October 23, 2014

Court Looks at Motion to Vacate

A New York Probate Laywer said on 17 June 2007, seven months after executing her will, the decedent, AB, died. Her husband predeceased her in 2001, and she never had any children, biological or adopted. The decedent was survived by six distributees: NK, GKH, and EKS (children of the decedent's predeceased brother, HK; and, DK, BK, and KK (the children of decedent's predeceased nephew, RK, and who apparently spell their surname differently, with a double last letter). The six distributees reside in Australia.

The proponent and executor, G, had been employed by the decedent as a full-time caregiver who lived in the decedent's home.

A New York Estate Lawyer said that on 21 September 2007, G filed a petition for probate, stating that the decedent left no distributees, surviving or deceased. Under Paragraph 6(a) of the petition, the "name and relationship" of all persons with a "legacy, devise or other interest, or nature of fiduciary status" is asked. In G's original probate petition, she stated that she was the decedent's live-in companion and the beneficiary of the decedent's entire estate, as well as the designated executor. The only other individual named by G as a person interested in the decedent's estate is G's sister, RG, a resident of Ukraine, who is listed as the successor beneficiary of the decedent's entire estate and the nominated successor executor. The petition reflects 23 Alexander Drive in Oyster Bay, which had been the decedent's home, as G's address. In response to question 8(a), which asks whether "any beneficiary under the propounded will, listed in Paragraph 6 or 7 above, had a confidential relationship to the decedent," G indicated that she, "petitioner," had a confidential relationship with the decedent.

On 25 September 2007, preliminary letters issued to G with the court directing the submission of a family tree. On 8 November 2007, G submitted an affidavit stating "I am not aware of any disinterested person capable of giving a Family Tree Affidavit xxx" and advised the court that the decedent spoke occasionally with someone named NK and was visited by someone named FR but that she did not know whether the decedent was related to these individuals.

On 25 February 2008, counsel for various members of the decedent's family advised the court by letter that the decedent had executed a will in 2001 in which members of the decedent's family and the family members of her late husband were named as the beneficiaries and co-executors. A copy of the executed will was furnished to the court but counsel advised that the original signed document had not been located, that the family members intended to prove that the proffered 2006 will was procured by G by means of fraud and undue influence, that the decedent was not of sound mind or memory and was not capable of making a will in 2006, and that the will was not properly executed. The letter also accused G of committing perjury on the basis of the sworn statements made by G in her petition that the decedent left no distributes even though she had actual knowledge of the distributees’ existence and other extended family members. Counsel for the decedent's family demanded that the petition for probate be amended to reflect the decedent's distributees. A copy of the said letter was sent to counsel for G
G filed a consent to change attorney dated 25 February 2008. On 10 April 2008, G filed another consent to change attorney, dated 28 March 2008. On 18 April 2008, with the representation of the third attorney, G filed an amended petition. Under the amended petition, G is not listed as an interested person under paragraph 6(a), despite her interests under the will. This amended filing reflects that the decedent left an alleged nephew, NK, and two alleged nieces, GKH and EKS, all of whom are the children of the decedent's predeceased brother, HK. In reply to question 8(a) as to whether any beneficiary under the will had a confidential relationship with decedent, in this amended petition for probate, G checked "None."

A Westchester County Probate Lawyer said that on 13 June 2008, counsel for the family members, representing the three above-named alleged distributees and DK, BK and KK, children of the decedent's predeceased nephew, RK, filed a notice of appearance and family tree affidavits signed by EKS, the decedent's niece, and JA, a niece of the decedent's husband. According to the affidavits and the family tree, the decedent had three brothers who predeceased her: AK (who had no children), HK (who predeceased but was survived by four children, one of whom died leaving no children) and JK (whose only son, RK, died in 1991, leaving three children).

A Suffolk County Probate Laywer said that by letter dated 28 July 2008, G's attorney asked counsel for the family to "consent to the extension of Preliminary Letters, recognizing the fact that the Preliminary Executor is not permitted to distribute any moneys to estate beneficiaries until such time as full Letters are issued." G's attorney further indicated that he was trying to determine whether the family tree and the affidavit of heirship provided to the court by the decedent's family would be sufficient to establish heirship, and opined that a genealogist might be required. The family's attorney agreed to consent to the extension of preliminary letters.

On 18 September 2008, another amended petition was filed and in this last version, G acknowledged the existence of the six alleged distributees. The court did not require that a supplemental citation be served on the newly acknowledged distributees; a notice of appearance on their behalf had previously been filed. G's attorney did not provide counsel for the distributees with a copy of the second amended petition or advise him or his clients that it had been filed.

According to G's attorney, in his affirmation in opposition to the instant motion, sometime in September 2008, he telephoned an associate of opposing counsel with the intention of inquiring whether objections were going to be filed but despite the associate's assurance that she would call back the next day, the call was not returned; on 24 October 2008, he had a decree granting probate with notice of settlement served personally on the office of counsel for the distributes; and, no objections were filed within five days of the date of personal service.

On 31 October 2008, based on the second amended petition, the 2006 will proffered by G was admitted to probate and the issuance of full letters on 3 November 2008 followed.

The motion now before the court, also dated 31 October 2008, followed.

According to the movant’s counsel (family’s counsel), in his affirmation in support of the motion to vacate the decree, the motion should be granted as the objectants have previously indicated that they seek to avail themselves of the right to file objections to the probate of the will presented by the petitioner; proceedings pursuant to SCPA §1404 should take place prior to the court making any determination on the objections to be filed by objectants; this has not occurred as the objectants were unaware of the filing of the second amended complaint by the petitioner as the same was never served on their counsel; and, the objectant's counsel erroneously believed that the notice of settlement served by the petitioner was for the re-issuance of temporary letters of Probate.

According to G's attorney (opposing counsel), in opposition, the motion must be denied as it does not meet the standard established in 2008 by the Court of Appeals for vacatur of a probate decree, particularly, "a probate decree should be vacated only if petitioner can demonstrate facts constituting a substantial basis for challenging the proffered will and a reasonable probability of success on the merits of its undue influence claim;" and, the movants did not meet the requirements of CPLR 5015 for relief from a judgment or order, namely: excusable default; newly discovered evidence; fraud, misrepresentation or other misconduct; lack of jurisdiction or reversal; or, modification or vacatur of a prior judgment on which the order or judgment is based.
According to the movant’s counsel, of the five categories of relief, the circumstances surrounding his failure to timely file objections to probate give rise to an excusable default; he pointed out that G’s attorney requested that he consent to an extension of temporary letters but then served him with a notice of settlement for full letters, without any prior notification of this change in strategy and neglected to send him a copy or give notice of the second amended petition filed with the court on 18 September 2008; he was away from the office when the notice of settlement was received and he reasonably assumed that the notice of settlement was for the previously agreed upon extension of preliminary letters, and therefore did not object; and, he was waiting for the second amended petition to be filed, after which he intended to proceed on behalf of his clients.
Here, the fact remains that the movants' counsel took no court action on behalf of his clients at any point prior to making the motion for vacatur; and, at no time did counsel file objections or seek discovery and merely stated an intent to do so. While movants' counsel is correct in saying that a copy of the second amended petition should have been sent to him, opposing counsel is equally correct in pointing out that the second amended petition contained no changes or information previously unknown to counsel, and movants' counsel had no reason to expect that it would. The opposing counsel’s failure to send a copy of the second amended petition to the movants' counsel is not a jurisdictional defect. Even if the court were to find that the above facts are sufficient to establish an excusable default, the movant's counsel failed to establish the second prong required for vacatur, namely, "a reasonable probability of success on the merits." The court is not taking the position that there are no facts to vacate the decree of probate, but rather, that the facts to support vacatur have not been properly presented to the court.

However, while the movants' attorney failed to meet the standard for vacatur, the court is troubled by many of the facts on record.

First, G's initial petition disclaimed any knowledge that the decedent left surviving distributes. G's alleged lack of knowledge is disputed by multiple documents. It appears that G submitted false information to the court and only when challenged did she change her sworn statements.
Second, in paragraph 6(a) of G's initial petition for probate, she accurately reflected her relationship with decedent as that of a "live-in companion." G then deleted this information from her amended petition and second amended petition, the latter of which was the basis for the admission of the will to probate.

Third, in response to item 8(a) of the petition, G stated on her original petition that she was in a confidential relationship with the decedent. However, in her amended petition and second amended petition, G checked the box indicating that no confidential relationship existed. A legatee who is the decedent's sole live-in caregiver and who is otherwise unrelated to the decedent is often found to have been in a confidential relationship with the decedent. Had this question been answered accurately by G, the court might have scheduled a hearing prior to the issuance of full letters.

Fourth, aside from G's own conduct, it must be noted that the 2006 will differs radically from the copy of the decedent's prior will submitted by the attorney for the distributees, in which the decedent bequeathed her estate to the members of her family and the family of her husband. There is no clear indication that anything occurred subsequent to 2001 that would have led the decedent to disinherit her entire family. What’s more, the 2001 will was prepared and its execution was supervised by an attorney whose office was located in Nassau County, where the decedent resided, whereas, the 2006 will was prepared and was supervised by an attorney in Brooklyn, New York. It is not shown how the decedent came to use this attorney and the affidavit of the attesting witnesses did not indicate the location where the subject instrument was executed.

Fifth, the 2006 will provides that in the event G predeceases the decedent, all of the decedent's property will pass to G's sister in the Ukraine. In Matter of Martinez (NYLJ, 19 September 2007 [Sur Ct, New York County]), the court addressed a will which left everything to a person who had been in a confidential relationship with the decedent. The court held that "when the person alleged to have benefitted by the exercise of undue influence is in a confidential of (sic) fiduciary relationship with testator, an inference arises that her influence was undue xxx requiring the beneficiary to explain the circumstances of the bequest xxx."

Standing alone, any one of the said facts might be insufficient to prove undue influence or fraud, particularly in view of the fact that no original copy of the 2001 will has been proffered.

Nonetheless, the combination of these factors casts doubt on the validity of the probated will.
It is the court's chief concern to admit only valid wills to probate and the court must be satisfied as to the genuineness of the will before admitting it to probate. Even after a will has been admitted to probate, the court may still examine "issues concerning its validity and effect."

Here, the court's admission of the 2006 will to probate was based, in part, on substantive omissions and misstatements by the proponent and upon review the court is not satisfied as to the genuineness of decedent's 2006 will.

Accordingly, the court vacates its decree dated 31 October 2008 which admitted to probate the decedent's will dated 8 November 2006; vacates letters testamentary issued to G; will reissue preliminary letters testamentary to G; and stays the executor from making distributions or expending any funds she may have already distributed to herself.

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September 2, 2014

Court Determines Fees for Guardian ad Litem

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will "pours over" into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).
The court finds that the fee may be paid from trust assets.

On 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the "F Revocable Trust U/A dated 24 October 2003." At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent's long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent's assets were transferred to the trust while he was alive. As a result, the will was designed to be a "catch all" so that any stray assets left in the decedent's estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

A New York Estate Lawyer said the guardian ad litem, who was appointed to represent the interests of the decedent's daughter, examined the circumstances surrounding the execution of both the trust and the will. In her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

It should be noted that SCPA 405(1) governs the compensation of a guardian ad litem. It provides that said fee may be "payable from any or all of the following, in such proportion as directed by the court: a) the estate; b) the interest of the person under disability; or, c) for good cause shown, any other party."

Westchester County Probate Lawyers said that while SCPA 405 generally contemplates the fee of the guardian ad litem in a probate proceeding will be paid out of estate assets or the ward's share of the probate estate, the circumstances before the court justify a different result.

Suffolk County Probate Lawyers said that in a probate proceeding that involves a will that pours over into a pre-existing inter vivos trust, that trust is a party to the probate proceeding either via its trustees or its beneficiaries and either as a cited or noticed party. The responsibilities of the guardian ad litem included a review and investigation of both the will and the trust. In Matter of Stralem,it was held that while the following is extremely unlikely to ever occur, it does present a scenario where a legal fee adjustment would be mandated. For example, if A died leaving a testamentary estate of $100,000 and bequeathed $75,000 to B but also exercised a power of appointment over the remainder of a trust of over $100 million in favor of C where the default beneficiary was D, one can imagine a very costly probate contest brought by D and defended by C, the nominated executor. It is also not hard to imagine legal expenses far exceeding $100,000. The question is where the will contest to be settled between C and D, would it be appropriate to wipe out the estate in legal fees and thus extinguish B's bequest of $75,000? The court finds that the answer would clearly be that it would be inappropriate.

Based on the foregoing, the court holds that the assets of the F Revocable Trust U/A dated 24 October 2003 may be used as a source of funds to pay the fee of the guardian ad litem.

In Matter of Stortecky v Mazzone and Matter of Vitole, Matter of Phelan, it was held that the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. This remains true even in the event that the parties have consented to the requested fee akin to Matter of Stortecky v Mazzone and Matter of Phelan.
In Matter Of Brehm and Matter of Wilhelm, the court notes that while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent akin to Matter of Kelly; the complexity of the questions involved akin to Matter of Coughlin; the nature of the services provided akin to Matter of Von Hofe; the amount and complexity of litigation required akin to Matter of Sabatino; the amounts involved and the benefit resulting from the execution of such services aki to Matter of Shalman; the lawyer's experience and reputation akin to Matter of Brehm; and, the customary fee charged by the Bar for similar services akin to Matter of Freeman and Matter of Potts.

In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, Matter of Freeman and Matter of Berkman.

Morerover, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem as in Matter of McCranor, Matter of Kauffman, Matter of Phipps and Matter of Ault. Further, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation akin to Matter of Snell, Matter of Potts, and Matter of Kentana.

Under SCPA 405, the guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem as was also held in Matter of Graham, Matter of Burk, Matter of Ault, Matter of Berkman, Matter of Burnett and Matter of Reisman. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee as held in Matter of Ziegler.

Generally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets but Matter of Stralem is an exception. However, a party may be charged with payment of the compensation of a guardian ad litem where the actions of such party generated unnecessary, unfounded, or purely self-serving litigation that resulted in the appointment of a guardian in accordance with SCPA 405 and based on the ruling in Matter of Ault.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services similar to the rulings in Matter of Potts and Matter of Spatt. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed as was also held in Matter of Phelan, Matter of Von Hofe. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed as ruled in Matter of Phelan. This applies to the fee of a guardian ad litem as was held in Matter of Carbone.

Therefore, the court approves the fee of the guardian ad litem in the amount requested, $2,828.00 and orders that it will be paid from the trust assets within (30) days of the date of this decision.
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August 27, 2014

Court Decides if Attorney Fees Should be Granted

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent's real property.

A Nassau Estate Litigation Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent's estate. In addition, the court must release the administrator from the surety bond.

A New York Will Lawyer said the issue in this case is whether the attorney’s fee should be granted by the court.
Regarding the fee of the attorney for the estate, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

A Westchester County Probate Lawyer said in evaluating the cost of legal services, the court may consider a number of factors. These include: 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 discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts, and as re-enunciated in Matter of Freeman. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services.
The Public Administrator has petitioned the court for approval of the payment of $2,798.75 to the attorney for the Public Administrator in connection with the administration of the estate. This amount has been paid in full. The court has carefully reviewed the affirmation of services and the time records submitted to the court. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. The record shows that the attorney devoted more than 51 hours to this matter through August 2009. The services provided by the attorney included preparing and filing a petition for removal of limitations on letters of administration and accompanying affidavits; commencing a surplus money proceeding in Nassau County Supreme Court; participating in multiple telephone conferences with a foreclosure referee; collecting surplus funds from the Nassau County Treasurer; and reviewing information concerning the identity and whereabouts of decedent's distributees. In addition, the attorney for the Public Administrator prepared the final account and the accompanying documentation. In view of the exiguous balance that would remain if the attorney were to bill for the full amount of services provided, which would amount to $8,971.25, the attorney has offered to accept as a total fee the amount paid to date, $2,798.75. The court commends the attorney for his skillful representation of the Public Administrator and for voluntarily reducing his fee by $6,172.50, a reduction of 69%. The fee is approved in the amount requested.

Suffolk County Probate Lawyers said the court has also been asked to review the accountant's fees. Typically, an accountant's services are not compensable from estate assets unless there exist unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. The purpose of this rule is to avoid duplication. "Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee".
The accountant has submitted an affidavit of services requesting a fee of $575.00 for preparation of the estate's final return. The work to be performed by the accountant is not duplicative of the services rendered by the estate attorney, and the requested amount for these services is reasonable. The court approves the fee in the amount $575.00, all of which remains unpaid.

The commission of the administrator is approved subject to audit. The decree shall discharge the surety and shall authorize the Public Administrator to distribute the balance of the net estate to the Nassau County Department of Social Services.

If you have issues regarding the accounting fees of the estate, seek the help of a Nassau Estate Attorney and Nassau Probate Attorney at Stephen Bilkis and Associates.

January 4, 2014

Court Dicusses Trust with PourOver Will for Infant

New York Probate Lawyers said that, the report of the guardian ad litem for infant remainder men of the residuary trusts makes certain recommendations, some of which are in reality objections to the account.

A New York Estate Administration Lawyer said that, a trust which the decedent had created provided for a pour-over to the decedent's estate. The decedent died on June 8, 1968. Letters were issued to three executors, two of whom were also trustees under the deed of trust. Understandably, some time was required for the trustees to prepare their account and transfer property to the executors. The shares of stock and some bonds were transferred on March 28, 1969; United States bonds, on May 15, 1969 and most of the other bonds, on September 30, 1968. The guardian points out that the trustees computed their paying commissions on values as of the dates of transfer to the executors, but the executors herein computed their receiving commissions on valuations as of the date of the decedent's death, which were more than two hundred thousand dollars greater than the values on the dates the funds were received.
The issue in this case is whether objections on the account of the estate should be granted.
A New York Will Lawyer said the commission statute (SCPA 2307) speaks of the receipt of 'sums of money', but it provides that the value of any property, 'to be determined in such manner as directed by the court shall be considered as money in computing commissions' (Subd. 2). Receiving commissions are to be based upon the value of assets at the time of their receipt and paying commissions are computed on values as of the dates of payment. In practical operation, there has to be a time lapse between the date of the decedent's death and the date on which the fiduciaries qualify and receive letters. Generally speaking, the personal representatives of a decedent receive assets that were in the decedent's name and possession on the day that they receive letters. Some property may actually be received earlier because executors have authority, prior to letters, 'to take such action as is necessary to preserve (property)' (EPTL 11--1.3), and some property may require immediate executorial action for its preservation. Other assets may require executorial action before they can be collected, and they are deemed received when they are collected.

A Westchester County Probate Lawyer said as a matter of convenience and in the interest of avoiding additional expense, it has become customary for the Surrogates to accept the values fixed in the estate tax proceeding as the valuations for fixing receiving commissions on assets that fall immediately to the fiduciaries. Generally the differences in valuations between date of death and date of receipt are relatively small, and any increase in receiving commissions by such valuation may be offset by the saving of the expense of additional appraisals and the expense of litigation over valuations. In the pending case, however, the property in issue was not property owned by the decedent at the time of her death, but rather property which would be transferrable to her executors after her death. It is property that had to be collected by the executors and would be subject to commissions only if collected, and only to the extent collected. Like all other property which the executors must proceed to collect, the value of the property, when collected, is the base for receiving commissions. It is also the value at which the executors are charged in their accounts and the value for which they are responsible. The commissions must, therefore, be re-computed.
The guardian ad litem also objects to charging the estate with the costs and expenses of the ancillary probate of the will and ancillary administration of property in Connecticut. It is conceded that the only property in Connecticut was real property, consisting of land and a summer residence, which was specifically devised to decedent's daughter and any tangible property that was contained therein. The decedent specifically bequeathed to her daughter all jewelry, clothing, furs, personal effects, furniture, silver, china, paintings and all household effects. Presumably some of the specifically bequeathed property was located in the summer residence. The guardian recommends that the executors be directed to obtain repayment from the daughter of approximately $12,547.85, representing payments made from the New York estate in connection with the ancillary proceedings. This sum includes probate fees, appraisals, legal fees, commissions and other charges allocable to the realty. The issue is submitted to the court as a question of law, but a more precise identification of figures is necessary before the court can make a definitive determination of the sum properly credited to the executors in their account and the amount improperly credited. A discussion of the applicable principles may assist the parties in an adjustment of the figures.

A Suffolk County Probate Lawyer said the subject to Constitutional limitations, each state has the power to determine the disposition of a decedent's property within its borders. An ancillary representative is an officer of the jurisdiction in which he is appointed. He is accountable only to the court where appointed, and he cannot be required to account for his administration by the courts of any other jurisdiction. The title of an ancillary representative extends only to property which is within the jurisdiction of his appointment, and he has no authority over assets elsewhere.

The State of Connecticut has exclusive jurisdiction over real property located there. It has jurisdiction to supervise and direct the administration of personal property within its borders. Its decrees governing disposition of property by a representative therein appointed cannot be disturbed by this court. However, the court in Connecticut cannot make directions respecting property located within the State of New York, the domicile of the decedent.

The appointment by a testator of an executor confers upon the person named a right, and in a sense, imposes something akin to a moral obligation, to offer the will of the decedent for probate. That responsibility extends to the jurisdiction or jurisdictions in which property of the decedent is located. An executor, who, in good faith, offers a will for probate, is entitled to reimbursement for his necessary expenses in proving the will. Hence the executors named in the decedent's will were justified in presenting the will for probate at the domicile and in the place where other property of the decedent was located, and the executors are entitled to reimbursement or exoneration of liability for counsel fees necessarily incurred in proving the will.

The cost of administering the personal assets of the decedent is an expense that must be imposed upon the property being administered. Any attorneys' fees involved in the settlement of an account of such property should be payable from such property. Any commissions awarded by the court in Connecticut are payable out of the property there administered. Under New York law commissions would not be payable on real property specifically devised nor on personal property specifically bequeathed. Thus under New York law there would be no commissions on property of a character such as that in Connecticut. The courts of Connecticut are, of course, governed by the laws of that state, and whatever property is subject to commissions under Connecticut law must bear the burden of such commissions. A court in the ancillary jurisdiction cannot impose that expense upon property in another jurisdiction.

The personal representatives of a decedent take only a qualified title to assets specifically bequeathed, and when they assent to the specific legatee taking possession, his title becomes full and complete. The executors have no obligation to collect the property for the specific legatee. The specific legatee must but himself in possession of the property when his title has been completed by the assent of the executors. A specific legatee or devisee is entitled to the profits produced by the property after the death of the decedent and is also liable for all expenses incurred in operating and maintaining the property thereafter.
The court accordingly holds that the commissions awarded upon the Connecticut property are not chargeable against the general estate. The legal fees are chargeable in part, that is, to the extent that they were necessary to prove the will in the ancillary jurisdiction. The probate fees in connection with the proving of the will are chargeable against the estate. The debts owed by the decedent at the time of her death are, of course, chargeable against the general estate. Disbursements for the operation and maintenance of the realty after the death of the decedent are not chargeable to the estate. It is conceded that under the terms of the will all estate taxes are chargeable against the general estate.

Within the general principles herein discussed, the parties will be able to adjust a great part of the figures in dispute. If they are unable to adjust any particular item in dispute, either party may request a hearing on that issue.

