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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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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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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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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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.

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In January 13, 2007, the father died survived by 11 children: three from the first marriage, four from the second marriage and four alleged non-marital children. The purported will was offered for probate benefits only one child from the first marriage, Angela Manning, who inherits the entire estate and named executrix.

Allegedly, in June 24, 1996, the deceded executed his will. In that he underwent a DNA tests in 2005 and 2006 which revealed that he is the biological father of the claimants who were born long before the execution of the decedent’s will. They claim that the only the non-marital children known or acknowledged after the execution of the will shall be presumed to be inadvertently disinherited as an after born child with whom the same right shall be extended.

Normally, a child is entitled to after born rights if born after execution of the will. There is no exception to this rule other than for a child adopted after the execution of a will, though born previously.

A New York Probate Lawyer said that the statute is unequivocal and thus creates a presumption for a testator who may have inadvertently omitted a child born after he executed his will. If he gave something to existing children and the after-born is neither provided for nor mentioned in the will and unprovided for by some settlement, the after-born shares in the gift to existing children . This statutes speaks of a child born after the execution of a will.

Jurisprudence provides otherwise but this was amended thereby stating that a non-marital child, born after the execution of a last will shall be considered an after-born child of his or her father where paternity is established. Westchester Probate Lawyers said this took effect only after the death of the decedent but clearly that it supersedes all other laws.

The amendments restricts the non-marital childs entitlement to a non-marital child, born after the execution of a last will. Thus, this Court cannot deviate from the language of the law and cannot accord other meaning other than what the statute provides. The Court shall not exceed its authority beyond what the law provides. Thus, under the after-born statutes, claimants has no rights.

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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.

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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 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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An American citizen domiciled in France died leaving behind bank accounts in New York worth less than $1,000.00, real properties worth a few hundred thousand dollars in France and almost a million dollars worth of money and personal property in Switzerland. At the time of his death he was married to a French national and they had one minor child. Prior to his death in 1972, the decedent executed a will sometime in 1970 in New York and this same will was presented for probate by two persons who were not main parties to the case. The New York will stated that half of the entire estate of the decedent must go to the wife and the other half should be held in trust in favour of the minor child. The will specifically directed that the same should be probated in New York.

It was also learned that aside from the will executed in New York, the decedent also executed a deed of donation which will specifically take effect upon his death. This deed of donation was executed in 1972, or 25 days before the death of the testator/Donor and in front of a notary public in France. The deed directed that all the estate of the testator be disposed and transferred in favour of the surviving spouse with a proviso that the minor child’s legitime be protected under French law. The deed of donation then is contrary to what the 1970 New York will provides.

Upon the death of the decedent, a proceeding was instituted in the court of New York for the disposition of the properties of the decedent according to the will executed in New York and at the same time a litigation is also pending and awaiting trial in France disputing the validity of the deed of donation. A New York Probate Lawyer said the proponents of the New York proceedings argued that the New York will should be given preference and that New York law should be applied in distributing the properties of the decedent. They also brought to the attention of the court that there was a pre-nuptial agreement between the spouses limiting the share of the wife to $10,000.00 in case of the husband’s death and that there was agreement between them that the laws of New York should be applied in the distribution of his estate.

The widow filed a motion to contest the proceedings in the New York court arguing that for the proper settlement of the estate administration of the decedent, it is more convenient for the French court to take cognizance of the same and not the New York court. The widow believed that the French court is more convenient and would be in a better position to rule on the case.

In ruling on the proceedings initiated and the motion filed by the widow, the court declared that under the circumstances, the French court is the proper forum to hear and try the estate litigation. Westchester County Probate Lawyers said the court stated that the validity of the New York will can be better determined by the French court and this is because there is already a trial about to be commenced in that jurisdiction. To court stressed that since a trial is about to start in France regarding the validity of the deed of donation, then the matter regarding the will contest or validity of the New York will must be submitted before the French court rather than commence a simultaneous proceeding in New York and France.

The court also elaborated that although the decedent is still an American and has not renounced citizenship, he nevertheless never maintained any residence in the country and that the only address that he has was the one that he used in opening an account with Chaste Manhattan Bank and which address is not actually in New York but in another county so therefore New York County has no jurisdiction to begin with but it should be with Queens County which was the address that he used with his Chaste Manhattan accounts. NY Probate Lawyers said in view of the foregoing, the court ruled in favour of the motion filed by the widow and the motion to dismiss the probate proceedings was granted.

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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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An American citizen who was a successful business man in New York got married to a French woman and thereafter bought a home in France where he lived together with his wife and daughter. Every now and then, he comes back to New York to look after some concerns about the business that he sold particularly because the said payment has not been fully paid. Whenever he was in New York, he would stay from time to time in a Flushing apartment which was especially provided to him by the corporation that he previously owned before selling it to his business partner.

It was also in New York that he executed a will in 1970 covering his estate and stated that the said will must be probated in the courts of New York when the proper time comes. Embodied in the will are provisions ceding to his wife all his personal properties and personal effects as well as a weekly allowance. The will also provided for an allowance to his brother which would come from the residuary trust. The daughter of the testator was also provided in the will and she was supposed to receive the income from a trust fund up to the time that she reaches the age of 35. He named as executor his long-time business partner for whom he sold his entire business interest in New York.

A New York Probate Lawyer said a few weeks before the death of the testator in 1972, he also executed before a French notary public, a deed of donation. Said deed of donation is in the form of inter vivos donation which will take effect upon the death of the donor. In the said Deed of Donation, he is leaving the entire estate administration and ownership to this wife subject to the condition that if there be children of the donor at the time of his death, then the wife as donee shall determine the right amount to be given to said children subject to the rules of the applicable law when that time comes.

When the testator died a few weeks after the Deed of donation was executed, he left money in the form of cash and securities in a Swiss Bank, real properties in France, and almost a thousand dollars in bank deposits in New York plus the balance that has to be paid to him by his business partner for the sale of the company that he started in New York. Westchester Conty Probate Lawyers said the business partner who was also made the executor of the will that was earlier executed started the proceedings for the probate of the will of the testator in New York County. The widow opposed the said institution of the proceedings for the settlement of the properties of the decedent alleging that the testator though an American citizen is already domiciled in France and as such, French court and law should be applied.

The Surrogate court of New York ruled in favour of the wife declaring that the allegations of the wife have merit. It argued further that even though the decedent continuously used New York as his address, there was no clear indication that he really intended to use the same as his domicile. Moreover, New York City Probate Lawyers said the court also opined that the very small bank account left by the testator in a New York bank is insubstantial to be considered as enough for it to assume jurisdiction and since there is also an estate litigation pending in a French court regarding the same properties left by the decedent, the Surrogate court deemed it proper that the decision be made by the said French court instead.

Upon appeal, and taking into consideration all the facts presented regarding the actions made by the decedent prior to his death, the higher court declared that indeed the decedent, although still an American citizen, nevertheless by his acts adopted France as his place of domicile. This is supported by the fact that he no longer own any properties in New York save for a small bank account that is worth just a few hundred dollars. Therefore, the French courts have jurisdiction to rule on the will contest initiated by the assigned executor of the decedent.

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A man who was born and raised in Brooklyn died and survived by two grandchildren. For many years, the deceased and his wife lived in Florida where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona where his grandson lived. They were living in Phoenix when the deceased man’s wife died. The deceased remained in Phoenix until he moved to New York in late September 2005.

While living in Phoenix, the deceased executed a will, which left his estate to the trustee. On the same day, he executed a trust agreement creating a revocable lifetime trust. Under the terms of the trust, the property passes to the grandson upon his grandfather’s death.

In 2005, the deceased called his sister and told her he wanted to return to Brooklyn to live with her. The sister and her daughter visited the deceased on September 27, 2005. At that time, the deceased was 95 years old and suffering from cardiac problems. The deceased asked his sister to take him back to Brooklyn to live with her.

According to the sister, the deceased told her that he wanted to change his will, his revocable trust and his health care proxy before boarding the plane. A New York Probate Lawyer said that when they travelled to New York, the deceased visited the offices of a law firm in Arizona and asked the firm to change the beneficiaries of the 2004 will and trust. The deceased executed a new will which is an amendment of the 2004 trust and health care proxy. The 2004 trust was amended and provides that upon his death, his sister receives one half of the trust principal, his granddaughter will receive three eighths of the trust principal and his grandson will receive one eighth of the principal. The deceased then left immediately for the airport leaving his belongings behind to travel back to New York that day.

