New York Probate and Estate Administration Blog

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.

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

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

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

In the recent will before the decedent pass away, he named the other party, the one who had the deed to his property, as an alternate beneficiary of all his assets. The different between the first and recent testament was the inclusion of the respondent as one of the beneficiaries.
The niece petitioned for a probate on the recent will executed by the deceased. The respondent had requested the surrogate court to change the date of the instrument to match the date in which she received the deed of the property from the then decedent. The niece objected to the execution of the second instrument.

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

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

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

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

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

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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.

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.

According to a New York Probate Lawyer, 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.

Manhattan Probate Lawyers said that 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.

Queens Probate Lawyers said that the decision of 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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The matter of Max Zurkow’s estate, his daughter had filed a motion for the court to wait on admission of a decision regarding the probate of the last will and testament. She also asked for a time extension to file objections and time to be able to examine the proponent and for an interpretation of the effect of the terrorem clause or no-contest clause that is included in the will.

On the return day of the hearing for the original matter, the daughter showed and the proponent was directed to change the petition because the adoptive daughter of Mr. Zurkow’s predeceased son was not mentioned. Another data that a New York Probate Lawyer obtained was the daughter was not served with the supplemental citation and is claiming she only received a day’s notice that a decree on the admission of the will to probate is going to be presented to the court. The daughter got an immediate order to show cause to wait in making a decision on the decree.

The daughter had checked witnesses who are verifying the proposed will and now wants to examine the proponent of the will. Her allegation was that the son of the testator, who is also an attorney at law, acted as the decedent’s attorney, and the will being executed in his office. Further, she is claiming that the provisions of the will were altered to assign other benefits to the proponent and his family at her expense. A Queens Estate Lawyer cited that the daughter was as well saying that her father was 80 years old at the execution of the will and was relying on other for his physical needs.

The last will and testament of Mr. Zurkow say that if anyone opposes the probate of his will, that person and any participant will rescind his right to any bequest. The daughter asked that court that before they grant or deny her request for the examination of the proponent, they first interpret this part of the will. A Nassau County Probate Lawyer said that the court will not be able to construe any part of the will before it is in probate. In can however, check if the examination of the proponent is part of the public policy of declaration. This means that the action that will be done is does not tantamount to a breach of the terrorem clause.

In this case, the court said it is their practice that if the person who drafted the will or a member of his firm and/or his family will receive a part of the estate in probate of a proposed will, he is required to submit an affidavit explaining that the will was free and voluntary made. He needs to explain in the same affidavit why he or his family is receiving a special treatment under the will. If it is a member of his firm who drew up the will then he will need to explain if he had any connection the actual making of the will and the person who actually made it should have his own affidavit saying that he acted in behalf of the decedent and not the proponent.

The affidavits will be carefully scrutinized by the court. It will not be examined for as long as there are unexplained suspicious circumstances. In this case, the proponent submitted applications that showed he will be receiving more of the will goes into intestacy or going without a valid will. It appeared, however, that the daughter of the proponent, the granddaughter of the decedent will receive a substantial amount that is more than what she will receive in intestacy as she is not considered as an heir to the estate. The court then granted the request of the daughter to examine the proponent with regard to any matter regarding the will.
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The very popular Emmy is a trademark shared National Academy of Television Arts & Sciences and Academy of Television Arts and Sciences. Before, these two entities were on under Television Academy of Arts & Sciences, this was in 1946. In the 1950’s they separated because of differences. New York Probate Lawyers say that around the 1977, the National Academy of Television Arts & Sciences (NATAS) and Academy of Television Arts and Sciences (ATAS) entered in a settlement agreement to resolve differences in each group’s right with the use of the Emmy trademark and the related litigation.

NATAS got among other things the exclusive right to conduct one annual award and show per year for national daytime programming (TV shows from 2:00 am to 6:00 pm), national sports programming, national news and documentary programming. ATAS got the exclusive right for the award for night time TV shows (TV shows from 6:00 pm to 2:00 am). The agreement also provides that they will need each other’s consent before creating any new national awards, which shall not be unreasonably withheld. A Manhattan Probate Lawyer found out that the agreement is if the other party feels that the consent was reasonably withheld, then they can resort to an intercession.

NATAS announced that they would be starting to award new Emmys to recognize “new media”. The announcement was made November 2005. The “new media” included Broadband video programming broadcasted over the internet. ATAS was not asked for their consent before NATAS announced the new awards. They as well announced that they will be awarding Emmys in Drama, Comedy, Children’s and Variety for Daytime Broadband. Part of the revelation was a "My Space/ My Emmy" contest, which will be for advanced media awards like video games and other technologies. NATAS had denoted that it will be awarding all entertainment programming on broadband media regardless of the time it was distributed. The awards were scheduled to be given away in June.

ATAS filed a Demand for Arbitration with the American Arbitration Awards (AAA). What they were asking is for relief because of NATAS’ announcement of new awards, which they claim is a breach of their agreement.

A Queens Probate Lawyer found out that the panel established that NATAS had inappropriately exploited the Emmy in no less than four separate occasions. The panel ruled that NATAS should not promote or participate in the "My Space/ My Emmy" contest. NATAS is as well instructed to not award new Emmys that will infringe on the genres reserved to ATAS. This being drama, comedy variety shows, music, "long form" including mini-series, reality shows, children's animation, made for television movies and non-fiction film making. Both ATAS and NATAS are ordered not to award any new Emmy for non-television devices. The panel also found that NATAS exploited Broadband by their announcement.

