to this wife subject to the condition that if there be children of the donor at the time of his death, then the wife as donee shall determine the right amount to be given to said children subject to the rules of the applicable law when that time comes.

When the testator died a few weeks after the Deed of donation was executed, he left money in the form of cash and securities in a Swiss Bank, real properties in France, and almost a thousand dollars in bank deposits in New York plus the balance that has to be paid to him by his business partner for the sale of the company that he started in New York. Westchester Conty Probate Lawyers said the business partner who was also made the executor of the will that was earlier executed started the proceedings for the probate of the will of the testator in New York County. The widow opposed the said institution of the proceedings for the settlement of the properties of the decedent alleging that the testator though an American citizen is already domiciled in France and as such, French court and law should be applied.

The Surrogate court of New York ruled in favour of the wife declaring that the allegations of the wife have merit. It argued further that even though the decedent continuously used New York as his address, there was no clear indication that he really intended to use the same as his domicile. Moreover, New York City Probate Lawyers said the court also opined that the very small bank account left by the testator in a New York bank is insubstantial to be considered as enough for it to assume jurisdiction and since there is also an estate litigation pending in a French court regarding the same properties left by the decedent, the Surrogate court deemed it proper that the decision be made by the said French court instead.

Upon appeal, and taking into consideration all the facts presented regarding the actions made by the decedent prior to his death, the higher court declared that indeed the decedent, although still an American citizen, nevertheless by his acts adopted France as his place of domicile. This is supported by the fact that he no longer own any properties in New York save for a small bank account that is worth just a few hundred dollars. Therefore, the French courts have jurisdiction to rule on the will contest initiated by the assigned executor of the decedent.

New York Estate Lawyers are experts in matters involving property settlement of deceased persons. Since the formulation and execution of a will is an important act that must be made according to the formalities required by law, it is important to consult an expert New York Probate Lawyer to assist in its formulation and even revision during the lifetime of the testator. Stephen Bilkins and Associates are experts in the field of property settlement involving deceased persons and they can provide the legal assistance in a very effective manner.


March 20, 2012

Court Decides Jurisdiction Issue Regarding Will and Trust

A man who was born and raised in Brooklyn died and survived by two grandchildren. For many years, the deceased and his wife lived in Florida where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona where his grandson lived. They were living in Phoenix when the deceased man’s wife died. The deceased remained in Phoenix until he moved to New York in late September 2005.

While living in Phoenix, the deceased executed a will, which left his estate to the trustee. On the same day, he executed a trust agreement creating a revocable lifetime trust. Under the terms of the trust, the property passes to the grandson upon his grandfather’s death.

In 2005, the deceased called his sister and told her he wanted to return to Brooklyn to live with her. The sister and her daughter visited the deceased on September 27, 2005. At that time, the deceased was 95 years old and suffering from cardiac problems. The deceased asked his sister to take him back to Brooklyn to live with her.

According to the sister, the deceased told her that he wanted to change his will, his revocable trust and his health care proxy before boarding the plane. A New York Probate Lawyer said that when they travelled to New York, the deceased visited the offices of a law firm in Arizona and asked the firm to change the beneficiaries of the 2004 will and trust. The deceased executed a new will which is an amendment of the 2004 trust and health care proxy. The 2004 trust was amended and provides that upon his death, his sister receives one half of the trust principal, his granddaughter will receive three eighths of the trust principal and his grandson will receive one eighth of the principal. The deceased then left immediately for the airport leaving his belongings behind to travel back to New York that day.

That same day, the son filed an emergency petition for his appointment as conservator and guardian of the deceased. He alleged that the deceased had been taken from his house by church members. Westchester County Probate Lawyers said the proceeding was partial. Based upon the grandson’s testimony, the Arizona court granted his petition, appointed him as temporary guardian of the deceased and determined a pending hearing on whether a permanent guardian should be appointed.

Shortly after arriving in New York, the deceased was hospitalized for surgery for a blood clot on his leg. The granddaughter had a petition prepared for the appointment of a guardian of the deceased man. Meanwhile, the Arizona attorney who drafted the 2005 will was served with a petition demanding to deliver the deceased to Arizona. New York City Probate Lawyers said in response to the turnover petition, the deceased submitted an affidavit stating that he was residing in Brooklyn and listing his sister’s address as his residence.

The Mental Hygiene Law petition was filed in the Supreme Court, Kings County. A court evaluator was appointed by Kings County court and interviewed the deceased. The deceased died on December 4, 2005, before either proceeding could be concluded.

According to the affidavit in support of petitioner's motion, the petitioner's attorney filed a petition to probate the 2005 will. The petition stated that the deceased was a resident of New York. The validation clerk accepted the petition and the filing fee and made an entry in the minute book. No file number was issued on the pending review of the petition. On December 8, 2005, the attorney was notified in writing that the petition was not accepted for filing because there was insufficient proof of New York residence. The check for the filing fee was also returned on the ground that the check had alterations. On December 14, 2005, the attorney submitted a replacement check for the filing, also submitted was a copy of the deceased man’s affidavit of residence filed in the Arizona conservatorship proceeding, stating his residence as Brooklyn, New York, and an attorney's affirmation on the deceased man’s residence.

On December 16, 2005, the grandson filed a petition to validate the 2004 will in the Maricopa County Court of Arizona, claiming that the deceased was a resident of Phoenix Arizona. On December 20, 2005, the attorney's affirmation on residence of the deceased was rejected because it was based upon information and belief. The petitioner filed a copy of the court evaluator's report, stating that the deceased told the evaluator that he was happy to be back in New York and did not want to return to Phoenix, Arizona. On January 31, 2006, the validation clerk issued a file number for the validation proceeding.

On February 1, 2006, the grandson filed objections to the validation of the 2005 instruments in Arizona. The objections deny that the will was executed in accordance with the formalities of law. He also claims that the deceased lacked the capacity to execute a will and that the will was executed by mistake and its execution was not freely made but a result of undue influence, duress and fraud. In addition, the objections claimed that there was a prior proceeding pending in Arizona to the validation of the 2004 will and that the Kings County New York court lacks jurisdiction on the subject matter.

The petitioner moved for preliminary letters of administration and a determination on the petition to the validation of the 2005 will filed in the Surrogate's Court of Kings County. The grandson filed an affidavit in opposition which claims that the court should dismiss the motion and presumably, the proceeding on the grounds that the court lacks jurisdiction on the subject matter and there is a prior pending proceeding in Arizona.

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

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

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

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

Whether the Arizona proceeding was filed first depends on whether the New York proceeding was initiated upon filing the petition on December 6, 2005 or upon being accepted by the validation clerk on January 31, 2006. In turn, it depends on whether the requirement that the petitioner establish the issue residence by the supplemental documents was jurisdictional. The analysis starts with the fact that the petition filed on December 6, 2005 in New York conformed to the requirements of the law and was in its proper form. The allegations in the verified petition are legitimate proof of the facts asserted until denied by an answer, objection or other proof. Therefore, for purposes of obtaining jurisdiction on the subject matter, the allegation that the deceased man was a resident of New York creates a legitimate proof showing of subject matter jurisdiction, subject, of course, to rebuttal.

The result is not affected by the fact that the validation clerk in Arizona required a supplemental proof of residence. Whatever the basis for the requirement of additional proof of residence, furnishing such proof is not required by the law. Therefore, the requirement is not jurisdictional and does not affect the filing date of the petition.

However, the failure to tender the filing fee in proper form may be a jurisdictional defect.
The law has no corresponding provision. It does provide that upon filing a petition for validation, the clerk shall charge and receive a fee as determined. Upon receiving the petition and fee, the clerk accepts the papers for filing and issues a file number. Therefore, it is not clear whether the tender of the filing fee is jurisdictional. The Court held that the failure to pay the required recording fee did not render the filing of a notice of election untimely. In the instant case, the court need not determine whether the improper tender of payment rendered the filing void. A replacement check was accepted on December 14, 2005. The act of replacing the check as payment cured the defect. Using either date, December 8, 2005 or December 14, 2005, the New York proceeding was filed before the filing of the validation petition in Arizona on December 16, 2005. Based on the above, the court determines that the New York validation proceeding was initiated by December 14, 2005. Accordingly, the grandson’s application to dismiss the said proceeding on the ground that there was a prior proceeding pending in Arizona is denied.
The claim that the court lacks subject matter jurisdiction depends on whether the deceased man established residence in New York State. The matter requires a hearing. Since the validation proceeding in New York was filed first, principles of orderly administration of justice and conservation of judicial resources mandate that the New York court should hold the hearing on determining the issue of residence of the deceased.

Since the validation proceeding in New York was filed before the one in Arizona, the court should hear and determine the residence of the deceased. Accordingly, the application to dismiss the proceeding on the ground of lack of subject matter jurisdiction is held in temporary suspension pending a determination of residence.

A person’s undecided residence should not cause disputes over his surviving family. Since he may not be around to express himself, the Court would be the only place where such issues can be put to rest. In times like this, you can call an experienced lawyer at Stephen Bilkis and Associates.

March 15, 2012

Brother Left Out of Will Files Will Contest Action

On December 1, 1988, a resident of Fulton County, 82 years of age (referred to as the “decedent”), died in Spartansburg, South Carolina. He was survived by a brother who is the only distribute. At exactly two weeks before the decedent’s death, he executed a last Will and Testament (referred to as “the will”) on November 17, 1988. The will excluded the brother but included two strangers, whom they are not related to by blood, who reside in South Carolina. The will was attested to before three witnesses, all of whom reside in South Carolina. Subsequently, by reason of the brother’s exclusion as an heir, the brother then objected to the probate of the will or made a will contest and demanded an examination of the attesting witnesses (a probate is the legal process of administering the estate or estate administration of a deceased person by resolving all claims and distributing the deceased person's property under the valid will - source: Wikipedia). Thus, estate litigation ensued.

Now, where should the examination be held and who must bear the expense of such examination?