That same day, the son filed an emergency petition for his appointment as conservator and guardian of the deceased. He alleged that the deceased had been taken from his house by church members. Westchester County Probate Lawyers said the proceeding was partial. Based upon the grandson’s testimony, the Arizona court granted his petition, appointed him as temporary guardian of the deceased and determined a pending hearing on whether a permanent guardian should be appointed.

Shortly after arriving in New York, the deceased was hospitalized for surgery for a blood clot on his leg. The granddaughter had a petition prepared for the appointment of a guardian of the deceased man. Meanwhile, the Arizona attorney who drafted the 2005 will was served with a petition demanding to deliver the deceased to Arizona. New York City Probate Lawyers said in response to the turnover petition, the deceased submitted an affidavit stating that he was residing in Brooklyn and listing his sister’s address as his residence.

The Mental Hygiene Law petition was filed in the Supreme Court, Kings County. A court evaluator was appointed by Kings County court and interviewed the deceased. The deceased died on December 4, 2005, before either proceeding could be concluded.

According to the affidavit in support of petitioner's motion, the petitioner's attorney filed a petition to probate the 2005 will. The petition stated that the deceased was a resident of New York. The validation clerk accepted the petition and the filing fee and made an entry in the minute book. No file number was issued on the pending review of the petition. On December 8, 2005, the attorney was notified in writing that the petition was not accepted for filing because there was insufficient proof of New York residence. The check for the filing fee was also returned on the ground that the check had alterations. On December 14, 2005, the attorney submitted a replacement check for the filing, also submitted was a copy of the deceased man’s affidavit of residence filed in the Arizona conservatorship proceeding, stating his residence as Brooklyn, New York, and an attorney's affirmation on the deceased man’s residence.

On December 16, 2005, the grandson filed a petition to validate the 2004 will in the Maricopa County Court of Arizona, claiming that the deceased was a resident of Phoenix Arizona. On December 20, 2005, the attorney's affirmation on residence of the deceased was rejected because it was based upon information and belief. The petitioner filed a copy of the court evaluator's report, stating that the deceased told the evaluator that he was happy to be back in New York and did not want to return to Phoenix, Arizona. On January 31, 2006, the validation clerk issued a file number for the validation proceeding.

On February 1, 2006, the grandson filed objections to the validation of the 2005 instruments in Arizona. The objections deny that the will was executed in accordance with the formalities of law. He also claims that the deceased lacked the capacity to execute a will and that the will was executed by mistake and its execution was not freely made but a result of undue influence, duress and fraud. In addition, the objections claimed that there was a prior proceeding pending in Arizona to the validation of the 2004 will and that the Kings County New York court lacks jurisdiction on the subject matter.

The petitioner moved for preliminary letters of administration and a determination on the petition to the validation of the 2005 will filed in the Surrogate's Court of Kings County. The grandson filed an affidavit in opposition which claims that the court should dismiss the motion and presumably, the proceeding on the grounds that the court lacks jurisdiction on the subject matter and there is a prior pending proceeding in Arizona.

The law provides that a party may move for a judgment dismissing one or more causes of action against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States. The court need not dismiss upon this ground but may make such order as justice requires.

In Surrogate's Court, all proceedings are special proceedings commenced by the filing of a petition. In addition, the law provides that a proceeding is commenced with the filing of a petition, provided that process is issued and the service required on all respondents is completed within 120 days. While the law expressly provides that the date a petition is filed is used for purposes of statute of limitations questions, the date a petition was filed has been used to determine when a proceeding was commenced in other situations.

The law expressly provides that filing must be accompanied by the appropriate filing fee. The Court of Appeals has indicated that the payment of a filing fee is jurisdictional. There appears to be split among the departments of the Appellate Division on the issue of payment of a filing fee, with a majority holding that the tender of the filing fee is jurisdictional, so that the failure to pay the required fee renders the filing fatally defective.

In the instant case, the petition was filed on December 6, 2005. Papers are filed upon their physical receipt by the court clerk. The clerk accepted the petition but did not issue a file number or record its filing until a supplemental affidavit of residence was filed. The petitioner submitted a supplemental affirmation of residence on December 14, 2005, but it was rejected by the clerk because it was executed by the petitioner's attorney upon information and belief. It was not until the petitioner filed a copy of the report of the court evaluator that the petition was accepted and a file number issued. By then, the grandson had initiated a validation proceeding in Arizona.

Whether the Arizona proceeding was filed first depends on whether the New York proceeding was initiated upon filing the petition on December 6, 2005 or upon being accepted by the validation clerk on January 31, 2006. In turn, it depends on whether the requirement that the petitioner establish the issue residence by the supplemental documents was jurisdictional. The analysis starts with the fact that the petition filed on December 6, 2005 in New York conformed to the requirements of the law and was in its proper form. The allegations in the verified petition are legitimate proof of the facts asserted until denied by an answer, objection or other proof. Therefore, for purposes of obtaining jurisdiction on the subject matter, the allegation that the deceased man was a resident of New York creates a legitimate proof showing of subject matter jurisdiction, subject, of course, to rebuttal.

The result is not affected by the fact that the validation clerk in Arizona required a supplemental proof of residence. Whatever the basis for the requirement of additional proof of residence, furnishing such proof is not required by the law. Therefore, the requirement is not jurisdictional and does not affect the filing date of the petition.

However, the failure to tender the filing fee in proper form may be a jurisdictional defect.
The law has no corresponding provision. It does provide that upon filing a petition for validation, the clerk shall charge and receive a fee as determined. Upon receiving the petition and fee, the clerk accepts the papers for filing and issues a file number. Therefore, it is not clear whether the tender of the filing fee is jurisdictional. The Court held that the failure to pay the required recording fee did not render the filing of a notice of election untimely. In the instant case, the court need not determine whether the improper tender of payment rendered the filing void. A replacement check was accepted on December 14, 2005. The act of replacing the check as payment cured the defect. Using either date, December 8, 2005 or December 14, 2005, the New York proceeding was filed before the filing of the validation petition in Arizona on December 16, 2005. Based on the above, the court determines that the New York validation proceeding was initiated by December 14, 2005. Accordingly, the grandson’s application to dismiss the said proceeding on the ground that there was a prior proceeding pending in Arizona is denied.
The claim that the court lacks subject matter jurisdiction depends on whether the deceased man established residence in New York State. The matter requires a hearing. Since the validation proceeding in New York was filed first, principles of orderly administration of justice and conservation of judicial resources mandate that the New York court should hold the hearing on determining the issue of residence of the deceased.

Since the validation proceeding in New York was filed before the one in Arizona, the court should hear and determine the residence of the deceased. Accordingly, the application to dismiss the proceeding on the ground of lack of subject matter jurisdiction is held in temporary suspension pending a determination of residence.

A person’s undecided residence should not cause disputes over his surviving family. Since he may not be around to express himself, the Court would be the only place where such issues can be put to rest. In times like this, you can call an experienced lawyer at Stephen Bilkis and Associates.

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

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

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

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

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

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

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

Disputes over properties and residency seem to always go hand-in-hand. Different States and different countries have distinct laws. In times of legal disputes, you can consult a skilled lawyer at Stephen Bilkis and Associates. The dependable team of lawyers will guide you all throughout your journey in solving your legal issues.

On December 1, 1988, a resident of Fulton County, 82 years of age (referred to as the “decedent”), died in Spartansburg, South Carolina. He was survived by a brother who is the only distribute. At exactly two weeks before the decedent’s death, he executed a last Will and Testament (referred to as “the will”) on November 17, 1988. The will excluded the brother but included two strangers, whom they are not related to by blood, who reside in South Carolina. The will was attested to before three witnesses, all of whom reside in South Carolina. Subsequently, by reason of the brother’s exclusion as an heir, the brother then objected to the probate of the will or made a will contest and demanded an examination of the attesting witnesses (a probate is the legal process of administering the estate or estate administration of a deceased person by resolving all claims and distributing the deceased person's property under the valid will - source: Wikipedia). Thus, estate litigation ensued.