NATAS filed a petition for a temporary restraining order with its appeal to vacate the interim award, on December 20, 2007. They stated that the panel exceeded its powers by deciding on issues that were not submitted to them. The court of appeals decided that for the un-finalized interim awards, there are no grounds for dismissal. As for the panel going on more than their authority, it is the court’s decision that this is baseless. The court then ordered that injunction to vacate the Interim is denied. The court granted the confirmation of the arbitration.

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The public assistance recipients who had been classified as employable with limitations had a filed an instant law suit against the City administration and the State. The people were classified as such because of the medical problems that they have. Their allegation was that the City administration often puts them in jobs that are not compatible with their disabilities. The plaintiffs who have been assigned to the Work Experience Program (WEP) state that aside from the incompatible jobs, the State has failed to supervise the program under the Social Services law.

New York Probate Lawyers found out that the court has found that the plaintiffs had raised a serious fairness issue and could be entitled to a Writ of Mandamus that requires a government agency to do something that they should by law. It can also be a writ of prohibition, which will prohibit a government agency, even a judge, from doing something that they should not. Or it can also be a Mandamus Review, where a decision of a public agency is reversed.

According to the social services law, in exchange for welfare benefits, the aid recipients need to perform WEP assignments, unless the recipients are exempted due to physical or mental disabilities. The city’s medical contractor determines if they are E-I or employable, E-II or employable with limitations, E-III or temporarily disabled, or E-IV which is permanently disabled, according to a Manhattan Probate Lawyer said. People classified as E-II should still work but will be assigned jobs compatible with their disability.

There are two things that may have gone wrong. The person may have been incorrectly classified or correctly classified but put in the wrong assignment. If a recipient feels that they should not be employable there is a hearing that they can request to determine this. From the information aquired by a Queens Probate Lawyer from the city, the process is included in the notices sent to the recipient after they have been classified.

The medical condition of the beneficiary is not accommodated. The notice states that unless the person requests a hearing within 10 days of receiving the notice, she must continue with the assignment. A named plaintiff, in fact, says that she received her notice without any indication in how to dispute assignments. With her notice, she received an assignment for a maintenance job. She is considered incompatible with this as she has respiratory problems. She requested a hearing before going to the job site so as not to miss the 10-day grace period. The city then said she cannot go on review yet because she is not assigned a specific task yet.

The doctor’s findings are sent in the second notice. The Physician Assessment of Client Employability (PACE) report is the documentation that a beneficiary can bring to a work site to show her limitation. It still does not say anything about the participants’ procedural rights.

The next notice that a beneficiary received contains where they will be assigned. It can be a government office, public park, etc. It does not contain though what specific assignment they would get. The city administrators say this cannot be specified as the work is assigned depending on what that department needs day to day.

The last one that they receive is an orientation manual. It states that they can contest their employability status. It still does not discuss how they can dispute certain assignments. It states that PACE should expressly state that they are unable to work.

The city says that any issue with the job assignment should first be raised with the work-site supervisor and coordinator and then the Participant Services Unit. Only after that they can request a hearing with the city. They state that the proper way is to know what the assignment is first then utilize the current mechanisms available then seek a fair hearing where they still get aid without working.

The court had ruled in favor of the plaintiffs. Not only, with the notices but also on providing a way on how they can dispute an assignment. Being forced to do an incompatible assignment while the case is being tried is also something that they had made clear to change. With regard to remedy, the court granted the defendants claim to convert it to the remedies available.

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A proponent of the will of Lina G. Shapiro, petitioned the court at the foot a probate decree to charge the person objecting to the will personally. The probate decree allows this application to be made after the decree has been final.

A New York Probate Lawyer said that when a person files an objection to a last will and testament in good faith and with reasonable grounds, he is entitled to have his protest investigated without him bearing the cost. There was a previous case whereby the Appellate Court reversed a decision of a surrogate court for an objectant to be charged personally because there was some evidence that supported his objection to the lack of testamentary capacity and to negative bad faith. This was in the Coddington will.

Good faith is mainly reliant on whether there is a considerable basis for a will contest. The court cited some examples, like with the Kurowski’s will, where the court charge the cost of the contest personally to the objectant because she had a sworn data that validates the will she is contesting. The Roger’s estate was mentioned because the court assigned the cost to the person who contested because there was no evidence to support his claim. This is not the sole basis for imposing the cost to an unsuccessful contestant.

Let us go back to why there is a contest for this case. In a will executed by Ms. Shapiro dated April, 22, 1958, she disinherited her daughter. The daughter then filed objections to the probate questioning the due execution and saying that there was fraud and undue influence. It also challenged the jurisdiction of the court. She claimed that at the time of her mother’s death, her mother was a principal resident of Florida and not New York. The court was able to determine that the decedent was a resident of New York and not Florida in July 1962. This was still appealed by the daughter but was still affirmed in January 1963.

In May of 1963, her objection with regard to fraud and undue influence was tried by the court with a jury. A Manhattan Probate Lawyer said that the contest about the due execution was withdrawn when it reached trial. After three days in the trial, the court determined that there was no fact to be submitted to a jury so it ruled in favor of the proponent of the will. The daughter did not file an appeal. The evidence at trial proved that the will was valid. The disinheritance is a result of friction that started in 1956, where Ms. Shapiro purchased $120,000 of stock from her daughter’s husband. The husband then questioned the sale saying that Ms. Shapiro misrepresented the value of the stocks. The daughter’s husband insisted on attempting to interrogate Ms. Shapiro, even if there is a sworn statement from a doctor that such examination would put her mother’s life in danger because of a heart ailment. By the time that Ms. Shapiro died there was already great hostility between her, and her daughter whom she disinherited.

