New York Probate and Estate Administration Blog

A man filed a motion to withdraw a waiver and consent he did for the legal validation of his cousins will. And, this motion is opposed by the primary representative of the estate and the four charities who are the beneficiaries under certain instruction.

This happened five months after the death of his cousin, he did a waiver and consent; however, an attorney appeared for him a month after, and this is also the return date of the citation in this proceeding, and indicated that he wanted to withdraw his consent for the legal processing of validation of the will. The assets consists of personal property valued more than a million.

The instruction was done when his cousin was about 95 years old. The single page, two-sided tool is a downloadable legal form and does not appear to be attorney supervised. The opposite side of the form shows his shaky and weak signature, and the signature of the two witnesses. One of those witnesses now serves as a primary person appointed to perform the will and formerly served as one of legal guardians. Apparently, the other witness was an aide at the facility where she resided at the time she signed the instruction.

A New York Probate Lawyer said the man served objections to attest on all parties except the guardian, but the objections were not accepted for filing due to his waiver and consent to process the validation of his cousins will. Those proposed objections says that his cousin is lacked of capacity to make a will, the instruction made was not freely and voluntarily done. The signature, the instruction and its publication were obtained by fraud and unjustified influence, and the requirements about the law of appointment of guardian were not complied with at the time of implementation.

In his motion papers, he state that he is legally blind, possesses lower educational attainment and is ignorant of the law. He urges that he never received the letter containing the waiver and consent to attest and affidavit of heirship that was mailed to him by counsel to the primary representative, and that attorney never advised him of various rights or the import of the waiver and consent. He contends that at the time he did the waiver and consent, he was unaware that his mother's property was a share of his cousins belongings, he lacked any understanding of the procedure or consequences of the legal processing of validation, such as his right to object to the will and his right to counsel, and he did not understand that by executing the waiver and consent, he would forfeit the potential right of his mother's properties. Based on his conversations with counsel, at the time he received the waiver and consent, he believed that he was signing that document in order to expedite the process.

Manhattan Probate Lawyers said the primary representative oppose the motion asserting that, upon his receipt of the waiver and consent, the man called to discuss the family tree and the forms he received, and he never advised their attorney that he was blind or that anything was missing from the envelope mailed to him. The letter states that if the man had no objection to the processing of the distribution of the properties, it would expedite the process. The representative note that the man executed both the waiver and consent and the affidavit of heirship as requested.

The charities also oppose the motion stating that there is no clear and convincing evidence that the waiver and consent was the result of fraud, overreaching, misrepresentation or misconduct or that there is any other basis for revocation, at the time that the man executed the waiver and consent, he was acting as the legally appointee of his mother's assets and should have known that the document he done would have a legal and binding effect.

Queens Probate Lawyers said in reply, the man annexes various documents and state that due to his blindness, he follows a strict procedure upon his receipt of documents, which is to scan them into his computer and use a closed circuit television to magnify their contents. As his computer does not contain a scanned citation, he did not receive it, and he only learned of it when his subsequently retained attorney obtained a copy. His attorney stressed that the waiver and consent was obtained through improper overreaching and misrepresentation and, in any event, it should be suspended for good cause in the interests of justice.

Based on records, in legal processing of validation of will. It may not be admitted unless the court is satisfied that its implementation was valid, even if no interested party files objections to its validity. Thus, where a person who applies for a motion with reasonable expedition seeks to withdraw a waiver and consent to attest, the application may be granted where the petitioner demonstrates some merit to the objection, a reasonable probability of success and the absence of prejudice to the other parties. Furthermore, the courts are more liberal in granting these applications where other parties have already filed objections, or it is apparent that they tend to file objections, or where the application is made very soon after the execution of the waiver and consent.

The proof on the motion and court filings demonstrate that the attest was served by mail on the man, and his waiver and consent was executed, the same date that preliminary letters issued. The court does not find any wrongdoing by the proponents' counsel in obtaining the waiver and consent. Nonetheless, the letter sent to the man by counsel indicates only that the process would be expedited as a result of his execution of the waiver and consent. In view of the man’s blindness and limited education, and the fact that he was not represented by counsel at the time he did the waiver and consent, the court credits his contention that he failed to fully understand the legal impact. Thereafter, he expeditiously obtained an attorney and sought to withdraw his waiver and consent prior to the admission of the will to verify. Without in any way passing on the ultimate outcome of a will contest, the documents annexed by the man and in court files demonstrate that, at this time, his proposed objections have merit and a reasonable probability of success. The proposed objections are similar or identical to the issues raised by the Public Administrator in the proceeding. As it appears that the Public Administrator will file objections in any event, this also militates in favor of granting the motion, and allowing the interposition of the man's objections creates no prejudice to the representative and the charities, which are in the same position they were in. Moreover, the court's paramount concern is to admit only valid wills to attest. Where, as here in a pre-probate context, one interested party as well as another non-interested party expresses genuine concern as to the validity of the instructions and its execution, as demonstrated by the documents submitted, the withdrawal of a waiver and consent to allow the interposition of objections must be permitted.

Accordingly, the motion is granted. The man shall serve and file his objections within 10 days after the entry of the order to be settled here on.

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

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

The successor had filed a petition for a guardian to be appointed for her property. Since the court has found that the successor cannot to be relied on managing her own properties, a guardian was appointed. The petitioners of the case were the appointed guardians.

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

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

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

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

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

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

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

Before the decedent’s death and months after the wife was accorded as estate administrator, she exercised her functions. It was asserted to be true that she made several transactions which resulted to lessen the funds of the contested estate. The wife have made repeated fund transfers from an alleged joint account to her own account; paid her personal bills and expenses thru multiple on-line transfers from decedent’s personal accounts in a certain bank; and checks payable to her decedent’s husband were signed, endorsed and deposited to her account.

A New York Probate Lawyer said that the decedent’s children, with the help of their probate lawyers filed a case contesting the earlier decision of the court in naming the wife as the appointed executor. They reasoned out that she was unfit to carry out the terms of the contested will by virtue of dishonesty, by not providing their needs, by shallow understanding of good will and by thoughtlessly or carelessly expending of their funds. They asked the court to appoint decedent’s son as the executor instead of the wife. They submitted to the court a written document of the decedent’s therapist. The therapist testified under oath and sustained the allegations of the decedent’s children. The estate litigation lawyers further make clear that the case under litigation was not a subject for time consuming dispute. Children’s funds were at stake. The wife was guilty of a series of acts-any one of which, the court has the authority to give an order to remove the wife as executor in an earliest time.