Now, where should the examination be held and who must bear the expense of such examination?

The proponent (supporter of the will) claims that once the decedent's will is presented to the court with an affidavit of the attesting witnesses authorized by SCPA with the requirements having been met, the burden of compelling the production of the attesting witnesses is upon the party seeking to depose such attesting witnesses. A New York Probate Lawyer said the proponent refers the court to Powers, Supplementary Practice Commentaries, that " * * * the duty of compelling the attendance of a witness [is imposed] upon the party seeking the examination", and it refused to direct the proponent to produce the witnesses for examination.
The contestant (opponent), on the other hand, claims that the proponent must produce the witnesses to be examined prior to the trial and that it is the proponent's responsibility to produce the witnesses in New York State or to pay the expenses of a commission held outside of the State of New York.

The court held that in a probate proceeding, the proponent must proceed to prove the will by the examination or affidavits of the attesting witnesses. New York City Probate Lawyers said that before admitting a will to probate, the Surrogate's Court is required by statute to inquire particularly into all the facts and must be satisfied with the genuineness of the will, the validity of its execution, the competency of the testator in all respects to make a will at the time of executing it, and the freedom of the testator from restraint at the time of executing it. Such inquiries must be made whether or not there is opposition to the probate of the will. Moreover, the consent alone of all interested parties is not sufficient to admit a will to probate. By statute, the Surrogate must still be satisfied as to the genuineness of the will and the validity of its execution. Generally, where there is no contest, or where the issuance and service of process has been waived by all the interested parties, who are of full age and sound mind, the court will not go beyond the testimony of the attesting witnesses. Here, however, objections have been filed and a full inquiry by the court will be required.

Fees and reasonable expenses of a witness must be paid by the party seeking the examination. At least two (2) of the attesting witnesses must be produced before the court and examined if they are within the State and competent to testify. Westchester County Probate Lawyers said but where the witness is hostile and recalcitrant, the contestant should bear the burden of subpoenaing the witness and paying the witness fees, with the understanding that if the contestants were successful in setting aside the probate of the decedent's will, the court would entertain an application to fix the cost of the examination as a disbursement of the estate.

It is the duty of the court to inquire into all of the facts and circumstances and would require production of the statement whether or not requested by proponents in order that all relevant facts would be before the court.

Where the witnesses to be examined do not reside within the State of New York, obviously it will not be possible to compel their appearance before the Surrogate either by means of a subpoena or by service of the order of the Surrogate. The nonresident witness is then required to submit to oral examination in North Carolina, the cost of which had to be borne by contestant only because the witness had previously been made available by the proponents. It was the duty of the proponent to take out a commission to take the testimony of the subscribing witnesses.

In conclusion:
1. The proponent can be compelled to take the testimony of the subscribing witnesses or other witnesses out of State by commission;
2. In taking the testimony there by commission, in any form, the testator's estate must, in any event, bear the expenses of the preparation of the commission, the fees of the commissioner, stenographer and of any non-resident counsel to assist the proponent;
3. The proponent has the election to take the direct testimony supporting her case either on interrogatories or by an open commission;
4. The party demanding a preliminary examination of such witnesses as proponent may call before the commissioner and has the option of having his cross-examination taken at the expense of the estate as to the fees of the commissioner and stenographer by an open commission, or upon interrogatories; and that contestant must bear the expense of preparing any interrogatories he may have submitted, and any non-resident counsel fees and his own traveling expenses;
5. That if the contestant calls before the commissioner any witness whom the proponent is not obliged to call and does not call, the contestant shall bear the proportionate expense of the fees of the stenographer and commissioner for taking the testimony of such witness.

The passing of a loved one is already difficult and being involved in a lawsuit could be much more painful and tough to bear. The agony of going through the whole process is unimaginable. That’s why a skilled lawyer could help ease the pain by holding most of the burden for you. At Stephen Bilkis & Associates, with convenient offices throughout the New York Metropolitan area, you are protected. We have lawyers who are skilled in the field and can help you in any situation. We assure you of quality service and that we are worth every penny spent.

A man and wife were married and had three sons. One of the sons had a disability that required lifetime care. The couple divorced in 1985 and the man was ordered to pay support of $100 weekly. The man failed to pay support and the woman obtained a judgment for $7,000 in support arrears. The couple remarried in 1986 but divorced again in 1988. The man was ordered to pay support of $60 weekly. Again he incurred arrearages. In the second divorce decree, the man and his first wife agreed that the first wife and their disabled son will live in the house rent-free until their death.

The man married another woman with whom he had a daughter. When the man died, he left an estate comprising of an interest in a house co-owned by him and his ex-wife. His ex-wife owned the other half interest in the house. He left his entire estate to his minor child from his second marriage and appointed his second wife as executrix of his estate. His second wife succeeded in having her husband’s will admitted into probate and she was issued letters testamentary as executrix of her husband’s will.

The first wife died before the husband. In her will, she gave her disabled son a life interest in her half of the house. And when her disabled son dies, her half interest in the house will go to her two remaining sons.

Upon the death of the husband, a New York Probate Lawyer said the estate of the ex-wife presented a claim for unpaid support. The executrix of the estate of the deceased husband presented a claim for unpaid rent. Before the court, in order to settle the issue, the estate of the husband agreed to sell the half interest of the husband to his sons from the first marriage.

Evidence was introduced that the house’s value was $155,000. The second wife who was the executrix of the man’s estate agreed to sell the half interest of her husband to his sons from the first marriage for the amount of $70,000.00. The son from the first marriage agreed to send a check for that amount.

The check was issued in the name of the second wife. NY Probate Lawyers said the lawyer for the second wife refused to accept the check payment because it was not in his name as they had agreed upon in court. The son paid the check directly to the second wife who deposited it into her own personal account instead of depositing it in court as it is an asset of the estate which belonged to the minor child of the man with his second wife who was bequeathed the entirety of her deceased father’s estate.

The second wife now wants to void the stipulated settlement and she wishes to reinstate all her claims for unpaid rent on the house.

The only question in this part of the appeal is whether or not the second wife’s action to vacate the court settlement can be given due course. The guardian for the minor child who was her father’s sole heir filed a motion for contempt against the second wife of the man.

According to Westchester County Probate Lawyers, the Supreme Court ruled that the court settlement is binding and that the second wife’s actions in taking money belonging to the estate and depositing it into her account was full acceptance of the settlement paid by the sons from the first marriage.

First, the court settlement was binding. The court inquired of the second wife whether she heard the terms of the stipulation and she said that she did. She was asked if she agreed with the stipulation and she said that she agreed with it. She was asked by the judge if her agreement is of her own free will and she said that it was. The court then asked if any force or duress was exerted on her to obtain her consent and she said no.

From all this, the Court ruled that the court settlement was a valid and binding agreement between the two estates ( the estate of the husband and the estate of the wife).

It is clear then that the check which the second wife obtained from the estate of the first wife was the payment called for in the settlement. The check belonged to the estate of her husband and should be distributed to their minor child.

Her act in depositing the amount into her account was a violation of her duty as fiduciary of her husband’s estate. It was an act that violated the trust reposed on her by the court and by the estate to gather the properties and assets of the estate for the benefit of the beneficiary, the minor child. But her acceptance of the sum and that she has used it in support of their minor child is evidence that she has no longer any right to vacate the settlement she had already benefited from.

Executors are bound by a duty to advance the interest of the estate they are called to administer. If they fail in this duty, those beneficiaries of the will may file an action against the executor of the will. In doing this, you will need the service of an attorney who can present facts evidencing the failure and disqualification of the testator. Call Stephen Bilkis today for advice and a free consultation.

A 91 year old man died in a nursing home in Westchester County on December 10, 2003. He was survived by his three children: a daughter and two sons. His will provided that his real property in Suffolk County be devised to his daughter; he bequeathed the amount of $50,000 to his youngest son and lastly he bequeathed his residuary estate and personal properties to all his children in equal shares. He also provided that his bank accounts which were held jointly by the 91 year old man and his children shall form part of the estate assets and shall not pass to his surviving co-depositor.

The will was executed before the testator’s long-time lawyer and his office assistant. Both the lawyer and his office assistant were attesting witnesses to the will.

