New York Probate and Estate Administration Blog

The plaintiff in this case is Robinson Duran Urena. The defendant and third party plaintiff/respondent in the case is Ciampa Estates, LLC. They are represented by the law offices of Fiorella Rubin & Friedman LLP. His council in the case is Stewart B. Greenspan. The third -party defendant-appellant in the case is Sanita Construction Company, Inc. They are represented by John Bonanno from Weiner, Morgan, Millo & Bonanno, LLC.

A New York Probate Lawyer said the case is being heard in the Supreme Court of the State of New York, Appellate Division. The judges in the case are Sheri S. Roman, JJ, Ariel E. Belen, Daniel D. Angiolillo, and Reinaldo E. Rivera, J.P.

Appeal

The original case was an act to recover personal injury damages that were sustained and found to be caused by the defendants, et all. This case is an appeal from third -party defendant, Sanita Construction Company. The third -party defendant, Sanita Construction Company is appealing an original decision in the case issued by the Supreme Court of Queens County, which established the motion from the third -party plaintiff, Ciampa Estates, LLC to plan a hearing in order to determine how reasonable the amounts of the proposed settlement to the plaintiff. The hearing would also determine the judgment against Sanita Construction Company, third party defendant for the final settlement amount.

Court Decision and Orders

The Court is ordering that the appeal made from the original order is hereby dismissed. The reason is that third -party defendant, Sanita Construction Company is not distressed, and the appeal is unnecessary.

The Court also orders that the original order, which took place in September of 2010 and was amended by an order in January of 2011, is affirmed.

The final decision of the Court is that there will be a bill of costs to be given to the, Ciampa Estates, LLC, third –party plaintiff. Queens Probate Lawyers said this will be determined after the hearing is held as stated by the previous court that issued the order for a hearing to take place.

The Court is declining to address the argument raised by the Sanita Construction Company, listed as the third-party defendant, that states the third party plaintiff and defendant, Ciampa Estates, LLC, does not have an entitlement to contractual indemnification since there was no negligence found on the part of Sanita Construction Company. This appeal should have been considered in the fall of 2009 as originally ordered by the previous court that heard this case.

Sanita Construction Company did not perfect their appeal on this account from the original order that was made to do so by November of 2009.The Court does not typically consider an issue that was raised on a succeeding appeal when the issue could have been made previously on another appeal that has been dismissed because there was lack of prosecution. In this particular case, Sanita Construction Company has failed to provide enough evidence for the court to consider this appeal even though the Court does have jurisdiction to do such, but in this case Sanita Construction Company has not shown any foundation for the court to rule on this matter. A Staten Island Probate Lawyer said additionally, the remaining contentions from Sanita Construction Company are not held properly in front of this Court.

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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. Queens Probate Lawyers said that 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.

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. Staten Island Probate Lawyers said 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.

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.

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According to reports from a surrogate’s court, a decedent was survived by his wife, and two children from a previous marriage. In his last will and testament, he had chosen his wife to act as estate administrator. Upon his death, the will was submitted to probate court. The court named the wife as the estate administrator in the letter of testamentary.

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. A New York Probate Lawyer said 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.

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. Queens Probate Lawyers said 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. A Staten Island Probate Lawyer said 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.

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.

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This case involves the estate of Mr. Frank Wolf. The petitioner is the administrator of the estate, Betsy Wolf. Ethel Wolf is the respondent.

The Estate

The case involves the will of Mr. Wolf. Most of his property was left to his mother, while nothing appeared allocated for his wife. There was also no mention of estate taxes.

The Arguments

The mother in this case argued that the wife should only be entitled to (at most) one half of the value of the estate after the taxes and expenses were taken care of. A New York Probate Lawyer said she wife feels that the taxes should not be taken from the total value of the estate and that she should receive half of the estate after debts expenses and the statutory exemption of the widow are applied. They are both referencing Subdivision 1 of Section 8 of the Decedent Estate Law. The widow maintains this law was created to ensure spouses received the equivalent of half of the estate without the application of property taxes. Other states have similar laws.

Because parts of the Decedent Estate Law and portions of the Internal Revenue Code and Tax Law appear to have some conflicts, there are contradictions which need to be clarified to make a decision in matters like these. According to the Decedent Estate Law and Suffolk County Probate Lawyers, a spouse has the option to take their potion of the estate as in intestacy. This is the equivalent to half the estate after funeral and administrative costs are covered, plus $5000. However, this can't exceed the total of half of the net value of the estate.

Both the language of the laws themselves and the evidence found throughout prior case history leads to potentially conflicting information regarding the application of estate taxes to the widow's share of the estate. However, after careful review of all the available information the court decided that the widow's fair share was half of the estate after debts, funeral expenses, administration costs and a prorata share of the estate taxes that apply, although the taxes can potentially be reduced through certain applicable exemptions and marital deductions.

An amount of $64,290.52 from an insurance policy is part of the taxable estate. Both parties agree that this amount should not be included when calculating the total value of the estate subject to election by the widow. However, the decedent’s mother asserts that this amount from the insurance policy needs to have the applicable taxes subtracted from the estate before that right of election can be asserted. Satetn Island Probate Lawyers said that the widow, on the other hand, claims that any taxes based on her interest in the insurance policy should only be subtracted from the insurance fund's corpus. Basically, the widow wants a situation where the amount of property that she can receive won't be reduced by taxes.

The taxing authorities had not, to this point, received any estate tax returns. This means that the court can't look at the taxes to determine whether or not the actions taken by the widow were done correctly when figuring out how much tax needed to be paid, and how much tax needed to be deducted from the insurance fund and not the total portion of the estate. According to the statutes found in paragraph 1, subdivision E and subdivision E of section 812 in the Internal Revenue Code, as well as the applicable portions of section 249-s of the Tax Law, the amount of the estate that will transfer to the widow needs to have the amount subtracted from it equal to any applicable estate, inheritance, succession or legacy taxes.

Results

The court settled on approving the method for assessing taxes that the widow wanted to apply to the estate. However, a stipulation was added that the taxing authorities need to assess the taxation on the insurance fund at a later date, and the effect that this has on the total estate may require later modification.

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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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A decedent died on 26 February 2009 and was survived by his two children. On 3 August 2009, the decedent's last will and testament dated 9 February 2009 was admitted to probate (estate litigation, estate administration or will contest) and letters testamentary were issued. The will provided, among other things, that the named executor in the will would have the right to live in the decedent's home for the remainder of his life and directions for the distribution of the remainder either after the named executor’s death or upon his vacating of the premises.
Thereafter, alleged creditors of the decedent’s estate petitioned the court for a summary judgment issued in their favor.

The petitioners based their assertion on a document entitled, "Sales Agreement," dated April 29, 2006, between the decedent, who is defined in the agreement as "Seller", and the petitioners, who are defined as "Buyers." The petitioners alleged that by the terms of the agreement, the decedent granted the petitioners the right of first refusal to purchase the property for $1,600, 000.00 and that in the agreement the decedent acknowledged his receipt of two deposits by check totaling $350,000.00 that the petitioners paid to the decedent for the right of first refusal. A New York Probate Lawyer said the petitioner's alleged that the decedent's failure to offer the property to them for sale prior to conveying the property constituted a breach of the agreement by the decedent. The petitioners further claimed that the documentary evidence and the named executor’s deposition testimony conclusively demonstrated that the transfer of the property from the decedent to him was a fraudulent conveyance under New York Debtor and Creditor Law because it rendered decedent and his estate insolvent demonstrating an intent to evade his obligation.

It was testified by the named executor that when the decedent transferred the property to him there were two mortgages recorded against the property. One of the mortgagees who is the decedent’s sister has already commenced a foreclosure proceeding against the named executor in Supreme Court, Nassau County. Staten Island Probate Lawyers said the petitioners' motion to intervene in that proceeding and to stay the action pending the determination of their claims in this proceeding was granted. In opposition to the instant motion, the named executor has filed an affidavit wherein he stated that he personally and as the executor of the estate agrees to pay the petitioners the sum of $300,000.00 from the proceeds of sale of the property, and, that he personally agrees to pay any claim determined by the court to be due to the petitioners. The named executor claimed that the pending foreclosure action has made it difficult to refinance the mortgage on the property or to market it for sale and that he offered to sell the property to the petitioners after the decedent's death.

In a number of cases decided before the courts, a summary judgment may be granted only when it is clear that no triable issue of fact exists. The court's function on a motion for summary judgment is "issue finding" rather than issue determination, because issues of fact require a hearing for determination. Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law. 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. If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. Suffolk County Probate Lawyers said that in doing so, the party opposing the motion must lay bare his proof. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment.
Did the decedent breach the sales agreement? If so, are the petitioners entitled to damages? To what extent are the damages?

The court ruled that there are issues of material fact that bar the granting of a summary judgment to the petitioners. To note, the petitioners alleged that the decedent did not offer to sell the property to the petitioners as required by the terms of the sales agreement; however, the named executor contends otherwise, although the deposition testimony is incomplete and misleading. Nevertheless, the named executor has sworn that the decedent offered to sell the property to the petitioners prior to the decedent's death. The court notes that the agreement on its face discussed only the circumstances where the decedent was required to inform the petitioners of his intent to buy a new property "[w]hen Seller [the decedent] finds a new home he wants to buy..." but that is not what occurred in the present case.

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A resident of Uniondale, on 26 December 1998, died. The decedent left a will dated 15 June 1979 which bequeathed her entire residuary estate to her nephew, who post-deceased the decedent. The Public Administrator was appointed temporary administrator of the estate on 14 April 2005. Decedent's will was admitted to probate (estate litigation or will contest) on 11 May 2010 and letters of administration were issued, thereafter, to the Public Administrator. The account of the Public Administrator was initially filed on 6 July 2010.

A New York Probate Lawyer said the subject matter presented before the court is the first and final account of the Public Administrator for the estate of the decedent and the approval of the payment of fees to the attorney for the Public Administrator in connection with the administration of the estate (estate administration).

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

With regard to the fee of the attorney for the estate, the court has ruled, time and again, that it bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. A Staten Island Probate Lawyer said 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.

The factors to be considered in assessing the cost of legal services are - the time spent, the complexity of the questions involved, the nature of the services provided, the amount of litigation required, the amounts involved and the benefit resulting from the execution of such services, the lawyer's experience and reputation, and the customary fee charged by the Bar for similar services. The calculated fee must strike a balance by considering all of the elements set forth above. In addition, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. What’s more, 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 to prove the reasonable value of legal services performed rests on the attorney performing those services.

The contemporaneous records of legal time spent on estate matters are important in determining whether the amount of time spent was reasonable for the various tasks performed. A review of the affirmation of services and the time records submitted to the court showed that the attorney devoted more than 156 hours. A Suffolk County Probate Lawyer said the legal services required by this estate were unusually extensive, and the summary of the legal work provided by the attorney fills more than two full pages. The billable fees totaled $30,633.63, exclusive of the real estate fee, of which $13,402.50 has been paid and $17,231.13 remains unpaid, and the firm expects that the estate will incur additional charges of $2,500.00. In view of the modest size of the estate, the attorney has offered to accept as a total fee the amount paid to date, $13,402.50, in addition to the real estate fee of $1,500.00. The attorney’s skillful representation of the Public Administrator and the voluntary reduction of his fee is applauded by the court. Hence, the fee has been approved in the amount requested.

On the review of the accountant's fees, normally, an accountant's services are not compensable from estate assets unless some unusual circumstances exists 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 to avoid duplication. As ruled, "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". An affidavit of services was then presented by the accountant requesting a fee of $1,950.00 for the preparation of the estate's annual federal and state fiduciary income tax returns to date. The court finds that the work performed by the accountant was not duplicative of the services rendered by the estate attorney, and the requested amount for these services was reasonable. Wherefore, the court has approved the fee in the amount of $1,950.00.

A commission for the administrator c.t.a. has also been awarded subject to audit, the surety discharged and the Public Administrator has been ordered to distribute the balance of the net estate to the court appointed administrator.

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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.

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

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

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

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

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

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

It is highly irregular but at the same time normal for some people to take interest in other people’s properties especially when the owner is already old and weak. As shown in this case, having a will that is executed with the assistance of a skilled attorney is beneficial. Without experienced legal counsel helping in the case, people who should have nothing to do with the will may end up getting the estate of the decedent. Stephen Bilkins and Associates will help you make sure that the will of the testator is effectively stated and later on protected.