In his report the guardian adverts to questions that might arise in the future dependent upon the order in which the deaths of certain persons might occur, but states that he is 'not recommending that there be a decree now construing the will.' The petition does not request any construction of the will. The executors and the guardian discuss in their briefs suggested constructions of the will. However, no such question is properly before the court. A judicial construction of the will would require issuance of process to affected persons and opportunity to be heard. The court accordingly expresses no opinion relative to construing the will.
The compensation of the attorneys for the petitioners is fixed and allowed in the amount requested. The objection to computing paying commissions on the receiving commissions paid on account and confirmed herein, is overruled. The application of the executors for leave to abandon 100 shares of Continental Securities Corp. $5 Preferred Stock is granted, there being no objection to the allegation that it is worthless. The guardian ad litem agrees that the security is worthless.

Accordingly, the court held that the objection to the valuation of assets for commission purposes is sustained. The property transferred to the executors by the trustees under the deed of trust should be valued as of the date of transfer.

Do you have objections to the account of the estate? Seek the help of a New York Estate Administration Attorney and New York Probate Attorney at Stephen Bilkis and Associates.

November 15, 2013

Court Discusses Will Contest Proceeding

In this Will Contest probate proceeding, the nominated co-executors, the decedent's nephew, and an attorney who had worked with the decedent, move for summary judgment dismissing the objections of the decedent's niece, and admitting the propounded instrument to probate.

A New York Probate Lawyer said the decedent, a renowned real estate attorney, executed the propounded instrument in the hospital in September 2003, the date that he was discharged from the hospital with terminal colon cancer. He was readmitted to the hospital and died on the same month at 78 years of age. The decedent's distributees are his brother and his niece. The niece, the sole objectant, alleges that the decedent lacked testamentary capacity and that the will was the product of undue influence and fraud.
The propounded instrument contains the following pre-residuary bequests: the decedent's personal property to his brother and his spouse; his cooperative apartment in the Bronx and its contents to her niece; the sum of $100,000 from the a Credit amount to be shared by the five children of the co-executor; and the balance of the tax exempt amount to be shared equally by his brother, brother’s wife and their son and the latter's three children. The residuary estate is bequeathed to a charitable trust. The propounded instrument specifically states that no provision has been made for the decedent's niece, or for his sister-in-law, who are the daughter and the surviving spouse, respectively, of the decedent's predeceased brother, because they "have been adequately provided for from other sources." The estate is valued at $1,800,000 in the probate petition.

A New York Will Lawyer said the movants contend that the testimony of the decedent's financial consultant, the attorney-draftsman of the instrument, and all of whom were present when the decedent's testamentary plans were discussed, as well as the testimony of the three attesting witnesses, establish that the decedent possessed testamentary capacity when the instrument was executed. They also assert that the decedent's medical records, the testimony of his treating physician and the opinion of another doctor, who reviewed the decedent's medical records, support this conclusion. Lastly, they argue that the objectant has failed to either rebut their prima facie case of testamentary capacity or meet her burden of proof on the issues of undue influence and fraud.

Westchester County Probate Lawyers said the objectant relies primarily upon the decedent's medical records, the doctor's testimony and the affidavit of her mother, to show that there are material factual issues which can only be resolved at a trial. She contends that this is clearly the case in light of the following: the instrument offered for probate is a death-bed will, the decedent never met with his attorney alone, the attorney-draftsman had conversations with persons other than the decedent about the decedent's testamentary plans; and the objectant was a beneficiary under two drafts prepared by the attorney-draftsman.

Other witnesses essentially gave similar testimony about the events leading up to the execution of the instrument. After the decedent began discussing his testamentary plans retained the lawyer as his estate planning attorney. The decedent met with them in February, 2003. The decedent wanted "in the loop" about his testamentary plans to assist him in carrying out his duties as a co-executor. During this first meeting, the decedent indicated that the objectant should be included as a beneficiary of an equal share of the Credit amount along with the members of brother's family. The first draft of the will contains such a provision. Thereafter, the decedent's brother died in March, 2003 and the decedent, as the executor of the brother's estate, learned that brother's wife and the objectant were amply provided for by his brother. The decedent told them in a meeting in July 2003 that it was no longer necessary to treat the objectant the same as members of brother's family. In the second draft of the will that was prepared, the objectant and her mother were each bequeathed $100,000. It is alleged that the decedent thereafter learned that the brother had left an estate with assets valued between $6,000,000 and $7,000,000 and that the objectant had the remainder interest of a $500,000 trust. Consequently, the decedent no longer thought that it was necessary to make any bequest to the objectant.

Thereafter, the decedent, who was hospitalized, telephoned the lawyer and told him that he wanted the second draft changed to delete any provision for the objectant and her mother because "they have been adequately provided for from other sources." Suffolk County Probate Lawyers said the decedent also told Golden that he wanted to add a provision leaving his cooperative apartment to his niece, his brother's daughter, and $100,000 to the children.
The lawyer brought the propounded instrument to the hospital, and reviewed the will with the decedent. The lawyer, who was also present, also went over the will with the decedent. The lawyer also testified that he tried to discourage the decedent from leaving $100,000 to lawyer's children, telling the decedent that he could take care of his own children. Nevertheless, the decedent insisted on making those bequests. The attorney-draftsman of the instrument supervised the execution of the will with hospital personnel acting as the three attesting witnesses. The people present at the execution ceremony stated that the decedent was oriented as to person, place and time, was conversant and displayed a sense of humor.

Both sides rely on the testimony of the decedent's oncologist. The movant focuses upon that portion where the Doctor stated that he did not detect any changes in the decedent's mental status from the time he began to treat him in 2002 until the date the will was executed. He also testified that none of his medical treatment team expressed any concern about discussing discharge plans with the decedent on September 5, 2003. The objectant notes that the doctor answered that he would have referred the decedent to a psychiatrist had he been asked whether the decedent was competent to execute a will on September 5, 2003. Moreover, he had expressed some concerns that the decedent did not want to deal with end-of-life plans and, instead, seemed to leave these choices to his nephew, even though the decedent's prognosis was that he would live for weeks rather than years. The decedent informed the oncologist on September 5, 2003 that he was feeling "blah".
The decedent was hospitalized from August 23, 2003 until his discharge on September 5, 2003, the date the instrument was executed. The hospital records reflect that the decedent was lethargic and confused when first admitted, that he was taking Tylenol No. 3 for back pain and that he had taken "Ativan" a sedative, on September 5, 2003.

The objectant's mother avers that the decedent had not been himself since the latter part of 2002 when he became seriously ill while visiting Florida. On that occasion the decedent was hospitalized with a diagnoses of renal failure, and for a time it appeared that he would not leave the hospital. She states that it was the objectant who spent time with the decedent during her entire life and who flew back to New York with him in January, 2003. She cannot understand how the decedent left nothing to the objectant while leaving $100,000 to lawyer’s children. She asserts that the decedent rarely socialized with the lawyer and that their relationship was pretty much limited to working together. Although the decedent had a driver who would sometimes take him to work upon his return to New York in 2003, the decedent told her that he did not actually work and he just wanted to get out of the house. After mother' husband died in March, 2003, the decedent, who was the executor of his brother's estate, told her that the estate "was too much for him to handle" and, in fact, bills were not paid in a timely fashion and assets were not properly monitored. She notes that her relationship with decedent’s brother and his family soured after her husband's death because she buried her husband in accordance with his wishes over the objections of his brother’s family that the burial was not in accord with their Orthodox Jewish beliefs.

Summary judgment motions cannot be granted unless it clearly appears that no material issues of fact exist. The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. When the movant has made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact. Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial. The papers submitted in the summary judgment application are always scrutinized in a light most favorable to the party opposing the motion.

In order to meet their burden of proof on the issue of testamentary capacity, the proponents must show that the decedent understood the nature and consequences of executing a will, that he knew the nature and extent of the property passing under the will and that he knew the natural objects of his bounty and his relations with them. However, the objectant has the burden of proof on the issues of undue influence and fraud. To establish undue influence, the objectant must show not only opportunity and motive, but also that undue influence was actually utilized, i.e., "that the influence exercised...constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist". To establish fraud, the objectant must show that a false statement was made to the decedent which caused him to dispose of property in his will in a manner different than he would have absent the false statement.

Here, the proof offered by the proponents, standing alone, clearly makes out a prima facie case on the issue of testamentary capacity. Moreover, the proponents are correct in contending that the fact that the decedent suffered from illness or physical infirmities is not sufficient by itself to raise a material issue of fact with respect to testamentary capacity. They might also be correct in stating that some of the proof that they have presented can be viewed as coming from disinterested parties, while the same cannot be said about the proof offered by the objectant's mother. Lastly, their contention that the decedent ultimately omitted any legacy to the objectant and her mother because he became increasingly aware that they had been amply provided for by his brother is certainly plausible.

Notwithstanding the above, viewing all of the proof presented in this motion in the light most favorable to the objectant, there remains the possibility that a jury might draw inferences that would lead it to conclude either or both that the decedent lacked testamentary capacity and that the will was the product of undue influence. Such inferences might be drawn from the following: the allegation that the decedent lacked the capacity in 2003 to carry out his duties as the executor of his brother's estate; that the decedent always had others with him when he met with his attorney to discuss his testamentary plans; that the decedent was dependent upon Brother's son, a doctor, to make medical decisions; that notwithstanding that there had not been any change in the relations between the decedent and the objectant, the legacy to the objectant was reduced in the second draft of the will and then disappeared in the final draft, while the children of one of the proponents, an attorney who was present while the decedent discussed his testamentary plans with his own attorney, suddenly became beneficiaries and the bequests to brother's family, who was feuding with the objectant's family, increased; that the testimony of the decedent's doctor might be construed as evincing a reluctance to definitively state that the decedent possessed testamentary capacity on September 5, 2003; and that although the will was executed in the hospital on the date that the decedent was discharged, his doctor was already of the opinion that his life would only last for weeks and, in fact, the decedent succumbed to cancer four days after the instrument was executed.

For the reasons stated above, the material issues of fact with respect to testamentary capacity and undue influence can only be resolved at a trial, and mandate that the branches of the motion for summary judgment seeking to dismiss these objections and to admit the will to probate be denied. However, the objectant has failed to show that anyone made a false statement to the decedent which caused him to change his testamentary plans. Consequently, the branch of the motion seeking to dismiss any objection based upon fraud must be granted. This matter shall appear on the ready for trial calendar upon compliance with Uniform Rules 207.29 and 207.31.

An estate of a person may be divided according to the testator’s desire. However, it conform with the legalities mandated by law. Here in Stephen Bilkis and Associates, our Bronx Probate attorneys will help an oppositor to the probate of a will in case a right to inheritance of an heir was disregarded. For proper execution of a Will, consult our Bronx Estate lawyers now.

November 14, 2013

Petitioner Claims Lack of Testimentary Capacity in Will Dispute

In this probate proceeding, a New York Probate Lawyer said the proponent woman, wife of the decedent's predeceased cousin and the nominated executrix under the propounded instrument moves for summary judgment. Specifically, she seeks dismissal of the decedent's spouse's objections to probate; admission of the will to probate; dismissal of the objectant's petition for letters of administration; and costs and attorney's fees against either or both the objectant and her counsel.

The decedent died at 72 years of age survived by his spouse and daughter as his only distributees. Under the propounded instrument, which contains an attestation clause and a self-proving affidavit, the objectant is the beneficiary of the marital abode, a cooperative apartment, and the balance of the estate is bequeathed to the daughter. A New York Will Lawyer said the objectant filed standard objections to probate, alleging lack of due execution, lack of testamentary capacity, fraud and undue influence. Her opposition to this motion is limited to her own affidavit. The attorney drafter states that he represented the decedent in 1990 in a divorce proceeding in which the decedent's prior wife was the other party. In 1999 the decedent communicated with the attorney about changing his will. The decedent gave the attorney a copy of his March 18, 1997 will which apparently had been prepared by the father of the attorney who is now representing the objectant. On this copy, the decedent had crossed out the words "friend and companion" to describe the objectant and replaced them with the word "wife", and changed her last name to reflect that it was the same as his own. He also crossed out the limitations on the objectant's use of the cooperative apartment in which the couple resided. His daughter was the sole residuary beneficiary under this instrument and the decedent did not indicate that he wanted to change this clause. The attorney then prepared a draft of the will, increasing the objectant's legacy to an outright interest in the cooperative apartment, and mailed it to the decedent.

A Westchester County Probate Lawyer said the decedent came to the attorney's office on October 18, 1999, where he reviewed the will with the attorney before he executed it in the presence of the two attesting witnesses, who were employees of the law firm, and the attorney who supervised its execution. The attorney retained the original will and mailed a copy to the decedent. The attorney and the attesting witnesses all state that the will was executed in accordance with the statutory requirements. They also note that the decedent was alert and rational and that his appearance and speech were normal. The proponent avers that the decedent had discussed his testamentary plan with her and that the propounded instrument carries out his plan.

The objectant asserts that the court should give no weight to the testimony of the attesting witnesses because they admitted that the attorney drafter, who is representing the proponent, had discussed with them the questions that they would be asked at their examinations. She also notes that her husband made a striking appearance. Suffolk County Probate Lawyers said she finds it suspicious that the two attesting witnesses could not describe much more about the decedent other than that he had an Eastern European accent and that the attorney's recollection of the decedent's height, weight and hair color. She cites as further proof that the testimony about the execution ceremony is a fabrication the fact that the attorney kept the original of the propounded instrument while the decedent had retained the prior will in his safe deposit box. She concludes from the above that it is quite possible or far more than likely that the entire transaction was done through the mail with the decedent never having met the attorney or the attesting witnesses.

Summary judgment motions cannot be granted unless it clearly appears that no material triable issues of fact exist. The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. When the movant has made a legitimate case, the burden of going forward shifts to the person opposing the motion. The party has to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact. Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial. The papers submitted in the summary judgment application are always scrutinized in a light most favorable to the party opposing the motion.

There was a time when summary judgment was rarely granted on the issues of due execution and testamentary capacity in will contests because the proponent has the burden of proof on these issues. However, the courts now require that an objectant's opposition to a summary judgment application in a contested probate proceeding consist of more than a hope or a prayer that the proponent's uncontroverted evidence may be held not worthy of belief. Consequently, summary judgment is now frequently granted where the proponent has made out a prima facie case and the objectant, having had an opportunity to examine the witnesses, has failed to raise any triable issue of fact and has made only bald, conclusory assertions.

Here, the proof adduced by the proponent clearly suffices to meet her burden of proof on the issue of due execution, especially in light of the circumstances that an attorney supervised its execution and that it contains an attestation clause. The objectant is grasping at straws and relying upon no more than surmise and conjecture when she concludes that the attesting witnesses and the attorney never saw the decedent because five years after the execution ceremony their descriptions of him are not completely accurate and because they are unable to be more specific about his accent. Such conjecture fails to withstand scrutiny in light of the fact that the attorney apparently had previously represented the decedent in a contested divorce proceeding. Moreover, their motive for having engaged in such chicanery does not come to mind because the objectant receives less under the prior will which appears to have been prepared by her present attorney's father.

The proponent has also met her burden of proof in establishing the necessary elements for testamentary capacity. The objectant has not offered an iota of proof to rebut the proponent's prima facie case on this issue.

For the reasons stated above, and appearing that the will was duly executed at a time when the decedent had testamentary capacity and was not under restraint, the motion is granted to the extent that a decree may be settled dismissing the objections to probate, dismissing the objectant's petition for letters of administration and admitting the October 18, 1999 will to probate. Although the court has found that the objections should be dismissed, the lack of recollection by the attesting witnesses with respect to some of the details about the decedent's appearance and the execution ceremony militates against finding that the filing of the objections was frivolous or otherwise warrants the imposition of either costs or attorney's fees. Accordingly, in the exercise of the court's discretion, the application for costs and attorney's fees is denied and the decree to be entered herein shall so provide.

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November 1, 2013

Petitioner Files Motion to Compel Production of a Will

A New York Probate Lawyer said that, petitioner, pro se, in his status as attorney-in-fact for his mother, has instituted a proceeding seeking to compel the production of a will. Petitioner personally has no status in the estate of decedent. Decedent died on May 5, 1984. Based upon a probate petition filed on July 2, 1984, an instrument dated March 27, 1982 was duly admitted to probate by the entry of a decree dated July 13, 1984. Petitioner's principal is decedent's sister. She was not his distributee inasmuch as the decedent was survived by two grandchildren. Under the instrument already admitted to probate, the grandchildren are the primary beneficiaries. Decedent's sister receives a $1,000 legacy. There are several other legacies, including bequests to infants and charitable organizations.

A New York Will Lawyer said that, petitioner alleges that there is a testamentary instrument prior in date to the will admitted to probate under which petitioner believes his principal receives a greater legacy and that such prior instrument is in the possession of the co-executor who is the respondent in the instant proceeding.

A Westchester County Probate Lawyer said that, as a consequence of the greater legacy to his mother in the prior instrument, petitioner intends to institute a further proceeding seeking to vacate the probate decree entered July 13, 1984 and in the event such application be granted, to file objections on behalf of his principal to the probate of the instrument which formed the basis for that decree.

The issue in this case is whether petitioner’s petition to compel the production of the will should be granted.

The court in deciding the case said that, the statutory short form power of attorney which was executed by petitioner's principal permits petitioner, as agent, to act for his principal in a wide gamut of transactions. With respect to "claims and litigation" and "estate transactions," the statutory short form power of attorney is broad and sweeping Subdivision 10 of both of the above sections, in addition to all of the specific powers enumerated therein, also confers upon the agent the power " to do any other act or acts, which the principal can do through an agent". Suffolk County Probate Lawyers said that among such powers are the power to hire, discharge, and compensate any attorney or other assistants when the agent thinks such action to be desirable for the proper execution by him of the powers described in the foregoing sections.

However, notwithstanding the broad sweep of these powers, no authority has been presented which would permit a lay person by virtue of his capacity as attorney-in-fact for his principal to appear on his principal's behalf and act as legal counsel in a court of law unless admitted to so practice. Under the applicable statutes of this state, only those persons duly admitted to practice before the courts of this state may act as a legal representative of another person in a court proceeding or in the further capacity of a practicing attorney. The seriousness with which the legislature views this requirement is manifest since a violation of the statutory proscription is punishable as a misdemeanor Moreover, the potential problems created by the use of this device as a means of encouraging the unauthorized practice of law is obvious Of course, if petitioner's principal wishes to proceed pro se, she may do so. However, she cannot use a power of attorney as a device to license a layman to act as her attorney in a court of record. To sanction this course would effectively circumvent the stringent licensing requirements of attorneys by conferring upon lay persons the same right to represent others by the use of powers of attorney.

It is concluded that petitioner's capacity as attorney-in-fact does not give him, as a layman, the authority to proceed pro se on behalf of his principal in the instant proceeding As a matter of law, petitioner does not have the status to obtain the relief he seeks. Additionally, the court cannot sanction a course which constitutes the illegal practice of law without a license.

Accordingly, the court held that the petition is dismissed on the court's own motion.

Under the applicable statutes of this state, only those persons duly admitted to practice before the courts of this state may act as a legal representative of another person in a court proceeding or in the further capacity of a practicing attorney. If the person has no capacity to act as an attorney-in-fact then, he has no right to compel the production of a will. Seek the representation of a Bronx Estate Administration Attorney and Bronx Probate Attorney at Stephen Bilkis and Associates. Call us.

October 30, 2013

Court Hears Claim of Undue Influence in Execution of Will

A New York Probate Lawyer said that, defendants move pursuant to CPLR 3211(a)(5) to dismiss plaintiff's complaint contending that plaintiff's claims are barred by the applicable statute of limitations and pursuant to CPLR 3211 (a)(7) dismissing plaintiff's causes of action on the ground that said causes fail to state a cause of action.

Plaintiff, the sister of defendant, brings this action to recover the value of property described as 797 Southern Boulevard, located in Bronx County, and to impose a constructive trust to prevent defendants from transferring this property. A New York Will Lawyer said that, the complaint, which parenthetically was not, verified by the plaintiff, charges plaintiff's sister with influencing their mother to transfer the property in Bronx County to her which according to the plaintiff was to be held in trust for the beneficiaries of their mother's estate. Obviously unless plaintiff's undue influence claim is sustained, the court need not pass upon the cause of action for a constructive trust. Moreover, this action initiated here in Bronx County in essence, challenges the testamentary capacity of the decedent, plaintiff's mother who transferred the Southern Boulevard property by deed to plaintiff's sister. Plaintiff fails to set forth information regarding whether any of the Wills executed by the decedent were admitted to probate nor does Counsel for plaintiff provide this court with such information.

A Bronx Probate Lawyer said that, as previously noted plaintiff's complaint is not verified by plaintiff and in response to defendants' motion to dismiss, plaintiff submits a short affidavit which makes conclusory assertions that adds little to the complaint. Manifestly, plaintiff's counsel's affirmation and his verification of the allegations set forth in the complaint are without probative value.
A Bronx Estate Litigation Lawyer said that, defendants in support of their motion to dismiss submit a copy of plaintiff's verified complaint (which only contains verification of plaintiff's attorney), the deed dated February 2, 1998 transferring ownership of the Southern Boulevard property from the decedent, to Longwood Properties LLC, a company owned by decedent's daughter Lenore Monaco and her husband, the death certificate of the decedent, the death certificate of the father of both plaintiff and defendant, the last Will and Testament of the decedent executed in Florida on September 12, 1991, the Codicil establishing, inter alia, a Inter Vivos Trust to the Will dated February 20, 1992, the Trust Agreement dated October 22, 1992, the Trust Modification and Ratification dated July 25, 2002 and the further modification dated January 24, 2003. Plaintiff does not challenge the authenticity of these documents.

A Westchester County Probate Lawyer said the issue in this case is whether defendant’s motion for summary judgment to dismiss plaintiff’s complaint on the ground that plaintiff's claims are barred by the applicable statute of limitations and pursuant to CPLR 3211 (a)(7) dismissing plaintiff's causes of action on the ground that said causes fail to state a cause of action.

It is well established that summary judgment is warranted where there are no genuine issues of material facts. Moreover, when faced with a motion to dismiss, the court is required to afford the complaint liberal construction extending every favorable inference to ascertain whether the facts alleged in the complaint fit within any cognizable theory..

New York City Probate Lawyers said when a motion is made pursuant to CPLR 3211(a)(7) the moving party is asserting that the pleading, which is accorded liberal construction, nevertheless fails to state a cause of action. Subdivision (c) of Rule 3211 permits the introduction of documentary evidence which includes judicial records and documents referable to out of court transactions such as contracts, deeds and wills. Obviously, the above description of what may be considered documentary evidence is not all inclusive but is stated merely to demonstrate the variety of documents which a court may consider when deciding a motion for dismissal pursuant paragraph 3211(a)(7). In the case at bar, defendants are seeking a dismissal of the complaint pursuant to CPLR 3211(a)(7) and consequently the defendants have the burden of demonstrating that the documentary evidence submitted conclusively resolves all factual issues and that plaintiff's claims fail as a matter of law. Here, defendants have sustained their burden for the following reasons.

First, it is evident that the disposition of the decedents’ Estate took place over a protracted period of time, commencing with the Will she executed on September 12, 1991, followed by a second Will also executed in Florida in 1992. The Trust Agreement, was executed on October 22, 1992, and nominated plaintiff, and defendant, (both daughters of the decedent), as Trustees. Plaintiff does not challenge her mother's capacity to know the natural objects of her bounty nor does plaintiff challenge her mother's mental capacity when she executed a Codicil on March 20, 2001 or the amendment made to the Trust in July 25, 2002. Instead plaintiff turns to the transfer of the Bronx Property which occurred by the deed dated February 2, 1998.