The proponent (supporter of the will) claims that once the decedent's will is presented to the court with an affidavit of the attesting witnesses authorized by SCPA with the requirements having been met, the burden of compelling the production of the attesting witnesses is upon the party seeking to depose such attesting witnesses. A New York Probate Lawyer said the proponent refers the court to Powers, Supplementary Practice Commentaries, that " * * * the duty of compelling the attendance of a witness [is imposed] upon the party seeking the examination", and it refused to direct the proponent to produce the witnesses for examination.
The contestant (opponent), on the other hand, claims that the proponent must produce the witnesses to be examined prior to the trial and that it is the proponent's responsibility to produce the witnesses in New York State or to pay the expenses of a commission held outside of the State of New York.

The court held that in a probate proceeding, the proponent must proceed to prove the will by the examination or affidavits of the attesting witnesses. New York City Probate Lawyers said that before admitting a will to probate, the Surrogate's Court is required by statute to inquire particularly into all the facts and must be satisfied with the genuineness of the will, the validity of its execution, the competency of the testator in all respects to make a will at the time of executing it, and the freedom of the testator from restraint at the time of executing it. Such inquiries must be made whether or not there is opposition to the probate of the will. Moreover, the consent alone of all interested parties is not sufficient to admit a will to probate. By statute, the Surrogate must still be satisfied as to the genuineness of the will and the validity of its execution. Generally, where there is no contest, or where the issuance and service of process has been waived by all the interested parties, who are of full age and sound mind, the court will not go beyond the testimony of the attesting witnesses. Here, however, objections have been filed and a full inquiry by the court will be required.

Fees and reasonable expenses of a witness must be paid by the party seeking the examination. At least two (2) of the attesting witnesses must be produced before the court and examined if they are within the State and competent to testify. Westchester County Probate Lawyers said but where the witness is hostile and recalcitrant, the contestant should bear the burden of subpoenaing the witness and paying the witness fees, with the understanding that if the contestants were successful in setting aside the probate of the decedent's will, the court would entertain an application to fix the cost of the examination as a disbursement of the estate.

It is the duty of the court to inquire into all of the facts and circumstances and would require production of the statement whether or not requested by proponents in order that all relevant facts would be before the court.

Where the witnesses to be examined do not reside within the State of New York, obviously it will not be possible to compel their appearance before the Surrogate either by means of a subpoena or by service of the order of the Surrogate. The nonresident witness is then required to submit to oral examination in North Carolina, the cost of which had to be borne by contestant only because the witness had previously been made available by the proponents. It was the duty of the proponent to take out a commission to take the testimony of the subscribing witnesses.

In conclusion:
1. The proponent can be compelled to take the testimony of the subscribing witnesses or other witnesses out of State by commission;
2. In taking the testimony there by commission, in any form, the testator's estate must, in any event, bear the expenses of the preparation of the commission, the fees of the commissioner, stenographer and of any non-resident counsel to assist the proponent;
3. The proponent has the election to take the direct testimony supporting her case either on interrogatories or by an open commission;
4. The party demanding a preliminary examination of such witnesses as proponent may call before the commissioner and has the option of having his cross-examination taken at the expense of the estate as to the fees of the commissioner and stenographer by an open commission, or upon interrogatories; and that contestant must bear the expense of preparing any interrogatories he may have submitted, and any non-resident counsel fees and his own traveling expenses;
5. That if the contestant calls before the commissioner any witness whom the proponent is not obliged to call and does not call, the contestant shall bear the proportionate expense of the fees of the stenographer and commissioner for taking the testimony of such witness.

The passing of a loved one is already difficult and being involved in a lawsuit could be much more painful and tough to bear. The agony of going through the whole process is unimaginable. That’s why a skilled lawyer could help ease the pain by holding most of the burden for you. At Stephen Bilkis & Associates, with convenient offices throughout the New York Metropolitan area, you are protected. We have lawyers who are skilled in the field and can help you in any situation. We assure you of quality service and that we are worth every penny spent.

March 12, 2012

Ex-Wife Contests Deceased Husband's Will

A man and wife were married and had three sons. One of the sons had a disability that required lifetime care. The couple divorced in 1985 and the man was ordered to pay support of $100 weekly. The man failed to pay support and the woman obtained a judgment for $7,000 in support arrears. The couple remarried in 1986 but divorced again in 1988. The man was ordered to pay support of $60 weekly. Again he incurred arrearages. In the second divorce decree, the man and his first wife agreed that the first wife and their disabled son will live in the house rent-free until their death.

The man married another woman with whom he had a daughter. When the man died, he left an estate comprising of an interest in a house co-owned by him and his ex-wife. His ex-wife owned the other half interest in the house. He left his entire estate to his minor child from his second marriage and appointed his second wife as executrix of his estate. His second wife succeeded in having her husband’s will admitted into probate and she was issued letters testamentary as executrix of her husband’s will.

The first wife died before the husband. In her will, she gave her disabled son a life interest in her half of the house. And when her disabled son dies, her half interest in the house will go to her two remaining sons.

Upon the death of the husband, a New York Probate Lawyer said the estate of the ex-wife presented a claim for unpaid support. The executrix of the estate of the deceased husband presented a claim for unpaid rent. Before the court, in order to settle the issue, the estate of the husband agreed to sell the half interest of the husband to his sons from the first marriage.

Evidence was introduced that the house’s value was $155,000. The second wife who was the executrix of the man’s estate agreed to sell the half interest of her husband to his sons from the first marriage for the amount of $70,000.00. The son from the first marriage agreed to send a check for that amount.

The check was issued in the name of the second wife. NY Probate Lawyers said the lawyer for the second wife refused to accept the check payment because it was not in his name as they had agreed upon in court. The son paid the check directly to the second wife who deposited it into her own personal account instead of depositing it in court as it is an asset of the estate which belonged to the minor child of the man with his second wife who was bequeathed the entirety of her deceased father’s estate.

The second wife now wants to void the stipulated settlement and she wishes to reinstate all her claims for unpaid rent on the house.

The only question in this part of the appeal is whether or not the second wife’s action to vacate the court settlement can be given due course. The guardian for the minor child who was her father’s sole heir filed a motion for contempt against the second wife of the man.

According to Westchester County Probate Lawyers, the Supreme Court ruled that the court settlement is binding and that the second wife’s actions in taking money belonging to the estate and depositing it into her account was full acceptance of the settlement paid by the sons from the first marriage.

First, the court settlement was binding. The court inquired of the second wife whether she heard the terms of the stipulation and she said that she did. She was asked if she agreed with the stipulation and she said that she agreed with it. She was asked by the judge if her agreement is of her own free will and she said that it was. The court then asked if any force or duress was exerted on her to obtain her consent and she said no.

From all this, the Court ruled that the court settlement was a valid and binding agreement between the two estates ( the estate of the husband and the estate of the wife).

It is clear then that the check which the second wife obtained from the estate of the first wife was the payment called for in the settlement. The check belonged to the estate of her husband and should be distributed to their minor child.

Her act in depositing the amount into her account was a violation of her duty as fiduciary of her husband’s estate. It was an act that violated the trust reposed on her by the court and by the estate to gather the properties and assets of the estate for the benefit of the beneficiary, the minor child. But her acceptance of the sum and that she has used it in support of their minor child is evidence that she has no longer any right to vacate the settlement she had already benefited from.

Executors are bound by a duty to advance the interest of the estate they are called to administer. If they fail in this duty, those beneficiaries of the will may file an action against the executor of the will. In doing this, you will need the service of an attorney who can present facts evidencing the failure and disqualification of the testator. Call Stephen Bilkis today for advice and a free consultation.

March 12, 2012

Will Contest Involving Several Properties

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

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

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

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

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

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

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


March 11, 2012

Court Rules on Will Contest Between Close Friends

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

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

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

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

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

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

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

March 11, 2012

Court Decides Will Contest Between Siblings

A 91 year old man died in a nursing home in Westchester County on December 10, 2003. He was survived by his three children: a daughter and two sons. His will provided that his real property in Suffolk County be devised to his daughter; he bequeathed the amount of $50,000 to his youngest son and lastly he bequeathed his residuary estate and personal properties to all his children in equal shares. He also provided that his bank accounts which were held jointly by the 91 year old man and his children shall form part of the estate assets and shall not pass to his surviving co-depositor.

The will was executed before the testator’s long-time lawyer and his office assistant. Both the lawyer and his office assistant were attesting witnesses to the will.

In 2004, the eldest son objected to the probate of his father’s will on the ground that the will was procured by his sister with fraud and undue influence on their father. He also testified that the letters testamentary issued to his sister be revoked as she had caused around $300,000 to be withdrawn from their father’s account and transferred to her own personal account.
Both the sister and the older brother applied for the issuance of letters testamentary. A New York Probate Lawyer said that the Surrogate’s Court urged the parties to stipulate to the temporary appointment of a public administrator.

The older brother asked that he be allowed to examine the attesting witnesses to the will to determine the due execution of the will. According to Westchester County Probate Lawyers he also asked that the lawyer who prepared the will be required to produce certain documents that will prove the extent and value of his father’s estate at or around the execution of the will. He also asked that his sister and her husband be summoned to produce documents referring to the transfer of funds from their father’s estate to his sister.
The lawyer and the brother-in-law refused to appear and be examined and they also refused to bring certain documents. The lawyer claims that attorney-client privilege prevents him from disclosing documents and transactions of the testator. The brother –in-law refused to comply because he was not a party to the probate petition and cannot be made to appear and participate in the proceedings.

The Court held that disclosure of information is required when the information sought is material and necessary to the issue in the case. Disclosure in probate proceedings is broad and it allows the court to inquire into matters which form the basis of an objection to a will.

In this case, the older brother has shown that there are special circumstances not only to examine witnesses but also to require the production of documents relating to the properties and assets of the estate. NY Probate Lawyers said the lawyer and the older sister cannot claim refuse since they enjoyed a confidential relationship with the testator. This confidential relationship is what is claimed to have been abused by them to thwart the wishes of the testator. As things stand, the documents and information sought to be obtained are not only relevant and necessary, but they are also cannot be obtained from any other source. For this reason, the lawyer, the older sister and her spouse are ordered to comply with the disclosure requirements and to bring to the Court the documents enumerated in the subpoena issued to them.