In deciding the case, the court was certain that the wife mixed the money of her husband with her funds. The money involved was held in trust fund for the children. The probate court firmly resolved that the lavish withdrawals, combined with repeated dishonesty and self-serving statements were comprised actions. Such actions will cause danger or risk to the children’s funds. Her conduct was enough ground and justification for her immediate removal from the office without a hearing and the preliminary letters issued to her be cancelled and be without effect.

Brooklyn Probate Lawyers said that the wife, being a lawyer entered for herself a motion of reargument to the court to prove the allegations against her to be false and erroneous by stating that; first, the court’s determination of her conduct endangered the safety of the estate was characterized by error; second, the children’s claim that the estate in litigation was in danger of risk was without valid basis; third, the bringing in of the decedent’s money to her own account, the repeated on-line withdrawals and dishonest statements were of no merits. The reasons behind her actions were to continue the decedent’s previous practice to deposit his money to the estate bank. They have not opened a joint account, but instead opened an individual and separate bank account. The decedent’s money was for his two children to inherit upon his death. The withdrawals from the decedent’s account were made to pay his hospital expenses, household bills, and compensation of her household errands while her husband was in the hospital.

Bronx Probate Lawyers said that the children with their estate lawyers opposed the arguing over again, of a motion made in court by the wife. They were satisfied with the court’s decision in their favor. The court correctly and intelligently interpreted the contested will. The decision was based on undisputed facts and of general importance. The lawyers argued that the acts admitted by the wife as just and proper were grave in manner and extent. It will tremendously destroy the lives of decedent’s children.

Losing the funds in trust under the control of an executor involved in a lawsuit for her wrongful and deceitful action will make tremendous negative impact on the decedent’s children. New York Estate Administration lawyers will stand by you and help see you through your case. New York Estate Litigation lawyers can argue your side and make sure that you and your loved ones are compensated.

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The petitioners in this case have filed a motion for summary judgment which will dismiss the public administrator’s objections. The petitioners are also seeking the admission of the testator’s will for probate.

Before the death of the testator, he had been living in a facility for the elderly for many years. One of the two petitioners in this case is the current administrator of the elderly home. The other petitioner held the position of director of the same place. As co-executors of the will, the entire estate of the decedent will go to them.

Upon learning of the will, the petitioners have filed for probate but the public administrator prevents the action. The public administrator is obliged under the law to become one of the parties in litigation. The objections were raised because during that time, the decedent allegedly did not have the ability to draft a testament. Nassau County Probate Lawyers said that the public administrator also made allegations that the contested will was only written because of the undue influence of the petitioners.

A New York Probate Lawyer said that the preliminary letters were issued to petitioners but these were later revoked because the petitioners failed to comply with the requirements. During that time, the court has ordered them to pay the bond. The public administrator was appointed by the court as the temporary executor while the petitioners’ case is pending.

The motion filed by the petitioners was due to a recent discovery. The petitioners’ statement is supported by their respective statements, the affirmation of the lawyer and various evidences. The deposition testimony was also presented as evidence. Under the provisions of the law, the petitioners for the summary judgment have the burden of providing proof that they are entitled to the motion. The petitioners must present sufficient proof that the issues raised by the public administrator have no legal basis.

Brooklyn Probate Lawyers said that according to the law, the court can grant summary judgment if the petitioners have enough evidence to support their case. The public administrator must support his objections with sufficient proof that undue influence was used to write the will of the decedent.

The decedent has been found on the doorstep of an apartment building. He was hospitalized for treatment and observation. The social worker who was assigned to the hospital contacted the petitioners if they could admit the patient into their facility. The petitioners agreed and placed the decedent in a private room.

According to the statement of the lawyer who drafted the will, the decedent had called his offices and wanted to talk to a lawyer concerning financial matters. The lawyer could not remember if there was someone else involved in their conversation. The lawyer said that the decedent was not a former client and he doesn’t know where he got the contact number. He assumed that the number had reached the decedent by word of mouth.

When the lawyer had agreed to meet with the decedent in the facility, the decedent proceeded to inquire about drafting a will. According to his testimony, it was his first time to draft a will for one of the residents in the facility. After his meeting with the decedent, he advised the old man to talk to a psychiatrist. The lawyer gave this advice after finding out that the decedent wanted to bequeath his assets to the petitioners.

The next day, the decedent went for a psychiatric exam. The exam was performed with the petitioners inside the room. After the results were obtained, the physician ruled that there were no signs of dementia. According to the doctor, the patient only showed slight memory problems. He also confirmed that the patient was fully capable of making financial decisions.
The public administrator also presented another expert opinion from the state psychiatrist who interpreted the exam results. The physician claimed that the decedent was also suffering from dementia thus he is incapable of making any decision regarding his money. The conflicting opinion of both doctors has created a significant issue.

The motion for summary judgment was denied by the court based on circumstantial evidence regarding undue influence used by the petitioners to get the decedent to sign the will.

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

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

A New York Probate Lawyer said the successor had filed a petition for a guardian to be appointed for her property. Since the court has found that the successor cannot to be relied on managing her own properties, a guardian was appointed. The petitioners of the case were the appointed guardians.

The guardians, also known as the petitioners, were granted by the court to place the will for probate. During that time, the original copy of the will and testament cannot be found. With this information, the petitioners filed for a probate on the copy of the original will. The original will was found later on among the important documents of the deceased. It was assumed that buyer of the house once owned by the deceased threw away the papers, thinking they had no value. One of the guardians confirmed this information in her statement that a former hand had taken possession of the house and discarded the papers in question.

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

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

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

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

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

A skilled lawyer will provide assistance in your petition for probate. Contact the offices of Stephen Bilkis & Associates to find out how to protect your rights.

A couple executed a Joint Will that will make whoever is the survivor among them as the one to be given the entire property whether own individually or several and be the executor of the irrevocable Joint Will. The Joint Will further provided that whatever remained after the death of the survivor would be distributed to a trust, with equal shares of the trust to be allocated among their grandchildren and one of their children, their daughter. The Joint Will's terms state that it is forever binding, and may be revoked or modified only by a writing subscribed by both parties and executed with the formality of a Will.

