New York Probate and Estate Administration Blog

The plaintiff and appellant of this case is Gray Wolf Corporation. Gray Wolf Corporation is being represented by Warren B. Rosenbaum from Woods, Oviatt and Gilman, LLP. The defendant and respondent et al of the case is Gleason Estates Associates, LP. Gleason Estates Associates LP is being represented by Gregory J. Mascitti from Leclair Ryan. The case is being heard in the Appellate Division of the Supreme Court of the State of New York in the fourth judicial department. The judges who are hearing the case are Martoche, JJ, Lindley, Smith, and Scudder, P.J.

About the Case

A New York Probate Lawyer said this case was started by the plaintiff as a foreclosure action and then moved to a summary judgment based on the complaint. The defendant of the case made a cross move for a summary judgment to dismiss the case altogether.

Case Facts and Findings

From the beginning of the case it is noted that the Supreme Court came to the proper conclusion that the defendant was not obligated to provide the defendant with specific financial statements. This is in accordance with the different documents that were signed by both the parties as well as signed by the parties and the United States Department of Housing and Urban Development.

Additionally, the court finds that the plaintiffs’ motion for a summary judgment on the foreclosure complaint was properly denied. Suffolk County Probate Lawyers said that on the records that have been provided to us there is an issue with whether or not the defendant was in fact default on the loan.

For the same reason as above, we have made the decision that the Supreme Court made a mistake when they granted the cross motion of summary judgment to the defendant to dismiss the case.

Court Rulings

Westchester Country Probate Lawyers said that based on the above findings and the information that has been provided to the court, we have modified the order that granted the cross motion for dismissal of the case to the defendant. We feel that this is the only error made in the case and we rule in favor of the plaintiff on this particular motion.

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Estates 7

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

The Case

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

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

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

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

Results

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

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

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

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A son from California filed for an order dismissing the pending proceeding to probate his mother's New York Will that raises an interesting question of jurisdiction. The son argues the jurisdiction of the court to prove the validity of the Will of a non-residence which requests New York to prove valid and invokes New York law on the ground that her French legal residency has assumed jurisdiction over her estate. The motion is opposed by the Petitioners in the proceeding, the co-executors named in the Will, who are presently serving as preliminary executors.

The New York Probate Lawyer said the mother who made the Will was born a French citizen in 1899, and she became a naturalized United States citizen. She was a New York resident for about thirty years. For approximately seven years she was employed in the law offices in New York City. During this period she worked as secretary to one of that firm's senior partners. A lawyer-client relationship with that firm also commenced during that time. The French Ordinary Residence Card issued indicates that the mother who made the Will stated that she returned to France on October 24, 1971.

The New York Will which is the subject of the jurisdictional attack was drafted by the firm in New York she worked for. It was allegedly executed by the deceased in the firm’s Paris office in 1972, and there is no challenge on the matter. Both the petitioners and the son refer to the 1972 document as the New York Will. Both sides seemingly agree that this Will, whether admitted to be proven valid in New York or established in accordance with French law, governs at most the property of the deceased mother which was physically located in New York when she died, and that it does not affect property actually located in France, which passes under the French Will.

The French Will states that the assets of the deceased mother located in New York when she died in 1978 and which she was apparently content to have remained in New York despite the fact that she moved to France in 1971 consisted of bank accounts and a brokerage account. At the time of her death the value of this New York property exceeded $320,000. Westchester County Probate Lawyers said the property located in France when she died consisted of an interest in real property to wit her apartment, and the personal property in the apartment. The value of this French property is disputed; the petitioners contend that its value is approximately $75,000 while the son’s position on oral argument was that it might be worth as much as $150,000.

On December 15, 1977 the deceased mother executed the document which the parties call the French Will. It is undisputed that the French Will has been established in France in conformity with French practice. On oral argument counsel for the son stated that the New York Will was in the process of being established in France and it appears from documents subsequently filed with the court that this has occurred although, for the reasons not essential to the resolution of the issue at hand.

In outline form, the provisions of these two Wills are as follows: The first paragraph of the 1972 New York Will contains the crucial language for purposes of this motion. It recites the deceased mother’s residence as being in Paris, France and then declares that she elect that the Will shall be admitted to original administrators in the State of New York and shall be construed and regulated by the laws of the State of New York, and that the validity and effect thereof shall be determined by such laws."

The settlement provisions are simple. Suffolk County Probate Lawyers said the deceased gives a life interest in her apartment in in Paris to her friend if then living, or, if the friend predeceased her, which occurred, the apartment passes to the deceased mother’s adopted son, the one who filed the motion herein. Under Article Third all personal and household effects etc. other than those disposed of in connection with the apartment in are given to the said friend, or if she is not then living, to the deceased mother’s friend, who is concededly a French resident.

Sources revealed, the entire remaining property is given in trust for the benefit of the aforesaid friend for life and upon her death, or upon the deceased mother’s death, if said friend should predecease her as she did, the remaining is disposed of as follows: $5,000 to her "adopted son"; $5,000 to a godchild in England; $10,000 to a friend, a French resident; and the balance to be divided between the aforesaid French resident friend and a French mutual aid society. The nominated executors and trustees are her friend and the Bank of New York. Her executor and trustee friend is a member of the Law firm she worked for. As a substitute or successor executor for him, the deceased mother named her friend, from Oyster Bay, New York.
The final article of the New York Will contains a warning providing for the lapse of any provision made in the Will for any person named as a beneficiary who shall Will Contest or file objections to the admission to prove the validity of the Will.

Just as the New York Will be attune with the approach to the delegation of the property and the Estate Administration, the 1977 French Will presumably reflects the practice in that country. The deceased mother simply appoints her French friend as the person who is given the excess portion of inheritance on condition that she performs the special legacy. The special legacy is endowment of the apartment in Paris and its contents to the deceased mother’s adoptive son. On its face the provision is fitting with the terms of the New York Will which were to become operative in case the deceased mother’s friend predeceased her as she did.

There are two other relevant provisions in this instrument. One is the specification that legacy is not made as an excess portion of inheritance and outside a share. As a consequence of the foregoing, the adoptive son will only be able to claim it as taking less than a share. The other is revoking any other previous provisions, with the exception of those which are contained in her American Will, bearing the date of 1972, which has been deposited in New York City unless such provisions would be contrary to the Will.