According to a Queens Probate Lawyer, the court then found that the contest was filed in bad faith. It is also confirmed that the testatrix intended for the daughter to be disinherited, and it contains stipulations to that effect. With antagonism between them, the daughter couldn’t have logically expected her mother to make any provision for her. There was no evidence to support her claims and objections. The evidence provided pointed that the daughter just wanted to delay the probate with a contest. The court awarded the costs to the proponent less $158 for the transcript that will be charged to the daughter personally.

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Plaintiffs filed a motion against New York State Department of Taxation and Finance for their Statewide Offset Program. A New York Probate Lawyer says that the plaintiffs are taxpayers who are saying that in allowing the offsets, the defendants have violated their rights to notice under the due process and their right to oppose the debts where they offset the refunds. They allege that the program allows the offsetting of their income tax refund to any debt owed by the taxpayer to the New York State Office of Temporary Disability Assistance (OTDA). The plaintiffs are asking for relief and a class certification.

The Court in determining the granting of the motion of the plaintiff’s for class certification determined that issues and facts that are common to the wished-for class outweighs the concerns that are specific to the individual class members. Queens Probate Lawyers mentioned that the court found the question of the violation of OTDA to the due-process clauses of the Constitutions of the United States and New York by certifying debts to DTF without giving plaintiffs' adequate notice or a meaningful opportunity to contest the underlying debts is common to all the members of the proposed class.

The general position of the defendant is that the plaintiffs would not be entitled to recover any damages. They would not be compensated for the government’s violation of their due-process rights if the violation is not the reason for the plaintiff’s losses. The plaintiffs were not able to show evidence of the loss that they are claiming to have incurred because of not having the opportunity t contest the main debt. The court agrees with the defendant’s position on the compensation not being granted if the loss is not a direct result of the violation. The plaintiffs though, ask for the offsets plus interest. A Nassau County Estate Lawyer stated that the opposition indicates that if the opportunity to contest the debt is granted, each plaintiff will have to prove his or her individual case.

The court usually decides on the cases against the government based on previous instances and decisions. In this case, the harm is not perceived but is claimed to have already happened. Under these conditions, a precedent in the favor of an individual plaintiff will not matter in the remaining plaintiffs' cases. The petitioners asked for a leave in court so that they can amend their complaints. The court states that the defendants will not be prejudiced by the amendments and there will be no new allegations to be added. The defendants also have failed to show that the amendments are without merit. With the four month limitation period for the plaintiff’s case, the defendants have not revealed any dispute saying that the claims are not timely.

Sometimes you will be a casualty not only of an individual or a company that has not followed the rule of law when it comes to dealings with you. You may also experience this with government agencies. If you feel that you have suffered because a government office has not followed due process when dealing with your concerns, you need legal counsel that can protect your rights under the constitution. They will be able to grant relief or compensation where it is due. It may be individually or as a group complaining.

In your regular dealings with government offices, if you feel like they have neglected to follow the rules, contact Stephen Bilkis & Associates for guidance. Whether you are contending with a governmental agency, need estate planning advice, or are contesting a will, we will ensure that your rights are protected. Come in to any of our conveniently located offices throughout New York for a free consultation.

In the matter of Mary Cairo’s will, a question has been raised whether Joseph L. Cairo her grandson has the right to raise a dispute against the terms for the distribution of the will. The decedent named three different charities as the beneficiary of the remaining part of her estate. This is after her sister, Elizabeth Jennings, gets her cooperative house and all its furnishings, including personal property. In the will, according to a New York Probate Lawyer, she says that if her sister dies before her then her share will also be divided equally between the three charities. The sixth article of the will specifically said “I make no bequest to my grandson, Joseph L. Cairo, and I make no bequests to my daughters-in-law, Antoinette Cairo and Audrey Cario, for good and sufficient reason.”

That in the interpretation of a will, the first rule that the court follows is to determine the actual intention of the decedent. The second rule is to establish such an intent from will as a whole and not just part. The will undisputedly show that Mary Cairo wanted to leave the bulk of her estate to charity. Not only with the bequest but even with the provision that if her sister predeceased her, the bequest to her sister will go to the charities. To make it clear, she even named Joseph L. Cairo and others in her will and stated she is not giving them anything.

This was the basis for Joseph L. Cairo’s argument that he has the right to contest the bequest to charity. He says that since he was specifically mentioned then he has the right. Manhattan Probate Lawyers said that by law there are qualifications that must be met to determine a person’s right to contest a bequest to charity. The first is if the gift is more than one-half of the residuary estate. It can only be objected to by people who stand to benefit from a successful contest. This is where the intent of the decedent’s intention comes in. In her will, she showed that she did not want Joseph Cairo to have any part of her will. She wanted her estate to go to her sister and charity. The courts declaring that if they allow Joseph Cairo to contest, then it will be like saying it is possible for him to get something from the estate which is not what Mary Cairo wanted. IT is the court’s decision that Joseph Cairo does not have standing to contest the will as to the disposition to charity. He is also charged $10 personally.

This case was considered as one of the benchmark cases when dealing with terrorem clauses or no-contest clauses. Often, the decedents include them when they want their beneficiaries to have no problems getting their share. In interpreting the will, you will need Queens Probate Lawyers, who can get your side across clearly and make sure that it is considered.