In 2004, the eldest son objected to the probate of his father’s will on the ground that the will was procured by his sister with fraud and undue influence on their father. He also testified that the letters testamentary issued to his sister be revoked as she had caused around $300,000 to be withdrawn from their father’s account and transferred to her own personal account.
Both the sister and the older brother applied for the issuance of letters testamentary. A New York Probate Lawyer said that the Surrogate’s Court urged the parties to stipulate to the temporary appointment of a public administrator.

The older brother asked that he be allowed to examine the attesting witnesses to the will to determine the due execution of the will. According to Westchester County Probate Lawyers he also asked that the lawyer who prepared the will be required to produce certain documents that will prove the extent and value of his father’s estate at or around the execution of the will. He also asked that his sister and her husband be summoned to produce documents referring to the transfer of funds from their father’s estate to his sister.
The lawyer and the brother-in-law refused to appear and be examined and they also refused to bring certain documents. The lawyer claims that attorney-client privilege prevents him from disclosing documents and transactions of the testator. The brother –in-law refused to comply because he was not a party to the probate petition and cannot be made to appear and participate in the proceedings.

The Court held that disclosure of information is required when the information sought is material and necessary to the issue in the case. Disclosure in probate proceedings is broad and it allows the court to inquire into matters which form the basis of an objection to a will.

In this case, the older brother has shown that there are special circumstances not only to examine witnesses but also to require the production of documents relating to the properties and assets of the estate. NY Probate Lawyers said the lawyer and the older sister cannot claim refuse since they enjoyed a confidential relationship with the testator. This confidential relationship is what is claimed to have been abused by them to thwart the wishes of the testator. As things stand, the documents and information sought to be obtained are not only relevant and necessary, but they are also cannot be obtained from any other source. For this reason, the lawyer, the older sister and her spouse are ordered to comply with the disclosure requirements and to bring to the Court the documents enumerated in the subpoena issued to them.

The job of an attorney in contesting the probate of a will requires an interested person to obtain information through documents and through testimony regarding the testamentary capacity of the testator. A attorney can also help find documents that will prove the extent of the estate and its properties. Contact Stephen Bilkis and Associates for guidance and a free consultation.

A man married his same-sex partner in Canada in June 2008. He then executed a last will and testament two months later on August 12, 2008. In that will, he made three bequests to his three brothers and he also made a bequest to his goddaughter. He left the residue of his estate to his same-sex partner. He named his same-sex spouse as the executor of his estate.

In December 2008, the testator died. His same-sex spouse, who was also named executor of his will filed the petition for probate of his deceased spouse’s will. He served the three brothers and the goddaughter with notice of probate. In his petition, he claimed that he is the surviving spouse of the testator and the sole distribute.

Three days after filing the petition for probate, the Surrogate’s Court of New York granted the petition for probate without issuing citations.

In its ruling dated January 26, 2009, a New York Probate Lawyer said the Surrogate’s Court granted the petition for probate and also issued an opinion where it named the same-sex spouse as the testator’s surviving spouse and sole distributee. The Surrogate’s Court opined further that since the person petitioning for probate of the will is the surviving spouse and sole distributee, the Surrogate’s Court does not need to issue a citation to anyone else. In that opinion as well, the Surrogate’s Court found that the testator’s marriage to his same-sex spouse is considered valid in New York because it is a valid marriage in Canada. The Surrogate’s Court then recognized the same-sex marriage as a valid marriage for the purpose of distributing the estate to the surviving spouse of the testator.
Five months after this ruling was issued by the Surrogate’s Court, the brother of the testator appealed this opinion and ruling of the Surrogate’s Court. He asked that the ruling admitting the will into probate be vacated and that he be allowed to file objections. He asserted that the Surrogate’s Court had no jurisdiction to grant probate without issuing citations to the testator’s surviving brothers. He also asserted that the Surrogate’s Court has no jurisdiction to recognize the same-sex marriage of the testator to the executor as a valid marriage because same-sex marriages violate public policy.

The Supreme Court upheld the Surrogate’s Court’s ruling. Westchester County Probate Lawyers said it ruled that since the will’s only distributee is the same person who prayed for the admission of the will into probate that alone is sufficient to admit the will into probate. And further, the same-sex spouse of the testator was correctly declared to be the surviving spouse.

The laws of New York recognize marriages which are celebrated in other states: if a marriage is valid in the state where it was celebrated then it shall be recognized as valid in New York. The only two exceptions to this are: that the marriage is contrary to the prohibitions of natural law or the express prohibition of a statute. New York City Probate Lawyers said that since the same-sex marriage is not prohibited by natural law ( as when the marriage is incestuous) and there is no express prohibition of same-sex marriage in New York (no law in New York prohibits same-sex marriage), then the Surrogate’s Court was correct in holding that since the same-sex marriage celebrated by and between the testator and the executor in Canada is considered by Canada as a valid marriage, then New York must also consider it as a valid marriage. Accordingly, the ruling of the Surrogate’s Court admitting the will into probate is upheld by the Supreme Court.

Contesting a will is difficult and it may involve the application of the rules on marriage as in this case. You need a lawyer who can help you contest a will on all available grounds. Stephen Bilkis and Associates are available for consultation. They can inform you of your legal options so that you can make an informed choice.

A will was written, signed, attested, to conform to the legal requirements of law on probate. The testator’s intention to give his estate to his heirs was set. The presence of competent witnesses to a Notary Public was noted.

Children of the decedent who acted as respondents moved to force the surviving spouse, the lawyer-drafter of the will and the accountant of the decedent to reproduce the original and/or photocopies of earlier wills. Original photocopies of the letters between decedent and the attorney-drafter and the unrevised photocopies of notes taken by the lawyer during two separate in-private meetings with the decedent was subject of the probate.

A New York Probate Lawyer said th decedent’s children believed that those documents controlled by decedent’s wife were material pieces of proof. Testator’s wife was unwilling to disclose the true and original wills and testament. Children alleged that the agenda of several private meetings held and organized by decedent’s wife, probate lawyers and the accounts have something to do with the fraudulent wills contested in the estate litigation courts. The party attempted to collaborate the outcome of estate proceedings in their favor.

In opposition to decedent’s children motion, decedent’s wife, his lawyer, and accountant alleged that they were unable to find any previous will even after exhaustive search. Decedent’s wife promised respondents that they would provide them a copy if the same will be available in the near future. They assured them of continued careful search.

In responding to the allegation of private meetings to defraud the estate the estate administration courts in bringing in false wills and testaments, decedent’s lawyer-drafter, the surviving wife hereby make a plain and clear statements that those meetings were indeed business meetings of her exclusive properties, as she also hired the services of the drafter for her. There existed lawyer and client relationship with her and the lawyer. It was proper to hold several important meetings to plan the possible valid action they take in case decedent property right was injured. Executors contended that the lawyer who drafted the will represented both decedent and surviving spouse, in connection with their arrangement on estate disposal plan. They proved to have confidential communications concerning plans of disposing the estate of the wife.

The children further alleged that those communications concerning wife’s plan and estate plans and assets were the subjects of revision of documents in question. The contents of those communications concerning wife’s plan and assets were the subject of the edited materials and were therefore, privileged, pursuant to the attorney-client privilege afforded by law, and not to be find out by third parties.

The wife’s party moves for a protective order of the law concerning the alleged privileged redactions.

Although children further argue that the executors’ response to their discovery demands was untimely, service of a notice of motion for a protective order suspends disclosure of the particular matter in dispute.

The time limitations of law did not apply where the material sought were claimed to be privileged or where discovery would be palpably improper.

The documents sought in this matter were alleged to be privileged, and thus children’s reference to law was misplaced and the executor’s motion for a protective order was timely and proper.

In actions involving the probate, validity, or construction of a will, an attorney or his employee were required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but they were not allowed to disclose any communication privileged under which would tend to disregard the memory of the decedent.

Decedent’s children contended in their motion that these documents were not privileged as they contain information pertaining to decedent and his will that the executors were required to disclose. Westchester County Probate Lawyers said that ordinarily if a party objects to a discovery demand, that party was to serve a response which states with reasonable particularly the reasons to each objection. If objection was made to part of an item or category, the part was to be specified.