Approximately 8 years after the execution of the Joint Will and after approximately 50 years of marriage, the couple was divorced by judgment dated April 6, 2001. Several months before, apparently in anticipation of the divorce, the couple reaffirmed the Joint Will by executing a Marital Settlement Agreement, the terms of which were incorporated into the divorce judgment. The agreement stated, in pertinent part, that neither party would attempt to revoke the Joint Will, and provided quit claim deeds granting sole title of their condominium to the husband and sole title of their other condominium to the Wife. No further action was taken by either the Wife or the husband regarding the Joint Will.

According to a New York Probate Lawyer, in 2006, the Wife established her 2006 Irrevocable Trust, the body of which was her condominium. The Wife and her son-in-law were named as the trustees.

The trust document states, in pertinent part, that upon the Wife’s death, its principal is to be distributed to such one or more persons out of a class composed of her former Husband and her descendants and spouses of the her descendants on such terms as the Wife may appoint by a Will hereafter executed specifically referring to this power of appointment.

Accorsing to NYC Probate Lawyers, subsequently, the Wife nominally exercised the rights of the power of appointment of the trust document through a one-paragraph will, executed in 2007 will. The 2007 will stated that it was not intended to modify or revoke the Joint Will, which shall remain in full force and effect. Rather, its sole purpose was, pursuant to the power of appointment of the trust document, to provide for the trust to convey, upon her death, its corpus, the condominium, in equal shares to the her four children.

Following the Wife’s death, the Husband filed a petition for the probate of the Joint Will. In 2008, the Husband applied for preliminary letters as evidence to be issued to him, which the Surrogate's Court granted in an order on 2008. That same year, the Husband, as the preliminary executor of his former Wife’s property, commenced a turnover proceeding against, among others, his daughter and her Husband, seeking, to his son-in-law as trustee of the trust, to execute and deliver the deed to his former Wife’s condominium to the her properties.
In their answer to the Husband’s petition, the daughter and the son-in-law alleged, among other things, that the condominium was no longer a part of the properties, as a will is not effective until the death of the one who made it, and that neither the Joint Will nor the 2007 will prohibited the deceased Wife from making gifts or transferring property during her lifetime. Thereafter, in August 2008, the son-in-law, as trustee of the trust, commenced a proceeding for the validity of the 2007 will.

The daughter and son-in-law filed objections to the Husband’s appointment as executor of the Wife’s estate. They alleged that the Wife had already transferred her ownership interest of the condominium to the trust on June 2, 2006, and, therefore, the property was neither a part of the Wife’s properties nor subject to the terms of the Joint Will that the Husband submitted for validity. They also alleged that the Husband had an absolute conflict of interest that prevented him from being the estate administrator of his former Wife’s properties according to her 2007 will and, if the Surrogate's Court would allow him to act as his former Wife’s executor regardless, his letters should be limited and he should be required to post a bond.

NY Probate Lawyers said in September 18, 2008, the Husband filed objections to his son-in-law’s petition for validity, claiming that the terms of the 2007 will violated the Joint Will and, therefore, the 2007 Will should not be admitted for validation. The son-in-law moved for summary judgment of dismissing the petition for the validation of the 2007 will, dismissing the objections to the son-in-law’s appointment as executor, and to direct the son-in-law to execute and deliver the deed to the condominium to the deceased Wife’s properties.

The terms of Article of the Joint Will therefore create two categories of property that passed to the survivor, any property comprising the entire property of the one dying first, and all property of which either of the couple has the power of disposal. The Husband asserted that even accepting his daughter’s argument that the Wife transferred title to the condominium to the trust, thereby placing such property outside the Joint Will, such property was nevertheless encompassed by the second category created by Article SECOND of the Joint Will.

Specifically, the Husband asserted that because his former Wife, retained upon her death the power of appointment regarding the disposal of the condominium, and exercised such power in her 2007 will by directing that upon her death, the trust was to convey such property to their four children, in equal shares, the deceased Wife retained the power of disposal over the condominium. Accordingly, because the deceased Wife retained the power of disposal over the condominium, the 2007 will was, in effect, a nullity, because it did not exercise the deceased Wife’s power of appointment in favor of the Husband, as required by Article SECOND of the Joint Will and, accordingly, that branch of his daughter’s cross motion which was for summary judgment on their petition for the validation of the 2007 will should be denied.

In a decision the Surrogate's Court found that the Husband was entitled to summary judgment on the petition in the turnover proceeding to the extent of a direction that as co-trustee, his son-in-law transfers back the condominium to the property. The Surrogate's Court held that the Husband was entitled to summary judgment on the petition for the validation of the Joint Will, dismissing the daughter’s objections to his appointment as executor, and dismissing the son-in-laws petition for the validity of the 2007 will.

In an order, the Surrogate's Court, in effect, granted the Husband petition for the validity of the Joint Will and, in effect, granted that branch of his motion which was for summary judgment on the petition in the turnover proceeding, directing his son-in-law as trustee of the trust, to execute and deliver the deed to the condominium to him, as executor of his former Wife’s property.

At the time they executed the Joint Will in 1993, the couple had been married for nearly 43 years. As they did not separate until 1997, it is reasonable to infer, that at the time they executed the Joint Will, they intended to remain married and to give to each other their respective properties as well as all properties over which they retained power of disposal. Given the circumstances in which the Joint Will was executed—namely, a long-standing marriage—the phrase whether owned jointly or severally was not, as the daughter contend, intended to qualify the power of disposal phrase, but instead intended to expand the scope of the requisite power of disposal to include properties the couple owned jointly or severally with each other.
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A son from California filed for an order dismissing the pending proceeding to probate his mother's New York Will that raises an interesting question of jurisdiction. The son argues the jurisdiction of the court to prove the validity of the Will of a non-residence which requests New York to prove valid and invokes New York law on the ground that her French legal residency has assumed jurisdiction over her estate. The motion is opposed by the Petitioners in the proceeding, the co-executors named in the Will, who are presently serving as preliminary executors.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Shortly thereafter, the two waivers of citation and consents to validate signed by both brothers were filed. Both men were directed to show cause on why their objections should not be dismissed on the ground that they had previously consented to the validation of the will. Such is the recital of facts about which there is no dispute.

It is the position of the court that the validity of these waivers and consents to be established must be determined primarily on the basis of what occurred at the conference. Both men contend that the waivers are invalid because they were not properly acknowledged; and that they were deceitfully obtained; and that the advocate of the will and appendices is prohibited from use of said waivers because of the lapse of time between their execution and filing in this court.