In this type of case, you could be anyone. You can be the person being disinherited so you would need a quality lawyer, who can fight for your right if they determine that you have one to the estate. Quality legal counsel can make sure the proceedings is according to the will and the law and that your right to benefit is considered. Stephen Bilkis & Associates has the best of them. If you find yourself in this position, or if you are unsure where you stand in a will, walk into any of our offices in New York. We handle cases from New York and Long Island. You can also contact us online or by calling 1-800 NY - NY- LAW.

Charles J. Tate, acting as the administrator of the estate of Nicholas C. Tate filed a case for gross negligence, malpractice, non-feasance, misfeasance, malfeasance and breach of fiduciary relationship against John J. McQuade as the guardian ad litem, or the court-appointed guardian of Nicholas’ interest with his son’s will. He is seeking money damages for money and also for punitive damages.

After Nicholas’ son died in March 31, 1971, the court-appointed Mr. McQuade as his guardian because of a disability and Mr. Tate was 90 years old at that time. As the administrator, Mr. Tate says that Mr. McQuade to file a will contest for excessive gift to charity. Whereby if successful would have increased Nicholas’ share in his son’s estate. The son left some personal property to his mother and the rest of the estate to the University of Detroit for educational purposes. This was dated and verified in September 16, 1971. A New York Probate Lawyer said that the mother filed her objections to this will through her own counsel as an excessive gift.

The mother died while the probate for the son’s will was still on-going. Before she died, she had set up a trust for Nicholas her husband, and the rest was to be given to Mr. McQuade as the guardian ad litem. He was also named as the executor of the mother’s will. Though a lawyer, Mr. McQuade was not the one who drafted the mother’s will.

In September 20, 1972 there was a written agreement of settlement by the executor of the son’s estate, the executor of the mother’s estate Mr. McQuade and Mr. Tate as the administrator. This settled the objections to the son’s will and the mother’s will, from what a Manhattan Probate Lawyer got. Part of the settlement was that estate of the father will have a share in the settlement of the contest on the son’s will. They were going to give $25,000 to Nicholas’ estate.
Mr. Tate’s position was that Mr. McQuade did not take the necessary steps to make sure the father gets part of the son’s estate when it clearly showed that the will was to deprive the ward.

Mr. Tate further said that with Mr. McQuade being a beneficiary in the mother’s will and the guardian of Nicholas with the son’s will created a conflict of interest. This was not supported though because the mother had gotten advice from a separate counsel, and the will was drafted by the same lawyer who filed the contest on the son’s will. The father was the only beneficiary of the will. It also does not show that Mr. McQuade knew of what the mother had in mind for her last will and testament because it was only finalized three days before she died by a different lawyer.

Queens Probate Lawyers said that the court determined from research that duties of the guardian ad litem do not include representation to contest an excessive charitable or educational gift in a probate proceeding of a will. The court also stated that there is no clear rule as to the right of contest when it comes to an incompetent or an infant. It is not specified that a guardian can make the personal choice to do so. It is laudable that a guardian asks the Surrogate court for assistance in the contest but not required. The filing of a contest of an excessive gift can also be done within six months from the issuance of the letters.

The case was dismissed, and the court found that there should be no action to be taken. This may seem like Nicholas got the bad end of a stick. This happens a lot to people when they do not have counsel.

For a quality legal counsel who can make sure the proper contest is done, and that will put your interest first you have Stephen Bilkis & Associates. They make sure that once the probate starts you are already in a good position to prevent problems in the future. They give out free consultations when you call 1-800 NY - NY- LAW. Anywhere you are in New York or Long Island, they will assist you.

Arthur D. Norcross, executed a will that gives all his residuary estate to charity. His daughter, because the bequest exceeded half of the estate filed a will contest. The executors countered this contest saying that the daughter had signed an agreement that she will not contest any gift to charity through her father’s will.

The executors move for a summary judgment for this contest on the will to be invalid. The executor also stated that the daughter is not bound to gain anything with the success of the contest. Therefore, she does not have a stand to contest. Queens Probate Lawyers say they do not dispute that the bequest to the charity is more than half of the testator’s estate. What they point out is that in the will, it also states that “'I make no provision in this will, other than the provision in Article FIRST hereof, for my children, HELEN NORCROSS CEDER and ARTHUR D. NORCROSS, JR., not from any lack of affection, but because I have adequately provided for their welfare by inter vivos deeds of trust and otherwise.”

The law does not prevent any person from giving all his estate to charity, nor does it require for them to give any part of the estate to relatives. The law aims to prevent giving an undue portion to charity when relatives have a better claim.

A New Probate Lawyer also states that the law intends to alienate charities but to protect family members if they decide to raise this statute.

The words in the last will and testament will be the one to determine if the testator had really intended to disinherit a family member for the charity. The doctrine of Stare decisis, or basing decisions on previous rulings can take effect here. In this case, what the court did was to compare the words used in the testaments in the matter of Cairo. Both had stated that they do not want their relative to get more than what they have stated in their will. In this case though, the testator further states that it is not because of lack of affection, but because he has already provided them well while he was still alive. They do not want the charities to get nothing, in this matter though, it would seem that it allows the will to be defeated.