Here, the executors objected to certain disclosures, by use of redactions, but failed to state the reason for such; providing materials in redacted form with a brief mention that documents attached were redacted does not constitute as a valid reason for an objection.

The executor’s opposition to decedent’s children’ motion was supported by the drafter of the will’s sworn statement, affirming that his correspondences and notes were redacted to preserve the confidential communications between the drafter and decedent’s wife, and between the drafter and decedent wife’s estate plans and assets. Probate lawyer’s affirmation substantiated the existence of facts upon which the motion was based, as it was the drafter’s own writings that was redacted.

When a claim of privileged were presented, it may be advisable to conduct an in camera review of documents claimed privileged. New York City Probate Lawyers said the court may deferred determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it does not affect substantial rights.

Surrogate courts based their judgment on the weight of proof substantiated. As this will be used in determining by the surrogate judge proof and material grounds for belief that the same conveyed reasons set, as in camera review of said materials, in un-redacted from, is necessary.
The law established the requirements for a privileged document log when a party seek to claim an attorney-client privilege. The estate administration courts have recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, to aid the courts in its assessment of a privilege claim and enable it to undertake in care review of documents claimed to be privileged.
Estate litigation courts deferred determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it did not affect substantial rights. They established the requirements for privileged document log when a party seek to claim an attorney-client privilege.

The probate courts have recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, to aid the courts in their assessments of the privileged claim and be able them to undertake in camera review.

The executors failed to provide a privilege log to explain the redaction. Merely responding with boilerplate claims of privilege, without a privilege log as required by law was sufficient as a matter of law. Although estate courts privilege claimed without further explanation by the executors as the redacted material, which may be accomplished through an in camera review of said materials.

Respondents argued that the attorney-client privilege did apply because the correspondence was addressed solely to decedent, regarding his estate plan, and the meetings between decedent and drafter-lawyer to take place in the presence of their parties. The executors alleged that the redaction to each documents were made in order to preserve the confidential communicational between the drafter-lawyer and wife.

Concerning wife’s estate plan and assets, redaction were made on the correspondence and attorney notes. The two-piece of correspondence consisted of letters addressed solely to the decedent and signed by drafter-lawyer. The letters were marked personal/confidential. The first sentence of each letters stated, “the following was a summary of estate plan which had been revised”. The contents of the letters seem to relate directly to decedent’s testamentary plan.
The estate administration courts cannot decipher the unknown, and an in camera review of these letters in un-redacted form was required to determine whether wife’s estate plan and assets were discussed in either letter and if the attorney-client privilege attached.

Decedent’s children argued that the presence of decedent, and nominated trustee, accountant to decedent, waived the attorney-client privilege. The attorney-client privilege attached to confidential communications between an executor and an attorney, to the exclusion of third persons, including beneficiaries of the estate. The presence of a third party during the communication between the attorney and the client indicated that the communication was not confidential. In such a case, the privilege did not attach.

However, when the court deemed the third person to be an agent of the attorney or the client, the communications remain privileged. Here there had been no claim by wife that co-trustee were wife’s agents.

Drafter-lawyer indicated that the decedent and wife were present at the meeting. The executors contended that wife was a client of drafter-lawyer and that any communications made during the probate meetings were confidential in respect to both clients present at the meeting. The attorney-client privilege seek to ensure that one needing legal advice would be able to confide fully and freely in his attorney, secured in the knowledge that his or her confidences will not later be exposed to his or her legal detriment. The attorney-client privileged had been arranged, which bars disclosure of any confidential communications between a client and his/her attorney. Again, an in camera review was necessary to determine whether wife’s estate plan and assets were the subject matter of drafter-lawyer notes.

Because of the determination of whether documents were privileged was fact-specific, an in camera review of such documents have to be undertaken before resolving the issue. The burden of proving that all the requisites of the privilege were present falls on the person asserting the privilege.

The estate administration courts were aware that the attorney client privilege was of the oldest among cannon law evidentiary privileges, fostering the open dialogue between lawyer and client that was deemed essential to effective representations and will remain mindful of this throughout an in camera review.

A final determination on the motion to compel un-redacted copies of particular disclosure was held abeyance pending an in camera review of the documents in un-redacted form. Un-redacted copies of the documents submitted to the court within several days.

Heirs of the decedent in a probate cannot speculate on the true intention of the testator in drafting his wills and testament. Neither can they make additional provisions to the will. Stephen Bilkis and Associates will intellectually fight for you, stay by you and assist to help you get your case done.

The appeal concerns a family dispute over the last Will and testament of the mother. The court is asked to determine whether various actions undertaken by the respondent sons in relation to the validation of the Will violated the apprehensive clause contained in the ninth paragraph of the Will. Based on the intent of the mother who made the Will, the respondents' actions violated the apprehensive clause and therefore the respondents have forfeited their right to take under the Will. Indeed, the apprehensive clause at issue was included in the subject Will in response to deteriorating family relations, and was both in anticipation of, and a forceful attempt to prevent, the very type of conduct at issue, conduct by the respondents that would delay the validation of the will, place the Will in jeopardy and harass the petitioner.

A New York Probate Lawyer said that the mother died in 1994. Under her last will and testament, the petitioner daughter, was named as the executor of the Will and was given the bulk of the real property and personal effects, and one-half of the remaining estate. The respondents are the sons and were each given one quarter of the remaining property. The children were not always treated unequally under the Wills, of which there were several. For example, in a Will dated September 22, 1986, the children were to take essentially in equal shares. A change started to occur in the late 1980's, after the husband died. The period saw a marked deterioration in the relationships between the siblings, and between the mother and her sons, while the bond between the mother and her daughter strengthened. These changing relationships were evidenced by, among other things a letter sent to the mother her son. In the letter, her son accused her of engaging in an elaborate scheme to isolate and alienate her from her sons. The son demanded that the mother revoke her then-latest will (which was very favorable to the daughter); reinstate a prior Will which divided the property essentially equally among the children, and stop aiding the daughter financially unless she could prove need. If his demands were met, the son promised to keep the matter within the family. However, if his demands were not met, he threatened to take immediate legal action to nullify his mother’s then-latest Will as a product of fraud and undue influence and obtain the appointment of a conservator for the mother. He also intended to publicize the matter, an act loathsome to the mother’s sense of privacy. In an undated note in the mother’s handwriting, the mother wrote that her other son had stated that the property would be in court so long that the daughter would never see any of the money. Finally, in a Will dated May 25, 1990, the mother noted that the more favorable treatment of the daughter under the Will was based on the loving care and attention she had shown both her mother and her late husband during his long illness as contrasted with the less than exemplary behavior of her sons. Further, the mother expressly stated that the Will was the product of long and careful thought and her deeply held feelings toward her children and was not in any way the product of any undue influence by her daughter.

Westchester County Probate Lawyers said that in June 1993 the mother met with a new lawyer to discuss the drafting of a new Will, the subject Will. The mother stated that her continuing desire was to leave the bulk of her property to her daughter, but that she feared that her sons would try to cause trouble for her daughter. Accordingly, the subject Will included the apprehensive clause stating that if any beneficiary under the Will in any manner, directly or indirectly, contests the Will or any of its provisions, any share or interest in the property given to the contesting beneficiary, or to such beneficiary's issue, under the Will is revoked and shall be disposed of by adding such share or interest proportionately to the shares of the remaining beneficiaries who have not so contested the Will.

In June 1994 the mother died and the subject Will was offered for validation. Preliminary letters testamentary were issued to the daughter in July 1994.

The respondents served a verified answer to the petition for validation. The respondents objected to their mother’s nomination of the daughter as executor on the grounds of dishonesty, improvidence and substance abuse. The verified bill of particulars set forth the basic allegations that were to be repeated and amplified throughout various proceedings. The respondents set forth detailed factual scenarios indicating a course of conduct by the daughter spanning several years wherein she allegedly employed lies, deceit, subterfuge, sabotage, and even acts of a criminal nature to isolate her mother from persons and places familiar to her, to alienate her affections from the respondents and those she trusted, and which threatened her mother’s health and life. The alleged goal of the scheme, which the respondents asserted was highly successful, was to defraud the mother out of substantial assets while she was still living and to exert undue influence on her testamentary intent. The bill of particulars was verified by both respondents as being, unless otherwise indicated, based on personal knowledge. Pretrial activity during the period included the testimonies of the draftsman of the Will and the two subscribing witnesses, the service of various notices of testimony and subpoenas on parties and nonparties, and court appearances and conferences.