According to reports, it was the younger brother’s recollection that the bank officer, did most of the talking at the conference; requested his waiver and consent; advised him that its execution was merely to record his presence at the conference; and presented the forms in blank for his signature. The elder brother’s recollection was less detailed. He, too, said that the bank officer did most of the talking. He understood the waiver and consent was signed so the court could permit payment of his late brother's debts. He, too, said he signed a blank form.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Before the decedent’s death and months after the wife was accorded as estate administrator, she exercised her functions. It was asserted to be true that she made several transactions which resulted to lessen the funds of the contested estate. The wife has made repeated fund transfers from an allege joint account to her own account; paid her personal bills and expenses thru multiple on-line transfers from decedent’s personal accounts in a certain bank; and checks payable to her decedent’s husband were signed, endorsed and deposited to her account.

The decedent’s children, with the help of their probate lawyers filed a case contesting the earlier decision of the court in naming the wife as the appointed executor. They reasoned out that she was unfit to carry out the terms of the contested will by virtue of dishonesty, by not providing their needs, by shallow understanding of good will and by thoughtlessly or carelessly expending of their funds. Their counsel asked the court to appoint the decedent son as the executor instead of the wife. Said party submitted to the court a written document of the decedent’s therapist. A New York Probate Lawyer said that the therapist testified under oath and sustained the allegations of the decedent’s children. Their estate litigation lawyers further make clear that the case under litigation was not a subject for time consuming dispute. Children’s funds were at stake. The wife was guilty of a series of acts-any one of which, the court has the authority to give an order to remove the wife as executor in the earliest time.

In deciding the case the court was certain that the wife mix the money of her husband with her funds. The money involved was held in trust fund for the children. The probate court firmly resolved that the lavish withdrawals, combined with repeated dishonesty and self-serving statements were comprised actions. Such actions will cause danger or risk to the children’s funds. Her conduct was enough ground and justification for her immediate removal from the office without a hearing and the preliminary letters issued to her be cancelled and be without effect.

Suffolk County Probate Lawyers said that the wife, being lawyer entered for herself a motion of reargument to the court to prove the allegations against her to be false and erroneous by stating that; first, the court’s determination of her conduct endangered the safety of the estate was characterized by error; second, the children’s claim that the estate in litigation was in danger of risk was without valid basis; third, the bringing in of the decedent’s money to her own account, the repeated on-line withdrawals and dishonest statements were of no merits. The reasons behind her actions were to continue the decedent’s previous practice to deposit his money to the estate bank. They have not opened a joint account, but instead opened an individual and separate bank account. The decedent’s money was for his two children to inherit upon his death. Some withdrawals from the decedent’s account were made to pay his hospital expenses, household bills, and compensation of her household errands while her husband was in the hospital.

The children with their Estate lawyers opposed the arguing over again, of a motion made in court by the wife. They were satisfied with the court’s decision in their favor. Probate court correctly and intelligently interpreted the contested will. Staten Island Probate Lawyers said their decision was based on undisputed facts and of general importance. The lawyers argued that the acts admitted by the wife as just and proper were grave in manner and extent. It will tremendously destroy the lives of decedent’s children.Losing the funds in trust under the control of an executor involved in a lawsuit for her wrongful and deceitful action will make tremendous negative impact on the decedent’s children. Legal counsel will stand by you and help see you through your case.

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A couple executed a Joint Will that will make whoever is the survivor among them as the one to be given the entire property whether own individually or several and be the executor of the irrevocable Joint Will. The Joint Will further provided that whatever remained after the death of the survivor would be distributed to a trust, with equal shares of the trust to be allocated among their grandchildren and one of their children, their daughter. The Joint Will's terms state that it is forever binding, and may be revoked or modified only by a writing subscribed by both parties and executed with the formality of a Will.

Approximately 8 years after the execution of the Joint Will and after approximately 50 years of marriage, the couple was divorced by judgment dated April 6, 2001. Several months before, apparently in anticipation of the divorce, the couple reaffirmed the Joint Will by executing a Marital Settlement Agreement, the terms of which were incorporated into the divorce judgment. The agreement stated, in pertinent part, that neither party would attempt to revoke the Joint Will, and provided quit claim deeds granting sole title of their condominium to the husband and sole title of their other condominium to the Wife. No further action was taken by either the Wife or the husband regarding the Joint Will.

In 2006, the Wife established her 2006 Irrevocable Trust, the body of which was her condominium. The Wife and her son-in-law were named as the trustees.

The trust document states, in pertinent part, that upon the Wife’s death, its principal is to be distributed to such one or more persons out of a class composed of her former Husband and her descendants and spouses of the her descendants on such terms as the Wife may appoint by a Will hereafter executed specifically referring to this power of appointment.

According to a New York Probate Lawyer, the Wife nominally exercised the rights of the power of appointment of the trust document through a one-paragraph will, executed in 2007 will. The 2007 will stated that it was not intended to modify or revoke the Joint Will, which shall remain in full force and effect. Rather, its sole purpose was, pursuant to the power of appointment of the trust document, to provide for the trust to convey, upon her death, its corpus, the condominium, in equal shares to the her four children.

Following the Wife’s death, the Husband filed a petition for the probate of the Joint Will. In 2008, the Husband applied for preliminary letters as evidence to be issued to him, which the Surrogate's Court granted in an order on 2008. That same year, the Husband, as the preliminary executor of his former Wife’s property, commenced a turnover proceeding against, among others, his daughter and her Husband, seeking, to his son-in-law as trustee of the trust, to execute and deliver the deed to his former Wife’s condominium to the her properties.
In their answer to the Husband’s petition, the daughter and the son-in-law alleged, among other things, that the condominium was no longer a part of the properties, as a will is not effective until the death of the one who made it, and that neither the Joint Will nor the 2007 will prohibited the deceased Wife from making gifts or transferring property during her lifetime. Thereafter, in August 2008, the son-in-law, as trustee of the trust, commenced a proceeding for the validity of the 2007 will.

The daughter and son-in-law filed objections to the Husband’s appointment as executor of the Wife’s estate. They alleged that the Wife had already transferred her ownership interest of the condominium to the trust on June 2, 2006, and, therefore, the property was neither a part of the Wife’s properties nor subject to the terms of the Joint Will that the Husband submitted for validity. They also alleged that the Husband had an absolute conflict of interest that prevented him from being the estate administrator of his former Wife’s properties according to her 2007 will and, if the Surrogate's Court would allow him to act as his former Wife’s executor regardless, his letters should be limited and he should be required to post a bond.