In order to state a claim for fraud, the plaintiff is required to present evidence such as false statements made to the decedent which caused her to execute a deed that disposed of her property in a manner inconsistent with her mother's alleged conviction to share her estate among her daughters, or to submit proof as to when the fraud or undue influence occurred or the circumstances which occurred that support plaintiff's contention that the property in question was transferred due to the undue influence presumable exercised by plaintiff's sister and her husband.

A finding of undue influence requires proof of a moral coercion which interferes with independent action or by opportunity which could not be resisted to do "that which was against his free will".
Assertions in a complaint which broadly claim fraudulent conduct must satisfy the mandates of CPLR 3016(b). This section, CPLR 3016(b), requires that fraud be pleaded with specificity and a complaint which does not allege fraud with sufficient specificity is dismissible as a matter of law. Moreover, the party who contests the validity of a Will regarding the disposition of the testator's assets has the burden of proving fraud by clear and convincing evidence and plaintiff failed to submit clear and convincing proof regarding what may have induced her mother to transfer the Bronx Property by deed to defendant. Nothing of substance other than the general reference to fraud or undue influence has been presented and plaintiff has failed to explain her mother's capacity to execute several Wills and a Trust disposing of her estate and yet challenges a single disposition of Bronx property made in-between her testamentary wishes.
Consequently, the court held that the defendants' motion is granted and plaintiff's complaint is dismissed. This constitutes the decision and order of this court.
If you doubt the validity if a will, seek the assistance of a Bronx Will Contest Attorney and Bronx Estate Attorney at Stephen Bilkis and Associates in order to invalidate such will.

October 7, 2013

Court Decides Ownership of Multiple Parcels of Property

A man died on January 30, 1956. His will was duly admitted to probate by decree of this court entered on March 5, 1956. Letters of testamentary were issued there under to the decedent's spouse, the nominated executrix. A New York Probate Lawyer said the man's will bequeathed one-third of the residuary estate to his spouse and the remaining two-thirds, in equal shares, to his three children with the further direction that the share of his two daughters be held in a trust fund until they each attained the age of 23 years. The man's daughters attained the age of 23 years in 1959 and 1961, respectively.

The record reflects that deceased man's estate apparently consisted of ownership of, or interest in, numerous unimproved parcels of real property located in Bronx County. A New York Will Lawyer said the record further reflects that many of said parcels were intermittently sold by the executrix in the years after her husband's death, and that the proceeds thereof were utilized to pay the indebtedness on other properties, to satisfy outstanding loans, to defray expenses associated with retention of the remaining parcels, and to pay the living expenses of herself and her children. None of the proceeds derived from these sales were ever placed into any bank account or trust fund for the man's daughters as directed by the will.

A Westchester County Probate Lawyer said that upon an application by the daughters, on August 9, 1985, the court entered an order directing the fiduciary to render and seek judicial settlement of her account. The executrix subsequently filed her account on April 11, 1986. Separate sets of objections were filed thereto by the deceased man's daughters and son.

By order to show cause and supplemental order to show cause entered on March 4, 1987 and March 25, 1987, respectively, the objectants including the wife seek to leave to file amended objections to the account nunc pro tunc (to correct an earlier ruling). A Suffolk County Probate Lawyer said they also seek the addition of seventeen parties to the proceeding. They also want the entry of a decree surcharging the fiduciary and awarding the objectants punitive damages, costs, and attorneys' fees against the executrix and the son. They also seek revoking the letters of testamentary and imposing a constructive trust on real property on behalf of the objectants. The application is opposed by the fiduciary and a number of the proposed additional parties.

The objectants posit the relief requested on the information allegedly ascertained through their extensive investigation of the case and, specifically, from the testimony of the executrix at her examination before trial. The objectants essentially contend that, throughout the thirty-year history of the estate, the son exerted, through the medium of his mother's nominal authority as fiduciary, virtually total control over the assets of the estate. As a result, the son was able, over this lengthy period of time, to convert numerous estate assets into other properties, the addresses and names of the record owners of which have only recently been discovered. The son has also allegedly used funds belonging to the estate to purchase real property which is held on his behalf in the name of mere nominees. The said nominees comprise that class of persons and entities whom objectants now seek to add as additional parties to the proceeding. The objectants assert an estate interest in the aforesaid properties and, consequently, seek to impose a constructive trust on said realty on their behalf as residuary legatees.

During the pendency of the above applications, the son and a number of the proposed additional parties commenced actions in the Supreme Court, by orders to show cause, seeking to cancel notices of pendency. Pursuant to a stipulation entered into by all of the parties to the above actions, the Supreme Court, by order entered on August 7, 1987, directed that said actions be transferred to the Probate court for determination in the context of the instant accounting proceeding.
The record reflects that, during the period between February 27, 1987 and March 27, 1987, two of the daughters filed with the County Clerk of the counties of Bronx, New York, and Kings County notices of pendency upon a number of the parcels of real property upon which the objectants seek to impose a constructive trust and to compel a re-conveyance thereof in this proceeding.

The movants in the transferred action contend that the notices of pendency filed by the two daughters between February 27, 1987 and March 27, 1987 should be cancelled for failure to comply with Civil Practice Law and Rules (CPLR). The movants argue that the order to show cause served on them subsequent to February 27, 1987 but before March 27, 1987 do not constitute a summons as contemplated by CPLR Art. 65. The respondents contend that the orders to show cause are sufficiently analogous to a summons, in the context of litigation in the Surrogate's Court, to satisfy the requirement of CPLR 6512.

Pursuant to CPLR 6501, a notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property. Accordingly, pursuant to said section, a Notice of Pendency may be filed in an otherwise appropriate proceeding commenced in the Surrogate's Court. Furthermore, to the extent that the within accounting proceeding seeks to impose a constructive trust on the real property, this proceeding supports the filing of the notices of pendency since the relief sought in this aspect of the proceeding clearly affects the title to real property and satisfies the statutory requirement therefore.

In accordance with CPLR 6512, a notice of pendency filed before an action is commenced is effective only if, within 30 days after filing, a summons is served upon the defendant. As noted above, although CPLR 6512 refers to service of summons which is the general means by which an action is commenced in the Supreme Court, the statute implicitly contemplates the service as well of an order to show cause which, along with citation, is the means by which a proceeding is commenced in the Surrogate's Court. Accordingly, since the record reflects that the orders to show cause were served upon movants within 30 days of the filing of the notices of pendency, the said notices of pendency are valid.

CPLR 6511 requires that the notice of pendency be filed in the county where the property at issue is situated, and, unless it has already been filed in that county, that the complaint be filed with the notice. To the extent that the objections and proposed amended objections herein seek affirmative relief, they may be deemed to constitute, in effect, a counterclaim, and the filing of said objections with the notices of pendency constitutes compliance with the requirements of CPLR 6511.

CPLR 6501 permits a notice of pendency to be filed in an action pending in any court. Pursuant to CPLR 105, an action includes a special proceeding. SCPA 203 provides that every proceeding in the Surrogate's Court is a special proceeding. CPLR 304 provides that a special proceeding is commenced, and jurisdiction acquired, by service of a notice of petition or order to show cause. Accordingly, the commencement of the within proceedings by order to show cause satisfies the requirement of CPLR 6512. Accordingly, upon the basis of all of the foregoing, it is concluded that the notices of pendency are valid and may not be cancelled. Accordingly, the applications to cancel the notices of pendency are hereby denied.

Numerous family relationships break because of money, power and personal things. Wills should bind relationships stronger instead of breaking it. If you want to probate a will and you value good family ties, ask the legal assistance of the Bronx County Probate Lawyer or the Bronx County Estate Administration Attorney from Stephen Bilkis and Associates.

October 5, 2013

Court Decides Validity of Will Instrument

A New York Probate Lawyer said a man died with assets having a value of slightly less than $1,000,000, divided approximately equally between testamentary and non-testamentary assets. The proposed last will contains pre-residuary legacies to each of the man's two nieces, his only successors, and to a friend.

The residuary estate is given in equal shares to two men, and their shares pass to their respective issue in the event they predeceased the deceased man.

Based on records, the main difference between the proposed last will and the deceased man's penultimate will is that under the penultimate will, man B shared the residuary estate with man’s A's mother and as the mother predeceased the deceased man and that last will did not contain an alternate disposition to her issue, man B would have been the sole beneficiary of the residuary estate under the penultimate will.

Consequently, a New York Will Lawyer said the deceased man named one or more members of either or both the man B and the man A families as beneficiaries under several other prior wills. However, the man A was named as a beneficiary for the first time in the proposed will.

A Manhattan Probate Lawyer said the complainant in this matter is one of the deceased man’s beneficiaries under a prior instrument. The complainant alleges that the deceased man was incapable of executing a last will, had failed to declare that the instrument was his will, and the will was the product of undue influence and/or fraud committed by man A, another person, the attorney-drafter of the last will, and the nominated administrator.

The evidence was then presented at trial and establishes that the deceased man forged a friendship with the two men’s families. A New York Will Lawyer said although the deceased man was not an accountant, he was employed as the assistant comptroller. The deceased man continued to maintain a friendship with his two former co-employees and their spouses after the company was sold, and his friendship with their respective wives continued after each of his former co-employees died.

The nominated administrator first met the deceased man when the administrator became a summer employee at the company as a high school student. After the company was sold, the administrator employed the deceased man for a period of time at his accounting firm.

It appears that some time, the deceased man began to seek assistance with his financial affairs. The mother of man A assumed the role of assisting the deceased man with his financial affairs and her name was added to at least some of his accounts. The man's B’s name had been added previously to some of the deceased man's other accounts.

Later, the deceased man, a chronic alcoholic, fell and was admitted to a hospital for various ailments. Upon his discharge from the hospital, he was admitted to a nursing home, where he continued to reside until he was again hospitalized shortly prior to his death. The nursing home records indicate that, throughout his stay, the deceased man received physical therapy for injuries arising from his fall and medication for depression and psychosis.

The deceased man's treating physician at the nursing home, is in evidence. The doctor opined that the deceased man suffered from some dementia which he could not quantify. He stated that the deceased man's ability to give either an informed consent for medical treatment or to make financial decisions was a day-to-day situation. However, it was less likely that the deceased man was capable of making financial decisions than an informed medical decision.

A social worker at the nursing home also testified that the deceased man was a difficult resident who was required to wear an electronic ankle bracelet because he roamed. She stated that the deceased man was aggressive and abusive when he did not want to do something, and she never succeeded in obtaining his signature on an advance health care directive, despite her numerous attempts. In her opinion, and as the nursing home records reflect, the deceased man suffered from both long and short term memory loss during his entire stay at the facility. However, she conceded that his short term memory was better than his long term memory, as there were occasions when he accurately described the activities in which he participated that day.

A Suffolk County Probate Lawyer said the man A, an attorney who is employed as a vice president by a bank, was called as a witness by the complainant. The man A and her cousin went to the nursing home to inform the deceased man that the man’s A’ mother died in an automobile accident. The man A and her cousin testified similarly with respect to what transpired at the nursing home. The deceased man was shaken by the bad news. However, after the he calmed down, he was delighted that the man A volunteered to substitute for her mother in taking care of his financial affairs. The deceased man signed three blank checks from his own account so that man A could use them to pay some of his bills. The deceased man told man A that he wanted her to replace her mother in every way, named as his attorney-in-fact and named as the beneficiary of one-half of his residuary estate in a new last will which he requested that she draft. Although the man A drafted a last will for the deceased man, she told him that she could not draft the new last will because she was to be named as a beneficiary. He then told her to call his administrator who would give her the name and number of the attorney who prepared his penultimate will.
Subsequently, the man A conveyed to his attorney who drafted the penultimate will, the deceased man's wishes with respect to the power of attorney, the bank accounts and the last will.
Consequently, there is no proof that the administrator or his attorney actually exerted undue influence upon the deceased man through the use of a promise or threat to perform or not perform services that the deceased man needed. Accordingly, the portion of the objections alleging that the administrator and his attorney exercise undue influence upon the complainant is dismissed.

Further, the objections alleging lack of due execution are dismissed. Moreover, the complainant failed to present any proof that anyone made a false statement to the deceased man that caused him to make any testamentary disposition that he would not otherwise have made, and the objection alleging fraud is also dismissed.

Appropriately, the court finds that the proposed last will must be denied to probate. As the complainant failed to establish that the administrator is lacked of good faith basis for proposing the last will. The court also finds no basis upon which to impose sanctions or to deny to him the reasonable attorneys fees he acquired.

Prior to settling a judgment, the parties are directed to appear for a conference following the calendar call. The issues to be discussed include who is to be appointed fiduciary of the estate pending the appointment of a permanent fiduciary, and the status of the pending discovery proceedings that were held in abeyance pending the determination of the last will contest.

Lastly, the court also ordered the chief clerk to mail a copy of the decision, which constitutes the order of the court directing attendance at the conference, to all parties.

When you want to file contentions on your kin’s estate, you can seek the legal help of the Bronx County Will Contest Lawyer or Bronx County Estate Lawyers. Also, you can avail of the legal guidance of the Bronx County Probate Attorney if you want to probate your love one’s last will. Simply visit Stephen Bilkis and Associates office for more details.

October 4, 2013

Court Discusses Putnam Rule in Will Contest

A New York Probate Lawyer said that, in this probate proceeding, decedent's will was previously admitted to probate by decree entered on April 15, 1983. These were dealt with on an interim basis by the decree admitting the instrument to probate prohibiting any distribution of the legacies which were then subjudice. A hearing with respect to those issues has now been completed.

A New York Will Lawyer said that, the decedent's will was executed on November 18, 1976. She died on June 26, 1979, at the age of eighty-one years. At the time of her death, decedent was a resident of a facility named Fort Schuyler House, where she resided since 1974. In addition to a large number of general bequests to individuals and charitable organizations, the will contains a bequest in the sum of $2,000 to the wife of the attorney-draftsman of the instrument, a bequest of $3,500 to the Executive Director of the above facility at the time decedent resided therein, and a general legacy of $2,500 plus the entire residuary estate to the Assistant Executive Director of decedent's residence until 1977. The attorney-draftsman of the instrument is the named executor. Decedent had never married and had no issue. Her distributees are eight cousins, all of whom reside in England. No objections to the admission of the propounded instrument to probate were interposed by any of decedent's distributees.

A Bronx Estate Administration Lawyer said that, the legacy to the attorney-draftsman's wife presents a simple fact question within the well established perimeters of the Putnam rule. The proof on this subject established that the attorney-draftsman was admitted to practice in 1932. He first met decedent in 1967. Initially, their relationship was social. It gradually became professional with the attorney-draftsman regularly handling such matters as preparing decedent's income tax returns. In 1972, the draftsman prepared an earlier will for decedent. A copy of this will is in evidence, although the original was destroyed upon the execution of decedent's present will. The 1972 instrument contains a series of general legacies to cousins of decedent, other persons and a long list of charities. The residuary estate is left to St. Barnabas Hospital. This hospital is reduced to a $2,500 legacy in the instant will.

A Westchester County Probate Lawyers said that, in November, 1976, decedent requested that the draftsman prepare a new will for her. It was stated that she advised him in detail as to the different legacies that she wished to include and the respective amounts to be bequeathed to each of them. After the attorney's submission of a draft of the instrument to decedent, she contacted him with regard to a number of changes that she desired. After all of decedent's proposed alterations were incorporated in the instrument, decedent executed the will. At all times she clearly had testamentary capacity.

A Bronx Will Contest Lawyer said that, in the course of decedent's professional relationship with the attorney-draftsman, she became acquainted with the draftsman's wife who assisted her husband at his office. When decedent visited the attorney's office, she would go to lunch with his wife. In addition, the draftsman and his wife occasionally visited decedent at her home. The court is satisfied that the bequest to the draftsman's wife was a product of the friendly social relationship between herself and decedent which had endured for a number of years. The instrument itself is supportive of this conclusion in that the relatively minimal legacy to the spouse is only one of a number of bequests to decedent's various friends.

Suffolk County Probate Lawyers said the issue in this case is whether the judicial scrutiny flowing from Matter of Putnam, supra, extends to legacies for the benefit of those who control a facility for the aged.
The testimony adduced with reference to the nature of Fort Schuyler House is germane to whether an inquiry flowing from the provisions of Matter of Putnam, supra, is both appropriate and necessary. The evidence on this subject established that Fort Schuyler House was a limited income publicly subsidized multiple dwelling governed by a board of directors which was a direct outgrowth of sponsorship by the governing board of a religious sect. The facility was specifically designed to provide housing for the aged under circumstances in which they lived in private units, but shared central areas for recreation and sustenance.

The facility's staff had the duty of overseeing their needs. The Board of Directors was essentially limited to making policy and hiring an Executive Director. Admission to the facility was based upon an application which included a complete financial statement. The administration of the facility, and the services received by the respective residents, were under the daily supervision and control of the executive director. His responsibilities also encompassed reviewing annual financial statements that each resident had to file to facilitate the director annually determining if the resident remained eligible to continue living in the facility under the guidelines fixed by law.

The development of the law in a particular area is a direct response to a societal need for regulation. Clearly, before we had nuclear energy our laws were devoid of both reference and sensitivity to any need for nuclear regulation. Similarly, before the proliferation of the motor vehicle, our laws were devoid of the countless references to motor vehicle operations that permeate both our civil and criminal law. Increased health care and rapidly expanding longevity have made the increase in the aged population as dramatic an occurrence as both the invention of the motor car and the effort to harness nuclear power. A concomitant of longer life has been a dramatic expansion in the need for facilities specifically geared to meet the varying needs of an aged population that runs the gamut from the completely self-sufficient to the bed-ridden, and encompasses all the gradations of physical and/or mental infirmity between the vigorous and the totally infirm.

Matter of Putnam, supra, in a matter involving a bequest for the benefit of a decedent's attorney, developed the concept of judicial scrutiny of legacies for those in a confidential relationship with a decedent. As the thesis was extended in the hereinabove cited cases to physicians, nurses and clerics, a basic concept is discerned that indicates the scope to which the court should go in uncontested matters in neither compelling a legatee to go forward and establish that his particular legacy was the product of neither undue influence nor overreaching. The controlling principle appears to be not only whether the legatee's relationship with the testator was confidential, but was it one in which the dependence of the testator on the legatee was such that it presents more than a remote possibility of lending itself to intruding on the testator's freedom of action.

The proof unequivocably establishes that at all times pertinent to the preparation and execution of decedent's will, the Executive Director and Assistant Executive Director directly managed and controlled the facility in which decedent resided and that her life was virtually confined to the perimeters of this facility. The relationship of the testatrix to the Executive Director was relatively tangential. From 1975 through 1976, his responsibilities as Assistant Director of Fort Schuyler House were part-time. He devoted one day a week to his duties. In his capacity as Assistant Director, he met decedent when she was considering applying for admission to the facility. After her admission, he visited with her periodically. These visits were relatively perfunctory and were not any different from his routine relationship with the other residents. They rarely exceeded a maximum of twenty minutes. He claimed that he never learned decedent's religious persuasion, nor did he ever discuss religious matters with her. In 1977, he ended his association with Fort Schuyler House and turned to another administrative position. He could recall no further contact with decedent, and denied any knowledge of his inclusion in decedent's will until after decedent's death. No relationship is indicated between the beneficiary and the draftsman during decedent's life. The uncontroverted proof indicates that the draftsman was decedent's attorney prior to her residing at Fort Schuyler House. He was retained by the testatrix without any involvement of any beneficiary. It is also noted that in this matter, in which the Public Administrator and the Attorney General have conducted extensive pre-trial discovery, there is no evidence controverting the his testimony that he has not been the beneficiary of a bequest from any other resident of the facility other than this testatrix.

Undoubtably, the tangential relationship of the Executive Director with the testatrix renders his good fortune in being the primary object of her significant bounty a particularly fortuitous occurrence for him. However, it is not for the court to speculate on what might incline a competent testatrix to view a particular individual with exceptional kindness. Giving great weight to the instrument having been drawn by counsel independent of the residuary legatee, or anyone associated with him, it is concluded that the totality of the proof permits the legacies for the benefit of the Executive Director to meet the test of being a voluntary act of a competent testatrix acting free of undue influence or overreaching.

The relationship of the testatrix with the Executive Director presents a more complex set of facts. During his tenure as Executive Director of the facility, he personally became a beneficiary under the wills of several of its residents and also benefited from their deaths by property passing to him by operation of law. The issues in the Norton estate were settled. Objections to probate are pending in the Smith, Yeager and Leighton estates. In taking judicial notice of its own files, the court notes that the instant case is the only matter in which there is not a common draftsman of all of the instruments.
The court is sensitive to the suspicion which may flow from so many residents of the facility which the legatee managed viewing him as an object of their bounty. Nevertheless, the court must carefully adhere to the distinction between what reasonably flows from proof and adventures into impermissible speculation. A most careful consideration of the totality of the record in the instant case leads to a conclusion that the legacy for the benefit of the Executive Director must be accepted as being a product of decedent's voluntary desires. In reaching this conclusion, the court places great weight on the fact that there is not a scintilla of evidence to suggest either direct or indirect participation by the beneficiary in the drafting or execution of the instrument, his lack of relationship with the draftsman, and the uncontroverted testimony that the legatee did not learn of the legacy to him until after the testatrix' death.

Parenthetically, it is noted that the testimony indicates that the fruits of the instant controversy have been the enactment by the directors of this facility of regulations more consistent with the confidential nature of the relationship which exists between those controlling a facility for the aged and those who reside therein. The present Executive Director of Fort Schuyler House testified that under the current guidelines governing the conduct of all of the staff of the facility, involvement by employees or officials in the financial affairs of the residents is clearly circumscribed.

If there is doubt on the testamentary capacity of the testator at the time of the drafting of the will, seek the assistance of a Bronx Will Contest Attorney and Bronx Estate Litigation Attorney at Stephen Bilkis and Associates in order to file the appropriate case.

September 30, 2013

Court Discusses Problem with Will's Signature and Format

In this probate proceeding, the propounded instrument upon its face raises a question as to its conformity requiring that a will be signed by the testator “at the end thereof". A New York Probate Lawyer said in the instant instrument, the testatrix's signature appears below that of the subscribing witnesses. The problem is compounded by the manner in which the testatrix misused a printed will form.

Examination of the printed form reflects that after utilizing the areas reserved for dispositive provisions and the designation of a fiduciary, the area for the testatrix's signature is ignored and left blank, as are the blanks in the printed attestation clause. After the blank attestation clause appears the signature of two subscribing witnesses and their respective addresses. A New York Will Lawyer said that each of these subscribing witnesses appeared before the Probate Clerk and testified that at the time of execution they were shown an instrument, the decedent stated it was her will, she signed it in their presence and thereafter, in the decedent's presence and at her request, the witnesses affixed their signatures to the instrument.

Beneath where there appear the respective signatures of the subscribing witnesses is a printed "Affidavit of Subscribing Witness." This affidavit is filled in with the testatrix's name as if she were a subscribing witness to her own will. The line at the end of the affidavit is signed by the testatrix and a notarization of her signature is on the instrument.

Westchester County Probate Lawyers said that while usually, and preferably, the signatures of witnesses are beneath or next to the signature they are witnessing, there is nothing in our statutory scheme which in itself would render the witnesses' signatures being physically above the testatrix's signature to be fatal to probate where all of the signatures are after the dispositive provisions of the will.