The respondents were successful in obtaining an order compelling the daughter to post a bond, contrary to the provisions of the Will. New York City Probate Lawyers said that the motion which resulted in that order sought additional disclosure. Later on, objections to the validation of the Will were served on the petitioner's attorney but were apparently never filed. It was alleged that the mother lacked mental capacity and that the will was a product of fraud and undue influence by the daughter. The bill of particulars served in support of these objections merely incorporated by reference the allegations made in the respondents' bill of particulars. Pretrial activity during the period included the initial testimony of the daughter, the testimony of each of the respondents, the service of notices of testimony and subpoenas on several nonparties, and various court conferences and orders. There were also attempts to settle the matter. However, by letter, counsel for the respondents noted that the respondents are unwilling to withdraw the objections at that time.

After being deposed, the respondents amended the bill of particulars to provide that the factual allegations therein were made upon information and belief, rather than upon personal knowledge as originally claimed, despite the fact that various events set forth in the bill of particulars were alleged to have been personally witnessed.

In 1995, one of the sons petitioned for temporary letters of administration in order to bring an action to recover damages for wrongful death and intentional tort against both the daughter and the hospital in which the mother died. He alleged that his sister, assisted by the hospital staff, had acted in a manner that hastened their mother’s death. Further, although not relevant to the allegations in his petition, he submitted an affidavit wherein he reiterated the allegations of fraud and undue influence by his sister. By decision in 1995, the court determined that the son was not entitled to such temporary letters because the proposed tort claims were time-barred. As to the new issues and new charges concerning fraud and undue influence by their sister as raised by the son in his affidavit, the court found that such allegations should be addressed in an accounting proceeding.

Just six days after being denied the temporary letters of administration, the son commenced an action against his sister and her husband in the Supreme Court. He simply recast the allegations set forth in, among other pleadings, the respondents' bill of particulars to claim that his sister and her husband had deprived him, and the property of valuable assets. The complaint also alleged that the subject Will was the product of fraud and undue influence by the daughter and her husband. By order, the complaint was dismissed by the Supreme Court upon motion by the daughter of the deceased and her husband. The Supreme Court held, inter alia, that all of the claims raised by the son were covered by the proceeding pending in Court, that the son lacked standing to enforce claims on behalf of the mother’s property, and that the court, in its decision, had already passed on and determined to dismiss the claims made in the complaint.

In early 1996 the respondents continued their deposition of the sister in the validation proceeding and there were several calendar status conferences. At one such conference, counsel for the sister noted that discovery would soon be completed and that she intended to file a motion for dismissal dismissing the respondents' answer and objections. Soon thereafter, a schedule for the completion of discovery was drafted and the deposition of the husband was noticed. At another conference, respective counsel again conferred on the possibility of a settlement. Further, it was noted by the court that the objections to validate could not be found in the court file and there was no indication that the requisite filing fee had been paid. However, upon assurances from counsel for the respondents that the objections had been filed and that inquiries would be made, disclosure continued. The next day, settlement discussions broke down and it was agreed that discovery should be completed. On July 24, 1996, the sister and the respondents were further deposed. In August, while inquiries were still being made concerning the filing of the objections to validate, there was continued contact between the parties and additional disclosure.

By letter dated September 3, 1996, counsel for the respondents informed the court that, although his clients were not interested in entering into a global settlement, they were not disputing that the objections to the Will had not been properly filed. Thus, counsel noted, although the respondents had no desire to proceed with respect to any Will contest, they saw no need to withdraw their objections, as they were never filed.

At a conference, the objections to the Will were withdrawn, but not the answer. On October 22, 1996, the Surrogate signed a decree admitting the Will to validate. On the court's own initiative, the words probate not having been contested were struck, and the words no objection having been filed were substituted.

By petition, the sister commenced the proceeding for construction of the apprehensive clause of the subject Will. She alleged that the extensive pretrial litigation of the Will by the respondents violated the clause, thereby resulting in forfeiture of their bequests under the Will. In the order and decree appealed from, the court found, that the clause had not been violated.
As a threshold issue, the respondents argue that all of the proceedings at issue, with the exception of the objections to validate, were either legitimate inquiries to determine the fitness of the sister to serve as executor and/or to aid the court in determining whether the proffered will should be admitted for validation, or concerned challenges to actions undertaken by her or her husband prior to the mother’s death which did not implicate the Will. Thus, the respondents argue, other than the objections to validate, none of the proceedings at issue even implicate the apprehensive clause of the Will. Further, they argue, because the objections to validate were never filed and the requisite fee never paid, such objections were a nullity and should not be considered. One of the sons also argues that, in any event, he should not suffer from the consequences arising from the objections to validate because he was not a named as the one who object. The arguments lack merit.

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A woman died in a nursing home and her will was validated in the court. The legal representative, whom she appointed, filed a petition containing an accusation of the jurisdictional fact that the woman died in her residency. It named, among others, the hospital as a beneficiary in the sum of $1,000. Waivers and consents on probate were filed, which included the waiver of a person who was designated in the petition as the sole heir of the woman.

Application has been made to the court to vacate the validation, on the ground that the woman was returned to her permanent residency at the time of her death and that the surrogate's court did not have jurisdiction over the estate of the woman. Objections had been filed, after validation of the will, which were submitted, signed and verified by the attorney of the hospital.

A New York Probate Lawyer a formal order to defend was obtained and served to the legal representative and, to defend to the court why the decree of validation, should not be vacated. A cross-application was served by the legal representative to the hospital and its attorneys as counsel to dismiss the objections and the motion to vacate validation.

The motions were argued. It shows that the legacy of $1,000 had been paid to the hospital at the time of the argument. Different arguments have been presented by both parties. The hospital’s attorney submits to the court that the surrogate's court did not have jurisdiction in the residency of the woman at the time of her death, and that the long lifetime history of the woman, as a resident and highly respected citizen and teacher in the county, required validation of her will in her county. According to New York City Probate Lawyers, the legal appointee and his attorneys have questioned the authority of the hospital’s attorney to bring the proceeding in behalf of the hospital, claiming that there has been no official action of the hospital which authorized the application to vacate the validation of the will of the deceased.

The court did not deem it necessary to consider the question of authority of the hospital’s attorney to bring the proceeding in behalf of the hospital for the reason that the hospital is a successor only and has no standing to attack the validation of the will. As a beneficiary, the hospital was not a necessary or proper party to the proceeding, and the fact, alone, would seem to be the simple answer to the question of standing to raise any issue relating, directly or indirectly, to validate. If the hospital had no standing in the proceeding, it is difficult to see how it can have any standing after the validation, and there is authority to that effect.

The commentary under apparently takes the view, and attorneys for the hospital also argued, that has upset the conclusiveness of the decree of validation. Westchester County Probate Lawyers said that the court does not agree with the position for in fact, did not overrule of the former surrogate's court act, from which it was derived.

Status or standing is a preliminary issue to be resolved as a condition precedent to the issues presented by objections. As the hospital has no standing to attack the validation of the will of the woman, and under such circumstances its attack is collateral, its motion to vacate the decree of validation in her county is hereby denied and the application is dismissed.

The court finds no objection to the legal appointee in the administration of the estate of the woman in her county. It does not constitute the practice of law within the prohibition of the courts law.

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

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

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

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

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

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

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

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

The final article of the New York Will contains a warning providing for the lapse of any provision made in the Will for any person named as a beneficiary who shall Will Contest or file objections to the admission to prove the validity of the Will.

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

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

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

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

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

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

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

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

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

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

Westchester County Probate Lawyers said that the court also notes that the appellant’s legal counsel has obtained a copy of a letter written to the respondent by the foreign court commissioner. The letter contained instructions that the daughters of the testator were authorized to manage the estate of the deceased in that country. The letter has named the testator’s daughters as the administrators of the estate.

The court has requested for a notarized copy of the letter. If the document is indeed valid, the will would revoke the past testament. The next step of that instance would have to the filing of a legacy case. In that scenario, the daughters of the testator would have been declared as the rightful owner of one fourth of the testator’s profits from the estate.