Manhattan Probate Lawyers said that on September 18, 2008, the Husband filed objections to his son-in-law’s petition for validity, claiming that the terms of the 2007 will violated the Joint Will and, therefore, the 2007 Will should not be admitted for validation. The son-in-law moved for summary judgment of dismissing the petition for the validation of the 2007 will, dismissing the objections to the son-in-law’s appointment as executor, and to direct the son-in-law to execute and deliver the deed to the condominium to the deceased Wife’s properties.

The terms of Article of the Joint Will therefore create two categories of property that passed to the survivor, any property comprising the entire property of the one dying first, and all property of which either of the couple has the power of disposal. The Husband asserted that even accepting his daughter’s argument that the Wife transferred title to the condominium to the trust, thereby placing such property outside the Joint Will, such property was nevertheless encompassed by the second category created by Article SECOND of the Joint Will.

Specifically, the Husband asserted that because his former Wife, retained upon her death the power of appointment regarding the disposal of the condominium, and exercised such power in her 2007 will by directing that upon her death, the trust was to convey such property to their four children, in equal shares, the deceased Wife retained the power of disposal over the condominium. Accordingly, because the deceased Wife retained the power of disposal over the condominium, the 2007 will was, in effect, a nullity, because it did not exercise the deceased Wife’s power of appointment in favor of the Husband, as required by Article SECOND of the Joint Will and, accordingly, that branch of his daughter’s cross motion which was for summary judgment on their petition for the validation of the 2007 will should be denied.

Queens Probate Lawyers said that the decision of the Surrogate's Court found that the Husband was entitled to summary judgment on the petition in the turnover proceeding to the extent of a direction that as co-trustee, his son-in-law transfers back the condominium to the property. The Surrogate's Court held that the Husband was entitled to summary judgment on the petition for the validation of the Joint Will, dismissing the daughter’s objections to his appointment as executor, and dismissing the son-in-laws petition for the validity of the 2007 will.

In an order, the Surrogate's Court, in effect, granted the Husband petition for the validity of the Joint Will and, in effect, granted that branch of his motion which was for summary judgment on the petition in the turnover proceeding, directing his son-in-law as trustee of the trust, to execute and deliver the deed to the condominium to him, as executor of his former Wife’s property.

At the time they executed the Joint Will in 1993, the couple had been married for nearly 43 years. As they did not separate until 1997, it is reasonable to infer, that at the time they executed the Joint Will, they intended to remain married and to give to each other their respective properties as well as all properties over which they retained power of disposal. Given the circumstances in which the Joint Will was executed—namely, a long-standing marriage—the phrase whether owned jointly or severally was not, as the daughter contend, intended to qualify the power of disposal phrase, but instead intended to expand the scope of the requisite power of disposal to include properties the couple owned jointly or severally with each other.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A rich man died leaving several properties in Central America and two States in the U.S. Almost two and one-half years later, a petition was filed in the court of a U.S. State by the Country of the deceased man for the order which is alleged to have been destroyed after the man’s death. That petition contains the further allegation that the man was, at the time of his death, a resident of the Country from Central America. The petition was amended in which the petitioner set forth transactions and proceedings with U.S. State Tax Commission wherein the petitioner was advised of the Commission's disagreement that the man had been a resident of the U.S. State. According to a New York Probate Lawyer, the petition was thereupon amended to read that the man, at the time of his death, was either a resident of the U.S. State or a resident of the Country from Central America.

The petition against the U.S. State was to dismiss their petition for the probate of the will on the grounds that the involved U.S. State court has no jurisdiction to entertain the proceeding and if it has jurisdiction, that it should decline, in its discretion, to exercise it. The Petitioner Country requests a hearing on the matter of the deceased person’s residence and the location of his property.

Tax Law requires that in every proceeding for original letters appointed by in the estate of a non-resident deceased person, the State Tax Commission must be cited as a necessary party. The section contains other provisions to protect the State's interest with respect to the collection of any tax that might be payable. The petition herein having been amended so as to leave open the question of the man’s residence, the State Tax Commission is taking no active part in the process of the proceeding. It is obvious, therefore, that the amendment of the petition represents not so much a change of mind on petitioner's part but rather an effort to avoid at this time unnecessary legal action.

It is true that the parties are not all in agreement respecting the man’s residence. Two of the contestants allege that he was a resident in Central America. The Attorney General of the U.S. State and a special guardian of infant parties allege U.S. State as his residence. However, no person claiming the U.S. State residence desires to bring into court the man’s residence concern as a preliminary issue in the process of the proceeding. The U.S. court would have jurisdiction whether the deceased man was a resident or being a non-resident, he died without leaving personal property within the county upon a motion for a preliminary trial of residence.

The Attorney General appears to be the only party to the proceeding contending that the deceased died a resident of the U.S., and he joins in opposition to the motion stating that the question is not relevant to the matters in controversy as to the validity of the paper considered as the deceased man’s last will. The court agrees in the conclusion and holds that the Petitioner has failed to demonstrate the necessity for determination of the issue of residence.

In challenging the jurisdiction of the court to entertain the process of administering the proceeding, the motion papers nonetheless admit that the gross assets owned by the deceased man at the time of his death had a value of over $3,500,000 and such assets are held in custody by the Country in Central America with over $500,000; U.S. State over $2,500,000; Province of Canada--over $500,000. According to a Manhattan Probate Lawyer, the Petitioner alleges, however, that the man left no real or tangible personal property in the U.S.; that his intangible property in the U.S. consists of several bank or brokerage accounts and stock certificates of a number of corporations, a great majority of which were organized outside of the U.S. State. The Petitioner requests a preliminary trial to determine the location of the assets taken into custody by the Public Administrator of the County who acts as temporary administrator of the deceased man’s assets.

The temporary administrator appointed by the court has submitted a report to the court in which he states that a brokerage firm was indebted to the deceased man, there was deposit in a bank, another firm owed the deceased man, and there were securities valued in millions, most of them in street names, all physically located in the U.S. State. All of the securities have been sold by the temporary administrator and the proceeds have been invested in bonds of the United States, the State and the City, all of which are held by the appointed person under the supervision of the U.S. State court.