Apparently the motion is directed to the court's jurisdiction. It is cast in terms of the efficiency of administration and the reduction of expense which the son alleges would result from deferring to France and declining jurisdiction. The essential issue here, however, is much more related to the son’s acknowledged forced right to inheritance claim. The affidavit of the son’s California counsel in support of the motion affirms that he was informed that under French law the son is entitled, as the deceased mother’s child, to one-half of her property. While the son’s acknowledges the possibility that the French law might be found applicable to his claim to a share of the assets located in the U.S. State is no ground for the denial of jurisdiction in New York, quoting the Court of Appeals opinion in Matter of Steel, it seems clear that the desire to assert the forced right to inheritance claim in the French courts provides the motivation for the instant motion. Similarly, some of the force of the executors' opposition is presumably fueled by the disparity of position.

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

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

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

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

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

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

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

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

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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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Relative to the petition for probate, the guardian ad litem for the decedent crafted and negotiated the stipulation of settlement of estate was filed before the court for review. The factual circumstances of the case rooted from the time the decedent, a resident of New Hyde Park, Nassau County died on February 15, 2009 leaving a last willl and testament dated June 28, 2007. She was survived by 19 distributees including siblings and the children of four predeceased siblings.

The will leaves all the property in three equal shares, i.e. two to the decedents sisters and the third to the decedent’s niece without mention of the other surviving sister who suffers from Alzheimer’s Disease in whose favor the court appointed a guardian ad litem. Consequent thereto, the 15 distributees filed no objection to the will and preliminary letters issued to petitioner on May 19, 2009.

The will was contested as its execution which was not supervised by an attorney was made through a telephone call from the decedent’s niece herein mentioned and to which issues were raised concerning the competency of the testator at the time of the execution.

A New York Probate Lawyer said the will was objected to by the guardian ad litem and negotiated a settlement which was approved by the court. In consonance thereto, the court must fix the fee for the guardian ad litem which amount shall commensurate to the services rendered and which shall constitute a reasonable compensation therefor.

It is a settled rule in jurisprudence that in evaluating the legal services, the court considers the following: 1) the time spent; 2) the complexity of the questions involved; 3) the nature of the services provided; 4) the amount and complexity of litigation required; 5) the amounts involved and the benefit resulting from the execution of such services; 6) the lawyers experience and reputation; 7) the customary fee charged by the Br for similar services. Additionally, the value of the estate shall be taken into consideration in order to fix the reasonable compensation. Thus, a sizeable estate permits adequate compensation.

In the instant case, it was revealed that the guardian ad litem had devoted in excess of 41 hours for the purpose of protecting the interest of the ward who is a surviving heir of the decedent. Westchester County Probate Lawyers said these include but not limited to the extensive documentation concerning decedents financial records and health, communication with the ward’s children, communication with the decedent’s doctor, HIPAA authorizations and obtained and reviewed medical records conducted research regarding the valuation of decedent’s assets, negotiated and prepared the stipulations filed in court and preparation of the report. The herein guardian anticipated the time necessary for the compliance with the stipulations.

All told, the agreement being approved, the court ordered payment of the fee to the guardian ad litem in the amount of $17,000.00 which shall be paid within 30 days from the issuance of full letters of administration to the petitioner to be exacted from the general assets of the estate.

Verily, to calculate the expenses from the moment the decedent died up to the moment of distribution to the respective heir of their proportionate share, legal, administration, commission and expert fees are existent. Suffolk County Probate Lawyers said these matters shall be taken into consideration when the will is filed for probate before the court. Our New York Probate Lawyers knew how to avoid expensive litigations in court through speedy administration of justice without loosing the essence of protecting the interest of the beneficiaries. Here at Stephen Bilkis and Associates, the knowledge and quotient of intelligence of our New York Probate Lawyers would guarantee you that every point of the case is well taken care of. Thus, a non-expensive yet exhaustive intelligent defense and claims were adduced in Court leaving no room for questions without loosing the ties among the families.

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

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

A New York Probate Lawyer said a few months after the drafting of the first instrument, the decedent had allegedly turned over a deed of one of his real properties to another party other than his niece by marriage. However on the same day, the decedent drafted an instrument and identified it as his last will and testament. According to that instrument, it would revoke or reverse all wills drafted prior to the recent one. This includes the first draft that named his niece the sole executor of his estate.
In the recent will before the decedent pass away, he named the other party, the one who had the deed to his property, as an alternate beneficiary of all his assets. The different between the first and recent testament was the inclusion of the respondent as one of the beneficiaries.
The niece petitioned for a probate on the recent will executed by the deceased. A Westchester Probate Lawyer said the respondent had requested the surrogate court to change the date of the instrument to match the date in which she received the deed of the property from the then decedent. The niece objected to the execution of the second instrument.

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

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

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

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

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

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In a probate proceeding, the issue presented in court by the executrix is the validity of the full amount claim against the estate by the Nassau County Department of Social Services (DSS) granted by the probate court only up to the amount that would prejudice a specific bequest in favour of a legatee in decedent’s will.

The decedent and his wife have to children, one of whom is severely mentally disabled. Decedent made a declaration to the refusal of making his resources available to the medical expenses of his mentally disabled child. Decedent also executed a power of attorney, in behalf said child, appointing the Nassau County DSS of the child’s right to seek support from him. A New York Probate Lawyer said the decedent’s wife, who had an Alzheimer’s disease, was placed in a nursing home and received Medicaid benefits making the decedent a “community spouse.”

Upon death of the decedent, his will was submitted for probate. The will provided that the residuary estate is given to the surviving wife in a special needs trust and that, upon her death, the remainder of the trust shall be distributed in specific bequests among the contingent legatees. A Westchester County Probate Lawyer said a bequest was given to the disabled child in a special need trust for his benefit. A guardian ad litem was appointed, in behalf the surviving wife, who was ordered to exercise the wife’s right of election against decedent’s estate. Prior to the exercise of such right, the surviving spouse died.

DSS filed a claim against decedent’s estate to recover the medical costs incurred by the wife for her aid. The claim was denied by the estate of the decedent and the executor filed a petition in the Nassau County Surrogate Court to determine the validity of the DSS’ claim. The court affirmed the validity of the claim and ordered the estate for its payment to such extent as would not impinge the bequest in favour of the mentally disabled child. The executor filed a another petition prompting modification the decree by the probate court.

A Suffolk County Probate Lawyers said that based on the Court ruling, “DSS may recover, from the estate of the community spouse, the cost of Medicaid benefits paid for the care of an institutionalized spouse, so long as the community spouse was a "responsible" relative pursuant to Social Services Law § 101, in that he or she possessed sufficient means to pay the institutionalized spouse's medical expenses at the time when the expenses were incurred.”