Mr. Norcross’ will is not showing disinheritance but s stating that he does have affection for his children, and he has given then sufficient benefits while he was still alive. In the matter of Cairo, what the will specifically state is that the testator wants to deprive the grandson of any property that will be left after all debts and fees have been paid from the estate. The intent to disinherit was conveyed. In this matter, the court determined that the testator did not intend to disinherit. They moved then that the motion for the summary dismissal be denied, according to Manhattan Probate Lawyers.

Sometimes when wills are not interpreted properly, it may hurt the people who are left, and they may be without what should have been for them. To see to it that you get your fair share, you would need a first-rate legal counsel. They will make sure that the will is interpreted the best way that will be beneficial to everyone, especially you.

This is where Stephen Bilkis & Associates have Probate Lawyers come in. They are there in the front lines when your interest is the one in line. Before an issue even arises they would already plan on it for you. You can get a free consultation with them at 1-800 NY - NY- LAW. They handle cases from anywhere in New York or Long Island.

Alexander Singer filed an appeal with the court with regard to him violating the terrorem clauses of his father’s will. When his father, Rabbi Joseph Singer, died, his last will and testament was dated April 15, 2003. The will put his daughter, Vivian Singer, as the executor of the will. With a trust agreement bulk of his personal property, his home in Brooklyn and $200,000 was to be given to his daughter. The will stated that the bequest was for his daughter’s unusual dedication, and he realizes that his daughter gave her life to take care of him. To his son, he gives $15,000 and the remainder of the estate will be divided between his son and his daughter equally.

Rabbi Singer’s will have two terrorem clauses. The first, as a New York Probate Lawyer said is like any standard ‘no contest’ clause. "If any beneficiary shall, in any manner, directly or indirectly, contest, object to or oppose, or attempt to contest, object to or oppose, the probate of or validity of this Will or the revocable trust agreement created by me, or any part of my estate plan or any gifts made by me, or any of the provisions of this Will or of the revocable trust agreement created by me, in any court or commence or prosecute any legal proceeding of any kind in any court to set aside this Will or the revocable trust agreement created by me or any part of my estate plan or any gifts made by me, then in that event, such beneficiary, and all of such beneficiary's issue, shall forfeit and cease to have any right or interest whatsoever under this Will or under the revocable trust agreement created by me, or in any portion of my estate, and, in such event, I hereby direct that my estate and the trust estate under such revocable trust agreement shall be disposed of in all respects as if such beneficiary had predeceased me without issue."

The second one was specifically for his son Alexander. This condition expressly states that his son should not contest any part of the will, the trust agreement, any of the estate plans and gifts made by Rabbi Singer. It further says that his son should not take his daughter, Vivian, to a Bet Din. A Bet Din according to a Queens Probate Lawyers is a religious court. If his son resorts to any of these proceedings, he will lose his right to any part of the estate, either through the will or the revocable trust agreement.

March 25, 2004, Vivian submitted the will for probate. The following day Alexander filed a notice of discovery and inspection. He asked for various documents and the deposition of certain witnesses, including Rabbi Singer’s attorney, Joseph Katz. Vivian’s lawyer wrote to Alexander stating that Mr. Katz was not a proper witness for the discovery and inspection procedure. Nassau County Probate Lawyers got the information that the lawyer even stated that he will be contesting the will under the terrorem clause and will forfeit any inheritance due to him. Alexander’s attorney disagreed and deposed Mr. Katz.

In Mr. Katz's testimony, he said that Rabbi Singer was capable and that Vivian did not influence the will. He also stated that even in the older will that was drafted the ‘no contest’ clause was already included to make sure Alexander does not contest the estate plan.

The will was submitted to probate with no contest. Vivian then filed a case to declare that Alexander violated the terrorem clauses of the will. In the surrogate court, it was found that he did. Hence, the appeal to reverse that ruling. In the examination of the Appellate Court, they stated that the examination of the witness or documents does not construe a contest. This is for an informed decision, whether they have a stand to contest the procedure or not. The court also said the discovery and inspection is not exclusive to estate, and the will does not state that the deposition of Rabbi Singer’s lawyer automatically forfeits the inheritance.

The terrorem clauses in this case did not prohibit inquiry just the contest of the will or any part of it. The court reversed the decision of the surrogate court and granted that Alexander get his share.

There are often animosities that exist between siblings. In estate cases any old issues make the contest personal. This is where levelheaded legal counsel is needed. They will be the ones to make sure the decisions made are not just emotional but correct and well founded.

You do not only need skilled legal counsel, but also ones that know where to position your point of view and make sure you get all the information first, and Stephen Bilkis & Associates have them. If you need a consult, you can them 1-800 NY - NY- LAW, and they handle cases in New York and Long Island.

Lillian Sandow had two wills. One dated July 16, 1947 which was the one presented to the court for probate, and the other one was dated February 16, 1945. In the February 16, 1945 will, there were two beneficiaries declared as sole legatees. They were contending the July 16, 1947 will as a forgery. They are saying that the last three pages of the will which had the signature were authentic, and the first four pages were substituted.

According to a New York Probate Lawyer, the first four pages are the ones that contained the legacies and the appointment of the executrix. The last three pages of the signature of Ms. Sandow, the witnesses’ signature and the powers of attorney. They cited this and much on a previous case of Hinderson’s will and Teller’s will. In both these cases, the mere allegation of fraud caused the will to be vacated. In these cases though, the court had established that the fraud was in stopping the filing of any contest against the will. It was not an attack on the will itself. They also failed to notice that in both cases, the fraud was established in the preliminary hearing.