The job of an attorney in contesting the probate of a will requires an interested person to obtain information through documents and through testimony regarding the testamentary capacity of the testator. A attorney can also help find documents that will prove the extent of the estate and its properties. Contact Stephen Bilkis and Associates for guidance and a free consultation.

March 10, 2012

Court Rules on Will involving Same Sex Marriage

A man married his same-sex partner in Canada in June 2008. He then executed a last will and testament two months later on August 12, 2008. In that will, he made three bequests to his three brothers and he also made a bequest to his goddaughter. He left the residue of his estate to his same-sex partner. He named his same-sex spouse as the executor of his estate.

In December 2008, the testator died. His same-sex spouse, who was also named executor of his will filed the petition for probate of his deceased spouse’s will. He served the three brothers and the goddaughter with notice of probate. In his petition, he claimed that he is the surviving spouse of the testator and the sole distribute.

Three days after filing the petition for probate, the Surrogate’s Court of New York granted the petition for probate without issuing citations.

In its ruling dated January 26, 2009, a New York Probate Lawyer said the Surrogate’s Court granted the petition for probate and also issued an opinion where it named the same-sex spouse as the testator’s surviving spouse and sole distributee. The Surrogate’s Court opined further that since the person petitioning for probate of the will is the surviving spouse and sole distributee, the Surrogate’s Court does not need to issue a citation to anyone else. In that opinion as well, the Surrogate’s Court found that the testator’s marriage to his same-sex spouse is considered valid in New York because it is a valid marriage in Canada. The Surrogate’s Court then recognized the same-sex marriage as a valid marriage for the purpose of distributing the estate to the surviving spouse of the testator.
Five months after this ruling was issued by the Surrogate’s Court, the brother of the testator appealed this opinion and ruling of the Surrogate’s Court. He asked that the ruling admitting the will into probate be vacated and that he be allowed to file objections. He asserted that the Surrogate’s Court had no jurisdiction to grant probate without issuing citations to the testator’s surviving brothers. He also asserted that the Surrogate’s Court has no jurisdiction to recognize the same-sex marriage of the testator to the executor as a valid marriage because same-sex marriages violate public policy.

The Supreme Court upheld the Surrogate’s Court’s ruling. Westchester County Probate Lawyers said it ruled that since the will’s only distributee is the same person who prayed for the admission of the will into probate that alone is sufficient to admit the will into probate. And further, the same-sex spouse of the testator was correctly declared to be the surviving spouse.

The laws of New York recognize marriages which are celebrated in other states: if a marriage is valid in the state where it was celebrated then it shall be recognized as valid in New York. The only two exceptions to this are: that the marriage is contrary to the prohibitions of natural law or the express prohibition of a statute. New York City Probate Lawyers said that since the same-sex marriage is not prohibited by natural law ( as when the marriage is incestuous) and there is no express prohibition of same-sex marriage in New York (no law in New York prohibits same-sex marriage), then the Surrogate’s Court was correct in holding that since the same-sex marriage celebrated by and between the testator and the executor in Canada is considered by Canada as a valid marriage, then New York must also consider it as a valid marriage. Accordingly, the ruling of the Surrogate’s Court admitting the will into probate is upheld by the Supreme Court.

Contesting a will is difficult and it may involve the application of the rules on marriage as in this case. You need a lawyer who can help you contest a will on all available grounds. Stephen Bilkis and Associates are available for consultation. They can inform you of your legal options so that you can make an informed choice.

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 6, 2012

Decedents Claim Fraudulent Will Contest

A will was written, signed, attested, to conform to the legal requirements of law on probate. The testator’s intention to give his estate to his heirs was set. The presence of competent witnesses to a Notary Public was noted.

Children of the decedent who acted as respondents moved to force the surviving spouse, the lawyer-drafter of the will and the accountant of the decedent to reproduce the original and/or photocopies of earlier wills. Original photocopies of the letters between decedent and the attorney-drafter and the unrevised photocopies of notes taken by the lawyer during two separate in-private meetings with the decedent was subject of the probate.

A New York Probate Lawyer said th decedent’s children believed that those documents controlled by decedent’s wife were material pieces of proof. Testator’s wife was unwilling to disclose the true and original wills and testament. Children alleged that the agenda of several private meetings held and organized by decedent’s wife, probate lawyers and the accounts have something to do with the fraudulent wills contested in the estate litigation courts. The party attempted to collaborate the outcome of estate proceedings in their favor.

In opposition to decedent’s children motion, decedent’s wife, his lawyer, and accountant alleged that they were unable to find any previous will even after exhaustive search. Decedent’s wife promised respondents that they would provide them a copy if the same will be available in the near future. They assured them of continued careful search.

In responding to the allegation of private meetings to defraud the estate the estate administration courts in bringing in false wills and testaments, decedent’s lawyer-drafter, the surviving wife hereby make a plain and clear statements that those meetings were indeed business meetings of her exclusive properties, as she also hired the services of the drafter for her. There existed lawyer and client relationship with her and the lawyer. It was proper to hold several important meetings to plan the possible valid action they take in case decedent property right was injured. Executors contended that the lawyer who drafted the will represented both decedent and surviving spouse, in connection with their arrangement on estate disposal plan. They proved to have confidential communications concerning plans of disposing the estate of the wife.

The children further alleged that those communications concerning wife’s plan and estate plans and assets were the subjects of revision of documents in question. The contents of those communications concerning wife’s plan and assets were the subject of the edited materials and were therefore, privileged, pursuant to the attorney-client privilege afforded by law, and not to be find out by third parties.

The wife’s party moves for a protective order of the law concerning the alleged privileged redactions.

Although children further argue that the executors’ response to their discovery demands was untimely, service of a notice of motion for a protective order suspends disclosure of the particular matter in dispute.

The time limitations of law did not apply where the material sought were claimed to be privileged or where discovery would be palpably improper.

The documents sought in this matter were alleged to be privileged, and thus children’s reference to law was misplaced and the executor’s motion for a protective order was timely and proper.

In actions involving the probate, validity, or construction of a will, an attorney or his employee were required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but they were not allowed to disclose any communication privileged under which would tend to disregard the memory of the decedent.

Decedent’s children contended in their motion that these documents were not privileged as they contain information pertaining to decedent and his will that the executors were required to disclose. Westchester County Probate Lawyers said that ordinarily if a party objects to a discovery demand, that party was to serve a response which states with reasonable particularly the reasons to each objection. If objection was made to part of an item or category, the part was to be specified.

Here, the executors objected to certain disclosures, by use of redactions, but failed to state the reason for such; providing materials in redacted form with a brief mention that documents attached were redacted does not constitute as a valid reason for an objection.

The executor’s opposition to decedent’s children’ motion was supported by the drafter of the will’s sworn statement, affirming that his correspondences and notes were redacted to preserve the confidential communications between the drafter and decedent’s wife, and between the drafter and decedent wife’s estate plans and assets. Probate lawyer’s affirmation substantiated the existence of facts upon which the motion was based, as it was the drafter’s own writings that was redacted.

When a claim of privileged were presented, it may be advisable to conduct an in camera review of documents claimed privileged. New York City Probate Lawyers said the court may deferred determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it does not affect substantial rights.

Surrogate courts based their judgment on the weight of proof substantiated. As this will be used in determining by the surrogate judge proof and material grounds for belief that the same conveyed reasons set, as in camera review of said materials, in un-redacted from, is necessary.
The law established the requirements for a privileged document log when a party seek to claim an attorney-client privilege. The estate administration courts have recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, to aid the courts in its assessment of a privilege claim and enable it to undertake in care review of documents claimed to be privileged.
Estate litigation courts deferred determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it did not affect substantial rights. They established the requirements for privileged document log when a party seek to claim an attorney-client privilege.

The probate courts have recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, to aid the courts in their assessments of the privileged claim and be able them to undertake in camera review.

The executors failed to provide a privilege log to explain the redaction. Merely responding with boilerplate claims of privilege, without a privilege log as required by law was sufficient as a matter of law. Although estate courts privilege claimed without further explanation by the executors as the redacted material, which may be accomplished through an in camera review of said materials.

Respondents argued that the attorney-client privilege did apply because the correspondence was addressed solely to decedent, regarding his estate plan, and the meetings between decedent and drafter-lawyer to take place in the presence of their parties. The executors alleged that the redaction to each documents were made in order to preserve the confidential communicational between the drafter-lawyer and wife.

Concerning wife’s estate plan and assets, redaction were made on the correspondence and attorney notes. The two-piece of correspondence consisted of letters addressed solely to the decedent and signed by drafter-lawyer. The letters were marked personal/confidential. The first sentence of each letters stated, “the following was a summary of estate plan which had been revised”. The contents of the letters seem to relate directly to decedent’s testamentary plan.
The estate administration courts cannot decipher the unknown, and an in camera review of these letters in un-redacted form was required to determine whether wife’s estate plan and assets were discussed in either letter and if the attorney-client privilege attached.

Decedent’s children argued that the presence of decedent, and nominated trustee, accountant to decedent, waived the attorney-client privilege. The attorney-client privilege attached to confidential communications between an executor and an attorney, to the exclusion of third persons, including beneficiaries of the estate. The presence of a third party during the communication between the attorney and the client indicated that the communication was not confidential. In such a case, the privilege did not attach.

However, when the court deemed the third person to be an agent of the attorney or the client, the communications remain privileged. Here there had been no claim by wife that co-trustee were wife’s agents.

Drafter-lawyer indicated that the decedent and wife were present at the meeting. The executors contended that wife was a client of drafter-lawyer and that any communications made during the probate meetings were confidential in respect to both clients present at the meeting. The attorney-client privilege seek to ensure that one needing legal advice would be able to confide fully and freely in his attorney, secured in the knowledge that his or her confidences will not later be exposed to his or her legal detriment. The attorney-client privileged had been arranged, which bars disclosure of any confidential communications between a client and his/her attorney. Again, an in camera review was necessary to determine whether wife’s estate plan and assets were the subject matter of drafter-lawyer notes.

Because of the determination of whether documents were privileged was fact-specific, an in camera review of such documents have to be undertaken before resolving the issue. The burden of proving that all the requisites of the privilege were present falls on the person asserting the privilege.