The Court also made judgment that the statute limitations as to amount that can be recovered for the expenses incurred by DSS in case of having a permanently disabled child does not apply in this case because DSS is claiming against the estate of the decedent and not that of the institutionalized spouse.

The assessment of the benefits received by the decedent’s spouse shall be made starting from the time of decedent’s death until the death of the institutionalized spouse. The Medicaid worksheet submitted by DSS, at the time of the application of decedent’s spouse for Medicaid benefits, the decedent have ample amount of resources in excess of the Community Spouse Resource Allowance (CSRA) and the he had monthly income in excess of the minimum monthly maintenance needs allowance (hereinafter MMMNA). Decedent never challenged the report pertaining to his CSRA and MMMNA upon its assessment, thus, he is barred from questioning the same.

Because decedent has surplus resources upon his spouse’s application of the Medicaid benefits, he was bound to make reimbursements of the medical expenses incurred by DSS for the benefit of his wife in extent of the amount of his available resources.

The Court ruled validity and ordered full payment of the claims by the Nassau County Department of Social Services against the estate of the decedent.

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On 10 May 1977, a decedent who is an attorney died. On 27 June 1977, letters of administration (estate administration) were issued to the Public Administrator, County of Nassau. He received the keys to the decedent's residence from a Nassau County police detective on 11 May 1977 and made a thorough search of the residence. The public administrator found a sealed envelope, among other things, bearing the words "Copy of Deed to Lutheran Cemetery," "Copy of Last Will and Testament" (carbon copy) bearing the decedent’s signature. On the back of the envelope, written across the flap was the decedent’s signature.
The objectants, three (3) of the cousins named in the instrument and five other individuals whose status was contested by the proponent in the instant case, conceded that the document was written in the decedent's handwriting. No evidence was offered to prove that the document was a carbon copy although the proponent herself alleged that it was a carbon and not a ribbon copy. The back of the last page was blank except for the following handwritten words: "Copy of Last Will and Testament" and "Original in Safe Deposit Box in Jam. Savings Bank."

The instrument provided for the disposition of real property and bequeathed $300.00 to each of the decedent’s eight cousins and the residuary estate to two of the cousins. It appointed the two cousins as executors of the estate.

A New York Probate Lawyer said at the time the decedent’s death, the safe deposit box at the Jamaica Savings Bank was no longer rented. An inspection of the decedent’s safe deposit box at the National Bank of North America in Williston Park also failed to disclose any instrument purporting to be the last will and testament of the decedent or a copy thereof.

Was there a revocation of a six-page handwritten document dated 17 June 1960 when only an alleged carbon copy of which has been offered for probate (estate litigation or will contest) as the last will and testament of the decedent?

In the case at bar, the witnesses, whose names were printed on the instrument offered for probate, testified regarding the execution and attestation of the decedent's will in 1960, the signing of a copy of the will by the decedent, in their presence, and the retention of both the original and the copy by the decedent. It was the proponent’s contention that the instrument offered for probate was a duplicate original rather than a copy of the original will and that the existence of a duplicate original overcomes the presumption of revocation; and, in the alternative, that the presumption of revocation is rebutted by evidence that the decedent retained the carbon copy among her important papers and treated the copy as an original. In support of the proponent’s allegations to prove non-revocation, offered into evidence were - a letter from the decedent dated April 1968 (addressed "To Whom It May Concern" stating that executrix of her estate) and an envelope (labeled "Open in case of death or supreme emergency") containing the decedent's telephone book and Personal Record and Data Book.
Suffolk County Probate Lawyers said that under the rules, where a will is last known to be in the possession of the decedent and is not found at his death, the presumption arises that the decedent himself destroyed the will animo revocandi. This presumption of intentional revocation, however, may be rebutted by circumstantial evidence. Where the proponent of a will cannot produce the executed ribbon copy but produces a fully executed carbon copy which was in the decedent's possession at the time of his death, the presumption of revocation is overcome. Here, there was no evidence that the witnesses, whose names were printed on the carbon copy signed the copy.

For the execution and attestation of wills, it is required that a will must be signed at the end by at least two witnesses. Westchester County Probate Lawyers said the privilege of informal testation is granted only to mariners at sea and military personnel, thus, cannot be applied in the instant case. Since there is no proof that the decedent satisfied these requirements, the conclusion must be that the instrument was not executed with the necessary formalities and is at best a conformed copy of the original. The presumption of revocation is therefore operative.
Further, it has been ruled that the retention by the decedent of a reproduced copy of his will along with an original codicil executed subsequent to the execution of the will was held to rebut the presumption of revocation. No such circumstances exist in the present case. The words on the back of the carbon copy explicitly stated that the original will was located in a safe deposit box. Evidently, the decedent did not believe that the carbon copy offered for probate was her original will and she did not have any intention for it to be accepted as such.

In addition, declarations of a deceased concerning revocation or non-revocation are only admissable as part of the res gestae, the reason being that it is likely that a decedent may have attempted, during his lifetime, to "silence importunity and elude questions" concerning the testamentary disposition of his property and therefore statements made to third parties concerning his will have little credibility. This reasoning applies with equal force to statements in writing. Written declarations of a decedent which are not received as part of the res gestae are inadmissable on the question of revocation. In any event the letter if admitted into evidence, at best might prove non-revocation as of 1968, more than nine years prior to the decedent's death. The 1968 letter did not constitute a republication of the 1960 instrument. For it to be such, it is required that there be a re-execution and re-attestation for republication of a prior will.
The proponent here failed to offer sufficient proof to rebut the presumption of revocation. Consequently, the petition for probate was denied.
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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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In a pending action transferred from Supreme Court, Nassau County to Surrogate’s Court of Nassau County, defendant sought the order of quieting title in his favour and to direct the Clerk of Court of Nassau County to cancel a notice of its pendency and such other relief the court may deem just.

A New York Probate Lawyer said the defendant is the grandson of the decedent in a pending probate proceeding of Surrogate’s Court of Nassau County. Decedent’s daughter, as preliminary executor, is the legal representative of the estate in the lawsuit.

The decedent and her husband acquired title of a New York property by deed. They were identified as grantees in the deed, thus, presumptively creating a tenancy by the entirety. Upon death of decedent’s husband, the former became the sole owner of the premises under the assumed valid tenancy.

Afterwards, decedent executed a deed transferring title of property to herself and her grandson, herein defendant as joint tenants with right of survivorship. Suffolk County Probate Lawyers said when decedent executed another deed conveying her remaining interest in the property to her daughter with life estate reservation. Purportedly, another deed was made granting conveyance of decedent’s remaining interest to the same property in favour of the grandson. The Supreme Court of Nassau Count transferred the case to vacate the deeds executed in favour of the grandson and notice of pendency was also filed later on.