A father of three children died on December 26, 1960 in New York County. In January of the following year, a petition for the probate of two presented wills was filed in New York County Court. The petition was filed by the special guardian for the children alleged that the deceased father resided at Park Avenue, New York City and that his legal heirs were his three children.

A New York Probate Lawyer said the petition stated that the deceased father and his former wife had been married and divorced. The special guardian did not believe that the former wife was an heir of the deceased. The will presented claimed to be the deceased father’s will, bestowed the former wife with $50,000. Supplement to the presented will nominated the former wife as guardian of the infant son of the deceased. The former wife carried out a paper including an appearance in the trial, a waiver of the service of citation and a specific consent that the presented will be admitted for validation. The attorneys representing the former wife filed an authorized notice of appearance on her behalf as the appointed guardian of the infant son of the deceased. The special guardian representing the infant filed his report recommending validation. Since there was no objection to the validation of the will was filed, the proof was taken in respect of implementing the presented will, the capacity to execute a will of the deceased and his freedom from control. Thereafter, a ruling was made admitting the presented will for validation and granting letters of administration and letters of trusteeship.

On June 1961, the former wife filed a petition individually and as general guardian of the infant son, asking that the validation ruling be opened, cleared out and set aside. The stated basis is that the deceased father was not a resident of New York County but was a resident of Suffolk County. The petition in the revocation trial admits that all the facts upon which the former wife’s accusations of residence are based within her knowledge at the time she appeared in the validation trial and consented for validation. She alleges that she did not notice that the trial was in New York County. Staten Island Probate Lawyers he failure to notice occurred when a copy of the citation was served to her, when she later executed a waiver and consent to the validation and when she executed an affidavit and acknowledged an authorization for her attorneys to appear for her as the appointed guardian. The attorneys then appearing do not represent the former wife on the application. The administrators of the will made an appeal to dismiss the petition.

The former wife, not being an heir of the deceased would have no position to make the will contest and as a beneficiary, it is to her benefit to withstand the will. The petition gives no indication of the former wife’s motive in making the application. Obviously, to forgo the validation ruling must result in an additional expense to the estate which will not be imposed upon the former wife as a general beneficiary but upon the remainder property where the infant has a 40 per cent interest. Suffolk County Probate Lawyers said that in the validation trial, neither the appointed special guardian of court nor the former wife who appear as the appointed guardian, found any occasion to object to the validation. It must be presumed that no advantage will add to the infant by a second validation in another county.

The disagreement of the former wife is based upon the Surrogate's Court Act. It is argued that if the deceased father was a resident of Suffolk County, the ruling of the New York County court is void and must be withdrawn. Inasmuch as a motion has been made to dismiss the petition, the accusation of the petition as to the residence of the deceased in Suffolk County must be accepted for the purposes of the appeal.

The exclusive jurisdiction caption in the Surrogate's Court Act could be misleading in its use of the word jurisdiction. It hardly can be argued that the jurisdictional basis for taking the proof of a will inasmuch as such authority is within the general jurisdiction of the court. The plain purpose of the law was to establish the venue for trial in the Surrogate's Court. Without the ruling’s fix venue, the petition in the Surrogate's Court would have the privileged to be filed in any county within the State disregarding the residence of the deceased or the location of his assets. Not only such privilege can be abused to harass the interested persons and subject them to expense and inconvenience at the urge of a petitioner or his attorney but such privilege could result in either obstruction of the trial in a single county or the institution of separate trial in several counties involving a single deceased. By reason of the Surrogate’s Court Act, any action by a Surrogate in disregard of the rulings necessarily would be incompetent. The ruling is strictly adhered to when the question of residence is raised in a pending validation trial. In the case presented, a question of residence was not presented to the court in the validation trial and upon the facts alleged in the pleadings and unchallenged by the parties of the court who had the exclusive jurisdiction of the Surrogate's Courts of other counties. The ruling made in the validation trial likely established the court's jurisdiction.

The authorities established that a validation ruling is not subject to collateral attack solely upon the ground that the validation trial, properly instituted in New York was brought in the wrong county. The court implies that the person who filed the petition is bound by the validation ruling. The issue of residence was presented by the validation petition and the accusation of residence in New York County was beyond doubt. The making of the validation ruling include the finding of residence which is binding upon the parties. The basic jurisdiction of the matter lay in the Surrogate and the necessity for finding residence in a particular county was created only by a rule of convenience partaking of the character of matters of procedure which has been considered of very slight importance. Those who filed the petition who seek to annul the ruling had every opportunity to challenge the accusation of residence but she chose not to. The court had jurisdiction of the subject matter by reason of the deceased father’s residence in New York State and the court had jurisdiction of the parties. The real basis for the attack upon the ruling is a later discovered dissatisfaction with a fact finding and was not made into an issue in the validation trial. The former wife certainly is not in a reasonable position to demand revocation since she has neither established a legitimate excuse for her failure to raise the fact issue in the required time nor established the damage to her of the existing ruling.

A basis does not exist to revoke the ruling of the Surrogate's Court Act, although the motion offers the law as a basis for the petition. Nothing in the petition establishes, or intimates fraud, newly discovered evidence, clerical error, or other sufficient basis, which are the essentials to the action. The former wife does not rely upon fraud, newly discovered evidence or clerical error. She does argue that she failed to take notice of either the claims in the validation trial or the several writings which she signed in connection with the said trial. The indifference on her part cannot be regarded as the other sufficient basis, particularly in view of the fact that the definition of the legal expression has been limited by the words preceding it in the law. The motion to dismiss is granted.

The names that we find in a last will and testament may be the person or persons that is trusted the most by an individual who made the will. When such trust is in question, visiting one of the offices of Stephen Bilkis and Associates to consult with their New York Will Contest Attorneys might be a good idea. If we are appointed to facilitate properties, we can confer with a New York Estate Administration Lawyer. We can also rely on the expertise of a New York Probate Attorney with regard to queries on validation of wills.

The trial discussed concerns the legal settlement of the final account of two persons and the fixation of legal fees. The two persons were the appointed guardians of the properties of the deceased incompetent man. While the administrator of the properties also filed objections and has argued for a surcharge against one of the appointed guardians and for a direction that the other appointed guardian accounts for the money supposedly belonging to the properties that he received both prior and subsequent to his appointment. A New York Probate Lawyer said the opposing motion was granted for the extent that the appointed guardian must file a detail of his acts.

It started when the sister of the incompetent man was appointed as the guardian of her brother and as well as guardian of his properties by the order of the New York Court. She was also appointed guardian as a result of the additional proceedings in the Superior Court of New Jersey, where the incompetent man possess properties. Through a court order, she was permitted to move the incompetent man and certain of his assets to California, where she resided with her husband. Years later, the sister of the incompetent man died in California. At that time, the incompetent man was also in California, as were certain assets of his estate, which were in part transferred from his properties in New York and New Jersey. Afterwards, the husband of the sister of the deceased was appointed as his guardian as well as of his properties by the order of the superior court of California, Los Angeles County.

The husband of the sister filed a petition claiming that the deceased brother-in-law was a resident of Los Angeles County and was then a patient at one of the sanitarium. A Staten Island Probate Lawyer said he also stated that his wife had been the guardian of the incompetent man by appointments in the Courts of New York and New Jersey, and that at the time of her death, as such guardian, she had in her control her personal property. It appears that the husband believes that the deceased was a resident of California, and petitioned for his appointment under the California Probate Code. Under the said section, notice is required to be given only to the relatives of the incompetent man within the second degree and residing in California. However, it is agreed that the incompetent man was not a resident of California at such time, and the law is clear that a guardian may not change the residence of the incompetent man. The protesting party concludes that the order of the California Court appointing the husband as guardian was void and further stress that all of the husband's acts under the order are void.

The brother-in-law of the incompetent man followed the order of the court; however, he took control of the incompetent man’s assets in California and obtained control of the income from the real assets in New Jersey even though he did not qualify in New Jersey as guardian.
Thereafter, the brother-in-law of the incompetent brought a proceeding in the court of New York for the legal settlement of the account of his wife as a deceased guardian and for the appointment of a successor guardian. In the proceeding, he revealed that he had been appointed as guardian of the incompetent man in place of his wife in California after she died.

Queens Probate Lawyers said objections were filed by the attorneys for various next of kin. The claim was made that the brother-in-law of the incompetent man made an unlawful attempt to change the incompetent's residence to California. Objection was made to the appointment of the husband as successor guardian. A request was made for a reference and a special guardian was appointed. The court then decided by appointing the brother-in-law of the incompetent man and another person as co-guardian. The decision referred to the husband's appointment as guardian in the California Court and declared him to be a proper person to act as co-guardian. The request for a reference was denied. The order was signed appointing the co-guardian and settling the account.

The co-guardian applied a motion to modify the order appointing the brother-in-law of the incompetent man. He claims that the brother-in-law had attained orders in the California Court allowing him $3,800 for his alleged services to the incompetent man and an order for the purchase of a car which had not been revealed by the husband prior to his appointment as guardian. The application was denied by the court who indicated that the brother-in-law’s acts could be adequately reviewed upon a subsequent final or intermediate accounting. In the additional proceeding in the Superior Court of New Jersey, the brother-in-law and the co-guardian were appointed as the successor guardians and the property of the incompetent man remained in the name of his sister, the deceased guardian. In addition, the co-guardian made many demands to the husband with respect to the assets in California, but failed. However, the co-guardian succeeded in cutting off payments from the New Jersey property in which the money goes to him instead of the brother-in-law in California.

The incompetent man died in California. The Surrogate’s Court appointed an administrator for his property. The administrator filed objections to the account. He urged that the California had no jurisdiction to appoint the brother-in-law and his appointment was invalid and the court is entitled to inquire an accounting of his acts. He states that each item of disbursement in the brother-in-law's account is objected to on the ground that no proof of payment is offered, or of fairness and necessity. The purchase of the car is questioned, as well as payments of his trips to the incompetent's sanitarium, clothing purchases and incidentals. The payments for accounting expenses and for his compensation are also challenged by the appointed administrator.

The objection is also filed to the co-guardian’s accounts for allegedly failing to account for all of the original assets and inclusion of commissions on the gross rents collected. He also included that management of the property was in the complete control of the brother-in-law and certain disbursements and payment of fees are unaccounted. It is contended by the co-guardian that the court of New York does not have the power in the proceeding to determine the acts of the brother-in-law which led to his appointment as co-guardian which dates back to the period covered by his account.

Consequently, the failed objection to include all the assets as of the date of death of the sister is overruled by the court. The objection pertaining to the payment of a fee to the co-guardian was upheld. The objection to payments made to the corporation in New Jersey is refused by the court. The objection relating to the request of fee for a New Jersey counsel for services rendered in additional proceedings is modified. The services performed were necessary and the fee however will be fixed. Other objections are verified insofar as they relate to the period prior to the date of the brother-in-law’s appointment in New York as co-guardian is overruled by the court .The account is settled and allowed. The co-guardian is allowed a fee for legal services and no fee is allowed for the attorney of the brother-in-law. The account should have been filed by both co-guardians instead of two separate portions. The cross motion is denied.

When non-family members are entrusted with the last will, a will contest usually arise and you may seek legal advice from a New York Will Contest Attorney. In validation of a last will, family members can consult with a New York Probate Lawyer. It is a common situation that during the contest period, issues on property administration arise and you may benefit from a New York Estate Administrator Attorney of Stephen Bilkis and Associates.

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

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

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

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

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

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

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

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

Know your rights and what remedies are available for you. Call Stephen Bilkis & Associates. We have skilled lawyers who can assist you. Do not waste time and protect your rights. Know what you need to know. Ask our experienced and proficient lawyers about your alternatives. Be wise and call now.

This is a summary proceeding case involving the public administrator of New York versus the respondent who was one of the heirs of the decedent. The facts of the
case states that the decedent died in 1977 leaving a will. In that will, the house and lot was devised to one of the daughters and the other two children that includes the herein respondent were allotted legacies in the form of bank account of their testator-father. It turned out that there were no more deposits in the said bank accounts and the only property left by the decedent was the house and lot which was allotted to just one daughter. The two daughters that included the respondent in effect did not inherit anything.

The daughter who inherited the entire estate of the decedent died on September 2000 without leaving a will. The court issued letters of administration to the public administrator who is now the petitioner in the case, for the legal disposition of the daughter’s properties and assets which included the estate of her father. In 2008, the respondent filed objections to the probate of the will of her father alleging that the said will is a forgery and that there was an earlier true will that was made by her decedent father. Notwithstanding the objection of the respondent, a New York Probate Lawyer said the proceedings continued and the house and lot originally coming from the decedent father was sold in June 18, 2010. After the house and lot was sold, the public administrator filed a petition for the final accounting of the proceeds of the sale as well as the finalization of his duties in this particular issue.