The estate administration courts were aware that the attorney client privilege was of the oldest among cannon law evidentiary privileges, fostering the open dialogue between lawyer and client that was deemed essential to effective representations and will remain mindful of this throughout an in camera review.

A final determination on the motion to compel un-redacted copies of particular disclosure was held abeyance pending an in camera review of the documents in un-redacted form. Un-redacted copies of the documents submitted to the court within several days.

Heirs of the decedent in a probate cannot speculate on the true intention of the testator in drafting his wills and testament. Neither can they make additional provisions to the will. Stephen Bilkis and Associates will intellectually fight for you, stay by you and assist to help you get your case done.

March 3, 2012

Court Hears Case Regarding Family Dispute Over Will

The appeal concerns a family dispute over the last Will and testament of the mother. The court is asked to determine whether various actions undertaken by the respondent sons in relation to the validation of the Will violated the apprehensive clause contained in the ninth paragraph of the Will. Based on the intent of the mother who made the Will, the respondents' actions violated the apprehensive clause and therefore the respondents have forfeited their right to take under the Will. Indeed, the apprehensive clause at issue was included in the subject Will in response to deteriorating family relations, and was both in anticipation of, and a forceful attempt to prevent, the very type of conduct at issue, conduct by the respondents that would delay the validation of the will, place the Will in jeopardy and harass the petitioner.

A New York Probate Lawyer said that the mother died in 1994. Under her last will and testament, the petitioner daughter, was named as the executor of the Will and was given the bulk of the real property and personal effects, and one-half of the remaining estate. The respondents are the sons and were each given one quarter of the remaining property. The children were not always treated unequally under the Wills, of which there were several. For example, in a Will dated September 22, 1986, the children were to take essentially in equal shares. A change started to occur in the late 1980's, after the husband died. The period saw a marked deterioration in the relationships between the siblings, and between the mother and her sons, while the bond between the mother and her daughter strengthened. These changing relationships were evidenced by, among other things a letter sent to the mother her son. In the letter, her son accused her of engaging in an elaborate scheme to isolate and alienate her from her sons. The son demanded that the mother revoke her then-latest will (which was very favorable to the daughter); reinstate a prior Will which divided the property essentially equally among the children, and stop aiding the daughter financially unless she could prove need. If his demands were met, the son promised to keep the matter within the family. However, if his demands were not met, he threatened to take immediate legal action to nullify his mother’s then-latest Will as a product of fraud and undue influence and obtain the appointment of a conservator for the mother. He also intended to publicize the matter, an act loathsome to the mother’s sense of privacy. In an undated note in the mother’s handwriting, the mother wrote that her other son had stated that the property would be in court so long that the daughter would never see any of the money. Finally, in a Will dated May 25, 1990, the mother noted that the more favorable treatment of the daughter under the Will was based on the loving care and attention she had shown both her mother and her late husband during his long illness as contrasted with the less than exemplary behavior of her sons. Further, the mother expressly stated that the Will was the product of long and careful thought and her deeply held feelings toward her children and was not in any way the product of any undue influence by her daughter.

Westchester County Probate Lawyers said that in June 1993 the mother met with a new lawyer to discuss the drafting of a new Will, the subject Will. The mother stated that her continuing desire was to leave the bulk of her property to her daughter, but that she feared that her sons would try to cause trouble for her daughter. Accordingly, the subject Will included the apprehensive clause stating that if any beneficiary under the Will in any manner, directly or indirectly, contests the Will or any of its provisions, any share or interest in the property given to the contesting beneficiary, or to such beneficiary's issue, under the Will is revoked and shall be disposed of by adding such share or interest proportionately to the shares of the remaining beneficiaries who have not so contested the Will.

In June 1994 the mother died and the subject Will was offered for validation. Preliminary letters testamentary were issued to the daughter in July 1994.

The respondents served a verified answer to the petition for validation. The respondents objected to their mother’s nomination of the daughter as executor on the grounds of dishonesty, improvidence and substance abuse. The verified bill of particulars set forth the basic allegations that were to be repeated and amplified throughout various proceedings. The respondents set forth detailed factual scenarios indicating a course of conduct by the daughter spanning several years wherein she allegedly employed lies, deceit, subterfuge, sabotage, and even acts of a criminal nature to isolate her mother from persons and places familiar to her, to alienate her affections from the respondents and those she trusted, and which threatened her mother’s health and life. The alleged goal of the scheme, which the respondents asserted was highly successful, was to defraud the mother out of substantial assets while she was still living and to exert undue influence on her testamentary intent. The bill of particulars was verified by both respondents as being, unless otherwise indicated, based on personal knowledge. Pretrial activity during the period included the testimonies of the draftsman of the Will and the two subscribing witnesses, the service of various notices of testimony and subpoenas on parties and nonparties, and court appearances and conferences.

The respondents were successful in obtaining an order compelling the daughter to post a bond, contrary to the provisions of the Will. New York City Probate Lawyers said that the motion which resulted in that order sought additional disclosure. Later on, objections to the validation of the Will were served on the petitioner's attorney but were apparently never filed. It was alleged that the mother lacked mental capacity and that the will was a product of fraud and undue influence by the daughter. The bill of particulars served in support of these objections merely incorporated by reference the allegations made in the respondents' bill of particulars. Pretrial activity during the period included the initial testimony of the daughter, the testimony of each of the respondents, the service of notices of testimony and subpoenas on several nonparties, and various court conferences and orders. There were also attempts to settle the matter. However, by letter, counsel for the respondents noted that the respondents are unwilling to withdraw the objections at that time.

After being deposed, the respondents amended the bill of particulars to provide that the factual allegations therein were made upon information and belief, rather than upon personal knowledge as originally claimed, despite the fact that various events set forth in the bill of particulars were alleged to have been personally witnessed.

In 1995, one of the sons petitioned for temporary letters of administration in order to bring an action to recover damages for wrongful death and intentional tort against both the daughter and the hospital in which the mother died. He alleged that his sister, assisted by the hospital staff, had acted in a manner that hastened their mother’s death. Further, although not relevant to the allegations in his petition, he submitted an affidavit wherein he reiterated the allegations of fraud and undue influence by his sister. By decision in 1995, the court determined that the son was not entitled to such temporary letters because the proposed tort claims were time-barred. As to the new issues and new charges concerning fraud and undue influence by their sister as raised by the son in his affidavit, the court found that such allegations should be addressed in an accounting proceeding.

Just six days after being denied the temporary letters of administration, the son commenced an action against his sister and her husband in the Supreme Court. He simply recast the allegations set forth in, among other pleadings, the respondents' bill of particulars to claim that his sister and her husband had deprived him, and the property of valuable assets. The complaint also alleged that the subject Will was the product of fraud and undue influence by the daughter and her husband. By order, the complaint was dismissed by the Supreme Court upon motion by the daughter of the deceased and her husband. The Supreme Court held, inter alia, that all of the claims raised by the son were covered by the proceeding pending in Court, that the son lacked standing to enforce claims on behalf of the mother’s property, and that the court, in its decision, had already passed on and determined to dismiss the claims made in the complaint.

In early 1996 the respondents continued their deposition of the sister in the validation proceeding and there were several calendar status conferences. At one such conference, counsel for the sister noted that discovery would soon be completed and that she intended to file a motion for dismissal dismissing the respondents' answer and objections. Soon thereafter, a schedule for the completion of discovery was drafted and the deposition of the husband was noticed. At another conference, respective counsel again conferred on the possibility of a settlement. Further, it was noted by the court that the objections to validate could not be found in the court file and there was no indication that the requisite filing fee had been paid. However, upon assurances from counsel for the respondents that the objections had been filed and that inquiries would be made, disclosure continued. The next day, settlement discussions broke down and it was agreed that discovery should be completed. On July 24, 1996, the sister and the respondents were further deposed. In August, while inquiries were still being made concerning the filing of the objections to validate, there was continued contact between the parties and additional disclosure.

By letter dated September 3, 1996, counsel for the respondents informed the court that, although his clients were not interested in entering into a global settlement, they were not disputing that the objections to the Will had not been properly filed. Thus, counsel noted, although the respondents had no desire to proceed with respect to any Will contest, they saw no need to withdraw their objections, as they were never filed.

At a conference, the objections to the Will were withdrawn, but not the answer. On October 22, 1996, the Surrogate signed a decree admitting the Will to validate. On the court's own initiative, the words probate not having been contested were struck, and the words no objection having been filed were substituted.

By petition, the sister commenced the proceeding for construction of the apprehensive clause of the subject Will. She alleged that the extensive pretrial litigation of the Will by the respondents violated the clause, thereby resulting in forfeiture of their bequests under the Will. In the order and decree appealed from, the court found, that the clause had not been violated.
As a threshold issue, the respondents argue that all of the proceedings at issue, with the exception of the objections to validate, were either legitimate inquiries to determine the fitness of the sister to serve as executor and/or to aid the court in determining whether the proffered will should be admitted for validation, or concerned challenges to actions undertaken by her or her husband prior to the mother’s death which did not implicate the Will. Thus, the respondents argue, other than the objections to validate, none of the proceedings at issue even implicate the apprehensive clause of the Will. Further, they argue, because the objections to validate were never filed and the requisite fee never paid, such objections were a nullity and should not be considered. One of the sons also argues that, in any event, he should not suffer from the consequences arising from the objections to validate because he was not a named as the one who object. The arguments lack merit.

Inheritances are given as tokens of love and appreciation. They are given to us to help us in any way possible. When family members squabble over money, it opposes the purpose of the reason why it was given. If you find yourself in this kind of situation, consult with Stephen Bilkis and Associates.

February 29, 2012

Court Decides Lengthy Will Contest Proceeding

In 1970, a doctor executed a will prepared by his attorney. The original will was retained in the attorney's files and the doctor was given a conformed copy. The attorney died in 1972 and the doctor died in 1979, at which time the original will could not be located in the attorney's files. The proceeding to admit the lost will for validation was commenced by the will proponent. The law provides that a lost or destroyed will may be admitted for validation only if it is established that the will has not been revoked; or execution of the will is proved in the manner required for the validation of an existing will, and all of the provisions of the will are clearly and distinctly proved by each of at least 2 credible witnesses or by 1 witness and a copy or draft of the will proved to be true and complete.