The petitioners claim there was no fraud in the withholding of the earlier will, and allegedly they found the earlier will in the office of a lawyer, who was not connected, in any way, to the parties. They also said that they questioned the authenticity of the will the same night that it was read and one consulted an attorney about it. He was advised that not being a beneficiary without an earlier will that shows he was part of is not going to be accepted by the court. A Manhattan Probate Lawyer mentioned that it was only after the older will was found that they felt they had a stand to contest the will says a New. They contest does not name the perpetrators of the forgery, but the words are directed to the executrix and her attorney as she is the sole beneficiary of the will.

The case was unclear and unconvincing. They had a witness testify that the ink in the last three pages was different from the first four but the same typewriter was used for all pages, and the paper used was also the same. The typist was also interviewed, and she said she used two kinds of typing styles, which was also one of the things they were questioning. According to the expert, it a standard for that stenographer to use both techniques in typing documents. They further interviewed the attorney that testified as to how the will was prepared and kept. They also asked two witnesses who had a conversation with the testator about her will, but they also indicated that they were in no position to authenticate if that was the same will or not.

According to a Queens Probate Lawyer, they were not able to show a substantial basis for contesting the will, which was the requirement for this type of attack on a will. Their petition was just based on a suspicion that was also lost after the attorney and the stenographer testified. They were insisting on a trial by jury for the case, but their case lacks the merit that the trial requires. They were not able to show a degree of probability for a well-founded claim. The case was dismissed by the Appellate Court, and the will was not vacated.

Continue reading "Lillian Sandow had two wills" »

Ruth Bricker, Charles Ballon and the United States Trust Company submitted a counter-application regarding the preliminary letters sent to them for the last will and testament of Anna Lazarus. In the will submitted by Abraham Lautman to the court for probate, Mr. Lautman and United States Trust Company were named as executors. In their petition, Mr. Lautman’s eligibility to serve hold and oversee the assets of Ms. Lazarus is questioned. The company is agreeing to act alone and not together with Mr. Lautman.

From the information was obtained by a New York Probate Lawyer, United States Trust Company alleges a number of misconduct on Mr. Lautman’s part while acting as the decedent’s attorney-in-fact and co-conservator while she was alive. An attorney-in-fact is a person who is legally authorized to transact business-related transactions in behalf of another. A conservatorship is where a person is appointed by court to oversee and mange the financial affairs of a person who is considered as under a legal disability. It is also required that part of the financial accounting is submitted for review. It is said the Mr. Lautman did not submit his records to his co-conservators, including the documents and assets of Ms. Lazarus. He is also charged with preventing access to Ms. Lazarus’ apartment, drawing checks that are payable to himself or cash, and wrongful investment of funds owned by Ms. Lazarus in Great Britain.

The court if there is a good cause may reverse the instruction of a will to make a person an executor of the estate. In the preliminary letters issued, it is required that it is in its original form. This does not remove the court’s authority for a wise discretion in determining who will be part of the execution of the will. Nassau County Probate Lawyers said that leaving out a person named in a later will do not require a full hearing. It can be determined with affidavits as a basis or through a summary hearing. The court says that they prefer to avoid a contest within a contest. The legislature also wants an uncomplicated probate hearing. This is to save on cost and time for the court, and the parties concerned.

A commentary by the Chairman of the Committee on Simplification of New York Probate was cited. It says that nothing is really served by contesting preliminary letters. Appointing a person to take care of the estate immediately is to protect the estate that is the reason why preliminary letters are sent to people mentioned in the will and any addition.

In their decision, the court stated that due process asserts that Mr. Lautman as a named executor, have the chance to answer questions on his ineligibility. There is also no petition that has been submitted to question the validity of the last addition where Mr. Lautman was named. To avoid multiplicity, Brooklyn Probate Lawyers mentioned that the court will wait for any contest to the will. If just in case the will or the addition to the will is contested and the probate denied, which is known to happen, then the condition where Mr. Lautman is an executor is gone. If there is no contest on the will, counsel will notify the court and a hearing on eligibility will be set.

Continue reading " A conservator is a person appointed by court " »

Charles J. Brower died on April 15, 1954 leaving a last will and testament that were admitted to probate on April 30 of the same year. He was survived by his wife Helen Brower and his brother Willard T. Brower. After about 11 and 1/2 years, on October 18, 1965. Mrs. Bower filed an appeal under the Decedent Estate Law that contested the fourth, fifth and sixth paragraph of the will. Her claim was that in gives more than 50% of the testator’s estate to a religious association.

A New York Probate Lawyer says that Section 17 of the Decedent Estate Law says 'No person shall, devise or bequeath more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more. The validity of a devise or bequest for more than such one-half may be contested only by a surviving husband, wife, child, descendant or parent...’

Mr. Bower had made his wife, his brother and his friend and attorney David G. McCullough executors of his estate. He gave to his wife $2,500 plus any earnings of the residue remainder of his estate, and she can get part of the principal up to $500 in a calendar year in case of illness. Upon his wife’s death or if his wife precedes him, his brother gets $1,000. $1,000 to be given to New Hackensack Dutch Reformed Church in memory of my father, William Henry Brower and my mother, Jane Augusta Brower. To Reformed Dutch Church, he bequests $1,000 in memory of his wife. The rest of the residuary estate is given to New Hackensack Dutch Reformed Church.

The New Hackensack Dutch Reformed Church as the residuary inheritor, contested that the widow’s claim should be stopped. Though that Mrs. Bower had not waived her right to will contest regarding the excessive gift to the church explicitly. There is also no final settlement of the estate until the widow dies. The gift to the church is still undisputedly more than 50%, which is the limit.