Likewise, the failure to utilize the attestation clause is of no significance. While an attestation clause is advisable, it is not a statutory prerequisite to a valid will. Both the notarization of testatrix's signature and her filling in the blanks on the "Affidavit of Subscribing Witnesses" with her own name are meaningless surplus usage.

The court is otherwise satisfied that at the time of execution, the decedent possessed testamentary capacity and was not under any restraint and that the instrument satisfies the requirements of EPTL (Estates Powers and Trusts Law). It is admitted to probate.

The manner in which this simple will form was utilized by a lay person presents ample basis for the advocates of lay preparation of any will form to pause. In the instant matter, despite the simplicity of the form she utilized, the testatrix' home drawn will approached the brink of having her testamentary scheme fail due to statutory insufficiency.

In another probate proceeding, the issue is whether the decedent, who could neither read nor write, executed her will in accordance with the requirements of EPTL. Suffok County Probate Attorneys said the two attesting witnesses, an attorney and his wife, testified pursuant to SCPA (Surrogate's Court Procedure Act). The decedent executed the will by placing her "X" mark on the signature line. The attorney, based upon a belief that the "X" mark required clarification, added to the signature line the words "her mark" and then signed the decedent's name.

The counsel's intentions were noble. Unfortunately, the method he used to carry out these intentions raised rather than settled issues as to whether the instrument is entitled to be admitted to probate. Clearly, if his signing of the decedent's name was intended to be a signing in her presence and her direction, the instrument could not be admitted to probate both because the attorney failed to sign his own name and because he then could not be counted as one of the two necessary attesting witnesses.

However, the propounded instrument can be saved by treating counsel's additions to the signature line ("her mark" and the signing of her name) as meaningless surplus usage. Consequently, the decedent's "X", standing alone, is her signature on the will as required by EPTL, and the counsel's own signature as an attesting witness can be counted as one of the two required attesting witnesses Nevertheless, if the testatrix can only sign her name by her "X" mark, the preferred practice is not to make any clarifications on the signature line but instead to recite in the attestation clause that the entire will was read aloud to the testatrix and that she signed it by placing her "X" mark on it.

The court is satisfied that the will was executed in accordance with the statutory requirements and that, at the time of execution, the testatrix was in all respects competent to make a will and free from restraint. Accordingly, the propounded instrument is admitted to probate.

Every person involve in executing a will must exercise extreme care to make sure that all is made accordingly. If you want to probate a will, consult the Bronx County Probate Lawyer as well as the Bronx County Estate Administration Attorney or Bronx County Estate Litigation Lawyer from Stephen Bilkis and Associates.

September 25, 2013

Court Rules on Will Modification

A woman died and survived by her two adult children. Her son is married and had two children. Her daughter is the nominated administrator of her last will, as well as the complainant in this matter.
The last will was offered for probate. A New York Probate Lawyer said but, it was not drafted by an attorney nor was its execution supervised by an attorney. The last will appears to be a form on which information was inserted by typing. It is signed by the testator and three attesting witnesses. An acknowledgment of the testator's signature was also taken by a notary public at the time of the implementation. Consequently, the file offered for validation also contains strike outs, erasures and handwritten interlineations. The alterations were apparently made by the testator.

The originally typed last will direct that the property of the woman will be given in the manner of partition. A New York Will Lawyer said it is stated that her daughter shall receive 50% of all investments & monies, such as bank accts, stocks, bond, etc.

However, in making the alterations on that line, the testator struck out the 50% and handwrote 70% PM and also wrote it in the left-hand margin next to the line.

The original last will also follows some words with four lines of six ditto marks. Sources revealed that careful examination of the original filed document indicates the presence of correction fluid in the area above the typed names of the woman's grandchildren. Further examination of the same original filed document indicates the presence of correction fluid in the area between the daughter's typed name and the two granddaughter's typed names. Also, in the area below the 50% on the daughter’s typed line. The testator in her own hand wrote 15% PM next to both of her grandchildren's typed names over apparently typed numbers and percentages blocked out by correction fluid. She also hand wrote 15%/15% in the left-hand margin next to the names of her grandchildren. She also struck out three of the four lines of six ditto marks by scribbling across them apparently in an attempt to delete them, placed her handwritten initials and the date in the right-hand margin and signed her name underneath all of her attempted alterations.

A Westchester County Probate Lawyer said the attorney states that upon information and belief at the time the file was completed, the woman bequeathed 50% of her investments, bank accounts, stock and bonds to her daughter, 25% thereof to her grandson and 25% thereof to her granddaughter. The attorney also affirms that shortly before the woman's unexpected death following surgery, she had contacted him and arranged for the completion of a new last will and testament in proper form. He states that at the time she advised him of the provision of her will, her revised dispositions and the writing concerning the revisions was already dated.

The modification of the will indicated that all the woman’s monies, investments, stocks, bonds, etc. to be distributed with her daughter having 70%, her grandson having 15%, and her granddaughter having 15%. The writing was handwritten, signed and notarized by a notary public.

Based on records, the general rule with regard to the legal effect of alterations to a last will is that where the alteration occurred prior to the completion of the will, the will is to be admitted for validation in its revised form. A Suffolk County Probate Lawyer said if the alteration occurs after the completion of the will, the alteration forms and the last will is validated in its original form.
Further, an alteration bearing a date subsequent to the date of the completion of the original will, in the absence of evidence that the alteration was executed with the formalities of due execution, is intrinsic evidence of the invalidity of the alteration.
In the case, the attesting witnesses have no commemoration of the dispositive provisions of the original will, and considering the dated interlineations and the writing. It is clear that the deceased woman altered the terms of her will after its completion without the legal formalities.
The court stated that ordinarily the last will would be admitted for validation in its original form. However, in the case, because of the correction fluid, it is difficult to determine what the dispositive provisions were in the original last will. Where it is impossible to determine from the will itself or extrinsic evidence the words or numbers which were erased and obliterated, a serious problem may arise. The court notes that the affirmation of the attorney that the woman discussed the changes made in her will with him is hearsay and incompetent evidence to establish the original provisions of the last will.
Sources revealed that the examination of the filed document would indicate that with four rows of ditto marks that there is a possibility that the original will contained a provision for at least two other beneficiaries whose names and percentages were eliminated by correction fluid. Hence, there is also the possibility that in the original form of the last will, the percentages for the grandchildren were, in fact, less than the 25%.
Moreover, it is well settled law that a will cannot be partially revoked by an act of revocation, the sole method of partially revoking a last will being by a subsequent written instrument executed with the legal formalities. Where an abortive attempt is made to partially revoke portions of a will, as in the case presented, the will must be admitted for validation in the form in which it was originally completed if the original language can be ascertained. On the other hand, the rule has developed that in the event of an abortive attempt at partial revocation by the act of the testator which renders a portion of the will illegible or unintelligible, the will is still admissible for validation in its altered form if the contents of the missing or altered portion of the will cannot be ascertained, unless it is apparent that the unascertainable portion of the will would materially affect the remaining parts of it, and the probate of the remaining provision cannot be carried out without doing violence to the deceased's testamentary scheme.
In the case, if a rule is applied to the will, 50% of the woman's personal property would pass to her daughter and the remaining 50% of that property would pass in intestacy. As a result, the woman’s share the estate in intestacy and the woman’s daughter will receives 75% of the movable assets. The woman's real property apparently passes in intestacy and the will has no residuary clause, and makes no reference to her real property.
As the two grandchildren’s would be prejudiced by such a result, the court considers it necessary to appoint a guardian to protect their interests which may be in conflict or adverse to their father. There also may be scientific evidence which could reveal the original form of the last will or other extrinsic and admissible evidence which would prove the terms of the original will to the benefit of the children.
Consequently, the court decided to appoint a guardian for the woman’s grandchildren. Further, the court also denied the appeal to probate the will as modified.
The guardian and the attorney are directed to appear in the court for a conference on the matter.
When you decide to make a last will and testament, it is important to seek legal assistance from the experts. If you need such services, you can consider the Nassau County Estate Lawyer or Nassau County Estate Administration. On the other hand, if you are a family member who wants to validate your parent’s last will and testament, you can seek help from the Nassau County Probate Lawyer at Stephen Bilkis and Associates.

September 22, 2013

Court Decides Guardian Ad Litem Fee

A New York Probate Lawyer said that, this is a proceeding by the trustee and as executor of the estate of deceased and as trustee, of the "Second Share" Trust under Article NINTH of the Last Will and Testament of the deceased to settle their account as trustees of the "Second Share" trust under Article NINTH of the will. The account covers the period March 31, 1986 through December 31, 2008. The trustees also filed a supplemental account covering the period January 1, 2009 through September 30, 2010. This is the trustees' first and final account. The summary statement shows principal charges to the accounting party of $25,950, 272.00. A guardian ad litem was appointed to represent the interests of the minor grandchildren of the deceased.

A New York Will Lawyer said that, the decedent, died on September 28, 1985, a resident of Nassau County, leaving a will dated September 13, 1984, which was admitted to probate by decree of this court dated November 12, 1985. In Article NINTH of her will, the decedent directed that her residuary estate be divided into two equal shares, and she directed that the second such share be held in trust for the primary benefit of her son, and his issue. Pursuant to the terms of the trust, during her son’s lifetime, the trustees had the discretion to pay the net income to any one or more of her son and his issue. The trustees also had the discretion to distribute to the same class of persons such amount from principal as they deemed "wise and proper to provide for comfort, support, maintenance, education or general welfare." The will provides that the trust shall terminate upon her son’s death. In addition, the decedent will give the deceased son a limited testamentary power of appointment over the remainder of the trust which he may exercise in favor of any of his lawful issue or lawful issue of the decedent.
A Nassau Probate Lawyer said that, in Article FOURTEENTH of her will, the decedent named the parties as trustees of the trust for the deceased son and authorized each to name his or her successor. One party renounced his nomination to act as trustee. Letters of trusteeship issued to the other remaining two parties on November 12, 1985. On July 23, 1986, this court issued letters of successor trusteeship to the trustees to act as his successor and resigned effective upon appointment.

A Nassau Estate Administration Lawyer said that, the son died on December 5, 2008, leaving a will dated May 1, 2008, which was admitted to probate by decree of this court dated May 22, 2009. Letters testamentary issued to the trustee. In his will, the decedent son exercised his power of appointment and appointed all of the property of the trust to the Appointive Trust, created under an agreement dated January 30, 2007, between the deceased son, as grantor, and the former as trustee. By election dated December 30, 2002, the then acting trustees, with the consent of the decedent and his daughters, who constituted all of the permissible income beneficiaries, opted to convert the trust to a unit rust under EPTL 11-2.4, effective as of January 1, 2003. The guardian ad litem has submitted his report. He recommends approval of the account. In addition, the guardian ad litem states that he believes a fee of $90,000.00 for the trustees' counsel is reasonable in view of the size of the trust, the length of the period accounted for, the standing of counsel and the issues and responsibilities involved.

Westchester County Probate Lawyers said the issue in this uncontested accounting proceeding is whether the attorneys’ fees, the fee of the guardian ad litem, commissions and the settlement of the account should be approved by the court.

Suffolk County Probate Lawyers said the court in deciding the case said that, with respect to the issue of attorneys' fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

In evaluating the cost of legal services, the court may consider a number of factors. These include: 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 discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in a 1924 case. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.

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

These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee.

With respect to disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same nature. The attorney for the trustees has submitted an affidavit in support of her firm's application for approval of a fee of $90,000.00 for services rendered in connection with the administration and settlement of the trust and the accounting proceeding, together with disbursements. According to counsel, during the accounting period, her firm was responsible for matters of trust administration, including: (i) preparing the federal and New York State annual fiduciary income tax returns and annual statements for the trust, as well as the trust's quarterly estimated tax payments; (ii) verifying the cost basis of the trust assets where necessary; and (iii) petitioning the court for the appointment of a successor trustee.

According to counsel, the firm's fiduciary accountants conducted an extensive review of records and transactions in order to prepare the account. In addition, attorneys at the firm reviewed the first draft of the accounting, which covers a period of over 32 years, and made revisions and additions to the draft. Attorneys at the firm also prepared the petition and related court papers, arranged for execution of the documents and filed them with the court. The services provided also included appearing at the return date of citation, communicating with the guardian ad litem, reviewing the guardian ad litem's report and preparing the supplemental accounting for the period January 1, 2009 through and including September 30, 2010. According to counsel, attorneys at the firm expended in excess of 110 hours on this matter at hourly rates ranging from $435.00 per hour to $800.00 per hour and fiduciary accountants rendered more than 96 hours of time at hourly rates of $230.00 per hour and $255.00 per hour. The total time charges amount to $89,404.00. In addition, the following disbursements totaling $2,975.27 were incurred: (i) photocopying charges of $906.20; (ii) word processing charges of $106.10; (iii) professional service charges of $217.34; (iv) filing fees of $1,265.00; (v) search service charges of $337.00; (vi) express delivery and postage charges of $137.66; and (vii) telephone charges of $5.97. The court notes that most of the disbursements other than the filing fees would be disallowed as office overhead without further substantiation. Nevertheless, the time charges plus allowable disbursements exceed the $90,000.00 fee for which counsel seeks approval.

Accordingly, considering all of the factors used to determine the reasonableness of fees, the court approves a total fee, including disbursements, of $90,000.00 as fair and proper compensation for the services rendered.

The guardian ad litem has submitted an affidavit of legal services which shows that the guardian ad litem rendered 19.70 hours at the rates of $610.00 per hour and $625.00 per hour for a total of $12,311.00. The guardian ad litem reviewed the accounting, had conversations with counsel for the trustees and prepared his report. The services performed by the guardian ad litem were of the utmost quality given the length of the period covered by the account.

Accordingly, the court approves a fee of $12,311.00 for the guardian ad litem, which fee shall be paid within thirty (30) days of the date of the decree to be entered herein. Commissions are approved subject to audit. In all other respects, the account is approved as filed.

If you have issue regarding cost of legal services in a probate proceeding, you will need the legal advice of a Nassau Probate Attorney and/or Nassau Estate Litigation Attorney at Stephen Bilkisa and Associates. Call us for free legal advice.

September 21, 2013

Court Discusses Validity of a Will

A New York Probate Lawyer said that, this is an application brought on by the administrator through an order to show cause to restrain certain corporations in which this estate owns shares from transferring such stock on the authority of a person to whom letters testamentary have been issued by another court. Before the court made its decision of August 12 1968, a hearing was held on the question of the decedent's domicile. This was after an earlier hearing showed that proceedings purportedly brought by the proponent in this court based upon a copy of process served by her attorney to probate the alleged will of the decedent were abandoned. Instead of filing it here, the will was sent to St. Croix, Virgin Islands, by the attorney for the proponent.

A New York Will Lawyer said that, as pointed out in the earlier decision, the proponent’s attorney participated in the hearing in this court on her behalf on the issue of domicile; he cross-examined the witnesses and himself testified for his said client on that issue. However, only a copy of the will was exhibited here and it appears that proponent at some time, either pending determination of the proceedings in this court, or later, did file the will in the Virgin Islands Territorial District Court at St. Croix where it has since allegedly been admitted to probate. This court has not been given any copy of the papers and proceedings conducted there but it does appear that the St. Croix proceedings were pro forma and without a hearing or on notice or process (except possibly publication) served upon the decedent's grandson. It also appears that the St. Croix proceedings were probably instituted by proponent in violation of this court's injunction as set forth in the aforementioned decision and subsequent order thereon, copies of which were duly served upon her attorney.

A Westchester County Probate Lawyer said that, after the prior hearings and after the order was entered on the decision of August 12, 1968, the proponent filed a notice of appeal in this court on September 18, 1968, appealing that decision and order to the Appellate Division of the New York Supreme Court. This appeal has not been perfected. She was then given an opportunity on due notice and on due process served upon her, issued out of this court, to prove the validity of the will in her possession or to show cause why the estate should not be administered under the jurisdiction of this court by the grandson as administrator. Upon her default and failure to come forward, this court had no alternative but to conclude that such proof was not available and it accordingly appointed the grandson as administrator.

A Suffolk County Probate Lawyer said the issue in this case is whether the application to show cause to restrain certain corporations in which this estate owns shares from transferring such stock on the authority of a person to whom letters testamentary have been issued by another court should be granted.

On the instant motion and petition of the grandson, it now appears that the proponent or her attorney(s) had taken possession of various certificates of stock registered in the decedent's name, which she is now threatening to sell or dispose of under the apparent authority of letters testamentary issued to her out of the Virgin Islands District Court, presumably to distribute the proceeds to herself, as alleged sole beneficiary. The grandson, as administrator, applied to this court and was granted a temporary injunction against the transfer or disposition of any such securities. Upon the return of the motion, three of the five corporations served, recognizing the authority of the administrator appointed by this court, appeared herein and pointed out that the District Court of the Virgin Islands might also have jurisdiction over the certificates and possibly the assets represented thereby even though the decedent was adjudicated by this court to have been a resident of Nassau County when she died. The other corporation, Safeway Stores, Inc., by telegram requested a postponement of this motion because service upon it had been effected through the New York Secretary of State. However, due to the exigencies involved and the emergency nature of the present situation, the court herein proceeds to decide the motion, reserving to Safeway Stores, Inc. the right to come in for a re-argument and reconsideration if it so requests.

In the case now before this court, it appears, however, that this court had jurisdiction in personam over the proponent who appeared here by attorney and through him received the decision and order of this court enjoining her from proceeding further in any other jurisdiction in connection with this estate. Her conduct was questionable, to say the least, in withdrawing the probate proceedings initially begun by her here and then at the same time litigating the issue of domicile in this court and instituting ex parte proceedings in the Virgin Islands. It was an imposition upon the court in St. Croix and created the present anomalous predicament. As a party to the proceedings in this court, she was and is irrevocably bound by the orders and decrees of this court. To hold otherwise would be a violation of the full faith and credit provisions of the United States Constitution. As the Supreme Court said in the case decision this clause of the Constitution brings to our Union a useful means for ending litigation. Matters once decided between adverse parties in any state or territory are at rest. Were it not for this full faith and credit provision, so far as the Constitution controls the matter, adversaries could wage again their legal battles whenever they met in other jurisdictions. Each state could control its own courts but itself could not project the effect of its decisions beyond its own boundaries. That clause compels that controversies be stilled so that Where a state court has jurisdiction of the parties and subject matter, its judgment controls in other states to the same extent as it does in the state where rendered. On the merits of the instant application, the court finds that it must assist its administrator to the extent requested, and the application is granted in all respects. The temporary injunction contained in the order of June 19, 1969 is continued and, in addition, the five corporations mentioned are directed to cancel any and all certificates of stock evidencing the decedent's ownership or evidencing the ownership of the proponent as alleged executrix of the estate of this decedent and the corporations, being authorized to do business in this state, are further directed to issue new certificates to the New York administrator.

The court considers that it has no alternative in this matter, not only because of the emergency nature of the present situation but also to force a solution of the impasse which has developed and will continue in the administration of this estate unless the conflicting interests asserted by the two estate representatives are settled and determined.

Accordingly, the court held that, in its prior decision this court considered also that, while the District Court in St. Croix is a territorial Federal Court, insofar as its process and procedure concerned the probate of a will or administration of an estate, it was exercising a function normally reserved to the states and no federal questions were involved. It is suggested, therefore, that the corporations affected, if they deem it advisable, should utilize the interpleader process and procedure afforded by Title 28 of the United States Code, sections 1335 and 2361, by appropriate proceedings in the United States District Court for the Eastern District of New York, in which District the administrator resides.

If you have concerns in the estate administration in probate proceedings, seek the representation of a Nassau Probate Attorney or Nassau Estate Litigation Attorney at Stephen Bilkis and Associates. Call us for free consultation.

September 18, 2013

Court Decides if the Account of the Public Administrator Should be Granted

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Uniondale, on December 26, 1998. Decedent left a will dated June 15, 1979 which bequeathed her entire residuary estate to her nephew, who post-deceased the decedent. The Public Administrator was appointed temporary administrator of the estate on April 14, 2005. Decedent's will was admitted to probate by a decree of this court dated May 11, 2010 and letters of administration c.t.a. were issued to the Public Administrator on that date. The account of the Public Administrator was initially filed on July 6, 2010.
A Nassau Probate Lawyer said that, the account filed by the Public Administrator shows the receipt of $87,102.28 of estate principal, which was supplemented by income collected totaling $4,935.98. This resulted in total charges of $92,038.26. This amount was reduced by administrative expenses through April 30, 2010 in the amount of $68,155.17, leaving a balance of $23,883.09 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the court appointed administrator of the estate of the decedent’s nephew. In addition, the court must release the administrator from the surety bond.

The issue in this case is whether the account of the Public Administrator should be granted.

The court in deciding the case said that, regarding the fee of the attorney for the estate, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate administration. A New York Will Lawyer said that while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

In evaluating the cost of legal services, the court may consider a number of factors. These include: 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 discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth. Also, the legal fee must bear a reasonable relationship to the size of the estate. A Westchester County Probate Lawyer said that sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services.

The Public Administrator has petitioned the court for approval of the payment of $13,410.50 to the attorney for the Public Administrator in connection with the administration of the estate. The court has carefully reviewed the affirmation of services and the time records submitted to the court.

Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. The record shows that the attorney devoted more than 156 hours to this matter. The legal services required by this estate were unusually extensive, and the summary of the legal work provided by the attorney fills more than two full pages. The services include, but are not limited to, reviewing the administration citation received as a result of an administration proceeding filed by the Nassau County Department of Social Services; participating in multiple conferences concerning the claim for Medicaid reimbursement; preparing and filing the Public Administrator's oath and designation; obtaining the fiduciary bond; corresponding with and serving papers upon the occupants of decedent's home, including a petition to recover possession of real property and an order to show cause; negotiating and preparing a settlement agreement in connection with the eviction proceeding; preparing a judgment of possession, warrant of eviction and decree awarding possession of real property; preparing and filing the petition to extend temporary letters of administration; investigating the decedent's family relationships and alleged distributees; preparing and filing the petition for probate and all related documents; preparing and filing a petition to reduce the administrator's bond together with an interim account and proposed order; preparing and filing an affidavit of assets and liabilities; researching the heirs of decedent's post-deceased sole legatee and preparing and filing affidavits of due diligence; preparing the final account and all related papers; reviewing the report of the guardian ad litem appointed in connection with the probate of decedent's will; and participating in multiple conferences with the Public Administrator and his staff. In addition, the firm expects that additional fees totaling approximately $2,500.00 will be incurred through the closing and distribution of the estate. The attorney also represented the Public Administrator in the sale of decedent's real property, for which the firm was paid a flat fee of $1,500.00.

As of June 24, 2010, the billable fees totaled $30,633.63, exclusive of the real estate fee, of which $13,402.50 has been paid and $17,231.13 remains unpaid, and the firm expects that the estate administration will incur additional charges of $2,500.00. In view of the modest size of the estate, the attorney has offered to accept as a total fee the amount paid to date, $13,402.50, in addition to the real estate fee of $1,500.00. Suffolk County Probate Attorneys said the court commends the attorney for his skillful representation of the Public Administrator and the voluntary reduction of his fee. The fee is approved in the amount requested, all of which has been paid.

The court has also been asked to review the accountant's fees. Typically, an accountant's services are not compensable from estate administration assets unless there exist unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. The purpose of this rule is to avoid duplication.

"Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee".

The accountant has submitted an affidavit of services requesting a fee of $1,950.00. The affidavit indicates that the accountant prepared the estate's annual federal and state fiduciary income tax returns to date. The accountant further notes that a final return will be required. The work performed by the accountant was not duplicative of the services rendered by the estate attorney, and the requested amount for these services is reasonable. The court approves the fee in the amount of $1,950.00, of which $1,375.00 has been paid and $575.00 remains unpaid.

Accordingly, the court held that the commission of the administrator c.t.a. is approved subject to audit. The decree shall discharge the surety and shall authorize the Public Administrator to distribute the balance of the net estate to the court appointed administrator of the estate of the decedent’s nephew. Settle decree.

In evaluating the cost of legal services, the court may consider a number of factors. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily. If the you think that the legal services of your attorney in a probate proceeding is inadequate or disproportional to the value of the estate, seek the representation of a Nassau Estate Administration Attorney and Nassau Probate Attorney at Stephen Bilkis and Associates. Call us.


September 5, 2013

Court Finds Decedent's Testamentary Capacity is in Question

This case is contested probate proceeding brought to the court by the nephew of the decedent, A. Objectant moves for an order pursuant to CPLR 3212 granting summary judgment denying probate to the two propounded wills dated 19 October 2001. A New York Probate Lawyer said the proponent, B, cross moves for summary judgment dismissing the objections and admitting the propounded instruments dated 19 October 2001 to probate. The objectant has interposed his objections to the propounded instruments alleging undue influence and lack of testamentary capacity. Objectant also seeks to disqualify B as executor of the estate pursuant to SCPA 707.

On 19 December 2001, decedent C died. He was survived by five brothers and sisters and nieces and nephews of predeceased siblings. Proponent B petitioned for probate of two instruments dated the same day, 19 October 2001. Both instruments contain the names of L, M, and N as the attesting witnesses and O, notary, with a stamp and signature.

Both instruments nominate B as executrix; one of them nominates D as successor. Both instruments divide the estate equally between D and B.

A New York Will Lawyer said as one of the decedent's distributees was incapacitated, a guardian ad litem was appointed to represent her interest in the proceeding. The guardian ad litem's investigation uncovered some potential problems with the probate of the wills. As a result, a settlement was negotiated and agreed to wherein the guardian ad litem's ward would receive one-seventh of the estate. The settlement was subject to court approval. The settlement, however, was never approved because the guardian ad litem's ward died. While awaiting the appointment of the appropriate fiduciaries to enter into a settlement agreement, the court granted objectant's motion to excuse his default in filing objections. Objections were filed on 30 October 2008. There is no allegation that the propounded instruments were not executed in accordance with statutory formality or that they were procured by fraud.

In support of the motion to deny probate to the will, the objectant submits the deposition testimony of L, M and N, the witnesses to the will, the affidavits of S, T and U, the guardian ad litem report, affidavits of the proponent dated 8 October 2002 and 29 May 2007 and certain medical records. In opposition and in support of the cross motion to dismiss the objections, the proponent submits her own affidavit, the affidavits of the attesting witnesses, the deposition transcript of O, the notary, banking records, and medical records. In opposition to the cross motion, the objectant submits the affirmation of counsel, the affidavit of P, tax records and a report of the guardian ad litem. In further support of the cross motion, the proponent submits her own affidavit and various records related to the maintenance and upkeep of the decedent's residence located at 84 Lakeview Avenue, Lynbrook, New York.

A perusal of the respective submissions shows that on the very day his wife V died, 19 October 2001, decedent, 92 years of age, executed two wills containing essentially the same provisions, i.e., dividing his estate equally between Gloria B and D. Both beneficiaries came to decedent's home that day and participated in the preparation and execution of the wills, apparently each bringing a form; proponent gave inconsistent accounts as to whether decedent filled in the forms or whether she did. The stated purpose of executing two wills that day was that decedent was unsure as to where he was going to reside in the future, either Connecticut or New York. Proponent also obtained a power of attorney naming herself as attorney-in-fact. By all accounts, decedent had health problems, was hard of hearing, legally blind and obviously upset and distraught on the day his long-time spouse died. One witness, V, stated decedent "was incoherent of everything and did not know what was going on around him." The submissions further show that decedent was taken to Franklin General Hospital the day after his wife died. The hospital records state a change in mental status, Alzheimer's Disease; dementia; glaucoma; restraints in place and very restless; patient very confused and does not follow directions. The hospital discharge summary, dated 25 October 2001, states a final diagnosis "confusion secondary to dementia." Decedent was transferred from Franklin General to a rehabilitation and healthcare center.

A Westchester County Probate Lawyer said the attesting witnesses N and O are both related to D. They state that the decedent asked them to witness his will and they observed decedent sign the will. Each executed a SCPA 1406 affidavit stating that in all respects the decedent appeared to be of sound and disposing mind, memory and understanding, competent to make a will, and not under any restraint. The attesting witnesses, however, disagree as to whether the wills were already filled out or whether decedent filled them out.

A Suffolk County Probate Attorney said that as held in Alvarez v Prospect Hosp., the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. It was also established in Winegrad v New York Univ. Med. Ctr. That failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action based on the ruling in the case of Zuckerman v City of New York. Summary judgment in contested probate proceedings is appropriate where a contestant fails to raise any issues of fact regarding execution of the will, testamentary capacity, undue influence or fraud.
The proponent has the burden of proving testamentary capacity. It is essential that a testator understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property and his relation to the persons who ordinarily would be the natural objects of his bounty. Although he need not have a precise knowledge of his assets, he must be able to understand the plan and effect of the will, and less mental faculty is required to execute a will than any other instrument. Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and does not preclude a finding thereof as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made. However, when there is conflicting evidence or the possibility of drawing inferences from undisputed evidence, the issue of capacity is one for the jury.

In this case, the court finds that there are issues of fact as to the decedent's testamentary capacity. It appears that the wills were drafted and executed on the very day that decedent's wife died; that decedent, who had serious health issues including progressive dementia, was emotionally distraught and in a weakened physical condition; that the medical records of decedent's admission to the hospital the day after the execution of the instruments show that he was confused and had a change in mental status. Notwithstanding the testimony of the attesting witnesses, there are issues of fact as to the decedent's testamentary capacity. Accordingly, both the motion and cross-motion on the issue of testamentary capacity are denied.
In order to prove undue influence, the objectant must show (1) the existence and exertion of an influence; (2) the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will, that, but for undue influence, would not have been executed.
Undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of his will, his family relations, the condition of his health and mind and a variety of other factors such as the opportunity to exercise such influence. It is seldom practiced openly but it is the product of persistent and subtle suggestion imposed upon a maker furthered by the exploitation of a relationship of trust and confidence. Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient. Circumstantial evidence is sufficient to warrant a trial on the question of undue influence.
In this case, the court finds that the proponent had the motive and opportunity to exercise undue influence upon the decedent. The evidence shows that decedent's wife died on 19 October 2001, the very day he executed the wills. He was in a weakened physical condition. There are inconsistencies as to whether the wills were already filled out by the beneficiaries or whether the decedent filled them out. The beneficiaries (decedent's niece and nephew by marriage) participated in the preparation and execution of the instruments and that decedent appointed proponent attorney-in-fact. Whether or not the relationship of the proponent with the decedent is ultimately found to be considered confidential, the court finds that a question of fact has been raised regarding possible undue influence.
An inference of undue influence arises, requiring the beneficiary under the instrument to explain the circumstances of the bequest, when the beneficiary was in a confidential or fiduciary relationship with the testator and was, in some way, involved the drafting of the will. This inference places the burden on the beneficiary to explain the circumstances of the bequest and the adequacy of this explanation presents a question of fact for determination by the jury. The proponent's affidavit regarding her relationship and interaction with the decedent, offered to explain their circumstances, may not be used in support of her cross motion, because it is clearly excludable at trial.
The proponent herself recognizes that there are triable issues. In her affidavit in opposition to the objectant's motion for summary judgment dated 18 June 2009, proponent states:
"[Objectant's] attorney would have this court believe that my brother D and I acted with such deceitful motives, because we brought two will forms, assembled witnesses, actively participated in the preparation and brought about the execution of will (sic) so that only D and I would gain as sole beneficiaries of the entire estate, both of us receiving one-half of the estate, the same day that our aunt died, and that such disposition of the estate completely cut out the living natural relatives of C. If I did not know the truth, I would have to agree this sounds suspiciously improper.”
The court notes that triable issues of fact do exist. Accordingly, that branch of the objectant's motion to grant summary judgment on the issue of undue influence and that branch of the proponent's cross motion to dismiss the objection of undue influence are denied.
With respect to objectants' application to disqualify proponent pursuant to SCPA 707(1)(e), the court need not determine such issue as, if the will is admitted to probate, objectant would have no standing to challenge proponent's appointment as fiduciary and, if the will is not admitted to probate, proponent would not qualify to serve as fiduciary (SCPA 1001).
Nassau County Probate Attorneys, Nassau County Last will and Testament Attorneys and Stephen Bilkis & Associates have the better hand in probate proceedings. If you just lost a loved one and are placed in the same position as the family narrated above, please do not hesitate to call our toll free number or visit our place of business for a better understanding of the law behind this issue. We are a team of legal experts who can provide you with invaluable legal advice that may help reveal the true intentions of your loved one who has gone to rest.

September 2, 2013

Court Determines Legal Fees in Estate Litigation

In this Estate Litigation, the decedent, died in October 1999. Her will on 1997 was admitted to probate in April 2000. Letters testamentary issued to the decedent's son. The son died in May 2002. Following his death, successor letters testamentary issued to the administrator in June 2002.
A Nassau County Estate attorney said that under Article THIRD of her will, the decedent bequeathed her residuary estate to her surviving issue subject to trusts created under Articles FOURTH, FIFTH and SIXTH. The decedent was survived by her son, a daughter, and a granddaughter, who is the daughter of the decedent's predeceased daughter. Pursuant to the will, the share for the decedent's son was set apart for his benefit in trust to be administered in accordance with the provisions of Article FOURTH. Letters of trusteeship issued to the son and another as trustees of the Article FOURTH trust. Pursuant to the terms of the trust for son, the trust terminated upon the son's death and the then principal and income became payable to his surviving issue, subject to further trusts for any such issue under the age of thirty-five.

A New York Probate Lawyer said the son was survived by two children who are under the age of 35 and, therefore, separate trusts were created for the benefit of each pursuant to Article SIXTH. Letters of trusteeship issued to the daughter as trustee of the trusts for the benefit of the son’s children.

The attorney for the successor executor of the estate of the deceased filed an affirmation requesting that a reserve of $43,039.42 be maintained by the surviving trustee of the Article FOURTH trust in order to pay certain administration expenses and to cover certain distributions, the son made to himself. That request was partially opposed by the trustee of the Article FOURTH trust who argued that distributions which the son, as executor, allegedly made to himself individually would not be properly chargeable to the Article FOURTH trust. The parties entered into a stipulation wherein the parties have resolved the objections raised by the successor executor. Being satisfied that the terms of the stipulation are fair and further the ward's best interests, the court authorizes the guardian ad litem to execute the stipulation.

A New York Will Lawyer said in evaluating the cost of legal services, the court may consider a number of factors. These include: 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 discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in a case. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.

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

These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee.

With respect to disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter, the court discussed the allowance of charges for photocopies, telephone calls, postage, messengers and couriers, express deliveries and computer-assisted legal research. A Suffolk County Probate Lawyer said the court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in a case. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

With respect to accountants' fees, normally, an accountant's services are not compensable out of estate assets unless there exist unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. "[T]he purpose of this rule is to avoid duplication. Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee ".

Counsel for the surviving trustee has submitted to the court an affirmation in support of her fee application as well as a supplemental affirmation. The affirmations show that the attorney rendered more than 119 hours at various hourly rates. The fees of the attorney's fine total $36,202.30, which includes disbursements, and which represents approximately nine percent (9%) of the principal charges. The attorney has been paid $33,616.03. The court notes some duplication of services by attorneys at the attorney's firm. There are some entries for secretarial work, such as faxing and copying, which should be part of overhead. In addition, it appears that the only contested issue with respect to the accounting concerned the amount of the reserve. The affirmations also include time entries for time spent on preparation of the affirmations in support of the fee application. Time spent on an attorney's fee application is not compensable. In addition, a number of time entries include time spent traveling to court for court appearances which is not compensable. The fee requested also includes copying charges of $392.68. There is no indication whether the copying was done by an outside supplier.

Accordingly, the amount is disallowed. Similarly, transportation costs totaling $49.00 are considered part of office overhead and are disallowed. Considering all of the factors in determining the reasonableness of attorneys' fees, the court approves a total fee in the amount of $25,000.00, inclusive of disbursements, as fair and proper compensation for the services rendered. Any sums paid in excess of this amount shall be refunded to the trustee.

The attorney for the deceased co-trustee has submitted an affirmation with respect to services her firm rendered to the deceased co-trustee. According to counsel, her firm rendered 22 hours of legal services to the trustee for a total fee of $5,960.00, which has been paid in full. A review of the time sheets annexed to counsel's affidavit indicates that travel time was included. Travel time is not compensable. Moreover, time spent in connection with obtaining the requisite documentation to make funeral arrangements for Lewis is not properly chargeable to the trust. Considering all of the factors in determining the reasonableness of attorneys' fees, the court approves a total fee in the amount of $4,500 as fair and proper compensation for the services rendered. Any sums paid in excess of this amount shall be refunded to the trustee.

Concerning the guardian ad litem's fee, the guardian ad litem has submitted an affirmation of services wherein he avers that he spent 50-1/4 hours at his hourly rate of $250/hour for a total of $12,562.00. The guardian ad litem notes that even though he was not appointed as guardian ad litem in the accounting proceeding for the estate, in order to determine if the Article FOURTH trust was properly funded, he reviewed pertinent records of the estate. A review of the time sheets annexed to the guardian ad litem's report includes time spent delivering his report to the court and preparing his affirmation in support of his fee. The services performed by the guardian ad litem were of the utmost quality. Nevertheless, the court is constrained by the size of the trust. Accordingly, the court approves a fee for the guardian ad litem in the amount of $8,500.00, which shall be paid within thirty (30) days of the decree to be entered herein.

Probate proceedings should be handled by lawyers who have diligent and conscientious mind. Here in Stephen Bilkis and Associates, our Nassau County Probate attorneys will make it a point that the estate of a testator will be divided according to decedent’s desire. Our Nassau County Estate lawyers will render and advice as to promote testacy rather than intestacy to respect the last will and testament of a decedent.

August 17, 2013

Court Suspends Letters of Testamentary

A man died leaving a last will and was subsequently admitted to probate. The letters testamentary was issued to the deceased man’s youngest son. Still, the last will bequeath the man's residuary estate equally to his three sons.

A New York Probate Lawyer said in the court suspended the letters testamentary and issued the new one to the deceased man’s middle son. In addition, the matter was scheduled for a hearing on the issue of removing the youngest son as the administrator.

Prior to the proceeding, the youngest son made a motion to disqualify his brother's attorney. Then, the parties entered into a written condition resolving the various issues. A New York Will Lawyer said the stipulation provided that the deceased man’s middle son would withdraw his motion against his younger brother and for an accounting. On the other hand, the youngest child would withdraw his motion with regards to the law firm disqualification.

Sources revealed that the basis for the withdrawal of the motions was that both party’s agreeing to buy the middle son's interest in their father's property for $205,000.00, payment to be made by the middle son receiving a ten year purchase money balloon mortgage. Second, that the middle son would resign as the new estate administrator and the youngest one will be reinstated. Lastly, in exchange for the mortgage, agreed to release the youngest son as the administrator and acknowledge that his interest in the property had been satisfied.

The stipulation further provided that, in the event the closing did not occur within ninety (90) days, the premises were to be listed with a broker selected by the deceased man’s middle son. The youngest and the eldest son never completed the mortgage and the youngest did not exercise his option to complete the mortgage individually.

A Westchester County Probate Lawyer said the deceased man’s youngest son then move to restore his motion to disqualify the law firm of his brother. He argues that the attorney should be disqualified because he formerly represented him in connection with the probate of their father’s will.

According to the youngest son, he consulted with the attorney after his father's death. He asserted that he, along with his two brothers, as well as three other people, met with the attorney at their office. After that, the attorney prepared a validation request to have the youngest son appointed as the administrator of the estate. In fact, the attorney's name appears on the request as the attorney of the youngest son.

Suffolk County Probate Lawyers said the youngest son however had second thoughts and discharged the attorney, and picked up the original last will and testament. He further argues that the attorney is disqualified because he may be called as a witness since he was the attorney-draftsman of the last will. He states that the provision in the last will concerning the distribution of the residuary assets may be the subject of a construction proceeding, and the attorney as draftsman, may be called to testify as a witness.

In addition, he claims that the attorney may be a witness on the removal issue as well since, as the draftsman, he may have pertinent information on the deceased man's selection of the administrator. He argues that the conflict is clear, and, therefore, not only the attorney but also his firm, which consists of only one other attorney, must be disqualified.

The attorney however argues that neither he nor his law firm should be disqualified from representing the man’s middle son. According to the attorney, the meeting occurred before was attended by the deceased three sons, the youngest child's girlfriend, the middle child's wife, and a friend of the eldest's. At that meeting, the attorney discussed the procedure regarding the validation of their father's will and answered their questions. He states that they also discussed the building department violations on the deceased's home and tax issues. Thereafter, the youngest son called the attorney to schedule an appointment.

Later, the youngest son met with the attorney at his law office and advised the attorney that he had decided to handle the matter himself. The youngest son also asked for the original will, and the attorney gave it to him. The attorney also gave him the completed validation requests, waivers of process and consents and the eldest son's renunciation as co-administrator, which the attorney prepared.

The attorney also points out that the youngest son did not file any of the documents prepared by him with the court, but instead prepared a new request and related papers, which showed he was acting in that way. The attorney argues that the youngest son's motion should be denied because a civil litigant has the right to be represented by legal counsel of his option. In addition, the attorney points out that there is no construction proceeding pending at that time.

According to the attorney, there is no substantial relationship between the validation proceeding and the removal/compulsory accounting proceeding. He also asserts that the probate proceeding was simply proceeding since all of the deceased's successor were in agreement as to the validation of the will.

The youngest son however points two grounds for the disqualification of his brother's attorney and it includes the conflict of interest and the advocate-witness rule.

Based on records, a party seeking disqualification bears the burden of demonstrating that disqualification is warranted. Moreover, disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants.

Further, that an attorney may not represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client. Second, an attorney may not use any confidences or secrets of the former client except as permitted or when the confidence or secret has become generally known.

Consequently, the court of appeals has reprimanded that the code of professional responsibility not be mechanically applied when disqualification is raised in the court.

In the case presented, the attorney formerly represented the man’s youngest son for the purpose of having the will admitted for validation and being appointed as administrator, even if only for a brief period of time. Subsequently, the same attorney is representing the man’s middle son in seeking to remove his younger brother as the administrator.

The court then stated that it clearly shows that the middle son's interests are materially adverse to the interests of his younger brother and there is a substantial relationship between the attorney's firm's previous representation of the man’s youngest son and the proceeding. In addition, given that the attorney was the draftsperson of the deceased man's will, he may be called as a witness in the removal proceeding, regardless of whether a construction proceeding is initiated.

The attorney admitted that if he is disqualified the firm would likewise be disqualified. As a result, the motion to disqualify the attorney and his law firm as attorneys for the deceased man’s middle son is granted.

Moreover, pursuant to the law no further action shall be taken in the proceeding until thirty days after notice to appoint another attorney has been served. Further, a conference shall be held to set the matter down for a hearing on the issue of the deceased youngest son's removal as administrator.
When you experience trouble on your parents’ assets, you can seek legal help from the Nassau County Estate Lawyer or Nassau County Estate Administration. You can also have the assistance of the Nassau County Probate Attorney if you want to validate your love ones last will. Simply visit or call Stephen Bilkis and Associates office for more information.

July 25, 2013

Court Rules in Will Contest Action

A New York Probate Lawyer said this is an action pursuant to Article 15 of the Real Property Law to compel the determination of claims to certain real property located at Bronx, City of New York. The plaintiff seeks a decree that she is entitled to the title of said premise as against all of the defendants and every person claiming under them. She contends that she is the sole owner in fee of the property entitled to possession of the premises and that she has a good and marketable title acquired by adverse possession.

A Bronx County Probate attorney said that plaintiff acquired title by deed of conveyance from the adminstratrix of herein deceased. Plaintiff is now in possession of the property and occupies same. The defendant, the plaintiff's grantor, acquired her title by deed of conveyance from her husband in March 1932. Defendant administratrix was in possession until the sale of the property to the plaintiff.
Decedent obtained title to these premises by virtue of a deed from Rosa Belle Christian, his first wife, dated January 16, 1931.

In 1961, about a year after her acquisition of the property, having executed a contract to sell same, the plaintiff discovered that there was a defect in the title in that at the time of the purported conveyance of the property from the first wife to decedent, her husband, she, was dead.

The record also discloses that prior to her death, the first wife, executed an instrument in writing purporting to be a will in which she stated that the property rightfully belonged to the decedent.

Decedent married the defendant, his second wife, in or about March 1928. He died in Bronx County in November 1935. Letters of administration on his estate were duly issued to the said defendant second wife (administratrix).

It is the court's considered opinion that decedent did not acquire a legal right to regain the premises in view of the failure of the first wife to probate the instrument which purported to be a will, but the court believes that he obtained colorable title by virtue of the aforesaid purported will as well as the deed of 1931 conveying the property to him.

A Westchester County Probate Lawyer said the court concludes from all the testimony that the property was truly and actually the property of decedent and that it was transferred to his first wife merely for his convenience.

The grantor of the plaintiff, here, obtained a deed in 1932, was in possession of the property for almost 28 years, used and rented the property, collected the rent and paid the bills and taxes. The record also discloses that the plaintiff bought the property from second wife, having been a tenant about 26 years and having paid her rent during that time to the latter.

This contention is supported by the testimony by a representative of a title insurance company who outlined the claim of title from the first wife, through decedent through administratrix through the plaintiff. The chain of title is further buttressed by the testimony of the attorney from the grantor, to the effect that decedent had instituted an action against the first wife for reconveyance of the property.
The plaintiff is entitled to a decree that she has title to premises as against all of the defendants.

Section 37 of the Civil Practice Act provides that 'where the occupant or those under whom he claims entered into the possession of the premises under claim of title founding the claim upon a written instrument, as being a conveyance of the premises in question and there has been a continued occupation and possession of the premises for fifteen years the premises so included are deemed to have been held adversely.'

A Suffolk County Probate Lawyer said Section 500 of Article 15 of the Real Property Law provides that 'where a person claims an estate or interest in real property, such person may maintain an action against any other person, known or unknown to compel the determination of any claim addressed to that of the plaintiff [and s]uch action may be maintained even though * * * the court may have to determine the death of a person or any other question of fact or law upon which an adjudication of the adverse claims of the parties may depend.'

In a case, the court enunciated the five essential elements necessary to constitute an effective adverse possession: first, the possession must be hostile and under claim of right; second, it must be actual; third, it must be open and meritorious; fourth, it must be exclusive; and fifth, it must be continuous. The court also concluded that 'all that is necessary in order to make an adverse possession effectual for the statutory period by successive persons is that such possession be continued by an unbroken claim of privity between the adverse possessors.' The court further stated that privity may be established in many ways, as by lease, descent, conveyance, parol or otherwise. All the law requires is continuity of possession.