The respondent filed objections to the petition for final accounting filed by the petitioner and posed certain issues that according to her are enough to consider that the entire procedure for the estate administration and consequent sale of the property of her decedent father was erroneous. Among the claims of the respondent included the charge of impropriety on the part of the public administrator because he was also the one who bought the property in the auction and re-sold it later at a higher price. Another was that the property was sold at a very low price as compared to the valuation that is based on the government assessor’s office. The other issue posed by the respondent refers to the commission that was due to the public administrator and such other expenses that were all charged to the proceeds of the sale and also the possibility of incurring additional assessment and charges from the tax division of the government.

With the objections posed by the respondent, and the reply presented by the petitioner, the issue was submitted by the petitioner for summary judgment of the court. A Staten Island Probate Lawyer said both parties agreed to the move for summary judgement with their position papers as the sole basis of court’s judgment.

In ruling on the motion for summary judgment in this estate litigation, the court addressed the issues presented by the respondent one by one and also the reply given by the petitioner. The will contest earlier presented by the respondent was not given due course as there was nothing that could prove the same to be true. In deciding, the court ruled that there was nothing irregular with the sale of the property and that the petitioner followed the mandate given to him by the court in an orderly manner. Queens Probate Lawyers said that the price of the property was sold at a price lower than the fair market value was based on the fact that the house at that time needed repairs as it was neglected. The government makes a valuation of the property based only on limited factors while in reality additional considerations are factored in determining the actual price that it can be sold like the condition of the house, its location, the neighbourhood, etc. Finding no reason to give credence to all the arguments of the respondent, the court granted the petition for summary judgment in favour of the petitioner public administrator.

Property dispositions of the decedent will require the assistance of a skilled lawyer. Losing a case such as the one discussed above can be avoided if legal counsel is an experienced in handling proceedings such as this one. To protect your rights in the manner that is dictated by the law, hire a competent lawyer at the first instance to protect your rights as an heir, devisee or legatee. Stephen Bilkins and Associates can give you the necessary legal assistance when it comes to these types of legal issues.

The deceased man endowed in his will his three surviving brothers, a goddaughter and his same sex partner spouse that he married in Canada. He left the residue of his estate to the respondent, his same-sex partner spouse. The deceased man appointed the respondent spouse as the executor of his will, the said will included a no-contest clause which threatens anyone who challenges the legality of the will shall be eliminated. The respondent, as the executor named in the will, filed a petition for probate in the Surrogate's Court. The respondent identified himself as the deceased man’s surviving spouse and the sole successor. The respondent served the beneficiaries with notice of validation and the Surrogate's Court issued a ruling granting validation.

On January 26, 2009, the Surrogate's Court issued an opinion finding that the respondent was indeed the deceased man’s surviving spouse and sole successor. In regard with such findings, citation of the validation proceeding need not be issued to anyone. The court found that the deceased man’s same-sex marriage to the respondent was valid under the laws of Canada, where it was performed. The said marriage did not fall into either of the two exceptions to the marriage recognition rule, as the marriage was not affirmatively prohibited or proscribed by natural law. Accordingly, the Surrogate's Court found that the marriage was entitled to recognition.

The appellant alleges that the court was not in jurisdiction to grant the validation proceeding without having been issued with citation being the deceased man’s surviving siblings.

New York Probate Lawyer said subsequently, the legal representative served the beneficiaries with notice of validation and the Surrogate's Court issued a judgment granting the validation of the last will and testament of the deceased.

The appellant spouse argued that the recognition of the deceased man’s same-sex marriage violated a public policy in New York and that he should have been cited in the validation proceeding and provided with an opportunity to file objections as a beneficiary.

By the order to make a court appearance, the appellant spouse petitioned the Surrogate’s court for the cancellation of the validation proceeding and permission to file objections, claiming that the court was without jurisdiction to grant validation without citation having been issued on the deceased’s surviving siblings. A Staten Island Probate Lawyer said the appellant argued that the recognition of the deceased's same-sex marriage violated the public policy in New York and with that he should have been cited in the validation proceeding and provided with an opportunity to file objections as a beneficiary. The court found that the appellant’s position that same-sex marriage violated public policy had been specifically addressed and rejected by the appellate division, and with that the petition of the appellant is accordingly dismissed and deliberately without merit.

Based on the records, New York's long-settled marriage recognition rule affords courtesy to out-of-state marriages and that recognizes as valid a marriage considered valid in the place where it was celebrated. The New York law does not extend such recognition when the foreign marriage is opposing to the prohibitions of natural law or the express prohibitions of the ruling. The said marriage does not fall within either of the two exceptions to the marriage recognition law.

Furthermore, the failure of the legislature to enact a bill benefits the most undefined foundation for positive inferences. Thus, Queens Probate Lawyers said that the Legislature's failure to allow same-sex couples to enter into marriage in the state or require recognition of validly performed out-of-state same-sex marriages, cannot serve as an expression of public policy for the State. In the absence of an express legal prohibition legislative action or inaction does not qualify as an exception to the marriage recognition rule.

Different States and different countries have distinct laws and ruling in dealing with marital concerns. Marrying in another state or country or entering into a union with someone outside of your state may cause conflicting issues. If you and your partner are caught in this kind of problems, consult with Stephen Bilkis and Associates.

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

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

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

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

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

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

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The petitioner is the surviving spouse of the deceased who died a resident in the State of Florida. The deceased man’s Last Will and Testament was executed in the State of Florida and admitted for validation by the Circuit Court of the County of Lee, State of Florida. The will specifically devises the deceased man’s interest in the real property in the Town of East Greenbush Rensselaer County, State of New York, to his former wife and the remainder of his property to his two children. The deceased man’s son is the executor nominated in the will and he was appointed by the Florida Circuit Court. The executor, thereafter, petitioned the Court for supplementary probate of the deceased man’s will and it was subsequently admitted for validation.

All of the deceased man’s assets were located in the State of Florida except for the real property located in the Town of East Greenbush. The petitioner has exercised her elective share under the Florida law since the deceased man's last will made no provisions for the petitioner spouse. The Florida law does not take into account real property not located in Florida so the petitioner filed a right of election against the deceased man’s New York State real property and has commenced the proceeding for the Court to determine the validity of her right of election.
A New York Probate Lawyer said the deceased man’s former wife has appeared in the will contest proceeding by her attorney and has joined with the executor of the deceased man’s property in denying that the petitioner can exercise a right of election against the East Greenbush property.

The Court's analysis of the proceeding started with the Estate’s Power and Trust Law which states that the right of election granted by the section of the law is not available to the spouse of a deceased who was not a resident of the state at the time of death, unless such deceased elects to have the disposition of his property situated in the state governed by the laws of the state.

New York City Probate Lawyers said it is clear from a reading of deceased man’s will that there are no provisions wherein he elects to have the disposition of his property situated in New York State governed by New York State law.

The will before the Court does not contain any provisions of the Estate’s Powers and Trust Law stating that deceased man’s East Greenbush property should be disposed of pursuant to New York State law. In the absence of such declaration, there is no need for the Court to engage in conflicts of laws analysis pursuant to the Estate’s Powers and Trust Law.

The petitioner argues that it is unfair to deny a spouse the right to elect against New York State real property owned by her non-resident spouse who has disinherited her. The petitioner points out that denial of the right to elect leads to the absurd result that if a spouse wants to disinherit his spouse from receiving any property located in New York, then he can move out of New York State, establish residence in another state, and execute a will in the other state disinheriting a spouse so that she would not have any rights against the New York property. The result, however unfortunate, is precisely what New York State law allows. Westchester County Probate Lawyers said a Section of the Estate’s Powers and Trust Law quite clearly indicates that a resident of New York can defeat any rights his spouse might anticipate having under the New York State right of election by simply changing his residence at any time prior to death.

In view of the extensive recent amendments to the Estate’s Powers and Trust Law, it must be assumed that the Legislature intended the said results to occur. The newly adopted Section which applies to deceased persons who died on or after September 1, 1992 is exactly the same and applies to deceased persons who died prior to September 1, 1992. Accordingly, the petitioner's notice of election is deemed invalid and the petition to determine the validity of the right of election is dismissed.

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A man had separated from his wife and died on November 19, 1983 in Pennsylvania where he was admittedly residing. He was survived by his wife and two adult sons.

On December 5, 1983, a petition for probate of the deceased man’s last will and its supplement was filed by the friend of the deceased and his attorney who were his nominated executors. Jurisdiction of the New York County Surrogate’s court was invoked on the basis that the personal property of the deceased which includes shares of a corporation in America, had come into the county of New York after his death. The beneficiaries under the will namely, the deceased man’s two sons, his father, his brother and two sisters, all consented for validation in New York County.

No provision was made for deceased man’s wife in the will. A New York Probate Lawyer said she was cited and filed an answer to petition with jury demand. Among her allegations, the wife contends that the New York County Court lacks jurisdiction over the estate because the subject jurisdictional assets and the shares of the corporation were fraudulently brought into the county. Subsequently, despite her contention that the court lacks jurisdiction, she moved for the issuance of temporary letters to any person other than the nominated executors under the will. The proponent’s cross-moved for the issuance of preliminary letters.

The deceased and his wife were separated pursuant to an agreement executed on December 2, 1980 in the state of New York. The separation agreement expressly provided that any dispute shall be determined by the Supreme Court of the State of New York in accordance with the laws of New York. Under the agreement, provision for the sale of her interest in the family corporation which is a major asset of the couple, was made by the wife.

In 1981, the deceased initiated an action in the Supreme Court New York County to convert the separation agreement into a divorce. The wife answered alleging the inadequacy of the agreement on several grounds and counterclaimed for a divorce on the ground of abandonment. The said proceedings were unresolved at the husband’s death and the action to determine the validity of the separation agreement has been adjourned pending the appointment of a personal representative of the deceased man’s property.

Shortly after the husband’s death, one of the named executors brought the deceased man’s stock in the family corporation into the county. The stock is apparently the principal asset of the deceased man’s property.

The issue concerning the jurisdiction of the New York County Court over the property of the deceased who is a non-resident of New York County was raised by the wife. Several statutes govern the original validation of the wills of non-residents. The principal statute provides that a will of a non-resident which upon validation may operate on any property in the state and is deemed by the laws of the state to have been validly executed for validation in the New York state, may be admitted for validation in the same manner as any other will may be admitted for validation under the act, except as otherwise prescribed.

Another provision, a Staten Island Probate Lawer expressed in terms of venue, governs the jurisdiction of the Surrogate's courts over properties of non-residents. The law in relevant part provides that the Surrogate's court of each county has jurisdiction exclusive of every other Surrogate's court over the property of any non-resident of the state who left a property within that county and no other. It further provides that any resident of the state who left personal property which, since his death came into the county and no other county and remains unexecuted.

Thus, the court has jurisdiction to admit to original validation the will of any non-resident who at the time of his death had property within the New York County. The court also has such jurisdiction if the property was brought into the county after the death of the non-resident.
In the latter instance, a decision discusses in detail all prior decisions governing the circumstances under which bringing property into the county after the deceased person’s death will confer jurisdiction upon the court. It is apparent from the decisions that jurisdiction should not be declined merely because the property was brought into the county for the purpose of conferring jurisdiction if there was no wrongful intention and other circumstantial evidence are also present. Jurisdiction has however been declined when administration in New York was sought for fraudulent or other improper purpose.

No evidence has been presented to show any improper purpose in bringing the stock certificates into the county. Although jurisdiction over the property of a deceased must be accepted by the court, to entertain a non-resident’s property is discretionary.
Suffolk County Probate Lawyers said a number of cases discuss the factors which enter into the exercise of such discretion. The cases clearly establish that among the primary considerations for the exercise of discretion are the wishes of the person who made the will if expressed and also the convenience of the executors and beneficiaries.

In the instant case, many considerations exist which require the court to entertain jurisdiction. The will contains a provision which indicates that validation in New York was contemplated by the deceased. Another consideration is that there is a litigation which relates to the property and such is pending in New York County. Additionally, one of the two nominated executors and three of the four attesting witnesses to the will and supplements reside in New York. Finally, all persons interested in the property, other than the deceased man’s estranged wife, have consented to validate in the New York County court.