It was the court’s opinion that Mrs. Bower had the right to contest the excessive gift to the church. She can also raise that issue in a construction or accounting proceeding. The decision though, according to Manhattan Probate Lawyers, must wait for the final settlement of the account when the court will already have all the information to make the determination. Even though the petition was filed at a late date, it is still valid as there is no limit for the time to file.

The widow’s death also does not terminate the contest for the validity of the bequest. The widow’s legal representative has the power to continue the proceedings in behalf of her estate. The contest begins when a preferred class, like the wife of descendant questions the validity of the will and since is personal then it will survive her death. With the widow filing her objection in a timely manner and the amount exceeding 50% of the estate after paying the debts and fees, Queens Probate Lawyers said the balance undistributed was given by the court to the heirs of the deceased Charles J. Bower as intestate property.

Continue reading "Charles J. Brower died on April 15" »

The decedent executed a will that left all her estate after taxes and fees to a Cemetery Association, a Fire Company, The American Cancer Society, a health association, and a society for the protection of homeless and dependent children. This constituted more than half of her estate.

If in case the will fails, a New York Probate Lawyer said that there will be twenty-nine first cousins who will be the beneficiaries. Three of these first cousins objected to the bequest to the charities. They cited law regarding the will contest for excessive bequests to charities. If their petition is granted any excess to half of the estate will be distributed to the cousins. The executors and the five charities appealed to dismiss the objection. The cousins objecting appeared before the court one with his separate counsel and the other two shared the same attorney.

To understand the Estates, Powers and Trusts Law regarding the excessive bequest to charity, one needs to determine first who can contest. The rule on contesting an excessive bequest to charity is that the person who is appealing against stands to gain pecuniary with a successful contest and that the bequest to charity is more than half of the estate. The law further supports it with the definition as to who these persons.

Before September 1930, it could have been any relative. It was reduced by a revision in the law to linear descendants, wife, husband or parent. There has already been previous cases where in even the brothers or sisters, niece or nephew of a testator were not considered as people who could contest the will under the excessive bequest to charity. From 1860 to 1930, it would have been a proper objection made by a first cousin. The new statute that took effect in September 1, 1967 for the Estates, Powers and Trusts Law was taken from a revision in the Decedent Estate Law. It was made so that both provision worked side by side. Again, this limited the people who can contest a will through the excessive bequest to charity to a surviving parent, husband or wife, child or descendant.

The problem of the objection is not based on the rule for excessive charity but with the definition as to who can contest a will. The descendant is defined as sharing a common ancestor, but instead of the testator, the cousins who are objecting want it to be changed to the grandparent of the testator. Manhattan Probate Lawyers said that the court has determined and emphasized that the descendant is one who has a lineal connection with the testator. It can also be those who were legally adopted and no one else.

The cousins also objected that they should still be allowed to object as an extension of the members because there is no surviving linear descendant. The courts say the extension of members still does not revert to the old law before 1930 but to people who are authorized to object like a representative. According to a Queens Probate Lawyer, the court found that the three cousins did not have the right to object to the donation to the charities.

Continue reading "Court Rules on Excessive Gifts to Charity" »

A proponent of a will, petitioned the court to charge the person objecting to the will personally. The probate decree allows this application to be made after the decree has been final.

A New York Probate Lawyer said that when a person files an objection to a last will and testament in good faith and with reasonable grounds, he is entitled to have his protest investigated without him bearing the cost. There was a previous case whereby the Appellate Court reversed a decision of a surrogate court for an objectant to be charged personally because there was some evidence that supported his objection to the lack of testamentary capacity and to negative bad faith. This was in the Coddington will.

Good faith is mainly reliant on whether there is a considerable basis for a contest of a will. The court cited some examples, like with the Kurowski’s will, where the court charge the cost of the contest personally to the objectant because she had a sworn data that validates the will she is contesting. The Roger’s estate was mentioned by Manhattan Probate Lawyers because the court assigned the cost to the person who contested because there was no evidence to support his claim. This is not the sole basis for imposing the cost to an unsuccessful contestant.

Let us go back to why there is a contest for this case. In a will dated April, 22, 1958, a decedent disinherited her daughter. The daughter then filed objections to the probate questioning the due execution and saying that there was fraud and undue influence. It also challenged the jurisdiction of the court. She claimed that at the time of her mother’s death, her mother was a principal resident of Florida and not New York. The court was able to determine that the decedent was a resident of New York and not Florida in July 1962. This was still appealed by the daughter but was still affirmed in January 1963.

In May of 1963, her objection with regard to fraud and undue influence was tried by the court with a jury. Queens Probate Lawyers said that the contest about the due execution was withdrawn when it reached trial. After three days in the trial, the court determined that there was no fact to be submitted to a jury so it ruled in favor of the proponent of the will. The daughter did not file an appeal. The evidence at trial proved that the will was valid. The disinheritance is a result of friction that started in 1956, where the decedent purchased $120,000 of stock from her daughter’s husband. The husband then questioned the sale saying that the decedent misrepresented the value of the stocks. The daughter’s husband insisted on attempting to interrogate the decedent, even if there is a sworn statement from a doctor that such examination would put her mother’s life in danger because of a heart ailment. By the time the woman died there was already great hostility between her, and her daughter whom she disinherited.