In the matter before the court, the possession of decedent, of defendant and the plaintiff have been continuous by privity of estate. It has been hostile and under claim of right. It has been open and meritorious and has been exclusive. In other words, the plaintiff has met all the requirements of adverse possession and she is entitled to a decree granting her title herein.

To properly dispose an estate of a person, the latter must be in free and dispositive mind while distributing his estate. That is, he is aware that he is disposing the proper objects of his bounty. Here in Stephen Bilkis and Associates, our Bronx County Probate lawyer will see to it that there is proper disposition of an estate. If not, an opposition to that petition for probate will be filed accordingly. For other concerns, don’t hesitate to call our Bronx County Estate lawyers now for a competent advice.

July 3, 2013

Court Discusses Public Policy Concerns Regarding Rent Stablization

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 1, 2013

Court Decides Reasonable Attorneys Fees for Estate Administration

The Facts of the Case:

On 22 February 2004, a resident of Hicksville died with a will dated 6 November 2002, months after a guardian was appointed on her behalf under Mental Health Law Article 81. The decedent left all of her property, other than a $15,000.00 bequest to a corporation, to “A”, to the exclusion of her family members. The will named “X” as executor and after he offered the will for probate it was revealed that he had a felony record, making him ineligible to serve as a fiduciary. Thus, on 2 May 2005, “X” renounced his appointment. A New York Probate Lawyer said the nominated successor to the named executor had previously renounced her appointment as well.
On 4 May 2005, “A” petitioned the court for letters of administration, for estate administration (estate litigation). However, “A” also had a felony record and was ineligible to serve. Therefore, on 9 June 2005, the court appointed the Public Administrator of Nassau County as temporary administrator. The decedent's distributees appeared and filed objections to the probate of the will, and notices of appearance were filed on behalf of “A”, the New York State Attorney General and the aforementioned corporation. On 22 November 2005, all of the interested parties entered into a stipulation of settlement. On 1 February 2006, the will, as reformed and restated by the settlement agreement, was admitted to probate, and full letters of administration, were issued to the Public Administrator. Under the terms of the stipulation, articles second and fifth of decedent's will were reformed so that three of the decedent's distributes will share in 2/3 of the decedent's real property and her residuary estate; the remaining 1/3 will pass to “A”; that the decedent's real property will pass to these parties in kind, so as not to be subject to a commission, and that the property would be sold and the proceeds held in an attorney's escrow account; and that before any distributions are made to the interested parties from the escrow account, the sales proceeds will be used to pay the bequest to the aforesaid corporations, the commission of the Public Administrator, and all debts, fees and estate administration expenses of the estate.

On 6 March 2007, the account of the Public Administrator was filed and was subsequently amended on 14 April 2009. A Westchester County Probate Lawyer said the account shows the receipt of $34,227.09 of estate principal, which was supplemented by the income collected in the amount of $232.93. This resulted in total charges of $34,460.02. This amount was reduced by administrative expenses through the closing date of the account in the amount of $28,866.48 and payment of creditors' claims in the amount of $1,734.25, leaving a balance of $3,859.29 on hand. The submitted schedule reflects that the decedent's real property was sold for $450,000.00, with the proceeds being held in an escrow account, as stipulated by the parties. The petitioner, the Public Administrator, now filed a petition before the court and seeks approval of the accounting and the commission; asks the court to fix the fees for the services of the attorneys and the accountant and to determine the validity of the claims filed against the estate; requests that the court direct payment of $15,000.00 from the escrow account to the aforesaid corporation and authorize distribution of the net estate in accordance with the provisions of the will as reformed by the stipulation of settlement.

The Issue of the Case:

The issues filed before the court for its determination is the first and final account of the Public Administrator for the estate of the decedent who died on 22 February 2004 while a resident of Hicksville.

The Ruling of the Court:

A Suffolk County Probate Lawyer said the rules provide that in fixing the attorney’s fee for the estate, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily. In evaluating the cost of legal services, the court may consider a number of factors and these include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services.

First, the Public Administrator has asked the court to fix the fees of two law firms which represented the nominated executor in that capacity before “A” renounced his appointment. Law-firm-one has requested a fee of $4,449.20, all of which has been paid while law-firm-two has requested a fee of $5,978.23 and provided the court with detailed time records. As a rule, contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed. However, here, it is impossible for the court to approve legal fees totaling $10,427.43 for the representation of a nominated fiduciary who was never appointed, particularly where the probate estate contains only $34,460.02. The size of an estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. Thus, the court fixes the fee of these law firms in the amount of $2,500.00 each, and directs that any payment received in excess of this amount be refunded to the estate; and to the extent that an attorney may not yet have been paid, such fee shall be paid from the escrow account.

Second, the Public Administrator has also asked the court to fix the fee of his counsel. The affirmation submitted by counsel reflects $38,925.50 in attorneys' fees incurred through 3 January 2007, of which $21,536.25 has been paid and $17,389.25 remains unpaid; and has provided the court with extensive records in support thereof. Here, the court finds that the services rendered were significantly greater than those necessitated by a typical administration, and the attorney performed punctiliously, leaving no stone unturned. Clearly, without the efforts of counsel for the Public Administrator, decedent's family would have received nothing. Instead, the decedent's distributees received a net amount of $300,000.00, subject to their proportionate shares of the charitable bequest, the commission, and the fees and expenses. Thus, the court approves the fee of counsel for the Public Administrator in the amount of $38,925.50, and any amount not yet paid shall be taken from the escrow account. The court notes and thanks the counsel for the Public Administrator for their adept assistance in the settlement of the instant contested and complex estate.

Third, the Public Administrator has also asked the court to review the accountant's fees. Typically, an accountant's services are not compensable from estate assets unless there are unusual circumstances that require the expertise of an accountant. As a general rule, the fee for such services is held to be included in the fee of the attorney for the fiduciary. The purpose of this rule is to avoid duplication. However, where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee. Here, the accountant has submitted an affidavit of services. Although the schedule submitted and petitioner's request for relief indicate that the accountant's fee would be approximately $1,000.00, of which $550.00 remains unpaid, the affidavit actually reflects a total fee request of $450.00. Thus, finding that the work performed by the accountant was not duplicative of the services rendered by the estate attorney, and the requested amount for these services is reasonable, the court approves the fee in the amount $450.00, all of which has been paid.

Fourth, the Public Administrator has also requested that the court direct payment of $15,000.00 from the escrow account to the corporation named in the will. The court grants this request and orders its payment.

Fifth, the Public Administrator has also asked the court to determine the validity of claims filed against the estate. Here, the schedule of account submitted reflects claims presented and allowed but not paid in the following amounts: the Water District for $35.94, a Fuel Company for $694.69, and another company for $1,231.83, for a total of $1,962.46 in allowed but unpaid claims. However, following the service by mail of an amended first supplemental citation with summary of account on all of the creditors on 21 April 2009, the Water District filed a verified claim on 8 May 2009 against the decedent's estate in the amount of $971.62 which is an increase of $935.68 since the original claim was noted. The claim was filed in connection with an account for services to decedent's real property per a statement dated 6 May 2009. It must be noted that this additional claim from the Water District was filed many years after decedent's death, making it unlikely that these additional fees were incurred during decedent's lifetime, and “A” occupied decedent's property subsequent to her demise. Notably, under the rules, where a co-tenant is in exclusive possession of the property, equity dictates that he or she bear those expenses incurred for his or her sole convenience, such as for utilities or optional repairs. Thus, the court directs payment of all three claims totaling $2,898.14, from the escrow account, and directs that “A”’s share of the escrow account be charged $935.68 to reflect “A”’s exclusive use of decedent's property after her death unless documentation is provided to the court indicating that the additional Water District charges were not incurred during “A”’s occupation of decedent's real property after her death.

Sixth, the Court also approves the commission of the Public Administrator subject to audit and directs the filing of an affirmation bringing the account down to date.

In sum, the court grants the decree requested which shall discharge the surety and shall authorize the Public Administrator to distribute the balance of the net estate, and this includes the net real estate sale proceeds remaining in the escrow account after all of the payments and adjustments have been made, in accordance with the terms of the will, as reformed by the stipulation of settlement.

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January 24, 2013

Landlord Commences Nonpayment Summary Proceeding Against Tenants

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

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

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

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

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

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

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

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

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December 15, 2012

Petitioners Request Withdrawl of Probate Petition and Move for Issuance of Letters of Administration

The Facts of the Case:

On 26 October 2000, a decedent died with a Last Will and Testament dated 23 March 1995. Under the will, the decedent left her estate to her two sisters, A and B, or the survivor; named A as executor and B as successor. A predeceased the decedent without issue, thus, the entire estate passed to B.

Sometime in 2005, B petitioned for the appointment of a guardian of her property. The court, finding that B had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, X, a niece, and Y, Esq., as guardians of B’s property. Consequently, in May of 2007, the judge authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. A New York Probate Lawyer said the affidavit of X stated that she located the copy among the decedent’s important papers after her death; that while the decedent must have had the original will, her house had been sold and the purchaser threw away all of her papers. The affirmation of Y also stated that after the decedent’s death, her home was taken over by a former handyman of B, who threw away all of the decedent’s papers. Allegedly, the instrument was prepared by an attorney, who supervised its execution and was a subscribing witness, and has filed an affirmation of due execution. However, the second subscribing witness cannot be located. Thus, the petitioners now move to withdraw their probate petition and ask that the Court issue letters of administration to them (for the purposes of estate administration in an estate litigation). They allege that they are unable to probate the instrument because of the unavailability of the second subscribing witness; and that the distributees have executed agreements waiving their intestate rights so as to mirror the testamentary plan set forth in the subject Last Will & Testament.

The Issues of the Case:

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

The Ruling of the Court:

Under the law, where there is an apparently valid testamentary instrument on file, the Court has the obligation to try to respect the testamentary wishes expressed therein, if this can be done. The law gives to every person a right to dispose of his property in any manner that best suits him, and, so long as he was possessed of sufficient mental capacity and observed in the execution of the instrument the required legal formality and acted freely, it is his wishes which must be respected, and his testamentary disposition given effect, regardless of the contrary wishes of his heirs at law and next of kin or beneficiaries respecting his property. The Court's obligation in this regard is a matter of public policy. This is reflected in the authority reposed in the Surrogate's Court to ensure the validity of instruments offered for probate and case law requiring the Surrogate to pass on the validity of testamentary instruments offered for probate. This duty is not relieved by the parties’ agreement to arbitrate the dispute or consent to probate. It is normally the duty of the nominated executor to take diligent and active steps to procure its probate and to protect the will from attack from any source. Where the nominated fiduciaries have died or are under a disability, any person designated in the will as a legatee or devisee, or guardian for such person, may petition to probate the instrument. However, the courts have recognized exceptions to this duty where probate would be futile or otherwise unwarranted. Thus, an executor who believes that the instrument is not a valid testamentary instrument is under no obligation to offer it for probate. Nor will probate be required where the will has become ineffective because the legacies had lapsed and the named executor had died or was unwilling to act. Even an otherwise valid instrument need not be offered for probate where its proof is doubtful or would entail undue time and expense, especially where the results would be similar to intestacy. Moreover, even where the distribution in intestacy differs from that provided in the instrument, the Court will grant letters of administration: where there has been unreasonable delay in probate; where all the legatees are adults and either consent, default or appear but do not file objections; and where all the parties interested in an estate, either under testacy or intestacy, agree that a will shall not be offered or admitted to probate, it is not within the power of a surrogate to enforce its admission.

Suffolk County Probate Lawyers said here, none of the aforesaid exceptions to excuse probate have been presented. It must be noted that the sole beneficiary under the instrument is alive and the petitioners are expressly authorized by the Supreme Court to initiate probate proceedings on her behalf. Probate does not seem to present insurmountable difficulties. While the failure to locate the original creates a presumption of revocation by the decedent, this presumption may be rebutted where, as here, there is a natural explanation for the failure to locate the original and the copy is found among the decedent's important papers. Moreover, the drafter is an attorney who supervised the execution of the instrument and is a subscribing witness, giving rise to a presumption of due execution. The inability to locate a subscribing witness does not bar probate, since the testimony may be dispensed with upon a showing of a diligent search to locate the witness, without success. Furthermore, all of the distributees agree that the decedent's testamentary wishes should be adhered to. For these reasons, the Court cannot agree to the abandonment of the probate proceeding. Nonetheless, the Court cannot force the petitioners to pursue probate if they chose not to do so; thus, in that case, the Court authorizes the Public Administrator of Kings County to pursue probate.

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

Death of a loved one is hard enough, but getting involved in court litigations is much harder. In this case, it is wise that the legal representative you choose is competent enough to represent your interests. A part of your burden shifts to the legal counsel chosen and his acts, before courts of law, will be your acts as well. Thus, it is vital that such legal counsel fight for your cause in every possible manner.

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November 21, 2012

Defendant Contends Court Lacks Personal Jurisdiction

This case is being heard in the Supreme Court of Nassau County. The action before the court is a case of accounting in regard to an estate. The decedent passed away on the 20th of September, 2000. A New York Probate Lawyer said at the time of her death she was a partner defendant in two cases involving property located in Queens. The plaintiff is also a partner in these cases.

Case Background

The will left by the decedent provides that the plaintiff and another individual would each receive a third of a share of her residuary estate. The remaining third of the estate was to be placed in a trust for the benefit of another.

Letters testamentary were issued on the 13th of December, 2000 by the Nassau County Surrogates Court. A refunding, receipt, and release agreement was issued and one of the benefactors received their share of the estate. He agreed that any liability that is chargeable against the property would be distributed to him.

The benefactor passed away on the 18th of February, 2008. In regard to the trust that was left to him letters testamentary were issued to the plaintiff by the Surrogates court. The executor of his estate commenced an action against the plaintiff.

A mediation settlement agreement was entered into in order to settle all of the claims that were made between the parties. The agreement allowed for the estate of the benefactor to retain the house that was owned in Massachusetts. All of the tangible personal property was to be auctioned and distributed at a rate of 70% to the partnerships and 30% back to the estate.

A mutual release was part of the settlement agreement. Westchester County Probate Lawyers said the parties agreed to release all claims and causes of action in the matter. It was also agreed that the dispute would be subject to a lawsuit in Nassau County. This particular action involves the matter of accounting for the estate.

There are three causes of action the plaintiff is seeking accounting in respect to all of the affairs of the estate. The plaintiff is seeking a declaratory judgment stating that the mediation settlement agreement does not cover the claims made for accounting in the matter.

Case Discussion and Decision

The defendant has moved to have the complaint for lack of personal jurisdiction dismissed arguing the estate has not contacts with New York. However, in cases such as this the state has the ability to exercise personal jurisdiction over any domiciliary. For this reason this motion is denied.

Suffolk County Probate Lawyers said the defendant has argued that the claim made by the plaintiff for the receipt, release, and refund agreement is barred by the one year time limit in applicable to claims against the decedent’s estates is denied.

Finally, the plaintiff’s motion for a default judgment against the defendant is denied. The defendant will provide an answer within 15 days of being served a copy of this order.

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November 20, 2012

Court Decides Probate Jurisdiction Issue

This is a case being heard in the Supreme Court of Queens County. The defendants in this case have moved for an order to vacate their default and to grant them leave to serve an answer in regard to the matter.

Case Background

A New York Probate Lawyer said the plaintiffs in this case made a down payment on a real property located at 159-8 132nd Avenue, in Springfield Gardens, New York in the amount of $15,000. They paid the amount to the seller’s attorney and it was held in escrow. The plaintiffs allege that they obtained a mortgage commitment, a title report, and had the property both surveyed and inspected and then requested that a closing be scheduled. The plaintiffs were then informed that the seller had passed away and therefore the closing could not take place.

The decedent was living in South Carolina at the time he passed away and his will was admitted for probate there. His daughter was named as the executor. The plaintiffs sought to have the decedent’s estate convey the subject property to them. The plaintiffs state that they were informed that the decedent’s daughter would proceed with the closing.

A new contract of sale was drafted and the defendant agreed to sell the property to the plaintiffs for the amount of $475,000. Westchester County Probate Lawyers said the down payment remains in escrow as it was transferred to the new counsel of the defendant. The closing did not take place as scheduled and this proceeding was started for specific performance and compensatory damages against the estate and the administrator of the estate.

The defendants were served with the process in South Carolina on the 31st of December, 2007. None of the defendants provided an answer or otherwise moved or appeared in this action. The court granted the plaintiffs a motion for default judgment against the defendants.

The plaintiffs were ordered to file a note of inquest as to the damages. There were several inquest hearings adjourned and the defendants did not respond. The inquest was finally completed on the 29th of September, 2009. Suffolk County Probate Lawyers said the defendants were directed to execute any of the necessary documents to transfer the title of the property to the plaintiffs.

Court Decision

The defendants have offered evidence in the matter showing that their default in the prior issues were a matter of law office failure and therefore is excusable. As a resident of South Carolina, the defendant has not engaged New York counsel as representation for this action and to obtain letters of administration in the state of New York.

The court finds no evidence to show that the defendant intentionally abandoned the defense in this action. For this reason the court will grant the motion to vacate the order in order to serve an answer in regard to the issues of the case.

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November 16, 2012

Appellant Brings Motion to Strike Affirmative Defense of Lack of Personal Jurisdiction

This case is taking place in the New York Supreme Court.

Case Background

There are a series of four motions in this particular case. The first motion in this case was originally brought on by the order to show cause in the Queens County court and then transferred to this court. A New York Probate Lawyer said the action is brought forth on behalf of the plaintiff from the third action and requests the reversal of priority depositions made between the defendant and the plaintiff and to direct the defendant to appear for a deposition.

The first motion is also requesting that the court strike the affirmative defense of lack of personal jurisdiction because no motion to dismiss for lack of personal jurisdiction has been made. It also seeks to compel the counsel of the defendants to produce documents that are allegedly subject to the attorney – client privelage and documents referred to as estate documents for at a minimum an in camera review to be made by the court.

The counsel for the defendants in the third action appear on behalf of the title insurers and cross move by the second motion for leave to amend their answer to insert a ten year statute of limitations to bring forn an action to quite title. Queens Probate Lawyers said the action involves three parcels that are located in Queens. The cross movants alleges that the plaintiff has testified that he has owned 100% of these properties since at least 1963, but there is no documentation provided as evidence that he received the title to the subject properties.

The third motion is brought forth on behalf of plaintiff number two who wishes to have her name reinstated on the Chase Bank Accounts on which she was a prior joint owner. She also wishes to restore her co-signing privileges on these accounts which were allegedly improperly removed. The second plaintiff’s motion also seeks to restrain the defendants from interfering with her property rights in the 58-87 55th street property located in Queens, New York.

Case Discussion and Decision

In regard to restoring the plaintiff’s name on the Chase Bank Accounts the court declines to direct that this action take place. The entitlement to the contents of the account is the relief being sought. The accounts at one time contained $2,000,000. The court will not grant relief to the extent of restricting the distributions from the account for other than the normal course of business.

In regard to the plaintiffs motion to restrain the defendants from the parcel of land in Queens, the court has found two recorded deeds for the parcel. One of the deeds is in the name of the plaintiff and for that reason the court finds no reason that she should not be able to take over the management of the property.

In regard to supplying the plaintiff with a key to the safe located at 127 Nassau Street. Westchester County Probate Lawyers said the plaintiff and defendant are instructed to take an inventory of the safe and as the plaintiff is a 50% share holder of the estate, the defendant is directed to provide her with the key.

The court is advising the plaintiffs and defendants to keep in contact about their plans for the property on a regular basis as a way to avoid further confrontations regarding these matters.

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November 8, 2012

Appellants Contends Decedent Lacked Testamentary Capacity

This is a case being heard in front of the Supreme Court of the State of New York, Appellate Division, and Second Judicial Department. The case is a contested probate proceeding. The objectant of the case is appealing a decree made by the Surrogates Court of Queens County. The decree granted the petitioners motion for summary judgment and dismissed the objections to probate based on undue influence and admitted the will for probate.

Case Background

The last will and testament of the decedent is dated the 18th of September, 2003. The decedent passed away on the 29th of July, 2007. The will left the entire estate to the proponent, who filed a petition for probate. The propounded will referred to the decedent’s daughter, the objectant of the case, and named her as the contingent beneficiary of the estate if the proponent predeceased the decedent. The objectant filed objectants to the probate of the will alleging that it was written by the testator executed this will under undue influence by the proponent.

Court Discussion and Decision

The appellant has failed to provide any evidence showing that the decedent lacked testamentary capacity or that any undue influence or fraud had been exercised upon the decedent. A Westchester County Probate Lawyer said for this reason, the court affirms the original order and the appeal are denied. All costs will be paid by the appellant personally.

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November 3, 2012

Court Looks at the Intent of the Decedent

Establishing the jurisdiction that will handle a probate action in a New York Probate Court sometimes requires the knowledge of the decedent’s entire residential history. Just because a person dies in one county does not mean that the probate should be handled by that county. Probate in New York Law is handled by the jurisdiction that the decedent lived in for the ending years of their life. A New York Probate Lawyer said that address must be a voluntary residence and not necessarily a nursing home or hospice where the person resided toward the end of their lives. In New York law, it is referred to as a domicile. A domicile is existing until a new one is set up. A person moves from one domicile to another throughout their lives. The primary element in establishing a domicile is intent. Sometimes, the evaluation of residential change and intent to move can be blurry.

In one case, a woman who was born in Odessa, Russia in 1898, moved to Brooklyn, New York sometime around 1911. She was married and lived as an American citizen for the remainder of her life. She and her husband purchased a home on Beaumont Street in Manhattan Beach in Brooklyn, New York shortly after their marriage. They lived in that house and raised their family to adulthood in that house. In 1989, she began to have medical problems. During that year and the one that followed, she spent most of her time in hospitals or nursing homes. On December 6, 1990, she was a resident patient at Beth Israel Hospital in Manhattan. She died on that date. For three months before she died she had lived in a nursing home in Bronx County.

Her family had sold her home in Manhattan Beach during her long illness. The court was required to determine if she was considered a resident of Bronx County or a resident of Brooklyn. An additional complication was that she died in Manhattan. The court must evaluate which county was the woman’s domicile at the time of her death. They determined that it would not be appropriate to determine that she was a resident of Manhattan since her stay there was too short. A Westchester County Probate Lawyer said the question remains as to whether she has a domicile in the Bronx, or Brooklyn. The argument that is most important in this particular case involves that of intent. Did the woman have the intent to sell her lifelong domicile in Brooklyn and establish a new domicile in the Bronx prior to her death? The court must try to determine what the woman’s intent was at the time that her home was sold.

Evidence that was presented to the court, failed to advise the court if the woman even knew that her long time home had been sold while she was ill. The court must take that information to mean that she did not. Since she was unaware of the fact that her family had liquidated her home, she could not have had the intent to change her domicile from her life long home, to the nursing home in the Bronx. A Suffolk County Probate Lawyer said the court determined that even though the woman did not have a house in Brooklyn to return to at the time of her death, there is no doubt that she considered herself a resident of Brooklyn. She did not voluntarily change her domicile at any time. Even though she was living in the nursing home in the Bronx for the three months prior to her death, she had not voluntarily divested herself of her home in Brooklyn. In this particular case, the court determined that the woman had to be considered a resident of Brooklyn and her domicile would have to be determined as Brooklyn. The case was sent to Brooklyn Probate Court.