The wife’s rights in the property are as yet undetermined. Under the terms of the separation agreement, she waived any and all rights in her husband's property. She however contests the validity of the agreement. If she is unsuccessful in setting aside the agreement, she will have no interest in the property. If she is successful, her rights are protected equally under the laws of New York as well as Pennsylvania.

Consequently, for all the said reasons, the court exercises its discretion and entertains jurisdiction. The court is satisfied that an executor must be appointed immediately in order to protect the assets of the property and to facilitate the litigation pending in the Supreme Court, New York County.

The nomination by the person who made the will of executors who shall administer his property is entitled to great respect. In the absence of the establishment of cause for disqualification, the nominated executors must be appointed.

The law sets forth those classes of persons who are ineligible to serve as executors. The grounds are not exclusive. The criteria contained for the removal of an executor may also be used to disqualify a named executor before appointment. A potential conflict of interest with a party interested in the property does not of itself constitute a ground for disqualification. No facts have been alleged to require a hearing on the fitness of the nominated executors.

Accordingly, the motion for the appointment of a temporary administrator is denied. Preliminary letters of administration shall be issued to the deceased man’s friend and his attorney who were nominated as executors, upon their duly qualifying according to law and filing a bond in an amount to be fixed in the ruling.

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In paragraph third of a will, a deceased woman made twenty-seven gifts to individuals and charitable institutions thereto. Each of the endowments was described as consisting of a fixed percentage of her property. The parties are in dispute as to whether the language of gift requires that the legacies be measured in terms of a percentage of the gross or of the net property and, if the latter, as to the formula for determination of its dimensions. The court construes the direction of the woman as requiring division of the property upon its net rather than upon its gross value.

A New York Probate Lawyer said that it is conceded that as a general rule, in the absence of some provision to the contrary, debts and administration expenses are deducted in computing the value of a property when a fraction thereof has been bestowed.

There is nothing to be found anywhere in the will to suggest that the deceased woman entertained any notion of making her endowments in terms of percentages of the gross property and as a consequence, the court cannot concur in the proposition that such was her intention.
The formula to be employed for measurement of the net property requires that there be deducted from the gross value of all of the assets left by the deceased woman, a sum equal in amount to the total of the debts, property taxes and expenses of administration. To be included in the latter category is the sum of $300,000 to be paid to the mother of the deceased woman in consideration of her withdrawal of objections to the admission of the will to probate. To save the legacies for the respondents, it was necessary that the proponents succeed in the will contest by victory after trial or by purchasing peace for the property from the respondent. Either course will entail the expenditure of property funds. The costs of litigation including counsel fee constitute expenses of administration within the ordinary meaning of the term and is plainly beyond dispute. The court is unable to ascertain any distinction between payments for that purpose and the cost of the settlement to which all of the respondents agreed.

Three of the endowments established in paragraph third of the will were left to married couples. A Staten Island Probate Lawyer said this bequest was intended by the deceased woman to be shared by husband and wife jointly and equally and is not open to doubt and the court so holds.

In paragraph third subdivision of the will, provision is made for an endowment to a Protestant Church. A sum equivalent to one-half of one percent of the property was given to the said Church. It has been stipulated by all of the parties that the affidavits of persons familiar with the facts may be treated by the court as the equivalent of common-law proof and the record upon which determination of the questions presented for solution may be made. In connection with the particular issue to which the provision of the will gives rise, there have been received for filing the affidavits of the draftsman of the will and the attorney for the Roman Catholic Church. The attorney states that the name of the church was misspelled. The woman had mistakenly written few alphabets in the name of the church. The attorney claims that in preparing the will, she mistakenly assumed what appeared to be a P to be a symbol for the word Protestant. She later realized that the initials were R.C. and were intended to indicate the words Roman Catholic. It is the attorney’s clear recollection that the woman’s instructions and intent were that the legacy in question be for the Roman Catholic Church in New York City.

Staten Island Probate Lawyers said that in paragraph three of the will, a legacy of one-tenth of one percent of the property is left to a gentleman. The affidavits of intimates of the deceased and the draftsman acknowledge that error an occurred in spelling the name of the said gentlemen. To make it perfectly plain, the beneficiary intended by the woman was her friend of long standing, the respondent, and the will is so defined.

In disposing of a portion of the remainder of one of the two residuary trusts, the woman gives the remaining one-third to the named charitable organizations, each in equal amount to the other.

Did the deceased woman intend to make a gift of an equal share of the remainder disposed of to the eight charitable institutions named or was it her intention, as expressed in the juxtaposition of the titles of the last two legatees designated, that the first six are each entitled to a one-seventh share of the total and the remaining two are entitled to a fourteenth apiece? The position in which the name of a beneficiary appears in a will may have an important bearing upon the rights of its wearer.

The executors take the position that the provision of the will operates to forfeit the legacy of the respondent, but their demonstration of facts upon which they rely in support of their argument falls very far short of depriving the beneficiary of the protection of the Decedent Estate Law. No forfeiture of any benefit under a will shall be occasioned by disclosure on the part of the beneficiary to any of the parties or to a court of information relating to any paper submitted as a last will or by disclosure of such beneficiary to any party or to a court of information relevant in a proceeding for validation of such submitted paper.

No forfeiture of a benefit under a will shall be occasioned by refusal or failure of the beneficiary to join in a petition for the validation of a paper submitted as a will, or by refusal or failure of the beneficiary to execute a consent to or waiver of notice of such validation proceedings.
An infant or incompetent party may affirmatively oppose the validation of a proposed will without forfeiting any benefit thereunder. The respondent filed no objections to the will and the bare contention that he failed to cooperate with the proponents or the criticism of his testimony while being examined as a witness before trial would hardly justify the court in denying him his legacy and its payment is accordingly directed.

The woman died on May 25, 1955 and letters of temporary administration on her property were issued. A question arises as to the date on which interest commenced to run on the general legacies which the deceased woman defined in terms of percentages of her property. Although the amounts of those endowments cannot be definitely determined until the net value of the property is finally established under the earlier ruling in the court’s decision, the general legacies will carry interest on the amounts then fixed running from the date when they matured. The Surrogate's Court Act and the Decedent's Law provide that legacies become payable seven months subsequent to the issuance of letters of administration. It has been held in a number of cases that letters of temporary administration are embraced within the phrase letters of administration as employed in both of the sections cited at least to the extent of fixing the date upon which interest commences to run on general legacies. The rule for decision of the case was most clearly stated by the Court of Appeals identical in text with those under consideration here with the exception that the period fixed was a year rather than seven months.

The court said that two questions are presented by the appeal. First is whether interest on a general pecuniary legacy begins to run one year after the deceased woman’s death or one year after the grant of letters of administration and whether the one year mentioned in the after grant of letters means that, the time begin to run from the date of granting the letters of temporary administration in the pending validation proceedings.

The question on whether the words letters of administration as used in the statute includes letters of temporary administration should be answered in the affirmative. The legislature, having used the words letters of administration instead of letters of administration with the will annexed must be deemed to have employed them in their broader meaning, so as to include letters of temporary administration as well.

The court accordingly holds that the legacies began to bear interest at the rate of 3% per annum on February 11, 1956, or seven months after the issuance of temporary letters of administration. It is further directed that the income beneficiary of the pre-residuary trust is entitled to the income earned by the trust from the date of the death of the woman at the rate earned by the property.

Paragraph Fourth of the will permits each of three individuals to select as a memento an item of jewelry from the collection left by the deceased woman with the provision that the selection be confined to individual pieces as distinguished from sets. Having viewed the collection and been aided in its deliberations by the opinions of the expert witnesses, the court holds that lots 5 and 5A or 5 1/2 as designated in the report of the appraiser constitutes sets within the meaning of the will and that only the balance of the collection is available in satisfaction of the bequests.
The Roman Catholic Church is specifically located at Park Avenue New York City is on the list of beneficiary and a sum equivalent to one-half of one percent (1/2 of 1%) of the deceased woman’s property is endowed to the said church. The only church located near the address designated by the deceased woman is the Roman Catholic Church conducted under the auspices of the Society of Jesus. The relationship of the deceased woman to the said church is established on the record from the sources. The will makes it perfectly clear that it was that church which she had in mind and that the inaccuracy was attributable to the error of the clerk. Accordingly the court holds that the legacy is payable to the Roman Catholic Church, specifically, the Church located at Park Avenue New York City.

Since the objections have been withdrawn or reserved for determination on the final accounting, a ruling may then be submitted on notice construing the will in accordance with the foregoing and settling the account, as filed.

The formula to be employed for measurement of the net property requires that there be deducted from the gross value of all of the assets left by the deceased a sum equal in amount to the total of the debts and expenses of administration.

In addition to the foregoing amendment, the court grants the petitioners' request for leave to abandon certain articles of personality referred to the account and their request to abandon certain records, letters, etc. as set forth in the account.

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This is a case involving the estate of a decedent who was a national of British Honduras and left properties located in New York and other countries. The decedent left no legitimate heirs and part of the properties he left involved certificates of stocks from 50 corporations and other banks as well as brokerage accounts all found in New York. An action was filed in the Court of New York for the escheat of the said stock certificates and other accounts since there were no legitimate heirs available to lay claim to the said properties. British Honduras, through its representatives also laid claim on the said certificates and other accounts in the name of the State arguing that since the latter died with no heirs, that the State of British Honduras can therefore claim said properties as by law they already belong to the State.

The facts state that the decedent executed a will way back in 1918. This will was admitted to probate by the Supreme Court of British Honduras. Later on, a second will surfaced in 1955 and an action was brought to have the 1918 will revoked because of the existence of a later will. Suffolk County Probate Lawyers said petitions were filed to declare the 1918 will as destroyed or revoked which was timely opposed by the concerned parties. Delays were incurred due to the legal battle and before the Court of British Honduras can finally decide the issue, the Surrogate Court of New York assumed jurisdiction to have the 1955 will probated and appointed to that effect a special guardian for possible infant legatees who are still possibly living in British Honduras.

The government of British Honduras protested the jurisdiction assumed by the Surrogate Court of New York and filed a case in intervention arguing that since the case is still pending in their country, the New York Court has no right to assume jurisdiction. A New York Probate Lawyer said they argued further that since there was effectively only one estate of the decedent and this pertains to all kinds of properties wherever they may be found, and arguing further that the decedent is a citizen of their country, that all other probate or estate administration must originate from the country where the decedent is domiciled and all other proceedings later filled must be treated as only ancillary to the proceedings of the court that first took cognizance of the case.

The only issue squarely presented before the Appellate court is whether or not the government of British Honduras has the legal personality to intervene in the proceedings Probate before the Surrogate Court of New York.

The Court of Appeals of New York in deciding the issues present in the case, opined that since they are not called upon to decide whether the Surrogate Court of New York has jurisdiction over the will contest of the decedent, it is only proper to rule on the issue whether the government of British Columbia has the personality to intervene in the case at hand. A Staten Island Probate Lawyer said the Court explained that if the Attorney General were to be allowed to be a party to the determination of the case, then the government of British Honduras should also have the same right because the properties involved were owned by the a citizen of their country. The fact that all the beneficiaries and descendants of the decedent are also citizens of British Honduras also bolster the logic that said government must be given the right to intervene in this regard. The Court then ruled that both the Attorney General and the government of British Honduras are entitled to be heard and there is no reason to exclude either of them in the estate litigation.

Protecting the rights of legitimate heirs, legatees and devisees is an important role that a New York Estate Lawyer performs. To avoid possible legal problems that might happen because of the absence of a will or other legal impediments to the probate of a will, it is always important that you avail the services of a New York Probate Lawyer. Stephen Bilkins and Associates are experts in the field of Wills and Succession and they can provide the necessary legal assistance in matters concerning probate of a will and other similar services.

A man had a son and two daughters. In 1995, the father and the son had a falling out. In December 1996, the father made a will leaving all of his real and personal properties to his two daughters in equal shares. The son was left out of the will entirely. Five months later, the father was hospitalized where he was diagnosed with senile dementia. He was declared to be mentally incompetent.

On the same day he was diagnosed with senile dementia, he signed a deed transferring to his daughter the ownership of his home in Kingspark, New York. He also executed a general power of attorney giving power to his two daughters. In September, the father died.
Two years after the death of the father, in September 2000, the son petitioned the Surrogate’s Court to be appointed as administrator of his father’s estate. Among his father’s properties, he listed his father’s house in Kingspark, New York.