In addition to the grandson and executor, the decedent was also survived by another daughter and by four other grandchildren.

Aside from the case filed in Supreme Court of Nassau County, there are two other petitions for probate regarding the wills of the decedent. The two wills bequeath the entire estate of the decedent to only one heir; first in favour of the grandson and the other for the benefit of the preliminary executor-daughter, excluding all other distributees.

Additional complications are involved in the probate proceeding. First, the asset in question is with a mortgaged being paid by the grandson. Second, the executor’s sister claimed that the marriage between decedent and their father was invalid since the decedent was still married at the time their parents got married. Westchester County Probate Lawyers said if this was the case, upon purchase of the disputed property by the spouse would result only to tenancy in common without right of survivorship in such circumstance as the statute governing the same was enacted several years thereafter. Thus, executor’s claim of full ownership will be considered doubtful in this case.

It was noted also that failure to pay the mortgage over the property by any of the parties to the probate proceeding would jeopardize the entire case if the disputed asset would later on be foreclosed due to non-payment of its liabilities. In such a case the property must be conveyed in order to cover payment of liabilities.

As authorized by statute, the court has the discretion to cancel a notice of pendency upon terms they deem just and equitable.

In this probate proceeding, the court was satisfied by the undertaking presented by the grandson’s counsel that his firm shall deposit the net proceeds of the sale of the decedent’s asset in an interest-bearing escrow account until further order of the court. The court also ordered that sufficient security be given to the preliminary executor contingent to latter’s future success in the suit.

Hence, the court granted the motion of defendant directing Nassau County Clerk to cancel the notice of pendency and that defendant may convey title to the same. The net proceeds of the sale shall be placed in an interest-bearing escrow account until court’s further order.

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Probate proceedings involve difficult issues in resolving interests of beneficiaries over all of the assets of the estate. Allow any of our Nassau County Estate Administration Attorneys to orient you on how to go about protecting your rights over these properties.

In an accounting proceeding, the court is presented with the issue of determining the amount of attorney’s fees and accounting fees to be granted to be charged against the estate of the decedent.

Decedent is a resident of Nassau County who left a will that was admitted for probate by the Surrogate’s Court of Nassau County. Letters testamentary was issued to decedent’s daughter. The decedent was survived by his seven children. The will stipulated that equal shares of the residuary estate shall be divided among the surviving children of the decedent.

The accounting proceeding is the first and final settlement of account made by the executor covering a period of four years. The summary statement submitted by the accounting party showed the amount of $955,030.92. Some of the children of decedent filed objections regarding the accounting statement. A New York Probate Lawyer said in a settlement agreement entered into by the parties, the executor reduced her commissions for payments to the objectants. The agreement also stipulated that certain estate’s tangible properties will be given to the latter.
The authority as to the determination of the attorney’s fees and accounting fees to be charged against the estate is within the sole jurisdiction of the Nassau County Surrogate Court in the probate proceeding. Said court has also the discretion as to the determination of the reasonableness of the fees and services rendered by the executor to justify such charges against the estate of decedent.

Westchester County Probate Lawyers said that several factors are taken into consideration upon grant of the court of the amount of legal fees and attorney’s fees for the legal services provided for the estate’s benefit. Based on settled court decisions, these include among others, “the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services.”

In the discharge of this duty, the court must consider all of these factors in determining the reasonableness of the fees to be paid and also taking into account the size of the estate. There is no definite rule in the proper computation of the fees considered to be reasonable in any award of fees to be charged against an estate. The court is left with the discretion of what comprises a reasonable compensation for legal service. Although said discretion must be exercised by the court with reason and proper justification.

The counsel has the burden of proof in justifying the value of the legal services they are claiming against the estate upon presentation of the necessary and pertinent documents to establish the time spent and nature of work they underwent. Legal time records indicating the amount of period spent on estate matters are considered essential in determining whether such amount of time spent is ample to cover the various tasks performed by the lawyers.

Suffolk County Probate Lawyers said that affirmations of services in relation to the estate’s probate proceeding were submitted by both former and current counsels of the firm in court. he affirmation of services contains the time spent in this matter, services performed in relation thereto, the documents and papers prepared and completed and the appearances made in court by counsels.

The accountant also submitted an affidavit of accounting services, which include the number of hours spent in preparing the accounting; the services rendered; and preparation of related schedules and reports.

The court fixed the fees accordingly upon consideration of all of the factors used in determining the reasonableness of fees.

Legal services performed by counsels in a probate proceeding involve great amount of time and require legal expertise. Here at Stephen Bilkis and Associates, we can assure you that you will get efficient and effective performance from our Nassau County Estate Administration Lawyers for the amount of compensation that you will pay for the services they shall render in your behalf.

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 man executed a will in October 28, 1970. In this will, ninety per cent of his estate is left to charities and the remaining ten per cent is left to his sister. In this will also a bank and trust company was named as executor of the will.
After the testator died, the sister filed the petition for probate of the October 28, 1970 will. But the sister also produced a purported codicil executed by the testator dated November 20, 1970. In this codicil, the testator allegedly revoked the nomination of the bank and trust company as executor and instead nominated his sister as executrix.

Two charitable organizations who were distributees of the decedent in the October 28, 1970 will filed objections to the probate of the will and the codicil. The charitable organizations also filed a motion for leave of court to examine the witnesses of both the will and the codicil, the sister, the bank and trust company and the attorney who drafted the will and the codicil.

A New York Probate Lawyer said the bank and trust company also asked for leave to intervene in the proceedings and also to be given leave to examine the witnesses to determine whether it will file objections to the probate of the codicil. Later, it asked leave to also file objections to the probate of the codicil.

The Surrogate’s Court denied the motion of the bank and trust company. The denial is on the basis of the law that prohibits a bank from objecting to the probate of a will. The sister of the testator asserted that the bank’s only interest in the estate of the testator that would be adversely affected by the probate of the will is its financial interest in the commissions it would earn if the codicil appointing another executor is admitted to probate.

Suffolk County Probate Lawyers said the question before the Supreme Court is whether or not a bank which was named and executor in a will can file an objection in the probate proceedings of a codicil that removed his nomination as executor and nominated another.
The Supreme Court held that while it is true that the law prohibits a bank from objecting to the probate of the will, this case has peculiar circumstances that allow the court to make an exception.