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November 1, 2012

Petitioner Claims Will Not Valid

An instrument alleged to have been executed in December of 1955 by the decedent is being offered for probate in the Surrogate’s Court of Queens County. The instrument names an executor and an attorney and draftsman as well.

Case Background

The decedent passed away in April of 1957. She was survived by her sister to whom she left $500 and the right to be buried in her plot. The decedent left $200 to a former employee. The rest was given to a “dear friend.” The estate has an estimated worth of $5,500.

The sister of the decedent passed away in October of 1957. The proponent filed an amended petition and citation was issued to the unknown kin and the public administrator. The public administrator appeared and interposed objections to the purported will, stating that it was improperly executed as the decedent was not competent at the time the execution of the will took place.

The attorney and draftsman of the will testified that on the first of April, 1955, the decedent along with her friend who is named as the residuary legatee came to his office and asked him to draw power of attorney in favor of her friend so she could handle her bank account and property. The attorney stated that this was the first time that he had represented either woman.

He states that the women did not have an appointment at the time and that he is unsure how the conversation was initiated. He went on to testify that in October or November of 1955, the friend visited his office and requested that he visit the decedent as she wanted to make a will. A New York Probate Lawyer said he went to the nursing home where the decedent told him that she wished to draw a will, but not at that time.

Later, the attorney received a phone call from the friend and was told that the decedent wished to leave $500 to her sister, $200 to one of her employees and the rest of her estate to her friend. He prepared the instrument in accordance with these instructions.

Case Discussion and Decision

Suffolk County Probate Lawyers said when the court looks at the way the will was executed it is easy to see that the decedent’s physical and mental condition at the time allowed her to be easily subjected to the influence of a person who wanted to obtain her property.

The lawyer stated that he did not witness the will being signed by the witnesses and therefore proper procedure was not followed to allow for the will to be considered as legitimate. Westchester County Probate Lawyers said it seems likely that the friend arranged the afternoon meeting where the will was executed as none of the family of the testatrix was present at the time.

For these reasons, the court cannot allow this will to be admitted for probate. The will was not signed in accordance to the law and is therefore considered null.

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October 21, 2012

Court Decides if Formal Accounting Necessary

This case deals with the accounting of Leif I Rubinstein as the executor of the estate of William Gillett who is deceased. The case is being held in the Surrogates Court of Suffolk County. This is an executor’s account proceeding (estate administration) where the attorney fiducia is requesting nunc pro tunc approval for the payment that he made to himself for the legal services that he provided on behalf of the decedent’s estate. He did not have judicial authorization to make the payment. He is also seeking approval of disbursements that he made.

Case Background

Jurisdiction has been obtained over the parties for this proceeding and they have each executed waivers of service of process and have consented to granting the relief that has been requested.

A New York Probate Lawyer said in this case the spouse of the decedent is the primary beneficiary from the will and the children, grandchildren, son-in-law, and a family friend are the general legatees under her. The estate is not complicated in nature and valued at approximately $170,000. The estate consists of bank accounts and interests and there is no reason seen for the nomination of the attorney as the executor of this particular estate.

Case Discussion

The court has examined the affirmation that was submitted by the attorney. The fee that has been requested is based on 49 hours of time he spent dealing with the estate at a rate of $150 per hour. A Westchester County Probate Lawyer said while the hours spent working on the estate is a reasonable starting point to analyze an application for counsel fees, it is not the most important part of assessing the reasonableness of the amount that has been requested.

In the opinion of the court it is more significant to consider other factors such as how difficult the factors involved in this matter were, the nature of the services that were made, how involved the work was, the credibility and experience of the attorney and the results that were obtained as a result of the work.

When reviewing the work that was done by the counsel it is found that it was routine. The work included probate of the decedent’s will on waivers and consents, preparing and filing of the New York State estate tax return and gift tax returns, preparing and filing of the fiduciary report and the amended fiduciary report and the instant account proceeding on waivers.

Court Decision

The court fails to see while a formal account proceeding is needed in this case. However, when reviewing the work that the counsel has done in the matter the court sees that the counsel is requesting full commission for the work in the amount of $7821.26.

A Suffolk County Probate Lawyer the court finds this amount to be excessive and is fixing the value of the fiduciary services fee provided by the attorney to the amount of $1500. The petitioner in this case is directed to refund the estate in the amount of $5862. The lawyer must provide the court with evidence that this amount has been repaid to the estate. The disbursements that have been requested will be allowed in the full amount.

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October 17, 2012

Testatrix Leaves Her Estate to a Wildlife Sanctuary

This case is being heard in the Suffolk County Court. The matter at hand deals with an application made by the American Museum of Natural History. The application requests a refund of certain taxes that the museum paid under erroneous and illegal assessments that were made.

The American Museum of Natural History is trying to recover certain taxes that they have paid or taxes that were paid on their behalf on certain real property that is located in the Town of Huntington. A New York Probate Lawyer said the refund claim is based on the ground that the property should have been tax exempt under provisions of the Tax Law.

Case Background

The testatrix, Augusta S. Kalbfleisch loved birds and enjoyed her estate, Blyenbeck Farm located in the town of Huntington. She made the estate attractive to the wild life of Long Island. Aware of the fact that she would one day have to leave the estate she made plans in her will to leave the estate along with an endowment fund of $200,000 to the American Museum of Natural History to use as a wild life sanctuary.

When she passed away on the 20th of March, 1956, there were objections brought up in probate about her will. Westchester County Probate Lawyers said the court appointed Hanover Bank as the executor as named in the will. The objections proved to lack merit and were withdrawn and dismissed. The will was admitted for probate on the first of April, 1957 and the premises were turned over to the Museum on the 13th of September, 1957.

The tax issue rises from the fact that the property was not entered on the tax rolls as exempt before the first of June in 1957 and 1958. The petitioner was obliged to pay the Receiver of Taxes for the town of Huntington taxes in the amount of $15,175.11. This is the amount that the petitioner is seeking to have refunded.

Case Discussion

It was stipulated at the time of the hearing that the petitioner is a nonprofit corporation that is organized for public and educational purposes. This is the type of corporation that receives tax exemption. Suffolk County Probate Lawyers said the question left before the court is whether the Museum contemplated the use of the property before the first of June in 1957 and 1958.

The testimony that was offered at the time of the hearing states that the Museum contemplated using the property as a bird and wild life sanctuary in accordance with the wishes of Augusta S. Kalbfleisch immediately after learning that the deceased had left the property to the museum.

The opposition council argues that the Museum was involved in litigation at the title of the property was not absolute until some time in September of 1958 and because of this the Museum is not entitled to tax exemption until the latter date.

Court Decision

The property is currently being used as a Wild Life Sanctuary and there is no question that the Museum had planned for it to be used in such away from the beginning of learning that the property had been left with them. There is no reason to question the intentions and good faith of the Museum and for that reason the petition for a refund should be granted. The court orders that the amount of taxes paid by the museum be returned.

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October 16, 2012

Court Looks at Stipulation of Settlement Agreement

The Facts of the Case:

A New York Probate Lawyer said on 24 September 2008, the decedent died a resident and domiciliary of Nassau County. In November 2008, “A” filed a petition seeking a decree awarding her letters of administration. In the proceeding, “A” identified herself as the decedent’s wife. Annexed to the petition was an affidavit of heirship by a certain person, who swore therein that the decedent was married to the petitioner at the time of his death, and that the decedent died without children and without a will. On 25 November 2008, a decree of administration was issued and letters of administration to “A”.

Thereafter, “B”, as the named executor and one of the decedent’s siblings, filed a petition for probate of an instrument (a will contest proceeding) propounded to be the decedent's last will and testament and for the issuance of letters testamentary. The petition identifies “A” as the decedent's spouse, but states that the decedent was separated from “A” at the time of the decedent's death; that the decedent died leaving 10 siblings. “B” and one other sibling of the decedent also instituted a proceeding seeking an order revoking letters of administration issued to “A”, and compelling her to account.

Sometime in May 2009, “A” filed her objections to the probate of the propounded instrument and alleges that it is a forgery and was not duly executed. In June 2009, “B” filed an affirmation in opposition to “A”’s objections and argues that “A” does not have the standing to object to the probate of the propounded instrument because she gave up all such rights in Article IV, Mutual Release and Discharge of Claims in Estates, of the stipulation of settlement that “A” and the decedent entered into on 12 August 2008 while the divorce proceeding the decedent had initiated against “A” was pending; the wherefore clause of the petition for probate was amended by affidavit of “B” to request that “A” be disqualified because of a stipulation of settlement she and the decedent signed in the course of their then-pending divorce. The decedent died prior to the submission of a judgment of divorce to Supreme Court.

The Ruling of the Court:

Here, the court finds from the plain language contained in the stipulation of settlement executed by “A” and the decedent that it was an independent contract between them and was operative at the time of its execution. Its viability was not dependent upon a judgment of divorce and it did not abate upon the decedent's death. Westchester County Probate Lawyers said this conclusion is further bolstered by the fact that the parties assumed certain obligations immediately upon executing the stipulation of settlement like when they agreed that upon execution of the stipulation of settlement, the wife shall immediately serve a counter-claim upon the husband, on the grounds of constructive abandonment, and the husband will not interpose a defense and will consent to the wife obtaining a final judgment of divorce as an uncontested matter; and when the terms and provisions of their agreement stated that it shall survive any judgment of divorce between them, and shall not merge therein, and shall remain fully enforceable as an independent contract between the parties. In other words, “A” explicitly relinquished her rights with respect to the decedent's estate in the stipulation of settlement. Thus, Suffolk County Probate Lawyers said she lacks standing to object to the probate of the propounded instrument. Accordingly, “A”’s objections to probate are dismissed.

On the miscellaneous proceeding, “A”’s letters of administration are revoked and she is ordered to judicially settle her account as administrator while the other sibling’s claim for the decedent's funeral can be made against the decedent's estate.

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October 1, 2012

Court Reviews Alleged Fraudulent Acts by Fiduciaries

This is a case being heard in the Surrogate’s Court of Suffolk County. The case involves the will of Madeleine Daltrolff Corya, who is deceased. The case is an accounting proceeding where the co-petitioners, the attorney – draftsman and the Bankers Trust Company have requested that the court fix and determine the fee and disbursements of the attorney’s law firm in the amount of $250,000 and to fix and allow the combined commissions for the total amount of $1,634,230.40. The counsel has requested a hearing be held in respect to this application for fees and disbursements.

Case Background

The decedent passed away in April of 1987 and is survived by a grand nephew. The decedent bequeathed her entire estate, which amounted to approximately $46 million at the time she passed away, to two charitable organizations, the American Cancer Society and Memorial Hospital for Cancer and Allied Diseases of New York. Her attorney, John J. Barrett and the Bankers Trust Company of New York were named as executors of the will.

A New York Probate Lawyer said the decedent’s will was admitted for probate in June of 1987. Letters of testamentary were then issued to the co-fiduciaries. A decree stated that any legal fees or commissions could not be paid without further court order. This has been determined as necessary due to the alarming number of estates that involve attorney fiduciaries being abused.

Case Discussion

On the date of the hearing no one appeared to be in opposition of the relief that was requested by the petitioners. The Attorney General who was advised of the hearing chose not to participate in the matter. However, even though there are no objections to the relief being sought it is within the power of the court to supervise the charging of fees for legal services and to limit the compensation to an amount that is just and reasonable under the particular circumstances.

When reviewing the facts of the case the court finds that both fiduciaries in this case have committed fraudulent acts by pursuing the decedent while she was still alive in the hopes of being named as the executor of the estate. There are numerous letters from both the bank and the attorney that offer services and other things that may be construed as bribes.

Case Decision

In light of these facts the court must determine a fair amount for the services offered by the bank and the counsel. Westchester County Probate Lawyers said the original amount as requested is denied. After reviewing the necessary criteria in the case the court is fixing the amount to the sum of $75,000 for all of the services that have been rendered and to be rendered.

The request by the counsel to be reimbursed in the amount of $12,268.75 for accountants fees that the firm paid for is denied. The reason is that the counsel has failed to show that there were unusual circumstances that existed in the estate that required the expertise of an accountant.

The disbursement for travel in the amount of $994.31 by the counsel is denied as well. Suffolk County Probate Lawyers said the reason is that this expenditure should be constituted as office overhead in the matter.

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September 13, 2012

Court Rules on Full Faith and Credit Act of the Constitution

This matter deals with Howard E. Bennett, who is also known as Ward Bennett and is deceased. The appellant in the case is David White. Robert Middleton, et al is the respondents in this matter. The case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Judicial Department.

A New York Family Lawyer said the the petitioner, David White is appealing an order that was made in the Surrogate’s Court of Suffolk County made on the 21st of December, 2009 that granted the motion of Andrew Sabin for leave to intervene in the proceeding and revoked his ancillary letters testamentary and an order from the same court that was made on the 24th of June, 2010 upon renewal and re-argument of the case adhered to the original determination made in the December 21st decision.

Case Background

The decedent, Howard E. Bennett who is also known as Ward Bennett was living in Florida at the time of his death. The will of the decedent provided that the petitioner, David White and Robert Middleton would receive a 20% share of the decedent’s multimillion dollar estate. The will was admitted for probate in Florida on the 22nd of September, 2003. The nephew of the decedent was appointed as the fiduciary of the estate.

The Florida proceeding was terminated after a settlement agreement was reached on the 30th of June, 2004. White, Middleton, and the other beneficiaries all executed waivers of a final accounting and acknowledgement of the sufficiency of payments received. The fiduciary was released from distributing any further payments.

While the Florida proceeding was still pending, White began this proceeding for the ancillary probate of the decedent’s will in the Surrogates Court of Suffolk County. He also started a discovery proceeding in the same court in April of 2005. Westchester County Probate Lawyers said the purpose of the discovery proceeding was to assert a cause of action alleging fraud to the respect of the transfer of the decedent’s home located in East Hampton, New York. This was based on allegations that Middleton sold the property as the attorney in fact for the decedent to an individual named Andrew Sabin in 2002 for much less than the fair market value of the home.

The discovery proceeding was held pending the determination of White’s petition to reopen the Florida proceeding to establish a basis for the Surrogate’s court’s right to exercise subject matter over the estate.

Court Discussion and Decision

The full faith and credit act of the United States Constitution requires the court give fair credit to the determinations made by the courts in Florida. For this reason, the court orders that the appeal from the order that was entered on the 21st of December is dismissed as it was already superseded by the order that was entered on the 24th of June, 2010. A Staten Island Probate Lawyer said that the court further orders that the order that was made on the 24th of June, 2010 is affirmed as appealed from. One bill of costs will be paid to the appellant personally.

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August 1, 2012

Daughter Contests Father's Will

In a proceeding, a daughter of a deceased man filed a motion for a decision without trial and objected the petition for probate of her father’s will. The petition was brought by the sister of deceased man and the nominated estate administrator under the last will and testament.

The last will and testament of the deceased man was offered for validation. In his will, the man directed that his entire estate be distributed to his sister. The document reflects that the attesting witnesses were the draftsperson of the will and the draftsperson’s legal assistant. The daughter however filed multiple objections to the will, focusing primarily on an alleged lack of due implementation. The daughter’s counsel examined the two attesting witnesses.

The motion requesting the decision without trial upon objections for the validation of the will and dismissal of the proceeding was followed a lengthy delay in which a settlement was reached concerning payment of the deceased person's non-probate death benefits, however no settlement was reached in connection with the distribution of the deceased person's property. In the daughter’s affidavit, she alleges that her aunt cannot appropriately demonstrate due implementation of the proposed last will and testament. In support for the statement, the daughter presents that the one witness cannot recall the will signing ceremony, that the self-proving affidavit was improperly notarized, that the her father failed to initial each page of his will and the proponent's counsel did not produce her for examination.

A New York Probate Lawyer said that based on records, a self-proving affidavit may serve as evidentiary proof of a will's genuineness, the validity of its implementation, the competency of the man to make a will and that the man was not under restraint. By definition, however, it is not an integral part of a will. In any event, a self-proving affidavit will not be accepted by the court if a party with standing raises an objection or if for any other reason the court determines that the witnesses to the will should be examined.

A Westchester County Probate Lawyer said the daughter notes that the draftsperson’s legal assistant has no actual recollection of the deceased person's will ceremony and asserts that the will cannot be admitted for validation on the basis of the draftsperson's testimony alone.

The draftsperson’s legal assistant did not specifically recall the deceased person's implementation of the will and both the draftsperson and his legal assistant were personally familiar with the deceased man in connection with his representation by the draftsman's firm in the deceased man's divorce proceeding. The draftsman and the draftsperson’s legal assistant were also able to independently identify the signatures on the will. Both of them testified to the usual procedures of the draftsman's law office in connection with the implementation of the wills by the testators which appear to have been proper except as to the office practice in connection with the notarization of self-proving affidavits. A Staten Island Probate Lawyer said where a will includes a valid attestation clause, it provides evidence that the will was performed properly. When the implementation of a will is supervised by a counsel, there is a presumption of due implementation in accordance with the law.

Based on records, the court finds that all of the elements, combined with the draftsperson's testimony of his recollection of the will signing ceremony and his legal assistant's convincing testimony concerning usual office practice, are sufficient to establish that the will was performed in conformance with the law. The court assert that in order to disprove the presumption and raise a material issue of fact, the daughter should offer evidence in admissible form, not hearsay, speculation and conclusory allegations and the daughter has failed to do so. As a result, the request for decision without trial is granted to the man’s sister and the daughter's motion is appropriately denied.

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July 29, 2012

Court Says Testator has Right to Choose Who Settles Their Estate

In a probate proceeding, a New York Probate Lawyer said that the petitioner, Joanne Zaccaria, appeals from so much of a decree of the Surrogate's Court, Kings County, denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of Paula M. Venezia, and granted those branches of the motion of the objectant, Edward Hayes Pennington III, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

The issue in this case is whether the Surrogate Court in this probate proceeding erred in denying petitioner’s cross motion for the issuance of preliminary letters testamentary on the estate of the testator, and granted that branch of the motion of the objectant, Edward Hayes Pennington III, to issue letters of administration to him.

The Court reversed the decision insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Surrogate's Court, Kings County, for an evidentiary hearing in accordance herewith, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

The Court held that, a testator or testatrix has the right to determine who is most suitable among those legally qualified to settle his or her estate administration, and that selection is not to be lightly discarded. Queens Probate Lawyers said that while the Surrogate may disqualify a person from receiving letters of administration where the friction between such person and a beneficiary interferes with the proper administration of the estate, mere friction or hostility between such person and a beneficiary is not sufficient grounds for removal.

In the case at bar, the testatrix, in her last will and testament, expressly nominated and appointed the petitioner as the executrix of her estate. Thus, her intent as to this appointment was clear. The Surrogate's Court, inter alia, denied that branch of the petitioner's cross motion which was for the issuance of preliminary letters testamentary and granted that branch of the motion of the objectant, Edward Hayes Pennington III, which was to deny the issuance of preliminary letters testamentary to her. Based upon the motion papers alone, the Surrogate's Court concluded, among other things, that the relationship between the petitioner and her attorneys, and the objectant, was palpably poisoned, and that the papers submitted by the objectant evidenced a rational hostility towards the petitioner and her counsel. The Court further note that the Surrogate's Court, in rendering its decision, deemed it unnecessary, in light of its conclusion, to reach the issue of whether the petitioner's appointment under the will as the executrix was procured by undue influence.

In view of the foregoing, notwithstanding the evidence demonstrating that there was friction and hostility in the relationship between the petitioner and her counsel, and the objectant, an evidentiary hearing should have been held to determine whether such friction and hostility would interfere with the proper administration of the estate and whether the petitioner's appointment as executrix under the will was procured by undue influence, thereby Westchester County Probate Lawyers said the Court remit the matter to the Surrogate's Court, Kings County, for an evidentiary hearing on those issues and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to Edward Hayes Pennington III. The Court further held that, the petitioner’s remaining contentions are without merit.

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July 24, 2012

Court Decides Payment of Estate Taxes

A woman died and was survived by her five children. Her will, dated September 1, 2006 was admitted for probate on July 2, 2010 and letters of estate administration was issued to one of her children. The Will established a credit shelter trust for her husband, with remainder to her children. It left the rest, residue and remainder of her estate to her husband outright. Her husband predeceased her and she provided in the Will that if her husband predeceased her, she will left all the rest, residue and remainder of her properties, real, personal and mixed and wherever situated to her elder daughter. All the rest and remainder are to be equally divided among her children.

A New York Probate Lawyer said the estate is sufficiently large to generate a New York State estate tax. The will provides that all estate, inheritance, transfer, succession or other similar taxes shall be payable out of the residuary of the estate. The executor asks that the Court construe the gift to real property as a pre-residuary gift and the remainder clause of the Will as the residuary estate. The executor brings the construction proceeding, since he claims that not all of the residuary beneficiaries agree with his interpretation.

The Will in question directs that the payment of estate taxes be paid from the residuary estate. The Will contest claims that the Will contains two residuary clauses. Westchester County Probate Lawyer said the executor asks the Court to construe one of the residuary clauses as the true residuary estate. The effect will be that all estate taxes will be apportioned among the beneficiaries of the residuary clause and the devise of real property under the other residuary clause will pass to the devisee free of New York estate taxes. No objections have been filed to the petition for a construction, although the executor states that not all of his siblings agree with his interpretation.

The executor treats the matter as purely one of construction. He alleges that the residuary estate, to which tax exoneration provision of the Will applies, is not clear. In construing a will, the Court looks first at whether the will's provisions are clear. INassau County Probate Lawyer said if there is no ambiguity, the court should interpret the will in accordance with the testator's intent as expressed in the will. If there is an ambiguity, the Court should take extrinsic evidence of the deceased woman's intention.

However, construction of a tax apportionment clause cannot be made without considering the special rules governing the State's apportionment statute. The question of allocation should not be approached as would a construction question where at all events the meaning of the text must be determined from the content of the will. In a tax allocation problem, the text of the will is to be scanned only to see if there is clear direction not to apportion; and if such explicit direction is not found, construction of text ceases because the statute states the rule.

The Estates Powers and Trusts Law (ETPL) provides that whenever it appears that a fiduciary may be required to pay an estate tax with respect to property included in the gross estate, the amount of the tax, except in a case where the testator otherwise directs in her will shall be equitably apportioned among the persons to whom the property is disposed of in accordance with the rules of apportionment set forth, and the persons benefited shall contribute the amounts apportioned against them. ETPL provides that unless otherwise provided in the will or non-testamentary instrument, apportioned among the beneficiaries, in proportion to the benefit received.

Accordingly, the courts have applied a rule of strict construction where exoneration from apportionment is alleged. In case of doubt as to what the will means on the subject of taxes the statutory direction to apportion is absolute.

When the will directs payment of federal and State estate taxes out of the residuary estate, taxes are to be apportioned among the residuary beneficiaries unless there is a clear direction against apportionment.

The testator clearly provided for the disposition of her residuary estate after creating a marital trust for her husband in the event that her husband survived her. Finally, the effect of finding that the residuary estate is created would be to relieve the child receiving the real property from the obligation to share in the estate taxes imposed on the value of the devise. While the testator left her daughter a specific devise out of the residuary estate, there is no indication that the testator also intended to exonerate the specific devise from its share of the estate taxes imposed as a result of the gift. Accordingly, the estate taxes imposed must be apportioned among the residuary beneficiaries, including the devisee of the real property, according to the value of their residuary bequests.