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

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The brother of the deceased contested to the validation proceeding requesting to dismiss the objections and accept the proposed evidence to probate. The will offered for proceeding claims that the estate shall be equally shared by the deceased person’s mother and brother, assigned as the executor. If either individual die before him, the surviving individual will be the beneficiary. Subsequently, his mother is already dead and he still has a wife.

The wife opposed the argument of her brother-in-law and brings in another argument to its proposed evidence. She state that the evidence offered to validate the will was not duly performed as required by the law. At the time her husband acknowledge the will, if such was in fact made, he did not declare to at least two of the attesting witnesses that the said paper offered for validation was his last will and testament. He did not request that said witnesses to be witnesses and if he signed the will, he did not do so in the presence of the said witnesses nor did he acknowledge to each of them that said subscription appearing on such paper had been made by him. In addition, her husband did know, understand or was aware of the content; meaning and/or consequences of the paper writing presented to him for implementation, if he does implemented the same.

A New York Probate Lawyer explained that in support of the motion to accept the will to validate, the brother submits his own affidavit, the testimony of a witness to the will, the affidavit of the witness and the affirmation of counsel. The wife also submits her own affidavit, the affirmation of counsel, the same testimony of the witness, a draft of the last will and testament and the affirmation of counsel.

There were three witnesses to the proposed will and two of them were already dead. The first witness testified that she was a co-worker of the deceased mother and stated that she knew the deceased by reason of his occasional visits to his mother at the office. They also engaged in casual conversations. She also stated that she worked in the same room in close proximity with the other two witnesses. In her testimony, she doesn’t remember the things clearly and she wasn’t sure of the occasion but she thinks that together with the other witnesses, they witnessed the signing of the will.

Long Island Probate Lawyers explained that the affidavit of the brother stated that upon his brother’s passing, he, his wife, and his sister-in-law were present in his brother’s residence when the safe was opened. In addition, he states that they found, in the safe, the proposed document now being offered for validation among other personal effects.

In the wife’s affidavit, she stated that she had been informed that her brother-in-law located a purported last will and testament from a safe in their house. That after her husband passed away, they retrieved the documents from her husband's safe so that they could obtain papers relating to her husband's service in the army that were required for his funeral arrangements. When the documents were retrieved from the safe, her brother-in-law advised her that he located his grandfather's will and his own birth certificate. He asked the wife if he could have the documents and the wife told him that he could have his grandfather's will and his birth certificate. At no time did her brother-in-law ever locate or claim to locate any document purporting to be her husband's last will and testament from the safe.

In addition, Westchester County Probate Lawyers said the allegation of her brother-in-law that the purported will was found in the safe is a total fabrication. There is a considerable question at issue as to the location at which the supposed document was located and when.

The attorney states that the deceased requested him to draft a will, leaving all his property to his wife other than certain and personal items. The deceased specifically told the attorney that he had never made any will and he wanted to create one for the protection of his wife.

Based on the record, the execution of the proposed evidence was not supervised by an attorney. Moreover, the testimony of the surviving attesting witness was given more than forty (40) years after the completion of the said evidence, does not directly support a finding of due execution as she could not recall certain of the elements. Under such circumstances there are issues of fact as to due execution. Accordingly, the action for dismissing the objections is denied.

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

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

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

Westchester County Probate Lawyers commented that the recent will before the decedent pass away, he named the other party, the one who had the deed to his property, as an alternate beneficiary of all his assets. The different between the first and recent testament was the inclusion of the respondent as one of the beneficiaries.

The niece petitioned for a probate on the recent will executed by the deceased. The respondent had requested the surrogate court to change the date of the instrument to match the date in which she received the deed of the property from the then decedent. The niece objected to the execution of the second instrument.

According to a New York Probate Lawyer, 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. 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.

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

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In a work-related accident, the decedent suffered permanent substantial disability in October 1973. An employer’s workers’ compensation insurance carrier was instructed to pay disability benefits to him. The defendant had pre-existing diabetes so the carrier applied and was give reimbursement from the Special Disability Fund pursuant to Workers' Compensation Law. When the decedent died on January 7, 1982, his widow filed to claim death benefits because she alleged that the injury sustained in October 1973 was an underlying factor in her husband’s death. New York Probate Lawyers said that in compliance with the Workers' Compensation Law the carrier converted the claim and applied for reimbursement from the Fund. There was a hearing with before an Administrative Law Judge and the application of the wife for death benefits was granted. The carrier did not ask for a review of the Workers' Compensation Board about the connection of the injury to the death.

There was a later hearing for the carrier’s application for reimbursement from the Fund. The fund asked the Administrative Law Judge not to make a ruling until they could get a review from the Workers' Compensation Board if the wife’s claim was compensable. The request was denied and the request of the carrier for settlement was granted. The fund appealed to the Board stating the wife would have not been awarded benefits because the death was not related to the injury sustained in October 1973. The Board’s decision was that the fund lacked standing to raise the issue.

When the case was already with the Appellate Court, the court said they agreed with the Board that reversing the decision will allow the Fund to reopen the primary issues related to the compensability of an injured or deceased employee's claim. The Fund’s stand is the causal relationship between the death and the work-related accident. The legal idea of the Workers' Compensation Law is to hire employers to hire permanently handicapped people. This is because of the reimbursement they are offered if they compensation to a work-related accident. The court said the representative of the fund only has standing in the proceedings when the employer claims for such compensations are being heard not when there is a claim from the employer. The conspiracy of an employee and employer is averted with the employer not being able to get reimbursement for the first two years of benefits, commented Westchester County Probate Lawyers.

If the court gives the Fund authority to take proceedings on the primary issues of compensability, even after the benefits have already been granted to the wife will generate two results that are inconsistent with the purpose of the Workers' Compensation Law. One of the results will be to re-open the claim of the wife that will be in violation of the provision “to avoid extended medical controversies and delays in benefits.” The other one is for the employer to not be able to claim reimbursement, but will also not be able to get the money back from the wife. Long Island Probate Lawyers mentioned this will have a negative effect on the employers’ motivation to hire handicapped employees. This weakens the primary purpose of the law. Another argument of the Fund is to deny them of the chance to contest is breach of due process. This they did not raise with the Board so it did not become part of the review. Since the Fund was created by Legislature and is doing governmental function on behalf of the State, they are not able to assert rights under the Constitution against the State. The decision of the Board was affirmed without costs.

People often think that when making demands for compensation with regard to a work-related accident, they do not need legal counsel. Whether you have a workers compensation issue, an estate litigation matter, or need a last will and testament, it is vital to have quality legal counsel assisting you.

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MBIA Insurance Corporation (MBIA) filed a motion in limine for the court to allow MBIA to use statistical sampling to be able to present evidence for fraud and breach of contract and also to prove damages against Countrywide Home Loans, Inc., Countrywide Securities Corp. and Countrywide Financial Corp. (collectively Countrywide). A motion in limine is a request for a judge to rule if evidence may or may not be introduced in a trial. This can be done before or during a trial. Countrywide opposed this motion. A New York Probate Lawyer said that this is usually done to make sure that a jury will not see a possibly damaging evidence.

On September 27, 2010, a hearing was held to examine the evidence. MBIA presented an expert witness in the person of statistician Charles D. Cowan, Ph.D. Dr. Cowan gave testimony as to his proposed method of sampling the fifteen residential mortgage-backed securitizations (RMBS), which is the issue. The court requested that the different groups submit additional arguments on October 13, 2010. The requested that these opinions be delivered by letter.

One of the motions of the defendant is that the petition was premature. A Long Island Probate Lawyers mentioned that the court in this case did not set time limits with the motions in limine. Although MBIA presented this very early in the trial, it is legal and timely. The defendants, Countrywide, as well contends that legal and factual issues prevent the decision regarding MBIAs appeal. Countrywide says that there are disputed issues that must be settled first before the use of sampling. They stated that with the granting of the motion of MBIA, the court would improperly resolve legal questions that have not yet been fully discussed by the parties in court.