It will be noted that the only persons who may file an objection to the probate of a will is a person who has an interest that will be adversely affected by the probate of a will. A bank’s only interest is the commission he will earn as the executor of a will. Generally, a bank is not allowed to object.

Here however, good cause was shown to allow the bank not only to examine the attesting witnesses, the sister of the decedent, and the lawyer who drafted the codicil and the will. The good cause is the allegation of fraud, undue influence, lack of testamentary capacity which may be unearthed as facts during the examination of the witnesses.

And only after those witnesses have been examined will there be a basis to see if indeed, as suspected and alleged, there was fraud, undue influence or lack of testamentary capacity.
The bank as the named executor in the will has the duty to protect the will which nominated him as executor. He has the duty to see to it that no fraudulent codicil is admitted to probate because this will frustrate the intentions of the deceased testator. Bronx Probate Lawyers said the bank’s motion for leave to examine the attesting witnesses, the sister of the deceased testator and the lawyer who drafted the codicil is granted. And, if so warranted by the facts discovered (if there is any testimonial proof of fraud, undue influence or lack of testamentary capacity) after the examination of the witnesses, the bank is also given leave to file an objection to the probate of the codicil.

An executor not only has the obligation to inventory all the properties of the estate and to render an account of the estate; in some instances, an executor also has the duty to objects to what could be a fraudulent codicil. An Estate Litigation Attorney can best help any executor who is called upon to protect a will against any taint of fraud. An Estate Litigation Lawyer can examine witnesses to discover facts that prove fraud or undue influence. At Stephen Bilkis and Associates, Estate Litigation lawyers are ready to assist in the examination of witnesses. Estate litigation attorneys from Stephen Bilkis and Associates are available for consultation at any of their offices in the New York area.

This is an appeal filed in the Supreme Court by a party who objected to the probate of the will of a decedent in the Surrogate Court of New York.

The facts of the case state that the decedent was a resident of New York. Sometime in his life, he became a resident of Austria and it was also in the said country that he eventually died. The will of the decedent was submitted for determination in Austria and two years after, the said will was again presented to a Surrogate Court of New York County. A New York Probate Lawyer said that as per reading of the last will and testament, it established the fact that the decedent was a resident of New York and at the same time named a legatee to receive half of the estate. The legatee assigned in the will is also a resident of New York. The properties covered in the will also referred to the properties owned by the decedent and located in the State of New York

The hearing in the court of New York was objected to because of the question regarding the domicile of the decedent. It is alleged that the decedent was a domiciliary of Austria at the time of his death and therefore the court of Austria has jurisdiction in the estate administration of the decedent. Another issue was that the court of Austria has already taken cognizance of the will and in the process of adjudicating on the same. The appellant in effect said that since the Austrian court is already in the process of determining the matters involving the will contest surrounding the will of the decedent, the Surrogate Court of New York must no longer assume jurisdiction because another court which has the proper jurisdiction has already assumed power over the case.

The Surrogate court of New York found no merit to the contention and ruled in favour of the motion to overrule the objection posed against the jurisdiction of the court. The Surrogate Court in effect declared that it has the power and it is actually within its power to receive the will and proceed with the rules as well as the dictates of the will as stated by the testator. Suffolk County Probate Lawyers said that court adapted the stand that the will itself declares the decedent as a resident of New York, the will was executed in New York, the properties are in New York, and the legatee is also a resident of New York.

The party that received the unfavourable ruling of the court appealed the same and on appeal, the higher court affirmed the ruling made by the Surrogate Court by stating that the rule of comity is not enough for the court to surrender its jurisdiction to a foreign court. Another appeal was taken this time to the Court of appeals using the same arguments that Austrian law should govern the estate litigation concerning the decedent’s estate and that this is bolstered by the fact that an Austrian court had actually taken cognizance of the case. Westchester County Probate Lawyers said a motion was then filed in the Court of Appeals to declare the appeal made as moot because the Surrogate Court has already made a ruling.

The other party to the case went to the Supreme Court and appealed that the motion to declare the appeal moot be stricken down or dismissed. The said motion to dismiss the appeal as moot was denied and the Supreme Court ruled that the proceeding in the surrogate court must continue and if the parties will find the need to appeal the determination of the Surrogate Court in relation to the decision made by the Austrian Court, then they can do so later on.

One of the two things unavoidable in life is death. In order to foster the proper transfer of property from the testator to the heirs, the assistance of a New York Estate Lawyer is needed. Stephen Bilkins and Associates is a law firm composed of expert New York Estate Administration Lawyers who are trained to handle property relations involved in last wills and testaments.

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.

A rich man died in 1958 leaving a will and a codicil. The distributees of the properties and assets named in the instruments were his wife, two daughters as distributes and two other persons as executors. The letters testamentary were issued to the executors after the will was presented to probate by the assigned parties. Based on the will, the decedent gave the surviving spouse personal properties and also gave to individuals and charities named in the will. The daughters also received a large amount of money from their father. Legacies were also given to 13 individuals and the remainder of the wealth was placed in trust with the income from such investment directed to be paid to the widow during her entire lifetime. The will also directed that upon the death of the surviving spouse, the principal of the trust investment be paid to the two daughters who where earlier declared as trustees when the said trust was created.

Upon the death of the decedent, the executors hired a law firm to represent them in the Surrogate court of St. Lawrence County for the estate administration of the decedent.
A few months after, another law firm was retained and both firms worked on the proceedings and the tasks involved in settling the estate of the decedent. Since the decedent was a rich man and had many properties as well as investment exposures in many different corporations, the work entailed among others settling accounts and other transactions needed to facilitate the entire Surrogate court’s proceedings.

A New York Probate Lawyer said when the time came for the two law firms to ask for the payment of their professional and legal fees, they demanded a total of $150,000 minus the advance payment given to them in the amount of close to $50,000. The executors-distributees objected to the professional fees demanded by the lawyers and hence, the court was made to rule on the reasonableness of the demand for the above-stated amount.

In justifying the amount of fees that they demanded, the lawyers presented an outline of the work that they performed for the estate. They reiterated that the decedent had a lot of properties and interests amounting to a gross estate of more than $6 million and the same required them to perform a lot of work in the process. Westchester County Probate Lawyers said that the work they performed is commensurate to the amount of fees that they require and that under the circumstances it is a reasonable representation of their efforts. In further justifying their arguments, the petitioner law firms even presented to the court 2 witnesses who were considered experts on the issues at hand. The experts testified that given the amount of work demanded from the petitioners they are even entitled to a higher amount of professional fees. One witness said they should be entitled to $185,000 while the other said they should be paid $175,000.