A New York Probate Lawyer said that three months later, in December 2000, his sisters filed their petition for probate of their father’s will and for letters testamentary. In their petition for probate, they averred that their father had no real properties.

A copy of the petition for probate was furnished the son on January 2001. He filed his objection to the probate of the will in November 2001. A Staten Island Probate Lawyer said that in 2002, the sisters testified on deposition.

When the brother heard his sisters’ deposition regarding the general power of attorney and how their father had ceded title to his house to one of his sisters, the son filed an action against his sisters for fraud. He asks that the deed executed by his father conveying the house to his sister be set aside. He also testified that his sisters used the general power of attorney issued in their behalf by the father to withdraw all the money in their father’s retirement account and used the proceeds to buy insurance for themselves.
The sisters appeared in the action filed by their brother for fraud. They ask that it be dismissed saying that his action for fraud is barred because it was commenced beyond the period of six years from the commission of the alleged fraud; and because it was commenced beyond two years from the time that he discovered the fraud.
The brother said that he only discovered the fraud in September 2002 when his sisters testified during their deposition how they asked their father to sign a deed transferring ownership over his house to one of them. He claims that his father had senile dementia at that time and that he could not have given his consent to that deed.

The Court declared that the brother’s action is barred. He had known the facts from which fraud can be inferred since he was served a copy of his sisters’ petition for probate where they clearly stated that their father had no real property.

But the Court reversed the court’s dismissal of all of the son’s causes of action. The cause of action against the sisters’ withdrawal of their father’s retirement fund should not have been dismissed outright with the dismissal of the fraud complaint.

The Court reasoned that the Individual Retirement Account is not an asset of the estate. It cannot be passed by operation of law. Suffolk County Probate Lawyers said the son could not have known that his sisters have withdrawn all the money in those accounts until their deposition was taken. This cause of action should have been tried and not dismissed on motion of the sisters.

But then, during the pendency of this appeal, the brother has withdrawn his objections to the probate of their father’s will. And because of this, the will has been probated. The cause of action for withdrawal of all the money in the father’s individual retirement account cannot be tried jointly with the probate proceedings.

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An old bachelor in New York died. In his will, he named eleven cousins of his as his distributees. As he had no children of his own, he bequeathed his entire estate to his tax lawyer. The tax lawyer was a resident of New York but he had relocated to the state of Georgia.

Prior to leaving New York, he had been doing the taxes for the old bachelor and they had cultivated a friendship. This friendship lasted for forty years. Even when the tax lawyer was already living in Georgia, he still did the taxes for the New York bachelor and kept in touch with him.

The tax lawyer testified that his friend and client called him up in Georgia to inform him that he was leaving his entire estate to him. The tax lawyer then advised his friend to find a lawyer who will draft the will for him. The old New York bachelor found a lawyer in New York who drafted the will for him. This lawyer has also died. A New York Probate Lawyer reported that the tax lawyer testified that he did not recommend the lawyer to his friend and that he did not personally know the lawyer who drafted the will nor has he had professional dealings with the lawyer who drafted his friend’s will.

The tax lawyer also testified that he had no part in the preparation of the will; that he had no part in the execution of the will; and was not even present when it was executed by his friend.
The tax lawyer asks that the will of the New York bachelor be admitted to probate. Not one of the eleven cousins of the old New York bachelor objected to the probate. Some of these cousins cannot be located. The Surrogate’s Court had appointed a guardian for these distributees.

The guardian for the distributees who cannot yet be located is also a lawyer. He asks that he be awarded payment for his services as guardian. He interposed a claim for $4,000.00. A Staten Island Probate Lawyer said he claims that he gets paid an hourly rate of $250 and he has spent 16 hours in working on this case as guardian for the distributees whom he is still trying to locate.

The only questions before the Supreme Court are: whether or not the guardian should be paid for his services; and, whether or not the bequest of the entire estate of the New York bachelor to his tax lawyer is proper.

The Supreme Court ruled that when a beneficiary of a will is a lawyer of the testator, the lawyer must explain why and how the bequest was made to him. This will put to rest and question as to undue influence which may have been exerted by the lawyer. Bronx Probate Lawyers said the Court ruled that the lawyer-client relationship is a confidential relationship and the law demands that the lawyer explain why the bequest was made.

Since it is clear that the bequest was made by reason of the long friendship between the testator and the tax lawyer; and that the tax lawyer had no participation at all in the preparation of the will or its execution, then the bequest has been explained to the Court’s satisfaction.
As for the guardian’s claim for fees for its services, the Court finds that it is reasonable. There is no specific rule to calculate the compensation due to the lawyer, the circumstance of the case must be viewed. Since the estate is sizeable and the guardian’s claim is what most lawyers claim for this type of legal services, the Court found the guardian’s claims reasonable and ordered that he be paid the $4,000 he had claimed.

Even when there is no objection to the probate of a will, the person seeking the probate of the will must still present evidence on three matters: the due execution of the will in compliance with the legal requirements; the testamentary capacity of the testator at the time of the execution of the will; and the lack of undue influence or fraud in the execution of the will. A lawyer can present testimonial and documentary evidence on these matters. An attorney can show that the will should be admitted into probate and that the estate should be distributed in accordance with the wishes of the testator. At Stephen Bilkis and Associates, our legal team available and willing to help present your evidence. They can argue in your behalf to make sure that the valid will can be probated. Call Stephen Bilkis and Associates and schedule a free consultation today.

An 89-year old woman had retired and had been living in Florida. But, she executed a will in New York in front of witnesses who were from New York. Seven months after executing her will, she died in New York and was buried in New York.

The will contained about 50 legacies and the establishment of several trusts. Although the will was executed in New York, it was drafted by a lawyer from Florida. The will named four executors: one of her sons who lives in Arizona, her accountant who lives in Florida, a niece by marriage who lives in New York and the son of the niece who lives in New Hampshire. A New York Probate Lawyer said the will did not specifically include her desire to have her will probated or her estate administered in New York or under its laws.

The estate of the testator consisted of 100% ownership in a corporation in New York and her residence (house and lot) in Westchester County. Her estate is valued at $28,000,000.
In December 2004, probate proceedings were already begun in Florida. The testator’s son, her accountant and her niece by marriage and the niece’s son all applied to be executors of the estate. A New York Probate Lawyer said the grandson of the testator also filed an objection to the probate of the will challenging certain legacies and trusts for vagueness, indefiniteness and for undue influence. A week later, the Florida Probate Court issued preliminary letters testamentary to the son and to the accountant for them to make an inventory of the assets and pay administration expenses.

Notwithstanding the existing probate proceeding in Florida, the niece by marriage and the niece’s son both filed probate proceedings in New York. They claim that the Surrogate Court of New York has a better right to hear the probate petition since the will was executed in New York before witnesses who reside in New York; the testator died and was buried in New York; the assets of the estate are all in New York; some beneficiaries under the will are located in New York; and more importantly, the probate laws of Florida discriminate against the niece by marriage and the niece’s son. They claim that they were not allowed to act as executors by the Florida probate court because they were not related by blood to the testator and they are not Florida residents.

The only question before the Supreme Court is whether or not the Surrogate’s Court of New York should take jurisdiction over this petition for probate.

The Supreme Court explained that the Surrogate Court of New York has jurisdiction to admit to original probate a will executed by a non-resident of New York if at the time of the death, the properties of the estate are physically located in New York. According to a Staten Island Probate Lawyer, when the state where the testator was a resident has already admitted the will into probate, the Surrogate’s Court of New York cannot admit that same will into probate except if the Surrogate’s Court of New York is satisfied that the probate in another state is expensive, inconvenient or impossible; where the testator has directed in her will that her will be probated in New York; and where the laws of the state where the testator was a resident discriminates against residents of New York and prevents them from acting as fiduciaries (executors) or beneficiaries.

The Supreme Court resolves that the Surrogate’s Court’s acceptance of an application for original probate of a will of a non-resident of New York is entirely discretionary on the part of the Surrogate’s Court. That is to say, the Surrogate’s Court is free to decide, at its discretion, whether to proceed with the probate proceedings.

But the Supreme Court also ruled that in this case, New York should not hear the probate application on the grounds asserted by the niece by marriage and the niece’s son. The Court ruled that even if they are denied the nomination as executors, there are still two executors named in the will who are allowed to be named as executors. Also, the Florida Probate Court has already entertained a probate proceeding; objections have been filed; and discovery demands have already been filed in Florida. Suffolk County Probate Lawyers said it would be too costly and too cumbersome to all the parties to litigate these same objections in two courts. An anomalous condition will result if the Florida Court and the New York court will have two different findings. Most importantly, the niece by marriage and the niece’s son have not been able to demonstrate that they have been denied by the Florida Court of their right to defend against the objections filed in Florida.

For these reasons, the New York Court declined to hear the petition for probate of the will.
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The probate courts have reviewed an agreement between parties regarding settlement of estates, which was skillfully done by a highly trained court appointee to take care the personal and property interest of one of decedent’s sister who was sick.

Decedent had written a will. In his will, he named his heirs and also named his properties to be freely disposed. He had four siblings still leaving that will receive his bounty and become his beneficiaries to enjoy the continues use, possession and enjoyment of his estate.

The instrument has given all of decedent’s property to his sisters in three equal shares, two of which pass to decedent’s sisters. The will directed that the third equal share be paid over to decedent’s niece. The sick sister rejected this, because as decedent’s sister she had to her share from her brother’s estate. A New York Probate Lawyer said when the formal application was presented to institute an appeal regarding the share of decedent’s surviving sick sister, the court have taken its course.

Estate administrator courts were satisfied with the accomplishment of the guardian ad litem toward his ward. Appointed probate lawyers discovered that one of the siblings had established joints accounts using a power of attorney executed by decedent. He furthered learned that the contents of the will had been prepared based on telephone instructions from an attorney, and that a lawyer had not supervised the will execution. Additionally, based upon information discovered by the guardian ad litem, which included medical records, serious question were raised concerning decedent’s competency at the time the will was executed.

The appointed guardian ad litem on behalf of his ward communicated his potential objections to the of the estate layers of other three siblings who attempted to defraud the true intention of the testator as provided in the wills and testament submitted to probate courts. Both lawyers sit down and discussed matters of negotiation. At the end of the meeting, the two estate lawyers agreed. A Staten Island Probate Lawyer said the stipulation provided that the three other siblings would pay his ward out of their own personal money. The so-called documents would be admitted to probate courts without any effect on distributions to be made under the will. The guardian ad litem calculations reflected that the settlement amount payable to his ward closely mirrors her intestate expenses which would have been incurred by the estate had the matter not been successfully settled. A settlement was set and was approved by the courts.

Because of the guardian ad litem intellectual devotion to his profession, he won the case and received positive remarks. He rendered his services at par. The estate litigation courts named his ward in the letters testamentary.

Estate administration courts were satisfied of the professionalism of their appointees in probate proceedings. They take responsibility on approving fees charged to an estate. They have the good judgment to determine what composed reasonable payment for legal services rendered in the course of the administration trial of an estate.

The estate administration courts have fixed the fee of the guardian ad litem. The parties involved have consented for the fee. While there were no hard and fast rule to calculate reasonable compensation to an attorney in every case, the estate litigation courts were required to exercise their authority “with reason, proper discretion and not arbitrarily”.

In evaluating the cost of legal services, the probate courts considered number of factors. Included were the following: the time spent, the complexity of the questions involved, the nature of the services provided, the amounts involved, and the benefit resulting from the execution for such services, the lawyer’s experience and reputation, and the customary fee charged by the Bar to similar services.

In discharging the duty to review fees, the estate litigation courts 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 first by law. Also, the legal fee must bear a reasonable relationship of the size of the estate and to the interest of the ward of the guardian ad litem. Moreover, it was well settled that time spent was, in fact, the least important factor considered by probate courts in fixing reasonable compensation. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem was in additional consideration, the fee of a guardian ad litem was an administration expenses of an estate and was paid from the estate assets.

In addition, the legal fee must bear a reasonable relationship to the size of the estate and the interest of the reward of the guardian ad litem. Suffolk County Probate Lawyers said it is well settled that time spent was, in fact, the least important factor considered by a court in fixing reasonable compensation.

A sizeable estate permits adequate compensation. The burden in establishing the reasonable value of legal services performed rests on the attorney performing those services.
The fee was fixed in the amount requested by the guardian ad litem, which have to be paid out of the general assets of the estate within several days of the issuance of full letters of administration to petitioner. The court thanks the guardian ad litem for his fine work and the outstanding result achieved on behalf of his ward.