At trial, the proponent submitted evidence that the doctor did not revoke the original will since it was lost while in the possession of the attorney-draftsman. The appellant submitted evidence tending to show that the doctor had revoked the will by tearing it into pieces. Two of the witnesses who attested to the original will testified with respect to due execution but neither could remember any of the substantive provisions of the will.

A New York Probate Lawyer said that regarding the third requirement of the law, the legal secretary who typed the original will testified that she recognized her initials on the first page of the conformed copy of the will that was received into evidence. She also recognized that the type was the same used by her IBM typewriter. She recalled that the original will contained many provisions and that many bequests were made to foreigners. She further testified, however, that she never read the will after she typed it and could not remember any of the provisions of the original will. No other witness testified as to the contents of the original will.

The question thus becomes whether the testimony of the secretary combined with the submission of the conformed copy of the will clearly and distinctly proves all of the provisions of the original will within the meaning of the law in order to permit the admission of the lost will for validation. The court held that the three prerequisites for admission of a lost will for validation had been fully satisfied and admitted the lost will for validation. Specifically, the court found that the presumption of revocation of the will by the doctor had been overcome by the testimony that the will was lost while in the possession of the attorney-draftsman and that the contestants did not meet their burden of proving revocation by physical act or superseding will or appendices. Satisfied that the original will had been duly executed, the court interpreted as merely demanding proof of the authenticity of the submitted copy as a true and complete duplication of the original will and held that the secretary’s testimony sufficiently identified the copy and proved that its contents were identical to the original.

NYC Probate Lawyers said that the court permits the validation of a lost will which has been duly executed and has not been revoked only if of the provisions of the will are clearly and distinctly proved by witness and a copy or draft proved to be true and complete. The plain wording of the statute leads to the conclusion that the witness must testify as to the substantive provisions of the original will and not merely to the effect that the submitted copy is believed to be authentic.
The contents of the will must be proved after existence of the will and its destruction has been established. The statute provides that all of the provisions of the will must be clearly and distinctly proved by each of at least two credible witnesses or by one witness and a copy or draft of the will proved to be true and correct. In this respect the present statute does not differ from the prior one. Knowledge of the execution of the will is not knowledge of its contents. And while the witnesses need not give the exact language of the will, but merely the substance, each of the witnesses must testify to all the principal parts of the will. A copy of the will takes the place of the second witness, but the witness' supporting letter does not.

The dissent nevertheless argues that the legislative history supports the conclusion of the Surrogate's Court and the majority. One of the research counsel reported to the commission concerning his proposal to revise the evidentiary requirements to provide due execution of the lost or destroyed will be established; proof of the contents of the will by each of two witnesses; and a copy of the will should suffice to prove contents.

Although this fact alone disposes of the contention urged by the dissent, it was nevertheless found that the legislative history referred to is, at best, ambiguous and therefore unsupportive of the construction urged. The passage relied on can be interpreted to support the construction of the statute for it states the general rule that the contents must be established by the testimony of two witnesses, but proposes an exception that a copy should suffice to prove the contents, meaning that a copy should be a permissible substitute for the testimony of one of the witnesses. Section of the Surrogate's Court Act, expressly required the testimony of at least two credible witnesses, a correct copy or draft being equivalent to one witness. It is doubtful that the author of the passage intended to propose a radical alteration of existing law by suggesting that a copy of the will should serve as a sufficient substitute for the testimony of two witnesses instead of one.

But even if the legislative history were construed to support the position that a copy of the will alone should constitute sufficient proof of contents, it is not supported by the mandate and the express language of the statute. The court should not ignore the words of a statute, clear on its face, to reach a different result through judicial interpretation.

The legislative policy embodied is designed to prevent the validation of fraudulent wills. The policy will be subverted if a will, such as the one at issue, may be established and admitted for validation merely on the basis of testimony regarding the event surrounding the execution of the will rather than as to the contents of the will itself. A strict construction of the statute in question is therefore essential in order to insure that this legislative policy is properly effectuated.

It is evident in light of the foregoing that the secretary’s testimony did not clearly and distinctly prove all the provisions of the will as required. Although the attesting witnesses remembered various events surrounding the execution of the will, neither of them had read it and were also unable to testify as to the substance of its contents. Thus, assuming that the copy of the will submitted into evidence was actually a conformed copy of the original will, the respondent proponent did not otherwise carry his burden by clearly and distinctly proving all the provisions of the will by at least one credible witness.

There is, however, additional evidence, not referred to by the majority, which establishes with indisputable clarity the authenticity of the photocopy of the will. NY Probate Lawyers said that the testimony of two of the subscribing witnesses establishes that the doctor and his wife both executed their wills at the same time and place. Present were the doctor and his wife, the two subscribing witnesses and the attorney. The will of the doctor’s wife was executed first, the two witnesses then signed as witnesses to the will, as did the attorney. A copy was verified by the attorney and was given to the doctor’s wife and the original retained by the attorney. The same procedure was followed for the execution of the doctor’s will, and the subscribing witness, testified that the copy given to the doctor was a photocopy in a blue back, which showed on its face page that it was the last will and testament. It consisted of a few pages, though he could not say how many, and the printing on the last page of which (conforming the copy) he had watched the attorney insert, and that the copy of the will produced in court was the copy the attorney gave to the doctor. Though he had not read or otherwise become acquainted with all the provisions of the will, the subscribing witness’ testimony together with that of the secretary and the Surrogate's finding that the staples had not been removed from the copy presented in court was sufficient to authenticate the copy as a copy of the will of the doctor had executed. The other subscribing witness who testified did not say in so many words, that the copy in court was the copy given to the doctor, but he confirmed that he had looked at the first and last pages and his testimony was otherwise essentially the same as his fellow subscribing witness.

The will of the wife was admitted in evidence without objection. The will appears to the naked eye to be in the same type face as the doctor's will and like the doctor's will bears in the upper left hand corner of the first page a legend. It is, moreover, identical in its provisions with the doctor’s will, except as it substituted his name for hers in its dispositive provisions and made resulting conforming changes, and except that in disposing of the estate should the other spouse not survive (or die in a common disaster) one of the 48 specific bequests was in the sum of $2,000 in the doctor’s will but in the amount of only $1,000 in his wife’s will. The date of execution borne by the two wills is the same. The names of the subscribing witnesses appear in the same order and are the same names and addresses that appear on the conformed copy of the doctor’s will, but appear to be in manuscript writing whereas on the doctor's will they are printed. Moreover as the Surrogate noted on the record when the wife’s will was introduced, both wills consisted of nine typewritten pages. The doctor’s wife died on February 1, 1971. Her will was not admitted for validation because her husband, as the sole beneficiary under it, noted that he was tenant by the entirety of the property that would have passed under it, but a copy of the will was filed as part of the petition to fix tax on her property. The copy of her will admitted in this probate proceeding came from the Surrogate's Court file.

Accordingly, the order of the Appellate Division should be reversed, with costs to all parties appearing separately and filing separate briefs payable out of the properties, and the petition for validation of the lost will of the doctor be dismissed.

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February 29, 2012

Validity of a Will Questioned

A woman died in a nursing home and her will was validated in the court. The legal representative, whom she appointed, filed a petition containing an accusation of the jurisdictional fact that the woman died in her residency. It named, among others, the hospital as a beneficiary in the sum of $1,000. Waivers and consents on probate were filed, which included the waiver of a person who was designated in the petition as the sole heir of the woman.

Application has been made to the court to vacate the validation, on the ground that the woman was returned to her permanent residency at the time of her death and that the surrogate's court did not have jurisdiction over the estate of the woman. Objections had been filed, after validation of the will, which were submitted, signed and verified by the attorney of the hospital.

A New York Probate Lawyer a formal order to defend was obtained and served to the legal representative and, to defend to the court why the decree of validation, should not be vacated. A cross-application was served by the legal representative to the hospital and its attorneys as counsel to dismiss the objections and the motion to vacate validation.

The motions were argued. It shows that the legacy of $1,000 had been paid to the hospital at the time of the argument. Different arguments have been presented by both parties. The hospital’s attorney submits to the court that the surrogate's court did not have jurisdiction in the residency of the woman at the time of her death, and that the long lifetime history of the woman, as a resident and highly respected citizen and teacher in the county, required validation of her will in her county. According to New York City Probate Lawyers, the legal appointee and his attorneys have questioned the authority of the hospital’s attorney to bring the proceeding in behalf of the hospital, claiming that there has been no official action of the hospital which authorized the application to vacate the validation of the will of the deceased.

The court did not deem it necessary to consider the question of authority of the hospital’s attorney to bring the proceeding in behalf of the hospital for the reason that the hospital is a successor only and has no standing to attack the validation of the will. As a beneficiary, the hospital was not a necessary or proper party to the proceeding, and the fact, alone, would seem to be the simple answer to the question of standing to raise any issue relating, directly or indirectly, to validate. If the hospital had no standing in the proceeding, it is difficult to see how it can have any standing after the validation, and there is authority to that effect.

The commentary under apparently takes the view, and attorneys for the hospital also argued, that has upset the conclusiveness of the decree of validation. Westchester County Probate Lawyers said that the court does not agree with the position for in fact, did not overrule of the former surrogate's court act, from which it was derived.

Status or standing is a preliminary issue to be resolved as a condition precedent to the issues presented by objections. As the hospital has no standing to attack the validation of the will of the woman, and under such circumstances its attack is collateral, its motion to vacate the decree of validation in her county is hereby denied and the application is dismissed.

The court finds no objection to the legal appointee in the administration of the estate of the woman in her county. It does not constitute the practice of law within the prohibition of the courts law.

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February 27, 2012

Petitioner Contends Negligence of Guardian

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

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

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

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

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

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

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

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

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

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

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

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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.

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February 26, 2012

Grandchild of Decedent Files Will Contest

A woman has petitioned the court to vacate the probate of a will of a deceased person whom she is not related to and to permit her to file objections to the validation. The deceased man’s will was admitted to validation by the court and the estate was distributed in April, 2006.