A trial of the preliminary issue would be expensive and slow. Inasmuch as the court would have jurisdiction in any event, at least insofar as property in the U.S. State is concerned, the parties have long ago reached the point where they are anxious to try the important basic question, that is, the genuineness and validity of the will. The Petitioner, on the other hand, apparently prefers to delay the trial until the matter can be tried in Central America, where the proceeding is moving along at a leisurely pace.

Insofar, the motion to seek a hearing to determine the location of the securities left by the deceased man is denied. The property in the hands of the temporary administrator not only has a location within the County of the U.S. State, but is actually being administered under the supervision of the court and is actually and physically before the said court.

Records revealed that it is argued by the Petitioner that the authority of the U.S. court to entertain a proceeding for the process of administering the will of a non-resident is limited to those properties where no original administration proceeding is pending at the residence of the person who made the will. In the discussion of the question of jurisdiction of the U.S court, it is assume, without deciding the point, that the deceased man was a resident of a Country in Central America. In this property, a proceeding to determine the validity of the will is pending in Central America, which, for convenience, shall be referred to as the residence of the deceased. It cannot be said that this court lacks jurisdiction to entertain the probate proceeding and that, as matter of law, the proceeding must be dismissed.

Thus far it is considered only the power and authority of the court to proceed with the process of administering of the alleged will. Indeed, except for the Petitioner, the trial of the fundamental issues would have been completed by now. What has transpired since the last decision serves to confirm that decision. The Attorney General of the State opposes the present motion. The man died more than five years ago. Contrary to the usual practice of the court, the actual trial of the proceeding has not yet started. No one can assert when the trial in residency can proceed. No one can predict the result. No one can say whether a final decree in the residency will be on a ground that would prevent independent contest. No one can say how long final decision will be delayed. Since the prior decision of the court refusing to dismiss the proceeding, there has been substantial legal action and extensive services by counsel. To remit all parties to another forum after all the advances, and retreats, the exploration, and preliminary conflicts, would be a postponement of justice equivalent to a denial.

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

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

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

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

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

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

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

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

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

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

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

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

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

The affidavits will be carefully scrutinized by the court. It will not be examined for as long as there are unexplained suspicious circumstances. In this case, the proponent submitted applications that showed he will be receiving more of the will goes into intestacy or going without a valid will. It appeared, however, that the daughter of the proponent, the granddaughter of the decedent will receive a substantial amount that is more than what she will receive in intestacy as she is not considered as an heir to the estate. The court then granted the request of the daughter to examine the proponent with regard to any matter regarding the will.
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According to a New York Probate Lawyer, this is a case about the estate of Bertha Weil Fitzgerald. Reports that reached his office said that the estate was left to a number of charitable institutions and couple of churches according to her will. These charities and churches are Catholic Charities of the Archdiocese of New York, National Society for Prevention of Blindness, Inc., The Fresh Air Fund, First National City Bank as Committee of the Property of Paul S. Ames, Jr., Society for the Prevention of Cruelty to Children, Archbishopric of New York and for Terence Cardinal Cooke, The Salvation Army, Heart Fund, American Cancer Society Inc., and the New York Hospital-Cornell Medical Center.

According to the Will that was executed in 1970, all of these charities and churches shall receive each an amount of $50,000. The Fitzgerald Estate was valued at $2 million. The remainder of the estate shall be given to the Archbishopric of New York. However, Bertha Weil Fitzgerald had a 41 year old son who was legally entitled to the estate of his deceased mother. It was also said on the Will that Bertha did not intend to leave any amount or any part of her estate to her son, who was also invalid and incompetent. The son according to reports had been institutionalized since childhood and therefore was under no condition to care for himself much less to her mother’s estate. It was also noted that the grandmother, Bertha’s mother already left half a million dollars to her grandson when she passed away some years back.

This case was filed by the trust company of Bertha’s son claiming that the son, under their representation did not receive any notice about the Will of Bertha. They claim that the son was not able to file an objection to his mother’s last will and testament and that it was right to do so. It was also noted that by law an incompetent spouse or in this case a son can file for an objection if he or she was left with a sum leas than or not equal to the sum that were left to other beneficiaries in this churches and charitable institutions. It is also what is known as a case of excessive or too much charity.

Also, Brooklyn Probate Lawyers were also informed that the legal counsels of the charities and churches claimed that the objection of the son was not file in time and that it was already too late to file such an objection in court. It was however traced that the son was declared incompetent in 1971 a year after the Will was executed.

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This is a case regarding the Estate of Julia Eckart and the claims of her children regarding each of their shares in the inheritance. According to reports given to a New York Probate Lawyer, the children of the deceased filed a case against the last will and testament of their mother because of the insufficiency of their inherited amount against that of which will go to other people, entities and charities.

Unbelievably, according to Brooklyn Probate Lawyers, Julia Eckart left each of her children the amount of $50 each. According to her will, she also left no other cash or property to the rest of her surviving relatives. That is why the surviving children, Charlotte Anna Eckart, Frank Darmody and Frank Darmody filed a case in court that says that their mother made an excessive contribution to charity and that they were left with nothing except for the $50 each that were provided to them by her last will and testament. The rest of Julia Eckart’s estate, including her real and personal property have been assigned to the Watch Tower Bible and Tract Society of Pennsylvania, which is a non-profit corporation in Brooklyn, New York.

Reports that reached Bronx Probate Lawyers, the court thoroughly examined the case according to the petition filed by the children. There was also a similar case before when a grandson was expressly disinherited on the will that was left by his grandfather. This was the Cairo case which was a long and hardly fought battle in court which now became a source of other similar cases as well. But according to the court, there should be two elements present in a case before it can be ruled as excessive charity. First, there should really be the intension to give too much of her estate to charity. Second, there is the intention to disinherit immediate family members like the spouse or children by the one executing the last Will and testament.

In this case, it was proven that there was truly intent to give too much to charity because practically the Bible Watch Tower became Julia Eckart’s primary beneficiary. As for the second factor which is the intent to expressly disinherit her children, the court studied this angle carefully. Although there was a $50 inheritance, it is not the amount determined by law to which a person will already survive on a daily basis. That is why, after a long discussion and trial, the court was able to determine that the two factors were present to make this case an excessive charity.

The court will determine further the exact condition of the estate, its value and everything that will affect their ruling. They will do the proper accounting before determining the fair amount that will be given to Julia Eckart’s children as well as to the Watch Tower Bible and Tract Society of Pennsylvania.