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Surrogate's Court, entered and admitted the document to probate as the last will and testament of testator.

The decedent, a physician, married his first wife who died before probate of the will.
Testator’s daughters from his first wife petition the court for probate the will testators have written in their favor.

First wife died, the decedent married his second wife. She also died leaving children of the second marriage intestate.

Children of the second marriage object the application for probate on the will presented by the children of the first wife. After having found a four page documents. Having thought that the documents that have found were the true will and testament of the decedent doctor, children of the second wife offered the document for probate.

A New York Probate Lawyer said there were three witnesses signed the will: decedent’s attorney and two other witnesses who worked in the medical office. All three of the witnesses' signatures appear at the end of the will, underneath an attestation clause.

Will did name made a number of minor bequests to relatives and charitable organizations. The eldest daughter from the first marriage was mentioned in the will that was found by the second wife’s children.

The second wife’ children submitted a petition for admission of the will to probate. Only surviving attesting witness, was deposed.

First wife’s children filed objections to probate, asserting that the will was not duly executed.
Second wife’s children moved for summary judgment to admit the will to probate, and the first wife’s children cross-moved for summary judgment as well. Estate litigation courts held a hearing and concluded that there was no material issue of fact as to the due execution of the will. The first wife’s children appealed from the decree admitting the will to probate.
Before admitting a will to probate, estate Courts must be satisfied that the execution of the will was valid.

The second wife’s children had the burden of demonstrating, by a preponderance of the evidence, that a purported will was duly executed. If an attorney-drafter supervised the execution of a will, there was a presumption of regularity that the will was properly executed. In addition, a valid attestation clause raised a presumption of a will's validity, although it was incumbent upon estate administration Courts to examine all of the circumstances surrounding the execution of the document to ascertain its validity.

The determination whether to dismiss objections and admit a will to probate was within the discretion of Will contest Courts, and its determination will not be overturned absent a showing of an abuse thereof.

A Staten Island Probate Lawyer said the decedent's lawyer, prepared the will, served as an attesting witness, and billed the decedent, on the date of the execution of the instrument, for services rendered with respect to its preparation attorney's presence at signing of will constituted prima facie evidence of will's due execution.

The cover page of the will also contained decedent’s lawyer letterhead. Witness identified her signature and address on the document, and a handwriting expert verified the signatures of the decedent and other witnesses.

Estate Litigation Courts correctly concluded that the proponents demonstrated a prima facie showing of due execution of the will, as it contained a valid attestation clause and was executed under an attorney's supervision, despite the fact that the sole surviving witness, witness, testified that she did not remember the will's execution.

Upon the presumption of due execution, the burden then shifted to the first wife’s children to produce evidentiary proof in admissible form to rebut the presumption and raise a material issue of fact .

The formal requirements for the execution and attestation of a will, were; the signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction; the testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately; the testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed was his will. These formalities have been required to prove due execution of a will.

Will contest courts, before admitting a will to probate, must be satisfied that the execution of the will was valid, even if no interested party files an objection to its validity, and the burden of demonstrating that the purported will was duly executed laid squarely with the proponent, who must prove such by a preponderance of the evidence.

Although due execution may be shown by evidence other than the testimony of the attesting witnesses, it cannot be presumed in opposition to positive testimony, upon the ground that the attestation clause was in due form and states that all things were done which are required to be done to make the instrument valid as a will.

Although it was true that presumption of regularity was raised that the will was properly executed when an attorney drafted it and supervised its execution, and that presumption cannot be overcome merely because the attesting witnesses were not able to specifically recall the will execution

The estate litigation courts relied on testimony from the attesting witnesses in finding that the evidence warranted conclusion that the instrument was not subscribed by the decedent in the presence of the witnesses; that the paper was so folded that the witnesses did not see the subscription, and that the only declaration or acknowledgment of the party was in substance. The Court found insufficient to comply with the statutory requirements.

The formalities prescribed by statute must be observed, and Suffolk County Probate Lawyers said the attesting witnesses must be informed at the time and by the testator, or in his presence and with his assent, and have knowledge of all the facts necessary to a due execution and publication of the will, and to which they are called to attest. If the party does not subscribe in their presence, then the signature must be shown to them and identified and recognized by the party, and in some apt and proper manner acknowledged by him as his signature. The statute was explicit, and will not be satisfied with anything short of a substantial compliance with its terms.

Probate courts reiterated the requirement that the definite formalities of the statute, one of them being publication of the document as a will, be complied with in order for a will to be admitted to probate.

Summary judgment in a contested probate proceeding was rare, and should only be granted where the petitioner sufficiently establishes a prima facie case for probate and the respondent fails to raise any genuine issue of fact.

Estate litigations court relied on both the attestation clause and attorney-supervision presumptions, neither was applicable. Witnesses testimony raised material questions of fact with respect to whether the decedent declared the document she signed to be his will, whether the attorney-drafter supervised the execution, and whether any will ceremony ever had occurred witness acknowledged that she could not be certain given the passage of time, she testified both that there was never an occasion in which she signed a document in the presence of a lawyer and the decedent and that she was confident that such an event had not occurred.
Witness provided specific and credible reasons why she would remember a will ceremony if one had occurred. As she explained, she thought she would remember if the decedent had asked her to sign a document that he had declared to be his last will and testament. Similarly, witness gave a specific and credible explanation for why her signature nonetheless might appear on the will underneath the attestation.

A will ceremony was an unusual event was a matter of common experience. For this reason, will contest courts could conclude that, even 50 years later, a person might well remember participating in it. As the probate courts explained, embedding the will ceremony in the memory of the attesting witnesses was one of the very reasons for the statutory requirements. And estate courts were impressed by the demeanor and overall mental state of the person, that conclusion would be all the more reasonable.

Estate administration courts concluded that no estate courts reasonably could conclude that witness was correct that she remember a will signing ceremony if it had occurred. Although this startling conclusion was left unstated in the majority's writing, it nonetheless was implicit in the will contest court’s ruling.

The key to this appeal was that the inference that witness would have remembered a will ceremony was one to which the first wife’s children was entitled.

By affirming, the estate courts vitiated the principle that the court's function on a motion for summary judgment was issue finding, not issue determination. Although the will contest did not acknowledge that it was weighing the evidence and finding that the better conclusion was that the decedent executed the will in accordance with the statutory requirements, that was precisely what the majority does. Accordingly, summary judgment was granted.

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A deceased man from Niagara County made five wills all of which have some beneficiaries who are different from Will to Will. The wills are dated March 2, 1993, July 15, 1992, April 24, 1992, March 15, 1989 and September 24, 1987. Two of these Wills have currently been offered for probate. The first Will offered for validation was the third most recently dated Will of April 24, 1992. A decree granting temporary letters of administration was issued on July 28, 1995, appointing the Niagara County Treasurer and Public Administrator, as Temporary Administrator of the state. The Public Administrator was charged with gathering, preserving and protecting the assets and to pay the deceased man’s debts and obligations to prevent the estate from being wasted. Thereafter, on October 25, 1995, the Public Administrator offered the third most recent Will dated April 24, 1992, for validation. The Public Administrator was required to notify everyone named in the two more recent wills as well as the deceased man’s heirs and those listed in the April 24, 1992 will. The return date for the citation on the petition was December 21, 1995. Thereafter, the deceased man’s most recent will dated March 2, 1993, was offered for validation on November 29, 1995. In addition, objections to the validation of the will dated April 24, 1992, were filed on December 6th, 1995. The validation petition filed November 29, 1995, was technically defective and was revised and re-filed on January 8, 1996. A citation has not yet been issued for the said petition given the intervening proceedings. None of the other three wills on file with the court have been offered for validation, nor have any other wills not on file with the Court been offered for validation.

A New York Probate Lawyer said that in a proceeding for the validation of a Will, process must be issued to any person designated as beneficiary, executor, trustee or guardian in any other Will of the same person who made the will filed in the Surrogate's Court of the County in which the proposed Will is filed, whose rights or interests are adversely affected by the instrument offered for validation.

The attorneys representing the various parties to the properties have suggested that the application of the section is capable of several different results, each of which would require the service of process on different parties given the five Wills of the deceased which are on file with the Court. The narrowest suggested application would require service only upon those interested parties in the Will being offered for validation and the next most recent Will. The broadest suggested application would require service of process upon all interested parties in all five Wills on file with the Court. Based upon the facts set forth above, the Court believes that neither proposed application of the section is correct.

Given that a petition for the validation of the Will dated April 24, 1992, has already been filed, it is clear that the second petition for the validation of the Will dated March 2, 1993, adversely affects the rights and interests of those beneficiaries and other interested parties. A Staten Island Probate Lawyer said that the petitioner has requested that the April 24, 1992 Will be admitted for validation, and the petition to validate the March 2, 1993 Will clearly adversely affects the petitioner and the interested parties of the April 24, 1992 Will. To hold otherwise would be inconsistent with the apparent intent to ensure that these parties have the standing to object to the validation of the Will being so offered. As it is clear that the issue of the validity of the most recent Will must be established first, before that issue can be addressed with respect to any other later Wills, to deny these interested parties the standing to object would be inconsistent with the apparent intent of to ensure that these parties have the standing to object to the validation of the Will being so offered.

Having stated, the court is not unaware that a similar argument could be raised with the beneficiaries and interested parties in all five Wills. Bronx Probate Lawyers said the court believes, however, that the intent is to ensure that the resolution of any issues concerning the validity of a proposed will be properly represented on both sides. Where there are clearly existing adverse parties, the interests of those differing beneficiaries and interested parties in the earlier Wills will be protected by the actions of the current persons to object. If the current persons who object are successful in preventing the validation of the most recent Will, then, before the next most recent Will may be admitted for validation, additional parties would necessarily be required to be served. In addition, any of the interested parties as set forth in these earlier Wills could petition for the validation of such Will if they wish to be joined as parties to the current proceedings.

Accordingly, the petitioner for the validation of the March 2, 1993 Will is directed to serve all beneficiaries and interested parties in the Wills dated March 2, 1993, July 15th, 1992, and April 24, 1992.

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

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

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

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

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

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

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

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

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

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

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

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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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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 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 has made repeated fund transfers from an allege 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.

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. Their counsel asked the court to appoint the decedent son as the executor instead of the wife. Said party submitted to the court a written document of the decedent’s therapist. A New York Probate Lawyer said that the therapist testified under oath and sustained the allegations of the decedent’s children. Their 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 the earliest time.

In deciding the case the court was certain that the wife mix 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.

Suffolk County Probate Lawyers said that the wife, being 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. Some 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. Probate court correctly and intelligently interpreted the contested will. Staten Island Probate Lawyers said their 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. Legal counsel will stand by you and help see you through your case.

Stephen Bilkis & Associates with its legal team, have convenient offices throughout the New York Metropolitan area. Our lawyers can provide you with advice to guide you through situations where estate is dissipated because of another's intentional deceit. Without legal counsel you may lose your rights which may cost you a significant amount of money.

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

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

The testimony concerning what occurred at that conference is completely contradictory. Postponing for the moment a discussion of the completely opposing testimony, it is agreed that both the living brothers each signed a form of Waiver and Consent to Probate. These waivers were retained by the father-in-law of the associate attorney, according to a New York Probate Lawyer.

Later that day, both brothers journeyed to the office of a counsel. The next day, both were present in the Trust Company when a search for a will was made on the safe deposit box of their deceased brother. Among the assets were somewhat over 3,000 shares of IBM stock, then worth in excess of $1,000,000.00.

There were two supplements attached to the will. The first affected only the inheritances to both and the second affected the interests of all excess recipients. All the excess recipients became necessary parties to establish the validity of the will. Eventually it developed that these excess recipients would number over 250 people, most of who lived in Switzerland.

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

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

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

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

Shortly thereafter, the two waivers of citation and consents to validate signed by both brothers were filed. Both men were directed to show cause on why their objections should not be dismissed on the ground that they had previously consented to the validation of the will. Such is the recital of facts about which there is no dispute, commented a Staten Island Probate Lawyer.
It is the position of the court that the validity of these waivers and consents to be established must be determined primarily on the basis of what occurred at the conference. Both men contend that the waivers are invalid because they were not properly acknowledged; and that they were deceitfully obtained; and that the advocate of the will and appendices is prohibited from use of said waivers because of the lapse of time between their execution and filing in this court.
According to reports, it was the younger brother’s recollection that the bank officer, did most of the talking at the conference; requested his waiver and consent; advised him that its execution was merely to record his presence at the conference; and presented the forms in blank for his signature. The elder brother’s recollection was less detailed. He, too, said that the bank officer did most of the talking. He understood the waiver and consent was signed so the court could permit payment of his late brother's debts. He, too, said he signed a blank form.