According to records, answers and objections to her petition were filed by the executor, a grandson of the decedent, and two other grandchildren. Following a conference with the court, the parties attempted to reach a settlement, but were unsuccessful. Thereafter the matter was submitted to the court for a decision on the papers, including a reply and an additional affidavit in support of the petition.

According to a New York Probate Lawyer, the Petitioner raises several arguments in support of the relief requested. Primarily that she is in possession of a later will, in which she is named executor and a beneficiary. She states that she was neither cited nor waived citation in the proceeding which granted validation to the 1992 will, and that she intends to file objections to the validation based on the later will. She also alleges that the deceased, who died while an inpatient at a nursing home in New Jersey, was a resident of Manhattan, and not of Rockland County as alleged in the petition which resulted in the validation decree, and that, therefore, the proceeding should not have been brought in this court. The Petitioner filed the purported will in this court and filed her petition to vacate validation. The respondents, by their answer and objections, allege that the petition should be denied because the petitioner is guilty of laches, based on her unexplained and unjustified delay in offering the purported later will for validation and in bringing the instant proceeding, which will result in substantial prejudice to them if she is successful. They further argue that petitioner is unable to demonstrate a likelihood of success on the merits, because the 2001 purported will is not likely to be admitted to validation. They maintain that the 2001 document is suspicious on its face, that the deceased lacked sufficient capacity to execute a will in 2001 and that the 2001 document was the product of undue influence.

NYC Probate Lawyers said that in her reply, the petitioner counters that she is not guilty of laches, that the court should consider the new evidence which is the 2001 purported will, offered as a basis to vacate the decree, that the delay was not unreasonably long, and that the respondents have unclean hands because they were made aware that the 2001 document existed by letter date. She also avers that her attorney was delayed in filing a validation petition because he had difficulty in obtaining a certified copy of the death certificate, and that the attorney filed a notice of appearance in the validation proceeding. She also denies respondents' claims of lack of sufficient capacity to execute a will and undue influence and alleges that the execution of the 2001 document was supervised by an attorney-draftsman.

The Respondents, in their additional reply, argue that the presumption of undue influence in the case must be overcome by the petitioner in order to demonstrate a likelihood of success on the merits, and that she has failed to do so. They allege that the attorney-draftsman of the 2001 document was or is petitioner's attorney, that petitioner had a confidential relationship with the deceased and that the deceased would not have been physically able to attend the execution of the will unless the petitioner had accompanied him. They also state that the petitioner has failed to submit sworn statements from herself and the attorney-draftsman to disprove the allegations of undue influence. Finally, they argue that petitioner's present situation is one of her own making, since she failed to do anything to preserve her rights before the validation of the will was final, despite being in possession of the 2001 document and being aware that there was a pending proceeding.

NY Probate Lawyers said that after the additional reply was filed, the petitioner submitted an affidavit from the attorney draftsman who was one of two witnesses to the 2001 document, attesting to its due execution. The other witness is deceased. Although leave of court was not obtained before filing this affidavit, the court will accept it, for whatever value it has.

An application to vacate a validation decree is addressed to the discretion of the court, and the decree should be vacated only in extraordinary cases. To justify opening or vacating a decree admitting a will to validation, a petitioner must show to the satisfaction of the court that she has standing, facts sufficient to demonstrate a substantial basis for contesting the will, and a reasonable probability of success on the merits. In the present case, respondents have raised the defense of laches to the petition. A court may refuse to vacate a validation decree if unreasonable delay exists to such an extent that granting the relief would be unjust and inequitable. What constitutes unreasonable delay depends on the circumstances of a particular case and rests in the discretion of the court.

The facts as presented here demonstrate that petitioner comes before the court with less than clean hands. She has failed to explain why she did not file objections to the validation of the earlier will before the decree became final. Clearly she could have done so. Doing so would have caused the validation to be held in suspension until the validity of the 2001 document was determined. She has not offered any valid excuse for failing to act in a timelier manner. The excuse that her attorney had difficulty obtaining a certified copy of death certificate is meritless; the court already had a certified copy of the death certificate on file, and another would not have been required. Her assertion that the 2001 document is new evidence entitling her to relief is totally without merit. The section which provides for relief from a judgment or order in a civil action specifically refers to newly-discovered evidence which could not have been discovered in time to move for a new trial. The document in question is not newly discovered, since petitioner has had it in her possession presumably since the death.

In the instant case, petitioner has failed to demonstrate that she is entitled to the relief requested. Whether the court labels her actions a waiver, or determines that she is guilty of unreasonable delay, the fact remains that petitioner has provided no explanation for her delay of over ten months from the death, eight months after validation was granted, and four months after she notified respondents that she had a purported later will, to take any action to preserve her position. At the very least she should have filed the will with the court and thereby stopped the validation from proceeding until the court had obtained jurisdiction over all parties adversely affected by the 2001 document. By awaiting the outcome of the proceeding and then attempting to assert her rights, the court finds that she effectively waived her right to object to the earlier will.

In addition petitioner has failed to overcome respondents' serious allegations concerning undue influence and decedent's lack of testamentary capacity, and has thus failed to demonstrate a likelihood of success on the merits. And, finally, the prejudice to respondents, who relied on the validity of the decree, would be very great. The court therefore finds that she is guilty of unreasonable delay.

Finally petitioner's contention that the validation should be vacated because the deceased was not a resident of Rockland County is without merit. This court had jurisdiction of the properties of the deceased who was a resident of New York. Even if his residence at the time of death was Manhattan, as petitioner alleges, that is a question of venue, not jurisdiction. Once validation was granted by the court, it court retains jurisdiction of the properties for all other issues related to the properties. The petition to vacate validation is denied.

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February 26, 2012

Court Decides Will Probate Matter

A man filed a motion to withdraw a waiver and consent he did for the legal validation of his cousins will. And, this motion is opposed by the primary representative of the estate and the four charities who are the beneficiaries under certain instruction.

This happened five months after the death of his cousin, he did a waiver and consent; however, an attorney appeared for him a month after, and this is also the return date of the citation in this proceeding, and indicated that he wanted to withdraw his consent for the legal processing of validation of the will. The assets consists of personal property valued more than a million.

The instruction was done when his cousin was about 95 years old. The single page, two-sided tool is a downloadable legal form and does not appear to be attorney supervised. The opposite side of the form shows his shaky and weak signature, and the signature of the two witnesses. One of those witnesses now serves as a primary person appointed to perform the will and formerly served as one of legal guardians. Apparently, the other witness was an aide at the facility where she resided at the time she signed the instruction.

A New York Probate Lawyer said that the man served objections to attest on all parties except the guardian, but the objections were not accepted for filing due to his waiver and consent to process the validation of his cousins will. Those proposed objections says that his cousin is lacked of capacity to make a will, the instruction made was not freely and voluntarily done. The signature, the instruction and its publication were obtained by fraud and unjustified influence, and the requirements about the law of appointment of guardian were not complied with at the time of implementation.

In his motion papers, he state that he is legally blind, possesses lower educational attainment and is ignorant of the law. He urges that he never received the letter containing the waiver and consent to attest and affidavit of heirship that was mailed to him by counsel to the primary representative, and that attorney never advised him of various rights or the import of the waiver and consent. He contends that at the time he did the waiver and consent, he was unaware that his mother's property was a share of his cousins belongings, he lacked any understanding of the procedure or consequences of the legal processing of validation, such as his right to object to the will and his right to counsel, and he did not understand that by executing the waiver and consent, he would forfeit the potential right of his mother's properties. Based on his conversations with counsel, at the time he received the waiver and consent, he believed that he was signing that document in order to expedite the process.

Westchester County Probate Lawyers said the primary representative oppose the motion asserting that, upon his receipt of the waiver and consent, the man called to discuss the family tree and the forms he received, and he never advised their attorney that he was blind or that anything was missing from the envelope mailed to him. The letter states that if the man had no objection to the processing of the distribution of the properties, it would expedite the process. The representative note that the man executed both the waiver and consent and the affidavit of heirship as requested.

The charities also oppose the motion stating that there is no clear and convincing evidence that the waiver and consent was the result of fraud, overreaching, misrepresentation or misconduct or that there is any other basis for revocation, at the time that the man executed the waiver and consent, he was acting as the legally appointee of his mother's assets and should have known that the document he done would have a legal and binding effect.

New York City Probate Lawyers said that in reply, the man annexes various documents and state that due to his blindness, he follows a strict procedure upon his receipt of documents, which is to scan them into his computer and use a closed circuit television to magnify their contents. As his computer does not contain a scanned citation, he did not receive it, and he only learned of it when his subsequently retained attorney obtained a copy. His attorney stressed that the waiver and consent was obtained through improper overreaching and misrepresentation and, in any event, it should be suspend for good cause in the interests of justice.

Based on records, in legal processing of validation of will. It may not be admitted unless the court is satisfied that its implementation was valid, even if no interested party files objections to its validity. Thus, where a person who applies for a motion with reasonable expedition seeks to withdraw a waiver and consent to attest, the application may be granted where the petitioner demonstrates some merit to the objection, a reasonable probability of success and the absence of prejudice to the other parties. Furthermore, the courts are more liberal in granting these applications where other parties have already filed objections, or it is apparent that they tend to file objections, or where the application is made very soon after the execution of the waiver and consent.

The proof on the motion and court filings demonstrate that the attest was served by mail on the man, and his waiver and consent was executed, the same date that preliminary letters issued. The court does not find any wrongdoing by the proponents' counsel in obtaining the waiver and consent. Nonetheless, the letter sent to the man by counsel indicates only that the process would be expedited as a result of his execution of the waiver and consent. In view of the man’s blindness and limited education, and the fact that he was not represented by counsel at the time he did the waiver and consent, the court credits his contention that he failed to fully understand the legal impact. Thereafter, he expeditiously obtained an attorney and sought to withdraw his waiver and consent prior to the admission of the will to verify. Without in any way passing on the ultimate outcome of a will contest, the documents annexed by the man and in court files demonstrate that, at this time, his proposed objections have merit and a reasonable probability of success. The proposed objections are similar or identical to the issues raised by the Public Administrator in the proceeding. As it appears that the Public Administrator will file objections in any event, this also militates in favor of granting the motion, and allowing the interposition of the man's objections creates no prejudice to the representative and the charities, which are in the same position they were in. Moreover, the court's paramount concern is to admit only valid wills to attest. Where, as here in a pre-probate context, one interested party as well as another non-interested party expresses genuine concern as to the validity of the instructions and its execution, as demonstrated by the documents submitted, the withdrawal of a waiver and consent to allow the interposition of objections must be permitted.