Before the court ruled on the issue at hand, it referred to various guidelines concerning legal fees in will contest proceedings from different States. The court also consulted and obtained from the New York State Bar Association the schedule of fees pertaining to estate administration proceedings because the same is also being used as the basis of the local bar association in measuring the amount of fees needed in a particular case. After weighing all the arguments presented by the petitioner, the court ruled that the proper amount to be paid to them as professional fees should only be a total of $50,000 pursuant to section 231-a of the Surrogate Court Act. Suffolk County Probate Laywers said that in so ruling, the court reasoned among others that the legal profession is not a money making trade and that though there are many parties involved in the proceedings, there was no actual estate litigation as it involved only purely settlement and accounting.

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The decedent, a resident of Nassau County died on January 24, 2006 who on October 24, 2003 created the Revocable Trust U/A during which he executed his will now offered for probate. The instruments were drater by the long time attorney who supervised the execution of both documents. Bulk of the assets were transferred to the trust while he was alive, thus, the will is attributed as “catch all” document. The probates estate is counted at $10,000.00 while the trust holds asets is close to $1,000,000.00.

The guardian ad litem for the decedents daughter claims for his services in the amount of $2,828.00, he rendering 7.2 hours which shall be taken out of the estate. The statute governing the compensation of guardian ad litem provides tht fee is payable in the following consideration:

1. the estate
2. the interest of the person under disability
3. for good cause shown, any other party

the probate proceedings involves a will that pours over into a pre-existing inter vivos trust at which the guardian ad litem shall review and invetigate both the will and the trust. Thus, any remainder in the testamentary estate should there be any after everything is bequeath shall be made the source of the funds to pay the guardian ad litem.

A New York Probate Lawyer said it is the ultimate responsibility of the court to approve fees that are charged to the estate and has the discretion to determine what constitute reasonable compensation for legal services rendered in the course of the administration of an estate. It is a settled rule that while there is no clear cut rule in calculating the compensation to an attorney in every case, the court is required to exercise thhe authority with reason, proper discretion and not arbitrarily .

It is a settled rule in jurisprudence that in evaluating the legal services, the court considers the following: 1) the time spent; 2) the complexity of the questions involved; 3) the nature of the services provided; 4) the amount and complexity of litigation required; 5) the amounts involved and the benefit resulting from the execution of such services; 6) the lawyers experience and reputation; 7) the customary fee charged by the Bar for similar services. Additionally, the value of the estate shall be taken into consideration in order to fix the reasonable compensation. Thus, a sizeable estate permits adequate compensation.

NYC Probate Lawyers said herein the court cannot apply only selected factors but should be strike a balance by considering all the elements. Next, a legal fee must commensurate to the probate estate size and to the interest of the ward of the guardian ad litem as well as the time spent by the guardian in fixing the reasonable compensation.

All told, the fee for the services of the guardian ad litem may be charge to a party or to the estate. In legal fee, the value of the services lies on the reasonable value of legal services rendered by the attorney(s) in the case. Contemporaneous time records plays a part and absence of which little weight is given to estmates of time after services has been performed. The same principle applies to guardian ad litem.

In view of hereof, the fee requested by the guardian ad litem in the amount of $2,828.00 is approved and ordered that the same be paid within 30 days from the date of this decision.

Brushing aside ones claim is brushing aside the efforts surrounding the claim. Suffolk County Probate Lawyers said that in order to compensate the effort extended, the certainty in the claim and action instituted shall be clear and unequivocal. New York Estate Litigation Lawyers bears the highest reputation with regard to proving the value of the efforts of guardian ad litem and lawyers reasonable services in cases litigated in any tribunal. Here at Stephen Bilkis and Associates our experienced legal team can ensure that your rights are protected and you legal matter is handled with care.

The last will is accepted for probate but the co-administrator requests a decision to dismiss the objections pertaining to the account of the first daughter of the deceased. The second daughter of the deceased and her co-administrator join in their appeals of while the first daughter opposes the motions. The separate motion submitted by the first daughter seek for partial decision without proceedings on her claim to enforce the terms of the deceased of a prior mutual reciprocal will and an agreement not to revoke it. The co-administrator as well as the second daughter opposes the motion.

The mutual reciprocal will was completed by the deceased and his wife. The couple agreed to leave each other’s one-half of their net estates in trust with the remainder of the trust to be passed on another trust in equal shares to their two daughters. A New York Probate Lawyer said their residuary properties are left in trust with equal shares to their two daughters until the daughters reached the age of thirty-five. On the same date, the couple also completed a separate agreement not to revoke their mutual reciprocal wills without the consent of each other. The agreement further states that it will result to the benefit of their heirs.

The parties agree that there are no factual issues to be determined and that the issue of law to be determined is whether the mutual reciprocal wills and the agreement are valid and enforceable to support the first daughter’s claim as a creditor for a one-half share of their father’s properties. Westchester County Probate Lawyer said that consequently, no trial is needed.

The court records revealed that the wife died before her husband and the mutual reciprocal will was accepted for validation by the court. It is acknowledged that after the wife’s death, neither the spousal trust nor the residuary trusts for the two daughters were established by the husband and the wife’s brother. It is further acknowledged that the husband completed six wills and appendices prior to the issuance of letters of administration. The first daughter signed an agreement to revise the generation skipping trust (GST) established in the appendices as to set aside one-third of the GST and to hold that one-third as a separate fund for the benefit of the first daughter's heir and to sign a consent to validate. Subsequently, in accordance with the agreement, the first daughter signed and delivered a waiver of process and consent for validation of the will.

The co-administrators filed a petition for legal settlement and intermediate accounting showing excess cash on hand. Suffolk County Probate Lawyers said that the first daughter submitted modified objections to justify the claims of being entitled to the deceased father’s mutual reciprocal will and agreement. Being entitled to the said mutual will and agreement gives the daughter a 50% interest of his properties plus 50% of all lifetime gifts and transfers made by the father. The first daughter also filed a claim as a creditor for one-half of the assets based upon the mutual reciprocal wills and agreement which was rejected by the co-administrators. Succeeding on it, the first daughter served her third modifies objections to account. Repeating the aforesaid objections and adding the allegation that the deceased father made lifetime gifts to the second daughter and her children in excess of those gifts made to the first daughter and her daughter. The co-administrators filed replies to all the objections by asserting numerous confirmatory defenses.