The court then found that the will contest was filed in bad faith. It is also confirmed that the testatrix intended for the daughter to be disinherited, and it contains stipulations to that effect. With antagonism between them, the daughter couldn’t have logically expected her mother to make any provision for her. There was no evidence to support her claims and objections. The evidence provided pointed that the daughter just wanted to delay the probate with a contest. The court awarded the costs to the proponent less $158 for the transcript that will be charged to the daughter personally.

Continue reading "The probate decree allows this application to be made after the decree has been final." »

In February 14, 1980, the will of decedent was contested by her daughter. The decedent died in January 11, 1980, and the will questioned is dated December 1, 1979. In the dececent's last will and testament, she bequeathed all her property to five charities. There is a gift of Israeli bonds to the State of Israel. The will also stated that her daughter receives no part of her estate as she had adequately provided for her in her lifetime.

The will further specifies that in case that the will fails and becomes useless all the property will go to her trustees. In conformance to the trust agreement that she has set up while she was alive. The inter vivos trust was also set on the same date of the will. The paperwork says that the trust will be funded if in any case that the gift, devise or legacy made under the last will and testament made by decedent will be ineffective. The trustees on the document are the same people named as executors of her will. Meaning, the trustees will give the income from the fund to the same charities she has named in her will, says a New York Probate Lawyer. After five years, the charities then will receive the principal divided equally between them.

Ms. Lippner’s will included a “no contest” clause. From the records, it specifically stated that any person who will contest the will, it does not matter what reason will lose the right to any part of the estate which, would have been theirs. Aside from these papers documenting litigation between the petitioner and her daughter, were attached. It had the history of the litigation to show that Ms. Epstein, although the only descendant was really intended to be excluded from the estate distribution.

The daughter filed four final objections to probate. The first one was the failure of due execution, second was forgery, third was the lack of testamentary capacity and the last one was fraud and undue influence. Failure of due execution, according to a Brooklyn Probate Lawyers, is the will having all the requirements of the law like having two witness signatures. The excessive nature of the will was not included because the courts decided that if the will fail by any other reason, then, the disposition to the charitable institutions will go with it.

The executor asserted that the daughter is not in the position to contest the will. This, he states, is because either way she will not get anything. If the will take effect, she gets nothing. If the will fail, she still gets nothing.

The court’s review stated that the ‘no contest’ clause does not affect the daughter’s right to contest. Her claim is to discredit the whole will. If the will became ineffective because of her reasons then the ‘no contest’ clause will also be worthless. The part of the will that says that her daughter is to receive nothing from her will is for the estate itself, does not affect her right for the probate. If the daughter was only arguing the part of the will for excessive charitable gift then she would most probably be denied the case, but what she is disagreeing with was the will as a whole. The rule that if the person who is contesting will receive a monetary benefit invalidates the contest only applies if the will is attacked in part. The inter vivos trust need not be discussed as it is a separate agreement. For these reasons, the appeal for summary judgment to dismiss the objections to the probate was denied.

When you are faced with this situation where a last will and testament seek to deprive you of property that is rightfully yours, an experienced Queens Estate Litigation Lawyer can help you make sure your rights are upheld. They can give you your options. They will be the one to see to it that you are not robbed of any right to the part of the estate that should be yours.

Continue reading "Probate Court Rules on No Contest Clause" »

The decedent died on April 15, 1954 leaving a last will and testament that was admitted to probate on April 30 of the same year. He was survived by his wife and his brother. After about 11 and 1/2 years, the wife filed an appeal under the Decedent Estate Law that contested the fourth, fifth and sixth paragraph of the will. Her claim was that in gives more than 50% of the testator’s estate to a religious association.

A New York Probate Lawyer says that Section 17 of the Decedent Estate Law says 'No person having a husband, wife, child, or descendant or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more. The validity of a devise or bequest for more than such one-half may be contested only by a surviving husband, wife, child, descendant or parent...’

The decedent had made his wife, his brother and his friend and attorney executors of his estate. He gave to his wife $2,500 plus any earnings of the residue remainder of his estate, and she can get part of the principal up to $500 in a calendar year in case of illness. Upon his wife’s death or if his wife precedes him, his brother gets $1,000. $1,000 to be given to his churchin memory of my father and mother. To the church, he bequests $1,000 in memory of his wife. The rest of the residuary estate is given to the church.

The church as the residuary inheritor, contested that the widow’s claim should be stopped.Though that the wife had not waived her right to contest the excessive gift to the church explicitly. There is also no final settlement of the estate until the widow dies. The gift to the church is still undisputedly more than 50%, which is the limit.

It was the court’s opinion that the wife had the right to contest the excessive gift to the church. She can also raise that issue in a construction or accounting proceeding. The decision though, according to a Queens Estate Lawyer, must wait for the final settlement of the account when the court will already have all the information to make the determination. Even though the petition was filed at a late date, it is still valid as there is no limit for the time to file.

The widow’s death also does not terminate the contest for the validity of the bequest. The widow’s legal representative has the power to continue the proceedings in behalf of her estate. The contest begins when a preferred class, like the wife of descendant questions the validity of the will and since is personal then it will survive her death. With the widow filing her objection in a timely manner and the amount exceeding 50% of the estate after paying the debts and fees, a Queens Estate Administration Lawyer said the balance undistributed was given by the court to the heirs of the deceased as intestate property.

Some people may think that 11 years is a long time to wait to file an appeal against a provision of a will, but sometimes with the devastation of losing a love one you really need that time.

Continue reading "Court Rules on Will Contest" »