Accordingly, the motion is granted. The man shall serve and file his objections within 10 days after the entry of the order to be settled here on.

Stephen Bilkis & Associates with its skilled legal team can help you to obtain what you really deserve. They will provide you assistance to things that you cannot understand. Ask for and be represented.

February 24, 2012

Court Rules on Complex Will Contest Matter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New York Probate Lawyers at Stephen Bilkis & Associates will stand by you and help see you through your case and argue your side to make sure that you as well as your loved ones get what is lawfully yours.

February 23, 2012

probate

According to reports from a surrogate’s court, a decedent was survived by his wife, and two children from a previous marriage. In his last will and testament, he had chosen his wife to act as estate administrator. Upon his death, the will was submitted to probate court. The court named the wife as the estate administrator in the letter of testamentary.

Long Island Probate Lawyers said that before the decedent’s death and months after the wife was accorded as estate administrator, she exercised her functions. It was asserted to be true that she made several transactions which resulted to lessen the funds of the contested estate. The wife have made repeated fund transfers from an alleged joint account to her own account; paid her personal bills and expenses thru multiple on-line transfers from decedent’s personal accounts in a certain bank; and checks payable to her decedent’s husband were signed, endorsed and deposited to her account.

A New York Probate Lawyer said that the decedent’s children, with the help of their probate lawyers filed a case contesting the earlier decision of the court in naming the wife as the appointed executor. They reasoned out that she was unfit to carry out the terms of the contested will by virtue of dishonesty, by not providing their needs, by shallow understanding of good will and by thoughtlessly or carelessly expending of their funds. They asked the court to appoint decedent’s son as the executor instead of the wife. They submitted to the court a written document of the decedent’s therapist. The therapist testified under oath and sustained the allegations of the decedent’s children. The estate litigation lawyers further make clear that the case under litigation was not a subject for time consuming dispute. Children’s funds were at stake. The wife was guilty of a series of acts-any one of which, the court has the authority to give an order to remove the wife as executor in an earliest time.

In deciding the case, the court was certain that the wife mixed the money of her husband with her funds. The money involved was held in trust fund for the children. The probate court firmly resolved that the lavish withdrawals, combined with repeated dishonesty and self-serving statements were comprised actions. Such actions will cause danger or risk to the children’s funds. Her conduct was enough ground and justification for her immediate removal from the office without a hearing and the preliminary letters issued to her be cancelled and be without effect.

The wife, being a lawyer entered for herself a motion of reargument to the court to prove the allegations against her to be false and erroneous by stating that; first, the court’s determination of her conduct endangered the safety of the estate was characterized by error; second, the children’s claim that the estate in litigation was in danger of risk was without valid basis; third, the bringing in of the decedent’s money to her own account, the repeated on-line withdrawals and dishonest statements were of no merits. The reasons behind her actions were to continue the decedent’s previous practice to deposit his money to the estate bank. They have not opened a joint account, but instead opened an individual and separate bank account. The decedent’s money was for his two children to inherit upon his death. The withdrawals from the decedent’s account were made to pay his hospital expenses, household bills, and compensation of her household errands while her husband was in the hospital.

The children with their estate lawyers opposed the arguing over again, of a motion made in court by the wife. They were satisfied with the court’s decision in their favor. The court correctly and intelligently interpreted the contested will. The decision was based on undisputed facts and of general importance. The lawyers argued that the acts admitted by the wife as just and proper were grave in manner and extent. It will tremendously destroy the lives of decedent’s children.

Brooklyn Probate Lawyers said that in losing the funds in trust under the control of an executor involved in a lawsuit for her wrongful and deceitful action will make tremendous negative impact on the decedent’s children. Skilled lawyers will stand by you and help see you through your case.

February 23, 2012

Court Decides Extensive Will Dispute

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

February 22, 2012

Court Decides Case Regarding Lack of Capacity

A man filed a motion to withdraw a waiver and consent he did for the legal validation of his cousins will. And, this motion is opposed by the primary representative of the estate and the four charities who are the beneficiaries under certain instruction.

This happened five months after the death of his cousin, he did a waiver and consent; however, an attorney appeared for him a month after, and this is also the return date of the citation in this proceeding, and indicated that he wanted to withdraw his consent for the legal processing of validation of the will. The assets consists of personal property valued more than a million.

The instruction was done when his cousin was about 95 years old. The single page, two-sided tool is a downloadable legal form and does not appear to be attorney supervised. The opposite side of the form shows his shaky and weak signature, and the signature of the two witnesses. One of those witnesses now serves as a primary person appointed to perform the will and formerly served as one of legal guardians. Apparently, the other witness was an aide at the facility where she resided at the time she signed the instruction.

A New York Probate Lawyer said the man served objections to attest on all parties except the guardian, but the objections were not accepted for filing due to his waiver and consent to process the validation of his cousins will. Those proposed objections says that his cousin is lacked of capacity to make a will, the instruction made was not freely and voluntarily done. The signature, the instruction and its publication were obtained by fraud and unjustified influence, and the requirements about the law of appointment of guardian were not complied with at the time of implementation.

In his motion papers, he state that he is legally blind, possesses lower educational attainment and is ignorant of the law. He urges that he never received the letter containing the waiver and consent to attest and affidavit of heirship that was mailed to him by counsel to the primary representative, and that attorney never advised him of various rights or the import of the waiver and consent. He contends that at the time he did the waiver and consent, he was unaware that his mother's property was a share of his cousins belongings, he lacked any understanding of the procedure or consequences of the legal processing of validation, such as his right to object to the will and his right to counsel, and he did not understand that by executing the waiver and consent, he would forfeit the potential right of his mother's properties. Based on his conversations with counsel, at the time he received the waiver and consent, he believed that he was signing that document in order to expedite the process.

Manhattan Probate Lawyers said the primary representative oppose the motion asserting that, upon his receipt of the waiver and consent, the man called to discuss the family tree and the forms he received, and he never advised their attorney that he was blind or that anything was missing from the envelope mailed to him. The letter states that if the man had no objection to the processing of the distribution of the properties, it would expedite the process. The representative note that the man executed both the waiver and consent and the affidavit of heirship as requested.

The charities also oppose the motion stating that there is no clear and convincing evidence that the waiver and consent was the result of fraud, overreaching, misrepresentation or misconduct or that there is any other basis for revocation, at the time that the man executed the waiver and consent, he was acting as the legally appointee of his mother's assets and should have known that the document he done would have a legal and binding effect.

Queens Probate Lawyers said in reply, the man annexes various documents and state that due to his blindness, he follows a strict procedure upon his receipt of documents, which is to scan them into his computer and use a closed circuit television to magnify their contents. As his computer does not contain a scanned citation, he did not receive it, and he only learned of it when his subsequently retained attorney obtained a copy. His attorney stressed that the waiver and consent was obtained through improper overreaching and misrepresentation and, in any event, it should be suspended for good cause in the interests of justice.

Based on records, in legal processing of validation of will. It may not be admitted unless the court is satisfied that its implementation was valid, even if no interested party files objections to its validity. Thus, where a person who applies for a motion with reasonable expedition seeks to withdraw a waiver and consent to attest, the application may be granted where the petitioner demonstrates some merit to the objection, a reasonable probability of success and the absence of prejudice to the other parties. Furthermore, the courts are more liberal in granting these applications where other parties have already filed objections, or it is apparent that they tend to file objections, or where the application is made very soon after the execution of the waiver and consent.

The proof on the motion and court filings demonstrate that the attest was served by mail on the man, and his waiver and consent was executed, the same date that preliminary letters issued. The court does not find any wrongdoing by the proponents' counsel in obtaining the waiver and consent. Nonetheless, the letter sent to the man by counsel indicates only that the process would be expedited as a result of his execution of the waiver and consent. In view of the man’s blindness and limited education, and the fact that he was not represented by counsel at the time he did the waiver and consent, the court credits his contention that he failed to fully understand the legal impact. Thereafter, he expeditiously obtained an attorney and sought to withdraw his waiver and consent prior to the admission of the will to verify. Without in any way passing on the ultimate outcome of a will contest, the documents annexed by the man and in court files demonstrate that, at this time, his proposed objections have merit and a reasonable probability of success. The proposed objections are similar or identical to the issues raised by the Public Administrator in the proceeding. As it appears that the Public Administrator will file objections in any event, this also militates in favor of granting the motion, and allowing the interposition of the man's objections creates no prejudice to the representative and the charities, which are in the same position they were in. Moreover, the court's paramount concern is to admit only valid wills to attest. Where, as here in a pre-probate context, one interested party as well as another non-interested party expresses genuine concern as to the validity of the instructions and its execution, as demonstrated by the documents submitted, the withdrawal of a waiver and consent to allow the interposition of objections must be permitted.

Accordingly, the motion is granted. The man shall serve and file his objections within 10 days after the entry of the order to be settled here on.

Stephen Bilkis & Associates with its legal team can help you to obtain what you really deserve. They will provide you assistance to things that you cannot understand. Ask for and be represented.

February 22, 2012

Court Rules on Validity of Will

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

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

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

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

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

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

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

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

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

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

February 21, 2012

Court Rules on Undue Influence Allegations

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.

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

Staten Island Probate Lawyers 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.

Suffolk County Probate Lawyers said that 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.

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.

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February 21, 2012

Beneficiaries Claim Estate Administrator is Dishonest

According to reports from a surrogate’s court, a decedent was survived by his wife, and two children from a previous marriage. In his last will and testament, he had chosen his wife to act as estate administrator. Upon his death, the will was submitted to probate court. The court named the wife as the estate administrator in the letter of testamentary.