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

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

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

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

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

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

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

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

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

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

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

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

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

When a family member left you their hard earned assets, Stephen Bilkis & Associates with its skilled legal team will work hard with you to obtain what the law dictates.

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.

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

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

Bronx Probate Lawyers said that the court received a certification from the foreign country that contains vital information. The document indicates that the testator was a resident of this country. The foreign court has also indicated in the document that an estate hearing was going on. Under that proceeding in foreign court, the executor and proponent of the case had rejected his rights.
In the same document, the foreign court also certifies that the daughters of the testators have filed petitions for unconditional declaration of acceptance. Due to the release of this information, the respondent of the case has informed the foreign court about the original probate of will. However, there was no current record of the will being sent to the foreign court. The certification has also indicated that the proceeding regarding the estate in question will no longer continue.

The court also notes that the appellant’s legal counsel has obtained a copy of a letter written to the respondent by the foreign court commissioner. The letter contained instructions that the daughters of the testator were authorized to manage the estate of the deceased in that country. The letter has named the testator’s daughters as the administrators of the estate.
The court has requested for a notarized copy of the letter. If the document is indeed valid, the will would revoke the past testament. The next step of that instance, according to a Staten Island Probate Lawyer, would have to be 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, it was also noted that the testator identified this city as his place of residence. The court ruled that the proceeding held in the foreign country was brought to the city in good faith. Thus, the court has affirmed its earlier order.

Lawsuits can be time-consuming and stressful. If you need legal assistance, a New York Probate Lawyer will help you file your objections for probate. Contact Stephen Bilkis & Associates for more inquiries.

The following estate litigation was filed by the proponent. The proponent in this case is one of the three daughters of the testator. In her petition, she wanted to revoke the administration letters that were given to her sister. Because of this incident, the two sisters of the proponent had filed a motion against the proponent in to prevent her from submitting the testator’s will for probate.

The mother and now the deceased had resided in another country. One of the daughters of the deceased had requested letters of administration. In her petition, the sister had asserted that her mother was named as the distributee of the property of the proponent’s brother. According to a New York Probate Lawyer, the petition also indicated that the bank handling the estate administration did not perform its duty to distribute the proceeds of the estate to the others.

The two sisters gave consent to the appointment of their brother. The letters of administration were sent to the petitioner while the other sister defaulted since she was not in the city during that time. But she did receive the letter.

The sister who received the letters of administration filed a petition to have the bank explain why it failed to distribute the estate of their brother. After a few months, the proponent in this case has requested the foreign country in which her father resided, to have the last will and testament to be subjected for probate proceeding.

The will and testament contained instructions to give her husband all her assets. If the husband had passed away before she did, the other sisters will receive equal shares of the estate while the other will get a dollar. The father died in the foreign country of residence specifically Israel. His last will and testament was on probate there. Under that will, the deceased father named the proponent of this case as the executor of his last will and testament.

According to a Nassau County Probate Lawyer, the respondent filed her objections to the probate of the will under probate in another country. She relied on the grounds that her mother lacked the ability to make a testimony. She also filed for a proceeding in that foreign country which expressed her intentions of abandoning the probate on the testament of her father.
The proponent of this case then proceeded to file an objection to the letters of administration given to the respondent. The proponents of the case had contended that the decedent had a testament. They also said that their sister was not capable of acting as distributee. Based on their statements, there were also errors in the letters of administration. According to the sisters, the letters of administration may contain misstatements that may have been interpreted by the courts as true information. Misstatements are misleading and can lead to errors in judgment on the part of judicial authority.

A Staten Island Probate Lawyer said that based on the provisions of the law, an injunctive relief is sought may be granted according to the court’s discretion. For the petition to have legal basis, the petitioner will have to prove that he or she has merit and possesses the equities necessary for the remedy. The injunctive relief in this case is said to be a drastic solution.
If the courts in this city will not allow nor accept the comity rule to accept the probate of the will pending in a foreign court, there will be no reason for the same court to deny the petition based on the letters of administration.

The injunctive relief sought by the proponent in this case is denied. There shall be no foreign court proceeding that will submit the instrument for probate.

Get in touch with Stephen Bilkis & Associates for sound legal guidance. Our legal team is your solution to problems concerning estate matters.

August 13, 1970, Julia Eckhart died leaving two children, Charlotte Eckart and Frank Darmody. In her will that was dated August 4, 1966, she left each of them the sum of $50 and the rest to Watch Tower Bible and Tract Society of Pennsylvania. The will was admitted to probate and daughter, Ms. Eckart and Mr. Darmody submitted intent to contest the will. This is because of the size of the estate distributed by the will. New York Probate Lawyers say that in the Estates, Power and Trusts Law, gifts to a charitable institution should not be more than half of the estate if contested by a descendant or parent. The law further states that the person can only contest if they are to receive a monetary benefit if the contest is successful as the beneficiary of the will.

Being the children of the deceased is not questionable. What needs to be decided on is if they have the right because they will receive a pecuniary benefit. The executor’s point of view was that the children did not have the right as the will expressed that Mrs. Eckhart, the deceased, did not want to give her children more than the $50, she provided for each of them. He relied on the case of Joseph Cairo as an example. The Cairo case, a Staten Island Probate Lawyer states, had the specific words that said that the deceased did not wish to give the grandson, Joseph Cairo, anything from the estate. The grandson was not going to benefit from a successful contest.

In this matter, the deceased placed her relatives in different levels as her children got $50 inheritance while the others did not. There was nothing that specifically or expressly stated she wished they do not receive anything more than the $50, she had appropriated in her will. The $50 in this case is insignificant. It does not show the intent of the testatrix if she wished to take away inheritance from her children. The law takes out intention with its provision. It keeps only what is stated in the will.

The policy of Stare decisis, which is for a judge to respect prior instances and follow that example, does not apply to this case because they are different. It is also not a hard-and-fast rule because if there is a compelling reason or if there was a misinterpretation of the law, then they can deviate from the old decision. The exceptions also have limitations.

A Bronx Probate Lawyers also mentioned that there is Mortmain Act that checks how much a charitable organization can get so as not to deprive or cheat relatives and dependents of the testator. It is similar to the rule that prohibits a testator from disinheriting a spouse. This does not stop the testator fully from giving everything to charity as they can still place a ‘no contest’ clause that can make sure of it. This revision in the will is a way for the testator to dodge the rule. This modification on the will did not appear in the deceased will.

The order appealed from was reversed by the Court of appeals. The matter was given back to the Surrogates court. The costs were given to each party separately payable from the estate.

The law can still be misinterpreted and also the last will and testaments left by a relative or family member. If you need an order reviewed then what you need is Stephen Bilkis and Associates who can go through the case with you efficiency. They will also be the one to question any misconstrued part to make sure you get what should be yours.

Anywhere you are in New York or Long Island you can reach them at 1-800 NY - NY- LAW. Get a free consultation with them and you will know that you are going to be with a lawyer you can trust.

Laurel G. Ellis died in June 1994. She left a last will and testament dated May, 25 1990. This will contain conditions in the bequest that favored her daughter, Florence. In the will, it gave 50% of the remaining estate after taxes and fees to Mrs. Ellis daughter and the remainder is divided equally between her sons, John and Richard. One would think it is unfair for the mother to do this, but with their history, you would understand why.

The previous will had the children sharing the estate equally, but after Mrs. Ellis' husband died the sons’ relationship with their mother got worse and with her daughter better. There was even a letter sent by John to her mother that accused Florence of scheming to distance Mrs. Ellis from her sons. This was in March 1980. He even went as far as demand to have the old will reinstated and that Mrs. Ellis should not help Florence financially unless there is proof that she needs it. He stated in his letter that if his demand is granted, then he will not publicize the issue. A New York Probate Lawyer said John threatened to file a court case if what he wants is not done. In an undated letter to his brother Richard, he said the "estate would be in court so long that Florence would never see any of the money."

In May 1990, she executed the will submitted for probate. Aside from the provision she placed in favor of her daughter, she added that her will is based on the “loving care and attention” her daughter has showed her and her late husband, unlike the behavior their sons showed. She said the will is a product of a long and careful thought and was not because of undue influence from Florence. Furthermore, in June 1993, she approached a new lawyer to draft a new will for her so that she could continue to express her desire to give the majority of her estate to Florence. The information a New York Probate Lawyer gathered said she was afraid her sons will cause trouble for her daughter. This is when the terrorem clause was added wherein if any of the beneficiaries directly or indirectly contest the will or any of its conditions, their right to their share in the estate is revoked, and that share will be divided between the remaining parties who have not contested.

After the testatrix died in June 1994, July 1994 the Preliminary letters were already issued. September of the same year, John and Richard had started proceedings questioning Florence’s appointment as the executrix of the will. They cited reasons like substance abuse, dishonesty and improvidence or extravagance. They gave 30 pages of allegations against Florence suitability. The cases filed and the request for examination of witnesses and documents continued on until March 1996. By March 12, 1996, a Staten Island Probate Lawyers expressed that the Supreme Court had dismissed the case after a motion was filed by Florence and her husband.

It was only by September 1996 that John and Richard withdrew their contest. This is only after they stated that they see no need for them to withdraw the contest because it was never filed in the first place. The will entered probate on October 22, 1996 with the statement “no objection having been filed.”

Florence, by February 1997, filed a petition with the court to instigate the terrorem clause because of the extensive pre-trial litigation. The surrogate court said that it was not violated. The Appellate Court reversed this decision. This is because the reason that showed in the litigations was that the brothers only wanted to attack the will made by Mrs. Ellis. The brothers argued that the contest was never filed so the terrorem clause was not violated. John also sated he is not named as one who is objecting. Normally, the court will see the pre probate examination as not violating the co-contest clause, but in this case, the brother went as far as question people not part of the will. Under the law, he can examine the proponents of the will, attesting witnesses, the people who drafted the will and the nominated executor. They did not even present solid evidence as to the allegations they were making against Florence. Their action also showed they did not care if they win or lose in the litigation. The requisite for good faith was not shown. The underlying intent shown by the brothers was to object to the will, and this is in violation of the no-contest clause put in by Mrs. Ellis to protect her daughter. The court reversed the decision with the cost being charged to the brothers and for the Surrogate Court to start proceedings on revoking their bequest under the terrorem clause.

Emotions are usually high when it comes to dealing with a family member’s last will and testament. Not just because they feel they should have gotten more but sometimes due to spite for the other beneficiary. An Estate Lawyer is a person who can protect you from the actions of people who act because of ill feeling. They will make sure that the desire of the decedent is the one that is adhered to.

If you would need to schedule a consultation with Brooklyn Probate Lawyers regarding any case in New York or Long Island, you can call 1-800 NY - NY- LAW. Stephen Bilkis & Associates have the resources, and their lawyers have the patience and the care, however long the case may take to get you what is rightfully yours. We can schedule you in any of our offices in New York.

In the handwritten will of Mabel Alexander dated March 18, 1952, she denied that she is the mother of Marjorie Alexander and Bernard Alexander. A New York Probate Lawyer said that she stated that even though Marjorie and Bernard were raised as her children and were part of her family, they were not hers. She stated that she got a legal separation from her husband Benjamin Alexander, and she was just providing his room and board. She also included a statement that they did not live as man and wife after August 1950 when they got the decree of separation.

Marjorie, Bernard and Benjamin filed an objection against the submitted last will and testament. Soon after Benjamin died, and the executor of his will replaced him as the contestant. As the law states, since the right to contest is a property right, it survives the death of the person contesting. A Staten Island Probate Lawyer said the court ordered a trial for the disputed paternity of Marjorie and Bernard, and the possibility that Benjamin may also have an interest in the will of Mabel. In this trial, the only issue is to be addressed is whether Marjorie and Bernard are children of the decedent and not if they are legitimate or illegitimate.

Mabel was married three times. The first was ended by a divorce in 1907. The second marriage to Albert Norwalk was ended when Mabel divorced him in 1922. He claims to have fathered Marjorie. The last was to Benjamin Alexander, who asserts paternity to Bernard Alexander. Mabel got a decree of separation for this marriage.