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

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

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

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

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

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

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

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

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

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

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

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

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

On June 28, 1975, a man died in West Monroe. He left a last will and testament dated November 27, 1972. The will was submitted to probate in November 1, 1977 and letters were issued to a family member as the executor of the estate and sole descendant. Prior to the settlement of the affairs, this family member died. This was November 5, 1981. In January 15, 1982, the nephew of the deceased executor petitioned the court for letters of administration. The court granted this petition in January 19, 1982.

In January 7, 1983, nephew asked the court to rule on whether the decedent exercised his personal right under the excessive gift to charity. By May 4, 1983, a hearing was held to present evidence.

The decedent, upon the death of his mother contacted a lawyer regarding some of the provisions in his mother’s will. The nephew also asked if these certain stipulations in his mother’s will can be broken. He expressed his discontent with his mother’s will especially in the paragraph that allocates any remaining estate to be given to Hospital North. Hospital North at the time of decedents death was non-existent. In a letter dated January 12, 1982 from an attorney for the Hospital North, it was said that the Hospital North was never created and will never be created.

The nephew at some point retained a lawyer with regard to the decedent's estate. The lawyer advised him that he could make a petition to determine an excessive gift to charity. This was executed by the nephew in March 8, 1978, which is within six months being appointed as executor. The lawyer then notarized and sent the petition via first-class mail, prepaid, properly addressed to the Surrogate's Court together with a cover letter dated March 8, 1978, requesting the Court Clerk to file the notice of election. The petition, according to a New York Probate Lawyers, was never received. The court never knew of it until the nephew filed this appeal.

The question that the court needed to address first is if an appeal that was executed but not filed be considered as a notice of election to contest a charitable disposition. Should it be treated as such and given effect?

The court then reviewed the terms of the law covering the contest of charitable donation through a will, and they have determined that even if there are no preceding cases the filing should be treated like the spouse’s right of election. The contest should be filed within six months and since twelve months have passed since the letters have been issued then the right no longer exists. A Brooklyn Probate Lawyer said that the court deems this requirement as mandatory and indispensable.

The court could grant relief if the time that has passed is less than twelve months. Any rights that the nephew had were extinguished with the lapse of the twelve months after the letters were issued. Although the actions of the nephew would show that he intended to contest the will, according to a Nassau County Estate Lawyer, the court considered it as unfiled as the law states that the filing with the court is not optional so the mailing is not filing.

Continue reading "Can an Appeal that was Never Filed Serve as Notice of a Will Contest" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When dealing with hostility, especially from family, sometimes you cannot help but match it with your own anger. This is where you know you really need a levelheaded legal counsel. When your emotions are high, they will be the voice of reason that will guide you on what you will need to do.

In New York and Long Island, Stephen Bilkis & Associates have skilled lawyers who can help. They are not only levelheaded but also meticulous when it comes to the case that they are handling. They know how to present your position in the best light so it will be easily understood by the courts, and you get the results you want. You can get a free consultation at 1-800 NY - NY- LAW.

Joseph Alexander died November 23, 1975, leaving his adopted son, Ronald Alexander. After the probate of his will, his son filed a petition contesting the amount given to charities as in excess percentage amount allowed by law. Executors were placed to check if the claim was valid, and the courts were asked to determine the effect of the ‘no contest’ clause of the will.

In his will, he gave all his properties, a flat in Switzerland and $25,000 per year to his son. In the event that his son dies before the end of the trust then the remaining amount will be put back to his estate.

Joseph Alexander also included in the will that in his lifetime, he had provided his son loans. He had paid indebtedness acquired by his son from other people. He expressly states in his last will and testament, from what a New York Probate Lawyer gathered, that if his son directly or indirectly oppose the probate of his will, Ronald Alexander will not getting any part of his estate and will only get $1 per annum.

The contest of the charitable bequest, according to the executors had no standing, because he will not receive any pecuniary benefit if the contest was successful. The executors cited the Cairo case where the grandson was expressly disinherited. Although, there was another case that was reconsidered by the Court of Appeals, which was Eckhart, this case is more similar to the Cairo case.

In this case, the will specifically state the loans and payments the testator has made for his son. According to a Nassau County Probate Lawyer, the executors also were pushing the ‘no contest’ clause of the will. The court also does not favor the ‘no contest’ clause. The Court of Appeals has held that the challenge to the validity of an excessive charitable gift cannot result to have a person disinherited. So the filing of the case is not a violation to the terrorem clause.

According to Brooklyn Probate Lawyers, he law still maintains that if the testators wish is expressly to disinherit a relative, then it will be upheld. New York Estate Lawyer said that in this case, Joseph Alexander only explicitly stated that if his son contests the probate, then he will forfeit his share in the will. The son did not contest the probate. In was within the probate that the son expressed his concern on the amount of the bequest to charity. The question is if he will get monetary compensation if the contest is successful. This was determined to be missing. Even if the contest is successful as per the will, his son still gets the fixed amount per annum and the flat in Switzerland.

The law has a different treatment for children born within wedlock and outside wedlock when it comes to claims for support from a deceased parent. Out of wedlock minors are given support in the amount determined by Surrogate court up until the age of 21. This is taken from the deceased parents’ estate. This is typically not greater than what was determined before the parent died as their support. These are not available minors born within wedlock.

Ronald Alexander was not to be disinherited because of the case he filed to have the gift to charity checked as may be more than the half of the estate. He is still entitled to his legacies whatever the outcome of the contest is.

Determining how the ‘no contest’ clause applies in a will contest action can sometimes e tricky. You will need to have a sharp Will Contest Lawyer to assist you for it. Some people may think that contesting a will should not be done, but it is not always the case.

Stephen Bilkis & Associates have a legal team who know that contesting wills can be difficult, let alone contesting wills that have ‘no contest’ clause. They make sure you do not lose anything if the will is contested. If you need assistance, come see us anywhere in New York or Long Island, you can get them at 1-800 NY - NY- LAW. We will give you a free consulation.

In the mater of the last will and testament of Clara Louise Bonesteel, a petition was filed with the Appellate Court with in relation to the decision made in a jury trial. The last will and testament was disputed as not being a valid will for the decedent. The jury found that the last will and testament is legitimate and said that it can be entered into probate.