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July 15, 2012

Court Decides if Surrogates Court Abused its DIscretion

The Facts:

The Respondent found among the decedent's effects a purported will signed by the decedent but with the signatures of the witnesses torn off and missing. The respondent claims that the attorney whose name appears on the back of the will does not remember the alleged will or attending on the execution of any will by the decedent. Had the decedent died intestate, her sole heir would be her sister, a Finnish citizen who resides in Finland and who intends to file a will contest.

Under the will, the appellant was named as the executor and sole beneficiary in the will. When the appellant learned about the will, his attorney visited the respondent's office and requested that the will be filed forthwith as required by law.

A New York Probate Lawyer said the respondent, instead of merely filing the will, he simultaneously filed a petition for the issuance of citation to show cause why the will should not be admitted to probate and for a decree admitting said will to probate and directing the issuance of letters testamentary to the executor who might qualify, or to determine that the act of tearing revoked the instrument and, if the court found that the will was revoked, then, in the alternative, for the issuance of letters of administration, for the purpose of estate administration or estate litigation, to respondent.

The respondent claims that the will is not valid and probate will be denied. Simultaneously with the filing of the petition, respondent made a motion for the issuance to him of temporary letters of administration.

On the contrary, the appellant opposed respondent's motion for the appointment of the temporary administrator and moved for an order dismissing the petition to prove the will and for a further order authorizing appellant to petition the court to prove said will.

The respondent's motion was granted and the appellant's motion was denied. Westchester County Probate Lawyer said the order denying the appellant's motion provides that the motion to dismiss the petition for the probate of the will or, in the alternative, for the issuance to respondent of letters of administration is denied in all respects.

The appellant did not move for the dismissal of the entire petition, as indicated by the fact that he requested authorization to petition the court for probate. If the entire proceeding had been dismissed on motion, the appellant would not require authorization to file a petition for probate. It is possible that the request for such authorization was made in view of the fact that the rules provide that: No petition for the probate of a will, or for the grant of letters of administration or of guardianship will be entertained during the pendency of a prior proceeding for the same or like relief respecting the same matter.

The Ruling:

The court finds that the respondent was not authorized to propound the will for probate since he was not a person interested in the estate within the statutory definition thereof; neither did the respondent come within the provision of the Surrogate's Court Act which states that: Nassau County Probate Lawyers said the surrogate's court may direct the public administrator or county treasurer to present a petition if a will has been filed in the surrogate's office for over sixty days and no other person who is entitled to petition for its probate has done so.

Here, the Surrogate should have granted the motion to dismiss the petition insofar as it sought the probate of the will and should have granted appellant's motion for authorization to petition the court for the probate of the will.

On the relief requested in the appellant's motion, the Surrogate was not required to dismiss the petition insofar as it sought a determination that the instrument was revoked by the act of tearing and that, in the alternative, letters of administration be granted to respondent. But even if the appellant's motion sought the dismissal of the entire petition, the showing was sufficient to satisfy the Surrogate that the decedent died without leaving a valid will and died intestate; and to authorize him to issue a citation and to continue the proceeding as one for the issuance of general letters of administration.

Henceforth, the Surrogate did not abuse its discretion by the granting of temporary letters of administration to respondent. After appellant files a petition for the probate of the purported will, the parties may move to consolidate the proceeding instituted by appellant with that portion of the proceeding instituted by the respondent which has not been dismissed. The order granting the motion for the issuance of temporary letters of administration is affirmed; the order denying the cross motion to dismiss the petition modified by striking therefrom the ordering paragraph and by substituting therefor provisions granting the appellant's cross motion: to dismiss the petition insofar as it seeks a probate of the will and to authorize appellant to petition the court for the probate of the will.

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July 14, 2012

Jurisdiction Issue Decided

A testator was born and raised in Brooklyn, New York but after he got married, he lived with his wife in Florida. Later, the testator and his wife resided in Phoenix, Arizona. While they resided in Phoenix, Arizona, the testator’s wife died. It was around April 2004 that he executor his will in Arizona.

The testator first executed a trust in favor of his grandson. In his will, he left his entire estate to the trust he created. He named his grandson the sole beneficiary of his trust.

A year after he created the trust and executed his will the testator called his sister asking her to come and get him from Phoenix, Arizona because he wanted to go back and live in Brooklyn with her. At that time the testator was ninety-five years old and he had heart disease. He told his sister that he wanted to change his will. So before he boarded the airplane bound for Brooklyn, New York, he and his sister went by the office of a lawyer where he changed the beneficiary of his 2004 will and trust. He gave his sister the principal of the trust, he gave his granddaughter 3/8 of the trust and his grandson 1/8 of the trust. He also named his sister as his health care proxy. After signing the documents in the Arizona lawyer’s office, he insisted on boarding the airplane to New York immediately.

On that same day, a New York Probate Lawyer said the grandson filed an action to be named as conservator and guardian of his grandfather, the testator. He claims that he was bodily taken from his house. The Surrogate Court of Arizona named him temporary guardian of his grandfather.

Hours after the testator arrived in New York, he was hospitalized. He needed emergency surgery for a blood clot in his leg. His sister’s daughter filed a petition in the Surrogate Court of New York to be appointed guardian over her granduncle. The lawyer in Arizona who created the latest will of the testator in 2005 prior to his departure from Arizona was summoned by the Arizona court to present the testator before the Arizona court. The lawyer appeared in the Arizona court and presented an affidavit executed by the testator to the effect that he was domiciled in Brooklyn, New York and that his address was his sister’s address.

In the meantime, the Surrogate Court in New York sent a court evaluator to the hospital room of the testator to determine if a guardian should be appointed for him. The testator died on December 4, 2005. The sister filed a motion for the probate of the testator’s 2005 will in New York. The clerk of the court accepted the petition but did not assign it a file number pending the submission of proof of domicile. When the lawyer filed a copy of the affidavit executed by the testator attesting that his domicile was New York, the clerk assigned a file number to the petition for probate around December 14 or 16, 2005.

The grandson of the testator from Arizona appeared and objected to the probate of the 2005 will on the ground that he had filed a petition for probate of the 2004 will of the testator in Arizona. According to the grandson, a Staten Island Probate Lawyer said the prior action filed in Arizona precludes the Surrogate Court of New York from hearing the probate of the 2005 will of the testator.

Westchester County Probate Lawyers said the only question before the Court was whether or not the Surrogate Court of New York may hear the probate petition of the testator’s will. The Court resolved the question in favor of jurisdiction of the New York Court. The probate petition in New York pre-dated the filing of the probate proceedings in Arizona.

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July 4, 2012

Court Discusses Pour-Over Wills

On 24 January 2006, a resident of Nassau County died. Prior to his death, on 24 October 2003, he had created a Revocable Trust. At that time, he also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent's long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent's assets were transferred to the trust while he was alive. As a result, the will was designed to be a "catch all" so that any stray assets left in the decedent's estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

Thereafter, the guardian ad litem, who was appointed to represent the interests of the decedent's daughter, examined the circumstances surrounding the execution of both the trust and the will. A New York Probate Lawyer said in her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

A probate proceeding followed and also submitted for decision is the issue of the source of payment for fees awarded to a guardian ad litem.

It must be noted that this is a probate proceeding involving a will that "pours over" into an inter vivos trust. Westchester County Probate Lawyers said the court must decide whether trust assets can be used to pay all or part of the fee.

The Ruling:

The rules provide that the fee of the guardian ad litem may be payable from any or all of the following, in such proportion as directed by the court: the estate; the interest of the person under disability, or for good cause shown, any other party.

While the law generally contemplates that the fee of the guardian ad litem in a probate proceeding will be paid out of estate assets or the ward's share of the probate estate, the circumstances before the court justify a different result.

In a probate proceeding which involves a will that “pours over” into a pre-existing inter vivos trust, such trust is a party to the probate proceeding either via its trustees or its beneficiaries and either as a cited or noticed party. Clearly, the responsibilities of the guardian ad litem included a review and investigation of both the will and the trust.

A somewhat analogous situation was addressed by the court in another case: While the following is extremely unlikely to ever occur, it does present a scenario where a legal fee adjustment would be mandated. If A died leaving a testamentary estate of $100,000 and bequeathed $75,000 to B but also exercised a power of appointment over the remainder of a trust of over $100 million in favor of C where the default beneficiary was D, one can imagine a very costly probate contest brought by D and defended by C, the nominated executor. It is also not hard to imagine legal expenses far exceeding $100,000. Were the will contest to be settled between C and D, would it be appropriate to wipe out the estate in legal fees and thus extinguish B's bequest of $75,000? The answer would clearly be that it would be inappropriate.
Based on the foregoing, the court holds that the assets of the decedent’s Revocable Trust may be used as a source of funds to pay the fee of the guardian ad litem.

The court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate administration; estate litigation. This remains true even in the event that the parties have consented to the requested fee.

While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

In evaluating the cost of legal services, the court may consider a number of factors, viz: the time spent; the complexity of the questions involved; the nature of the services provided; the amount and complexity of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services.

The court, in discharging its duty to review fees, cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements. Also, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem. Moreover, Suffolk County Probate Lawyers said it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation.

The guardian ad litem is entitled to a fee for his or her services rendered. These factors apply equally to an attorney retained by a fiduciary or to the court-appointed guardian ad litem. Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee. Normally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets. However, a party may be charged with payment of the compensation of a guardian ad litem where the actions of such party generated unnecessary, unfounded, or purely self-serving litigation that resulted in the appointment of a guardian.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed. In the absence of contemporaneous time records, little weight is given to estimates of time after the services have been performed. This applies to the fee of a guardian ad litem.

Henceforth, the court approves the fee of the guardian ad litem in the amount requested and may be paid from trust assets.

Nassau County Probate Attorneys, Nassau County Will Contest Attorneys, Nassau County Estate Administration Attorneys, etc. at Stephen Bilkis & Associates would like to offer its services by providing free legal consultations. Contact us now and have your legal queries answered by the best lawyers in the metropolis. Protect your rights and ask a legal professional for assistance.

July 3, 2012

Court Decides Question of Domicile of Testator

A woman who lived for thirty years with her niece in New York executed a will sometime on February 5, 1955. In will, she distributed her estate to her son who was a resident of Wayne County and her niece who was a resident of New York County. The woman just before her death stayed with her son at his home in Wayne County.

He filed a petition for probate in Wayne County. The niece who was a legatee in the will filed an objection to the probate of the will. Her objection centers on whether or not the Surrogate’s Court of Wayne County has jurisdiction over the probate petition seeing as the domicile of the testator, her aunt was New York.

Before deciding on the issue of whether or not the Surrogate’s Court of Wayne County has jurisdiction over this probate proceeding, the Court decided on the question of whether or not the niece who filed the objection is an interested party who alone can filed objections to a probate proceeding.

A New York Probate Lawyer said the only questions before the Court are: whether or not the niece has standing to file an objection to the probate of the woman’s will; and whether or not the Surrogate’s Court of Wayne County has jurisdiction to hear the probate petition.

The Court held that the niece has standing to file an objection in this probate proceeding. She is a legatee or a distributee of the will and as such, she has an interest in the probate of the will: if the will is denied probate, she will suffer the loss of the legacy that was left to her by her aunt in the will.

The next question is whether or not the woman was a resident of Wayne County (seeing as she died there). If the Court finds that she is a resident of Wayne County then the will can be probated in Wayne County; but if the Court finds that the woman is a resident of another county at the time of her death then the will must be probated in the county where she was domiciled at the time of her death.

The Court also held that in determining the domicile of a testator, it is not only necessary to determine the length of time that the testator lived in one particular place. It is also worth considering what the testator considered as her permanent home, or the place she will regularly return to after her travels to other places.

The son of the testator has presented testimonial evidence that the testator has expressed her desire to move nearer to her son and get her own place in Wayne County. However, Westchester County Probate Lawyers said the niece presented evidence that the testator has maintained an apartment in New York City her whole life until her death.

The Court ruled that for purposes of determining domicile or permanent residence, it is important to weight not only the expressed wishes of the testator but the totality of her declarations, her conduct and her manner of life including her connections, association and interests must be weighed to determine where she actually took up permanent residence.
The Court found that the witnesses presented by the son were not disinterested parties: they desire the probate of the will so that they can obtain the legacies that were provided for them in the will. The Court also found that the witnesses presented by the niece were not disinterested parties either. Suffolk County Probate Lawyers said the only person who was disinterested in the probate of the will was the witness who appeared in court after she was sent a subpoena. She showed reluctance to testify and yet she testified that the testator had indicated to her that she did not want to give up her apartment in New York City because she intended to return there.

What the Court found controlling was the fact that most of the testator’s interests were in the City of New York and she had never given up her apartment there. This is the best indication that she intended to return to New York City as this is her domicile.

The Court dismissed the probate petition on the ground of lack of jurisdiction as the testator was a domiciliary of New York City and not of Wayne County.

The first basic consideration in filing a probate petition is: the petition must be filed in the Surrogate’s Court in the county or state of the testator’s domicile. The question of domicile is a legal question that confers jurisdiction on a court. You need the advice and assistance of a New York Probate Lawyer to determine the domicile of a testator at the time of her death.

The New York City Probate Attorney will tell you that the issue of domicile affects the probate proceeding because it is the law of the testator’s domicile that will determine the laws which will be applied by the court to determine due execution and testamentary capacity. Call Stephen Bilkis and Associates today, ask to meet with any of their NY Probate Lawyers and make sure that you file the probate proceeding in the proper court. Speak with a NYC Probate lawyer from Stephen Bilkis and Associates to make sure your probate petition is not dismissed for lack of jurisdiction or wrong venue.

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June 19, 2012

Family Member Seeks to Invalidate Trust

In situations of estate probate, there are often times when a person is appointed by the court to review the circumstances surrounding a will and to determine if the law has been followed in the distribution of the assets set forth in the document. This person is called the guardian ad litem. The guardian ad litem is an experienced attorney who’s responsibility is to prepare a detailed report where he lists his findings and based upon his findings, recommends the necessary action that should be taken to protect the interests of the person who has filed the complaint.

In the situation at hand, the decedent passed on May 9, 2007. There were four distributes named in the estate documentation. Two daughters were named, one son, and one granddaughter who is the child of a son who had passed prior to the death of the decedent. New York Probate Lawyer said one of the daughters filed a complaint with the probate court that the will naming only one of the son’s as the sole inheritor for the living trust of the decedent should be ruled invalid.

The reasons that were set forth to invalidate the living trust was that one of the daughters states that prior to the decedent’s death, the lone surviving son placed undue influence on the decedent up to and including fraud against the decedent while he was physically ill and depressed. The guardian ad litem in this case determined that the daughter might possibly have a case and determined that it was only proper for him to continue to represent the daughter in the future hearings in reference to the closing of the decedents affairs.

There were three actions before the court for consideration in this case. The first was to declare the living trust of the decedent. The second was to probate the decedent’s last will and testament. The third was the son’s proceeding to settle his account. Further, it is important that the court determine the proper and appropriate fee for the guardian ad litem to receive for his services. Suffolk County Probate Lawyers said the court notes that it is appropriate for the guardian ad litem to ask the court to award an interim fee for the services that he is providing to the daughter.

Because the court agreed with the determination of the guardian ad litem that there is reason that the daughter should have representation in the three actions, it must establish a means to provide the guardian ad litem with appropriate compensation. It is the responsibility of the court to approve the legal fees that get charged to an estate. Westchester County Probate Lawyers said the court has the discretion to determine what level of fee is reasonable as compensation for legal services rendered during the course of administration of an estate.

There are no distinct guidelines or hard rules to calculate what might constitute reasonable compensation for an attorney in every case. The court expects the surrogate who approves the guardian ad litem’s fee to be reasonable and exercise proper discretion. The amount of compensation that an attorney is granted for acting as a guardian ad litem is not to be applied in an arbitrary fashion. The surrogate must consider the amount of time that the attorney will have to devote to the case at hand. They must consider the complexity of the legal aspects of the case. Then they must consider the nature of the services provided. There is a lot of area for discretion as it relates to the granting of legal fees. The amount of complexity that the litigation will require bears heavily on the amount that the guardian ad litem is granted. The surrogate must also consider the lawyer’s experience and reputation as well as the customary fee charged by members of the Bar for similar services. Once the decision is made, the court is bound by the decision.

At Stephen Bilkis & Associates a probate lawyer, is available in convenient offices located throughout New York and the Metropolitan area to respond to your call. Our estate Attorneys can provide you with good advice when you are drawing up your own will.

June 15, 2012

Family Questions Mental Capacity of Decedent

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

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

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

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

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

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

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

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

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

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

May 4, 2012

Court Determines if Loan is in Default

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.

Legal situations can become quite stressful. It is difficult to determine what your next step should be. At Stephen Bilkis & Associates, we offer free consultations to help you through any type of legal situation you may be experiencing, whether you have an estate adminstration matter, a will contest or probate litigation. Our team of professional lawyers can help you determine the best steps to take for your particular situation. You may contact one of our offices located throughout New York City to set up your free consultation.


April 24, 2012

Court Decides Jurisdiction between French and American Wills

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.

With highly experienced New York Estate Lawyers at Stephen Bilkis & Associates, you can be sure to win back what is taken from you. They can provide you with advice to guide you through the most difficult situations.

April 20, 2012

Petitioner Files Will Contest Due to Competency of Testator

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.


April 17, 2012

Court Decides if an Executor has the Right to Request a Discovery Proceeding Regarding Property

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.

A New York Probate Lawyer will help you in your will contest case whenever you need representation and legal advice. Get in touch with Stephen Bilkis & Associates for a consultation. A New York Estate Attorney is professional in all matters concerning estate law.
A New York Probate Attorney is the best choice for estate lawsuits. To contact a New York Estate Lawyer, visit Stephen Bilkis & Associates at their downtown offices for more information.


April 15, 2012

Court Decides of the Dept. of Social Services can Make a Claim on Estate

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.

One of the major concerns in the settlement of estate is the payment of claims against the estate prior to its distribution among the estate’s beneficiaries. If you are appointed as administrator or executor of the court in a probate of a will, you may need to hire one of our Nassau County Estate Counsels to guide you on how to go about estate settlements.
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April 14, 2012

Will Contest Action Filed regarding Lawyer's Will

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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April 11, 2012

Defendant Seeks Order Quieting Title

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.

If you are having problems with the settlement of the estate of your decedent, or have another probate litigation matter, you may drop by at our Stephen Bilkis and Associates office where legal services are readily provided by our Nassau County Estate Litigation Attorneys to discuss these matters with you.
Probate proceedings involve difficult issues in resolving interests of beneficiaries over all of the assets of the estate. Allow any of our Nassau County Estate Administration Attorneys to orient you on how to go about protecting your rights over these properties.

April 10, 2012

Court Determines Appropriate Legal Fees for Probate Case

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

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

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

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

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

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

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

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

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

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

April 7, 2012

Man Dies with 11 Children, Only 1 Named in Will

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.

Who are to be directly benefited of the laws of the land? Long Island Probate Lawyers said the decedent leaving estate and survived by legitimate and illegitimate heirs, who amongst them shall be rightfully benefit from the properties? You need New York Probate Lawyers who are globally competitive to protect your claim. Here at Stephen Bilkis and Associates, you can stand before the co-heirs without turning back in shame. At the onset, New York Probate Lawyers, will make elaboration on your chances of winning in the litigation. This would prevent you from wasting money and effort in unwanted and pointless litigation that just add up to your anxiety.


April 6, 2012

Court Decides Jurisdiction of a Will Contest

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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April 2, 2012

Court Decides Legal Fees from Will Proceeding

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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March 31, 2012

Court Hears Case to Validate a Will

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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March 28, 2012

Court Rules on Will Jurisdiction Issue

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

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

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

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

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

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

Matters concerning the settlement of estates of deceased persons are not ordinary in many sense and that is why the services of a New York Probate Lawyer are needed. Stephen Bilkis and Associates is a law firm that has expertise in the field of both testamentary and intestate proceedings and as such, they can provide the expertise one may need in this area. A New York Estate Lawyer will handle all your legal requirements when it comes to wills and succession as well as other legal concerns peripheral to this field of discipline.

March 27, 2012

Court Discusses Will Contest between Son and Stepmother

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.

Inheritance are given to us to provide us relief in any way possible but if these bequest causes us to be under legal disputes then it is a must for us to consult the New York Will Contest Lawyers of Stephen Bilkis and Associates. They can surely provide us with sound legal advice that will guide us in achieving triumph over legal issues.

March 22, 2012

Court Determines Jurisdiction Question with French Will and Trust

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

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

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

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

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

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

New York Estate Lawyers are experts in matters involving property settlement of deceased persons. Since the formulation and execution of a will is an important act that must be made according to the formalities required by law, it is important to consult an expert New York Probate Lawyer to assist in its formulation and even revision during the lifetime of the testator. Stephen Bilkins and Associates are experts in the field of property settlement involving deceased persons and they can provide the legal assistance in a very effective manner.


March 20, 2012

Court Decides Jurisdiction Issue Regarding Will and Trust

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 19, 2012

Court Determines Jurisdiction Issue regarding a Will

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.

March 15, 2012

Brother Left Out of Will Files Will Contest Action

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

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

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

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

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

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

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

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

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

March 12, 2012

Ex-Wife Contests Deceased Husband's Will

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 11, 2012

Court Decides Will Contest Between Siblings

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

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

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

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

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

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

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

March 10, 2012

Court Rules on Will involving Same Sex Marriage

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

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

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

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

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

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

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

March 6, 2012

Decedents Claim Fraudulent Will Contest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 3, 2012

Court Hears Case Regarding Family Dispute Over Will

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

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

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

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

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

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

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

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

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

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

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

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

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

Inheritances are given as tokens of love and appreciation. They are given to us to help us in any way possible. When family members squabble over money, it opposes the purpose of the reason why it was given. If you find yourself in this kind of situation, consult with Stephen Bilkis and Associates.

February 29, 2012

Validity of a Will Questioned

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

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

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

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

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

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

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

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

Stephen Bilkis and Associates can help ease out the burden of estate administration disputes. With the team’s expertise in dealing with these kinds of situation, you can be sure of worry free days. Feel free to call or consult any member of the team.

February 19, 2012

Court Rules on Jurisdictional Issues regarding Will

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

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

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

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

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

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

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

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

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

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

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

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

With highly experienced legal team at Stephen Bilkis & Associates, you can be sure to win back what is taken from you. They can provide you with advice to guide you through the most difficult situations.

February 17, 2012

probate

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.

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

February 16, 2012

Court Rules on Will Contest Case

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.

In order to secure your family members’ rights over inheritance, proper procedure must be observed. If you have any doubt on what is the right thing to do, feel free to consult our team of skilled legal counsel at Stephen Bilkis and Associate. They will provide you with the help you need to make sure no error are committed.

February 14, 2012

Court Rules on Case with Multiple Wills

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.

Skilled legal counsel will help you in your will contest case whenever you need representation and legal advice. Get in touch with Stephen Bilkis & Associates for a consultation. Our team is highly skilled in all matters concerning estate law.


February 11, 2012

In a work-related accident, the decedent suffered permanent substantial disability

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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February 5, 2012

Court Rules on a Motion in Limine

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.

February 2, 2012

Court Rules on a Will Contest Matter

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.

January 28, 2012

Court Rules on a Will Contest Matter

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.