It is also acknowledged that while preparing the two later wills, the first daughter accompanied her father to the attorney draftsman's office and that she participated in communications and discussions to the will provisions. The co-administrator argues that in doing so, the first daughter sanctioned the changes which her father made in his subsequent wills. They further alleged that the changes made were inconsistent with the provisions of the mutual reciprocal will and the first daughter in so doing lost her right to enforce the mutual will and agreement. The later will is the same with the previous mutual will, leaving the entire assets to both daughters equally, who by this time were over the age of 35 years. The inheritances to the relatives were omitted in the later will and subsequent wills. The later will leaves certain property equally to the two daughters and the remainder in two equal trusts, one for each daughter, which continue beyond the termination period of the trusts establish by the previous mutual wills. The appendix changes the trustees but leaves the beneficial scheme intact. Therefore, there is no evidence that the first daughter contributed to these wills in any way which would constitute a waiver of her rights under the previous mutual wills and agreement.

The second daughter and her co-administrator have also stated that they were unaware of the mutual wills prior to the death of the deceased father. Their lawyer stated in a letter that they did not know about it. The co-administrators did not provided a notice in the validation petition to the first daughter who is unfavorably affected by the proposed will and appendices by virtue of the mutual wills and agreement. However, it reveals that there is no indication in their mother’s assets proceeding that the first daughter received a copy of the mutual Will. Other than knowledge by public notice of the recorded documents, there is no evidence that any of the parties or the attorneys of the co-administrators actually knew of the mutual wills and agreements until after the death of their father.

The co-administrator asserts that because the first daughter failed to assert her rights under her mother’s will. She should be considered to have waived her claim under her father’s mutual will and agreement and stop from asserting any such rights. They further alleged that the law of limitations on the first daughter’s claim began to run when her mother’s will was validated. However, her mother did not breach the previous agreement stating that any failure to fund the residuary trust was a violation of legal duty of the co-administrators and co-trustees under the will and pertained only to the first daughter's rights in relation to her mother’s assets.

With regards to the first daughter’s motion for partial decision without judgment and asking to enforce the terms of her father’s previous mutual will and agreement is granted by the court. Based on certain facts the motion is granted to the extent that her claim against the assets in relation to her interest in the deceased mutual will and agreement is valid and enforceable. It is further granted to the extent that said claim is in the amount of 50% of the net assets value, together with 50% of the total gifts made by the father to the first daughter, second daughter, the three grandchildren and to others which would defeat the purpose of the mutual wills and agreement, minus the value of the gifts received by the first daughter and her daughter. The exact amount of the claim is to be determined after a full accounting of all the gifts made by the father to his heirs.

The court also ordered that the motion to dismiss the objections of the modified objections is denied. The motion to dismiss the objections is denied in all respects. The motion for partial dismissal in favor of the claimant enforcing the terms of the deceased father’s mutual will and agreement is granted.

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In legal action arising out of a dispute between the individual plaintiff from New York and his stepmother from Florida with regard to the ownership of corporate stock in a New York corporation, the plaintiffs appeal from an order of the Supreme Court, New York County, and a judgment which granted four motion of the defendants to dismiss the action on the grounds of inconvenient forum. The stock in question had been owned by the father of the plaintiff from New York and the husband of the stepmother from Florida. The couple together had owned and managed the corporation for many years. In a will, the husband bestowed to his wife the corporate stock that had been bestowed to the son in a prior will. It was the offering of the August 1980 will for probate in a Florida court. Objections on the Florida validation had been interposed by the son on the grounds that his father had been incompetent and the subject of undue influence by his stepmother that led to the commencement of the lawsuit in January 1983. Although phrased alternatively, and in some respects inconsistently, the six causes of action set forth in the complaint all rest on the essential claim that at the time the father retired from the corporation, he had entered into an agreement with the son with regard to the disposition of his stock in exchange for the son’s promise alleged to have been fulfilled.

The said agreement states that the son would receive stipends for the rest of his life. Summarized briefly, the complaint alleges that the father had promised to sell and deliver his shares to the corporation and in fact did so, and that the corporation should be declared the lawful owner. That if it be found that the father had not delivered his shares in accordance with his agreement the plaintiffs are entitled to specific performance. That alternatively, the father had promised to bestow the shares to his son in a will, which he would not alter until his death, and he in fact made such a will, the revocation of which in the 1980 will constituted a breach of the agreement. That if at the validation proceedings the will is rejected and the father is deemed to have died without a valid will or under a will not containing endowment of the stock to the son, the plaintiffs are entitled to specific performance. That if declaratory or specific performance relief is not granted, damages should be awarded to the son from the stepmother in the amount that had been paid by the father under the stipend agreement because of her alleged tortious interference with the agreement between the father and his son.

Lastly, that the stepmother and several of the other individual defendants, joined together to cause the father to breach his agreement, activities in furtherance of this plan occurring both in New York and Florida, and that the plaintiffs are entitled to damages in the amount of the stipend payments that had been made to the father.

A New York Probate Lawyer said that four of the defendants, represented by the same attorney, moved to dismiss each cause of action on the grounds of inappropriate forum and further moved to dismiss each cause of action alleging lack of subject matter of jurisdiction, another action pending, the statute of frauds, lack of personal jurisdiction, and lack of against jurisdiction. Not addressing any of the other motions, the Special Term dismissed on the grounds of inappropriate forum, placing primary reliance on the circumstance that the August 1980 will had been offered for validation in the Circuit Court of Dade County in Florida, and that objections to that will had been filed by the son. The court concluded that the ownership of the shares would necessarily be determined in the Florida validation proceeding, and that it would therefore be a waste of the court's resources to duplicate the work of the Florida courts. The determination seems to be erroneous. The court are confronted with an action brought by a New York corporation and a New York resident concerning the ownership of shares in a New York corporation, the stock certificate for which, both parties agreed on oral argument, has at all relevant times been located in New York. The said facts alone establish that the action has a substantial nexus with this State. Moreover, it is apparent from the record that events relevant to the issues raised occurred both in New York and in Florida. No plausible basis for an application of inappropriate forum is suggested unless that basis is to be found in the circumstance that a will claiming to dispose of the deceased father’s stock in the corporation was offered for validation in Florida. No authority has been called to our attention in giving such dispositive effect to the circumstance. At the time Special Term entered, its order appealed from was pending. As indicated, a validation proceeding in Florida where objections had been filed by the son, alleging that his father was not competent at the time the will was executed, and that he had been the subject of undue influence.