Before the decedent’s death and months after the wife was accorded as estate administrator, she exercised her functions. It was asserted to be true that she made several transactions which resulted to lessen the funds of the contested estate. The wife have made repeated fund transfers from an alleged joint account to her own account; paid her personal bills and expenses thru multiple on-line transfers from decedent’s personal accounts in a certain bank; and checks payable to her decedent’s husband were signed, endorsed and deposited to her account.

A New York Probate Lawyer said that the decedent’s children, with the help of their probate lawyers filed a case contesting the earlier decision of the court in naming the wife as the appointed executor. They reasoned out that she was unfit to carry out the terms of the contested will by virtue of dishonesty, by not providing their needs, by shallow understanding of good will and by thoughtlessly or carelessly expending of their funds. They asked the court to appoint decedent’s son as the executor instead of the wife. They submitted to the court a written document of the decedent’s therapist. The therapist testified under oath and sustained the allegations of the decedent’s children. The estate litigation lawyers further make clear that the case under litigation was not a subject for time consuming dispute. Children’s funds were at stake. The wife was guilty of a series of acts-any one of which, the court has the authority to give an order to remove the wife as executor in an earliest time.

In deciding the case, the court was certain that the wife mixed the money of her husband with her funds. The money involved was held in trust fund for the children. The probate court firmly resolved that the lavish withdrawals, combined with repeated dishonesty and self-serving statements were comprised actions. Such actions will cause danger or risk to the children’s funds. Her conduct was enough ground and justification for her immediate removal from the office without a hearing and the preliminary letters issued to her be cancelled and be without effect.

Brooklyn Probate Lawyers said that the wife, being a lawyer entered for herself a motion of reargument to the court to prove the allegations against her to be false and erroneous by stating that; first, the court’s determination of her conduct endangered the safety of the estate was characterized by error; second, the children’s claim that the estate in litigation was in danger of risk was without valid basis; third, the bringing in of the decedent’s money to her own account, the repeated on-line withdrawals and dishonest statements were of no merits. The reasons behind her actions were to continue the decedent’s previous practice to deposit his money to the estate bank. They have not opened a joint account, but instead opened an individual and separate bank account. The decedent’s money was for his two children to inherit upon his death. The withdrawals from the decedent’s account were made to pay his hospital expenses, household bills, and compensation of her household errands while her husband was in the hospital.

Bronx Probate Lawyers said that the children with their estate lawyers opposed the arguing over again, of a motion made in court by the wife. They were satisfied with the court’s decision in their favor. The court correctly and intelligently interpreted the contested will. The decision was based on undisputed facts and of general importance. The lawyers argued that the acts admitted by the wife as just and proper were grave in manner and extent. It will tremendously destroy the lives of decedent’s children.

Losing the funds in trust under the control of an executor involved in a lawsuit for her wrongful and deceitful action will make tremendous negative impact on the decedent’s children. New York Estate Administration lawyers will stand by you and help see you through your case. New York Estate Litigation lawyers can argue your side and make sure that you and your loved ones are compensated.

Stephen Bilkis & Associates with its skilled legal team, have convenient offices throughout the New York Metropolitan area. We can provide you with advice to guide you through situations where estate is dissipated because of another's intentional deceit. Without skilled legal counsel, you may lose your rights which may cost you a significant amount of money.

February 20, 2012

Court Rules on Will Contest

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.

A New York Probate Lawyer said 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.

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.

Manhattan Probate Lawyers 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.

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. 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, Queens Probate Lawyers said that 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 skilled lawyer will provide assistance in your petition for probate. Contact the offices of Stephen Bilkis & Associates to find out how to protect your rights.

February 19, 2012

Court Rules on Joint Wills Matter

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.

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.

According to a New York Probate Lawyer, in 2006, 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.

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.

Accorsing to NYC Probate Lawyers, 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.

NY Probate Lawyers said in 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 legal team 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.

February 19, 2012

Court Rules on Jurisdictional Issues regarding Will

A son from California filed for an order dismissing the pending proceeding to probate his mother's New York Will that raises an interesting question of jurisdiction. The son argues the jurisdiction of the court to prove the validity of the Will of a non-residence which requests New York to prove valid and invokes New York law on the ground that her French legal residency has assumed jurisdiction over her estate. The motion is opposed by the Petitioners in the proceeding, the co-executors named in the Will, who are presently serving as preliminary executors.

According to a New York Probate Lawyer, the mother who made the Will was born a French citizen in 1899, and she became a naturalized United States citizen. She was a New York resident for about thirty years. For approximately seven years she was employed in the law offices in New York City. During this period she worked as secretary to one of that firm's senior partners. A lawyer-client relationship with that firm also commenced during that time. The French Ordinary Residence Card issued indicates that the mother who made the Will stated that she returned to France on October 24, 1971.

The New York Will which is the subject of the jurisdictional attack was drafted by the firm in New York she worked for. It was allegedly executed by the deceased in the firm’s Paris office in 1972, and there is no challenge on the matter. Both the petitioners and the son refer to the 1972 document as the New York Will. Both sides seemingly agree that this Will, whether admitted to be proven valid in New York or established in accordance with French law, governs at most the property of the deceased mother which was physically located in New York when she died, and that it does not affect property actually located in France, which passes under the French Will.

Westchester County Probate Lawyers said that the French Will states that the assets of the deceased mother located in New York when she died in 1978 and which she was apparently content to have remained in New York despite the fact that she moved to France in 1971 consisted of bank accounts and a brokerage account. At the time of her death the value of this New York property exceeded $320,000. The property located in France when she died consisted of an interest in real property to wit her apartment, and the personal property in the apartment. The value of this French property is disputed; the petitioners contend that its value is approximately $75,000 while the son’s position on oral argument was that it might be worth as much as $150,000.

On December 15, 1977 the deceased mother executed the document which the parties call the French Will. It is undisputed that the French Will has been established in France in conformity with French practice. On oral argument counsel for the son stated that the New York Will was in the process of being established in France and it appears from documents subsequently filed with the court that this has occurred although, for the reasons not essential to the resolution of the issue at hand.

In outline form, New York City Probate Lawyers said the provisions of these two Wills are as follows: The first paragraph of the 1972 New York Will contains the crucial language for purposes of this motion. It recites the deceased mother’s residence as being in Paris, France and then declares that she elect that the Will shall be admitted to original administrators in the State of New York and shall be construed and regulated by the laws of the State of New York, and that the validity and effect thereof shall be determined by such laws."

The settlement provisions are simple. The deceased gives a life interest in her apartment in in Paris to her friend if then living, or, if the friend predeceased her, which occurred, the apartment passes to the deceased mother’s adopted son, the one who filed the motion herein. Under Article Third all personal and household effects etc. other than those disposed of in connection with the apartment in are given to the said friend, or if she is not then living, to the deceased mother’s friend, who is concededly a French resident.

Sources revealed, the entire remaining property is given in trust for the benefit of the aforesaid friend for life and upon her death, or upon the deceased mother’s death, if said friend should predecease her as she did, the remaining is disposed of as follows: $5,000 to her "adopted son"; $5,000 to a godchild in England; $10,000 to a friend, a French resident; and the balance to be divided between the aforesaid French resident friend and a French mutual aid society. The nominated executors and trustees are her friend and the Bank of New York. Her executor and trustee friend is a member of the Law firm she worked for. As a substitute or successor executor for him, the deceased mother named her friend, from Oyster Bay, New York.

The final article of the New York Will contains a warning providing for the lapse of any provision made in the Will for any person named as a beneficiary who shall Will Contest or file objections to the admission to prove the validity of the Will.

Just as the New York Will be attune with the approach to the delegation of the property and the Estate Administration, the 1977 French Will presumably reflects the practice in that country. The deceased mother simply appoints her French friend as the person who is given the excess portion of inheritance on condition that she performs the special legacy. The special legacy is endowment of the apartment in Paris and its contents to the deceased mother’s adoptive son. On its face the provision is fitting with the terms of the New York Will which were to become operative in case the deceased mother’s friend predeceased her as she did.

There are two other relevant provisions in this instrument. One is the specification that legacy is not made as an excess portion of inheritance and outside a share. As a consequence of the foregoing, the adoptive son will only be able to claim it as taking less than a share. The other is revoking any other previous provisions, with the exception of those which are contained in her American Will, bearing the date of 1972, which has been deposited in New York City unless such provisions would be contrary to the Will.

Apparently the motion is directed to the court's jurisdiction. It is cast in terms of the efficiency of administration and the reduction of expense which the son alleges would result from deferring to France and declining jurisdiction. The essential issue here, however, is much more related to the son’s acknowledged forced right to inheritance claim. The affidavit of the son’s California counsel in support of the motion affirms that he was informed that under French law the son is entitled, as the deceased mother’s child, to one-half of her property. While the son’s acknowledges the possibility that the French law might be found applicable to his claim to a share of the assets located in the U.S. State is no ground for the denial of jurisdiction in New York, quoting the Court of Appeals opinion in Matter of Steel, it seems clear that the desire to assert the forced right to inheritance claim in the French courts provides the motivation for the instant motion. Similarly, some of the force of the executors' opposition is presumably fueled by the disparity of position.

With highly experienced legal team at Stephen Bilkis & Associates, you can be sure to win back what is taken from you. They can provide you with advice to guide you through the most difficult situations.

February 13, 2012

Court Rules on Complex Probate Matter

The guardian of the decedent’s estate has filed for a petition and requested the court to allow the probate of the alleged will. The petition also contained that a fee should be established by the court.
The testator of the will and testament has passed away. He left his wife and 3 children his estate. The widow was named the guardian as stated in the decedent’s will. The widow at that time is afflicted with dementia. The two older sons of the testator were also named as co-guardians for their mother.

The two sons requested a probate of a specific will. A few months later, they filed another probate on another will and requested that the previous motion be denied by the court.

The first in will in question contained provisions that the testator’s tangible assets be awarded to his wife. His older sons were also named as the executors of that will. The other testament in question allegedly contained specifications that the personal assets and residences of the testator will be given to his wife. This particular will have named the wife as the trustee and executor. The two sons in this will were named as the alternate executors and trustees.

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

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

Back to the current case, the guardian has asserted the probate of the second instrument since this will be in the best interest o