A number of Mabel’s friends testified that she confided in them that she is not able to bear children, and the Marjorie and Bernard were not hers. They also said she did not seem to be pregnant before Bernard appeared. One of the witnesses said that her husband was entrusted Bernard’s adoption papers, but they were unable to find it. These two witnesses though, are named in the will. If the contest fails, they will benefit from it so a Suffolk County Probate Lawyer said that the court found them to be ineffective witnesses. Their testimonies are not considered. The court considers this preliminary trial as part of the probate so whoever is deemed as incompetent to witness in this is also not going to be part of the probate witnesses.

There was also the testimony of Albert Norwalk, who has testified convincingly that he is Marjorie’s father. He said he was present when she was born in Buffalo that he saw Marjorie being held by her mother. He mentioned he spoke to the medical staff that handled her case and paid the hospital expenses. He also testified that he and Mabel returned to their home with their child and her nurse.

Mabel lived and had her business at Noyack, Long Island for many years. Her neighbors there and people doing business there testified that she had consistently referred to Marjorie and Bernard as her children. In school and census records, she had always been registered as their mother. When she divorced Albert Norwalk, she called Marjorie as the daughter of Albert Norwalk and herself. In her life insurance application in 1912, she said she had one child. Mabel showed and acted like a mother to the children. A New York Probate Lawyer got information that she showed that she loved them and cherished them.

Evidence had shown that the rift between her and the children started when the children tried to get the amount left by John Irwin, Mabel’s father to her. Mabel and Benjamin, to get the funds themselves instead of to children, filed affidavit’s that Marjorie and Bernard were not their children but only got them as babies. In this action by Mr. Irwin, a New York Estate Lawyer says, showed he considered Marjorie and Bernard as his grandchildren.

The court determined Marjorie to have been born in 1910 and was twelve years old when Benjamin married Mabel. She lived with her mother before the marriage and after the marriage. The affidavits were obviously false. On his deathbed, Benjamin tried to correct what he had done with regard to the affidavits filed. He submitted a recanting affidavit Niagara County Surrogate's court where they filed, they filed the nebulous sworn statement. This is believed to be the truth. The lawyer who drafted the official statement of Benjamin was hesitant to do so because it meant Benjamin was waving his right to his wife’s estate. The court determined that with all the evidence provided that Marjorie and Benjamin are the children of Mabel. She is their natural mother. Benjamin Alexander was deemed as having no right to contest the will as his executor, because he already has an interested party in the probate.

This may seem like fiction, but this situation happens in real life. There are some people who, even in their last will and testament show spite. At these instances, you will really need a Probate Lawyer who is very thorough in proving your case.

Stephen Bilkis & Associates have legal counsel who are very meticulous with the evidence in their cases. If you walk in any of our offices in New York, you will have people ready to assist you with any case in New York or Long Island. You can also contact us online or through 1-800 NY - NY- LAW.

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. From what a New York Probate Lawyer got from their claim, they are saying that the last three pages of the will which had the signature were authentic, and the first four pages were substituted.

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 a power 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. Staten Island Probate Lawyers 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.
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.

We often meet challenges when the will are in our favor and a party feels like they did not get their due. Suffolk County Probate Lawyers are the ones that make sure that what is in the will are the ones applied, and we get what we should have. They go through the proceedings to make sure your side is well represented.

In dealing with will contests, Stephen Bilkis & Associates have skilled counsel, who take everything to heart when it comes to their client's cases. They make sure they check and double check on the letters of the law to protect your side, and you get your part of the estate. They give free consultations when you call them at 1-800-NY-NY-LAW.

Edward Rogowsky died in March of 2001 leaving behind his partner, Peter McGarry and two children, Joshua D. Rogowsky and Mark L. Rogowsky. Reports reached a New York Probate Lawyer that Rogowsky executed his last will and testament leaving behind a chain of residential premises or apartments at Glen Road Southold, New York. According to further reports, Rogowsky made McGarry the sole beneficiary of the residential premises as well as all his other assets except for $20,000 worth of property to his two nephews.

On the same year, 2001, the Kings County court, seeing everything has been done in a legal and proper order, granted all rights to McGarry according to Rogowsky’s last will and testament. Unfortunately, Rogowsky’s two sons filed a case against McGarry on charges of fraud and other charges that are in connection with their father’s estate.

Apparently, Rogowsky’s sons were already going to contest their father’s will and testament in 2001 but McGarry made a promise that he will share whatever profit he will receive from the apartments in Southold, New York. But according to accounts no such promise was honored by McGarry. He in fact, he sold the apartments and the house in Southold in 2006 and kept all the cash for himself. Rogowsky’s sons also claimed that McGarry already found a new partner in life, forgetting all about their father and the promise he made to them about equally sharing the profits of their father’s estate. It was also discussed during the trial that when Rogowsky was still alive, he repeatedly told his sons, in front of McGarry that he meant to transfer ownership of the apartments and house to his sons. Further, McGarry allegedly promised that he will respect Rogowsky’s intention of giving the properties to his sons. Apparently that was what made McGarry promise the Rogowsky brothers that he will equally share all profits to all three of them. Sadly, no such thing happened and McGarry kept it all to himself according to the charges. Rogowsky’s sons’ actions to file a case against McGarry are based on the McGarry’s promise to fulfil the last wishes of their father before he died even though it was not included in Rogowsky’s will and testament.

On the side of McGarry, a Staten Island Probate Lawyer mentioned that his argument is based on Rogowsky’s last will. Also he claimed that there was no written contract between him and Rogowsky’s sons and that Rogowsky’s will was final and executory, meaning it was done in accordance with the existing laws at the time Rogowsky wrote his will and testament.

Finally, after a long trial about Rogowsky’s estate, the court ruled in favor of McGarry and the case that was filed by Rogowsky’s sons was dismissed. The court maintains that the promise made by McGarry to Rogowsky’s sons was not enough to require McGarry to do something about it.

Suffolk County Probate Lawyers can tell you that properties and assets are very important to a person’s life. They are possessions that you have worked for your entire life with the purpose of profiting from them or living it to your loved ones. It is frustrating if all your life’s savings will be unjustly given to another person or entity that is not of your choosing. Stephen Bilkis and Associates will make sure that your assets and properties are protected.

Stephen Bilkis and Associates have conveniently established branches and offices all over the Metropolitan area of New York. Our legal team are always willing and able to provide you with legal advice so that you understand the situation you’re in and the proper and available actions that you can do in order to protect your assets and properties at the least amount of cost.

Continue reading "Court Rules on a Will Contest Matter" »

On December 20, 1952, the decedent died a childless widow. She left a supposed last will and testament that is dated April 29, 1929. This she tried to dispose of her estate and exercise a power of appointment granted to her by the will of her father. Another document dated September 13, 1929 was added and confirmed the April 29th will. According to a Staten Island Probate Lawyer, after a trial by jury both wills were denied probate. The reason given was that the testator lacked the capacity or competency to execute a will. She was not of sound mind. The Appellate Court also affirmed this decision.

The question now is if there was an error in the surrogate court to admit into evidence the statements of two witnesses, now deceased, in a prior lunacy proceeding. The Surrogate court relied on the Civil Practice Act that the statement of a deceased witness in a former trial or hearing may be used as evidence in a following hearing of the same subject-matter. The hearing for lunacy was presumptive. There was no other evidence so it was admissible but not conclusive.

This is the history obtained by a New York Probate Lawyer about the decedent . Her husband died in 1927, when she was 53 years old. Before long, she was showing erratic and distraught behavior. She was presenting abnormal habits and conduct, which included alcohol abuse. Her condition became so bad that between 1927 and 1929 she had been a voluntary patient at a mental hospital several times. Her condition still progressed and she was no longer able to take care of herself or her affairs. In September 24, 1929 she was admitted to a care facility as a voluntary patient because of this. She stayed there until she died 23 years later.

The testator’s brother started the lunacy proceedings in November, 1929. Two nephews, and the sons of the petitioner who are also people supporting the objection for the will were present in that hearing. They did not oppose the petition. A doctor who was previously consulting physician at the hospital testified as to the mental state of the decedent, which went undisputed.

The lunacy proceedings and the testamentary capacity hearing may not be different in the fundamentally in substance, but their purpose differs. Nassau County Probate Lawyers say that the incompetency in one instance like in managing one’s affairs does not necessary mean incompetency in making a valid last will and testament. The statute that asks for the subject-matter to be the same has not been satisfied. There was also no mention of Mrs. White’s condition before the proceedings for the determination of her lunacy. The court determined that being unable to facilitate ordinary affairs does not mean lack of testamentary capacity. There are the ones who are deemed wholly incapacitated, and they are also seen as lacking capacity to make a valid will. Even with this, there may be an exception as there is what is called a lucid interval. People who are also seen as mentally incapacitated may be unable to protect themselves because of their mental capacity, and that is it. In the same hearing, the testator nor her guardian were not able to present and question as to what will happen if there is a will contest.

The court has determined that the beneficiaries of the will should have a day in court. It should not be concluded by testimonies from a previous hearing that were uncontested. Another investigation to the testatrix capacity should be done as is governed by a different law with a different proceeding. The order was therefore reversed, and a new trial granted.

When you find yourself a beneficiary of a person considered as mentally incapacitated, you may automatically think that you are not eligible for any legacies from them.

Continue reading "The decedent died a childless widow" »

A woman died in June 1994. She left a last will and testament dated May, 25 1990. This will contain conditions in the bequest that favored her daughter. In the will, a New York Probate Lawyer said, it gave 50% of the remaining estate after taxes and fees to Mrs. Ellis daughter and the remainder is divided equally between her two sons. One would think it is unfair for the mother to do this, but with their history, you would understand why.

The previous will had the children sharing the estate equally, but after the woman's husband died the sons’ relationship with their mother got worse and with her daughter better. There was even a letter sent by one son to his sister that accused her of scheming to distance the mother from her sons. This was in March 1980. He even went as far as demand to have the old will reinstated and that the mother should not help the daughter financially unless there is proof that she needs it. He stated in his letter that if his demand is granted, then he will not publicize the issue. The son threatened to file a court case if what he wants is not done. In an undated letter to his brother, he said the "estate would be in court so long that the daughter would never see any of the money."

In May 1990, she executed the will submitted for probate. Aside from the provision she placed in favor of her daughter, she added that her will is based on the “loving care and attention” her daughter has showed her and her late husband, unlike the behavior their sons showed. She said the will is a product of a long and careful thought and was not because of undue influence from the daughter. Furthermore, in June 1993, she approached a new lawyer to draft a new will for her so that she could continue to express her desire to give the majority of her estate to the daughter. The information a Bronx Probate Lawyers gathered said she was afraid her sons will cause trouble for her daughter. This is when the terrorem clause was added wherein if any of the beneficiaries directly or indirectly contest the will or any of its conditions, their right to their share in the estate is revoked, and that share will be divided between the remaining parties who have not contested.

After the mother died in June 1994, and by July 1994 the preliminary letters were already issued. September of the same year, the brothers had started proceedings questioning the daughter's appointment as the executrix of the will. They cited reasons like substance abuse, dishonesty and improvidence or extravagance. They gave 30 pages of allegations against the daughter's suitability. The cases filed and the request for examination of witnesses and documents continued on until March 1996. By March 12, 1996, a Staten Island Probate Lawyer expressed that the Supreme Court had dismissed the case after a motion was filed by the daughter and her husband.

It was only by September 1996 that brothers withdrew their will contest. This is only after they stated that they see no need for them to withdraw the contest because it was never filed in the first place. The will entered probate on October 22, 1996 with the statement “no objection having been filed.”

The daughter, by February 1997, filed a petition with the court to instigate the terrorem clause because of the extensive pre-trial litigation. The surrogate court said that it was not violated. A the Appellate Court reversed this decision. This is because the reason that showed in the litigations was that the brothers only wanted to attack the will made by the decedent. The brothers argued that the contest was never filed so the terrorem clause was not violated. One brother also also stated he is not named as one who is objecting.

Normally, the court will see the pre probate examination as not violating the co-contest clause, but in this case, the brother went as far as question people not part of the will. Under the law, he can examine the proponents of the will, attesting witnesses, the people who drafted the will and the nominated executor. They did not even present solid evidence as to the allegations they were making against the sister. Their action also showed they did not care if they win or lose in the litigation. The requisite for good faith was not shown. The underlying intent shown by the brothers was to object to the will, and this is in violation of the no-contest clause put in by the mother to protect her daughter. The court reversed the decision with the cost being charged to the brothers and for the Surrogate Court to start proceedings on revoking their bequest under the terrorem clause.

Continue reading "Court Rules on Will Contest between Siblings" »