Although the resolution of those issues would clearly have an effect on some of the contentions presented that might have justified deferring trial of the action until after the completion of the Florida proceedings, it is apparent that the issues presented are essentially different from those that had been presented in the Florida validation proceedings. Westchester County Probate Lawyers said that in any event, those proceedings have been concluded, and the will has been accepted for validation. It may well be that in connection with the estate Florida would have subject matter jurisdiction with regard to claims seeking to determine the ownership of shares of stock that the father undertook in the validated will to bestow to the stepmother. But the fact that Florida courts may also have jurisdiction to determine the issues raised in the action is hardly a basis for concluding that New York is not a convenient forum under the circumstances presented. Moreover, it appears that no proceedings addressing the issues presented have even been commenced in Florida, nor are we informed by any of the parties that they contemplate commencing such proceedings. If indeed an action addressing the issues presented here were to be commenced in Florida, it may be that a question of courtesy would then be presented which would require serious consideration on the basis of all the then relevant considerations. But issues of courtesy that might arise in that contingency scarcely provide a colorable basis for concluding now that New York is not a convenient forum to entertain the action that has been commenced here under the circumstances presented. In view of the determination of a majority of this court to affirm Special Term's dismissal of the action on the grounds of inappropriate forum, an extended discussion of the issues raised by the other motions is not warranted.

Suffolk County Probate Lawyers said the order of the Supreme Court, New York County and the subsequent judgment of that court which dismissed the complaint for inappropriate forum should be modified to the extent of denying the motions to dismiss the third and fourth causes of action as barred by the statute of frauds, and denying that motion as to all other causes of action, and the judgment should be modified to the extent of striking the dismissal of the first, second, fifth and sixth causes of action and reinstating those causes of action, and should be otherwise affirmed.

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

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

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

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

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

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

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

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

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

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

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

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

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.

Last will and testaments are being prepared to avoid issues and confusions from arising in the time of death. Having your name in it signifies the impact you made in the life of that person. It is such an irony that the exact opposite of the intention happens. When you find yourself in such irony, call the experienced lawyers at Stephen Bilkis and Associates.

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.

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

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

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

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

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

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

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

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

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

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.

Contesting a will requires convincing evidence that shows that the will was not validly executed or that the testator had no capacity to make a will. A skilled lawyer is best equipped to give advice and to argue as to how to properly contest a will. At Stephen Bilkis and Associates, our legal team is ready to help you contest a will on legal and evidentiary grounds.

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.
Admitting a will in probate requires meticulous presentation of evidence. A probate Lawyer is trained to present all necessary facts on the due execution of the will, on the testamentary capacity of the testator and lack of fraud and undue influence. The legal team at Stephen Bilkis and Associates is ready to assist you in presenting the evidence to ensure that a will is admitted to probate. Come for a free consultation at any of the offices of Stephen Bilkis and Associates in the New York area.

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.

Cheating when discovered may harm a person’s integrity and cost his finances to pay back what he was withholding.

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

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

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

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

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

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

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

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

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

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.

Credible witnesses are what the law provides for witnesses attesting the wills and testament of a decedent. Their manifestations may injure or protect surviving heirs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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

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

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.

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

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

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

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

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

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

Bessie Schlanger filed an appeal with the Surrogate Court to require payment of a legacy. Ms. Schlanger was to receive 4% of the remaining estate after taxes and fees of Sarah Pasternack. She claims that if the part, which is $10,000, is not paid to her account most likely she will not be able to enjoy any of it. She is saying she is old and needs the legacy. A New York Probate Lawyer mentioned that Ms. Schlanger said the other beneficiaries have received their legacies.

The answer given by the executor of Ms. Pasternack’s estate is that Ms. Schlanger in not entitled to be paid because she violated the terrorem clause of the last will and testament. It stated in the sixth paragraph of the will that if any of the beneficiaries or people mentioned in her will contests or does an act to contest the will, they will forfeit their right the bequest. It further states that if they testify against the probate of the will, then they will lose their right to the legacy. Their part will be, in effect, put back to the remaining interest and shared by the other recipients.

In the response, it is alleged that Ms. Schlanger violated in two ways. She tried to have Ms. Pasternack declared incompetent when she was still alive. This was the first instance. The second instance is in the probate proceedings, where even if she did not appear to contest herself, she conspired with another to have the will disallowed. This, a Nassau County Probate Lawyer maintains, can be considered as a violation to the terrorem clause.

In the conclusion of the competency hearing of Ms. Pasternack, the Court of Appeals dismissed the case. The claim was that the competency hearing was to discredit any will that will be executed by Ms. Pasternack during her lifetime. The court’s ruling on this was it is not in violation of the ‘no contest’ clause. It is because it was done while the testatrix was still alive, and the provisions of the will regarding the contest only applies once the will is already presented in probate.

As for the second reason wherein she is charged of being in cohorts with another person to have the will disallowed. Suffolk County Probate Lawyers found out that son of Ms. Schlanger, Michael Schlanger, filed an objection to the will as a beneficiary of an earlier will. The executor said there should be a hearing that will allow them to present proof of conspiracy between Ms. Schlanger and her son in contesting the probate of the case.

In a letter submitted by Ms. Schlanger, she says that she said that she did not violate the terrorem clause of the will. She said she did not file objections, did not actively prosecute a contest and did not testify as a witness. For this case though, the court says that they will consider her as have acted in concert and conspiracy with her son. While the son was the main party, the court considered her as the real challenger of the will. In Page on Wills, the rule states that 'A beneficiary who procures and obtains another heir to institute proceedings to contest a will, forfeits his interest under such a condition.' The court is not assuming that Ms. Schlanger really did the said act as it can only be determined by a hearing. The court is following the rule that they must consider the facts of the allegation as being done even if it is improbable. These allegations are deemed true. They set a hearing for the issues raised, and the petition for payment was denied.

A scrupulous legal counsel would plan all actions by a beneficiary who would want to get what should be for them. They would know from the start what actions they would take and what consequences may arise if it is done. They would have prepared for such consequences or avoided them.

For sounds legal guidance, speak to Stephen Bilkis and Associates. Our lawyers ensure that before they make a step with you regarding your concerns they have already checked on everything. You can get a free consultation for any case in New York or Long Island by calling 1-800 NY - NY- LAW.

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" »

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

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

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

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

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

The affidavits will be carefully scrutinized by the court. It will not be examined for as long as there are unexplained suspicious circumstances. In this case, the proponent submitted applications that showed he will be receiving more of the will goes into intestacy or going without a valid will. It appeared, however, that the daughter of the proponent, the granddaughter of the decedent will receive a substantial amount that is more than what she will receive in intestacy as she is not considered as an heir to the estate. The court then granted the request of the daughter to examine the proponent with regard to any matter regarding the will.

Continue reading "Court Rules on Will Contest Proceeding" »