The court agrees that the other issues need to be resolved but the defendant, Countrywide, is not able to present any basis that the current listed issues have a link with the current motion. Countrywide does not present how the resolution or the non-resolution of the issues affects the sample. An additional argument is that MBIA was not able to exhibit how the sampling will be useful in the hearing. Countrywide was claiming that MBIA did not present anything that shows sampling can prove fraud and breach of contract and also to prove damages.

New York Law uses a general acceptance test to test a reliability and admissibility of an expert testimony where the sampling will ultimately work with. They ask if the presented scientific evidence is unusual. This is not the case for sampling as it has been used multiple times in different case tried in court. The next test is if it is accepted by the scientific community. Sampling has a widely spread acceptance in the scientific community. They use it with a variety of things to prove and disprove. The last is if the sampling proposed is reliable. MBIA has presented that for the sampling that they will do, there will only be a 5% margin of error. There will also be different variables that will be considered including delinquency status. Westchester County Probate Lawyers found out that the court decided that the statistical sampling may be used in a trial as it passed the general acceptance test. With this, the court also states that it is not the only way that the parties can present evidence. They also say that they are not saying that the statistical method is perfect and cannot be challenged. Countrywide presented valid disputes, which at the time the court says are premature.

In the decision of the court, it says that granting the motion in limine may save all parties from a long litigation time. It also does not compromise any of the parties’ interest. The court finds no prejudice in the sampling method. MBIA may present their evidence as they choose as the burden of proof is with them and Countrywide can challenge these evidence. The court permits evidence that will be the result of the sampling method. It is not endorsing the method as it should still convince the trier of fact, which may be a jury or a judge. The court considers sampling as a method to get evidence and not the evidence itself.

In cases like this were proving fault and liability may be taken from other people, it is always better to use different methods of gathering evidence. A skilled lawyer knows this. They think outside of the box to prove your case, and they also make sure that the court knows that these techniques may be applied under the law in their presentation.

Whether you have a contractual dispute, or are involved in a estate litigation matter, contact Stephen Bilkis & Associates. We have exceptional lawyers who will be able to present your case suitably and accurately. To contact us, you can walk in any of our offices, check us online or call 1-800 NY - NY- LAW. We handle cases from New York and Long Island.

The case regarding Genevieve Tisdale’s estate is about getting a jury trial in connection to the revocable trust executed by her at the same time with her last will and testament. Ms. Tisdale died on October 6, 1995. It is said that her will dated December 15, 1994 was executed with about $2.1 million revocable trust. The estate in the will was under $400,000. The trust fund is the one to be used for estate taxes and other expenses. The estate is divided to different beneficiaries, including charities. The bequest ranged from $10,000 to $200,000. There was an amendment made to the cash gifts made on July 31, 1995.

Michael L. McDermott was the draftsman of both the will and the trust. He is also named as the guardian of the net estate except the tangibles. He is to allocate the state according to the will. If the trust fails, the will also is refers to its terms. Mr. McDermott, a New York Probate Lawyer mentioned, is an Illinois lawyer not admitted in New York. Three months before the testatrix signed the will was the first time that they had met. This issue was already submitted to court.

Five of the family beneficiaries, which are all nieces and nephews, petitioned the court to withhold the trust in both proceedings after the will enter probate. They also asked that in both cases, there be a jury trial on their protest about the execution, capacity, undue influence and fraud. The recipients particularly object to, allegedly, the charitable beneficiaries reflecting Mr. McDermott’s choices and not the decedent’s. They cited the provision for twenty-five percent of the trust remainder is distributable to Spring Hill College in Mobile, Alabama, which is Mr. McDermott's alma mater. Twenty-five percent of the trust remainder is given to the Evans Scholars Foundation where Mr. McDermott is a trustee. Twenty-five percent of the trust remainder is gifted to National Louis University located in the Chicago suburb where Mr. McDermott lives. Lastly, $250,000 is distributable to Misericordia Home in Chicago. They also claim that Ms. Tisdale is your typical New Yorker, who has lived in the Upper East side of Manhattan most of her adult life.

According to Westchester County Probate Lawyers, the contest is sure to have a jury trial. The question is if it is available to the revocable trust. The main reason why people go for the revocable trust is because, for the most part, the Court is not involved in the administration of the estate. Contrary to wills, in revocable trusts do not require sending out notices, they however, give time of a few months for people to appear or contest it. Once it enters probate is the time that notices are sent out. Once in probate they will also have time to contest the will. The law expressly grants probate proceedings a jury trial but not appeals to set aside another instrument. There are cases like reclaiming a property that is given a jury. A trust is not equitable so cannot be admitted to a trial by jury.

It is also said that in trying the case for the will and the trust, will have identical issues to tackle. To avoid any unnecessary and impractical proceedings, with the two having the same provisions it is better have them tried at the same time. If or the other is tried first, there will have a profound effect on the hearing for the one tried later. Long Island Probate Lawyers also says that in hearing the two as one it will deter underhanded acts by people trying to get what they want. The court then denies the petition to set aside the revocable trust.

People may get tricked by people to get something from them. It also applies to people who are executing the will. As the family of the decedent it is much better that you have a skilled legal counsel who will protect your rights. One who knows his way in the proceedings so your presentation of your side is not seen as a sneaky way to get the money for yourself.

For help going through the whole proceeding with you and help you understand what is happening and lay the options for you, you can set an appointment with Stephen Bilkis & Associates. We have offices all over New York and you can also contact them online or at 1-800 NY - NY- LAW. We will handle cases from New York and Long Island.

On March 12, 1992, Louis Rosen died in a mental facility in California, allegedly leaving behind his entire estate to Warren Silverman as his primary beneficiary. According to reports that reached New York Probate Lawyer, the last will that was left by Rosen was written during the time when he was already determined to be mentally ill. This means that the Will naming Warren to be the primary beneficiary of Rosen’s estate is invalid according to existing laws. Also, according to the evidences presented at court by the other surviving relatives of Rosen, Warren and Warren’s mother Miriam exerted excessive influence to the deceased making them the only people who had access to Rosen’s financial resources four years before he died.

Four years before Rosen died, Miriam already moved into Rosen’s apartment and took care of everything for him, including his financial affairs. This was confirmed by Rosen’s accountant because he claimed he personally saw Miriam “bossing” Rosen around. He also claimed that Miriam had access and even had control over Rosen’s bank account including his personal checks. This is one of the reasons why Rosen’s other relatives have filed a case against Warren saying that the only reason why Rosen had named him primary executor and beneficiary of all his estate was because of the influence of his mother Miriam over Rosen at the time Rosen was already mentally unstable.

The court also believed, upon seeing the evidences presented that Rosen was indeed under no mental condition to knowingly decide for himself anymore. Reports that reached a Long Island Probate Lawyers said that there are several accounts when Rosen was found lost and only in his underwear by the local police. The last time they were able to find him was in 1990 where he was taken to a nearby hospital for treatments. Friends and relatives also noticed the changes in Rosen’s behaviour, saying he was already incapable to keeping his personal hygiene. It was actually during this time when Miriam moved in and took care of everything for Rosen. It was also during this time, when Rosen made deposits, supposedly gifts to Miriam’s children amounting to almost $10,000 each. After that, he allegedly made a transfer of a staggering $1.5 million to Warren and Miriam. These supposedly cash gifts and other properties left by Rosen to Warren are what the other relatives of Rosen are now objecting to.

In 1991, Rosen was diagnosed with advanced dementia, rendering him mentally invalid to make sound decision for himself. This also established that back in 1988, he was also in no mental health condition to determine whether his actions were right or wrong. It was Miriam who was there with him thereby establishing that she can and had already used her influence on him. He was already incapable to sound decision and judgement.

Warren however objected to these accusations saying the cash “gifts” were valid and legal according to existing laws. The will contest trial lasted for nine days with dozens of evidences presented in favor of Warren as well as the relatives who filed for complaint. After careful evaluation of all evidences presented the court denied the motion to summary judgement in favor of Warren.

Nobody understands how important your properties and your estate are for you than the Westchester County Probate Lawyers. They know that you have worked hard to achieve these things and they represent your life’s work and achievements.

Stephen Bilkis and Associates together with their legal team have already established convenient office locations throughout New York’s Metropolitan areas to be able to serve you best. We are ready to give you legal advice on your properties and estate issues to give you peace of mind that your assets will remain with you and your loved ones at the most cost effective way.