The case that is filed with the court is with regard to the challengers of the will to be able to get a copy of the stenographic minutes of the trial at the expense of the estate. The law states that a copy of the stenographer’s minutes may be supplied to the contestant and charged to the expense of the estate if they can determine that the contest was made in good faith. It does not matter if the contest was successful or unsuccessful as long as it was made in good faith. In the case of Byron’s will, the court decided that good faith is not to be established before the contest as it will promote prolonged trials because the person contesting the will is assured that the costs will be shouldered by the decedent’s estate. To determine good faith after the trial is a way to ensure that the contest is already in good faith because one will bear the cost otherwise.

In law, there is also a rule of stare decisis. This states that any court lower than the Appellate Court should follow the decision made already by the Appellate Court with regard to the same issues. This applies to other judges even if not from a lower court, but of course not a higher one. In the case regarding Harned’s will, the Surrogate Wingate of Kings County followed the decision of the Appellate Division of the First Department, there was no differing decision from his own Appellate Division in his department. A New York Probate Lawyer mentioned that the decisions of other Special Terms are not controlling. The judge at special term has the duty to follow a decision made by the Appellate Court of another division pending the decision of his own Appellate Division of the Court of Appeals offers a different ruling.

In this case, the court’s ruling is in favor of the proponent of the will. The Appellate Court upholds that and believes the same thing. It is also its opinion with all the particulars of the case at hand that the person contesting the will acted in good faith. There is no case from the Court of Appeals or from Appellate Court, Third Division, which contradicts the view expressed in relation to the Comerford’s will. The judge has said, from information acquired by Brooklyn Probate Lawyers, the counsel has not cited anything to counter the view on the Comerford’s will and even in his own research, he found out the same. In the Comerford’s trial, the decision of the Surrogate court to deny a contestant to charge the estate with the cost of the copy of the trial’s minutes was reversed on appeal. This being considered, the judge is bound to the same conclusion. The petition of the contestant was granted.

There may be fear of incurring more cost in contesting a will, but as the court has shown in this case as long as you can prove in the trial that the contest was done in good faith the cost will be granted to the estate. If you are unsure as to what shows this, Bronx Probate Lawyers will be able to help you determine how you can show it in court. They would not want you to give up your issue just because you do not know how to present it or if is not sure if it is valid.

If you have a will contest, or other probate matter, contact Stephen Bilkis & Associates. They will assess your case from the information that you provide and ensure that your rights are protected. If you have a question regarding any case in New York and Long Island, you can make an appointment with us through the internet or by calling 1-800 NY - NY- LAW. We also have offices all over New York.

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

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

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

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

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

John A. Stiehler died on July 29, 1984. At the time of his death he had a wife and three adult children from prior marriage. The executor of his estate filed his last will and testament, dated May 16, 1973, and an addition to his will dated September 8, 1982 for probate. He stated in his will that since his wife likes his home in Florida so much, she is given right and privilege to it as long as she lives or until she gets married again. The codicils are also to her benefit. A New York Probate Lawyer obtained information the will stated that since he has been generous to his wife, a contest of the will or any of its supplements will result to her forfeiting her right to the benefits of the will.

The wife filed objections to probate on January 2, 1985. She objected to both will and codicil. After which, she amended her petition to ask for an addition to the will dated July 24, 1984 be added to probate. This codicil did not include the terrorem clause and the limitation with regard to the remarriage. She ultimately withdrew her will contest and contested to the probate of the May 26, 1973 will and the September 8, 1982 codicil but reserved the right to petition for probate of the instrument dated July 24, 1984. In a later document, she also withdrew the petition for probate for the July 24, 1984 codicil. In this case, the wife is asking for an advance to the bequest that is due to her. In an instant proceeding, she asks for the property in Florida.

The executor of the estate contested that the wife had violated the no-contest clause of the codicil and therefore, is not entitled to any of the bequests. The court determined that the first issue to address is if the wife violated the terrorem clause of the will. For this, according to Nassau County Probate Lawyers, they need to establish the intention of the testator. It appears that he had wanted his wife and children to be provided for. The court said that contest can mean different things depending on the case. There are cases wherein the simple filing of an objection even if it was not tried was considered a contest. There are also cases where in order to be deemed a contest the protest should have pushed through in litigation.

The court determines the reasonable interpretation is that the testator would not want an objection filed and subsequently withdrawn to be the cause of forfeiture of the rights of his beneficiary. Brooklyn Probate Lawyers mentioned this is consistent with the general rule that terrorem clauses must be precise in wanting to disinherit. The court also cited that the terms in the codicil presented by the wife showed probable cause. For this case, thought it was not determined if that instrument was valid. Their decision is therefore, to grant the property to the spouse with the remarriage limitation. This is still subject to a renewed application.

The intention of the testator is a large part of any determination of a last will and testament. This is the reason why the court as a general rule requires that a terrorem clause or a no-contest clause be specific on what it aims to do. In wills like this where it shows that in fact the decedent wants his beneficiaries to get their due.

If you find yourself in a position like this where you are torn from filing an objection or not knowing if the document or instrument that you have is valid, speak to Stephen Bilkis & Associates. They will go through the words of the will with you. They will also go through the law to give you the best route to take. If you find yourself in this situation, walk in any of our offices in New York or contact us at 1-800 NY - NY- LAW for a consultation. You can find us online as well and make an appointment from there.

With an Estate amounting to almost two million dollars, E. Louise Grupp died in September 25, 1992. The will that was given for probate was only dated two weeks before Mr. Grupp died. The will was dated September 11, 1992. The executors who wear named in the will were Joan E. Maloney, Esq., and Eleanor G. Dunn. There was an older will filed with the court that was dated July 9, 1992. Interested parties had examined the witnesses to the will.

The will dated September 11, 1992 sets up the $300,000 trust for Ms. Nitterauer and places another $150,000 in trust for her sons. Aside from that she gets personal effects and the testator’s house. From what Brooklyn Probate Lawyers gathered, the remaining part of the estate of the deceased goes to the Manufacturers and Traders Trust Company as trustee for the Buffalo Foundation to be held as a perpetual charitable fund in memory of Mrs. Grupp and her late husband. Nine charities are assigned as income beneficiaries of fund assets in various percentages totaling 95% of net income, with the recipients of the remaining 5% to be selected by the Foundation. If the foundation fails to qualify as a charity or any of the other named organizations then the trustee will select from qualifying charities.

A terrorem clause was also in this will. That if anyone contests the probate or any part of the will, their interest will be forfeited, and it will be treated like that person died before the testator.

The court had said that they have to determine if that will dated September 11 will be treated as the will for Mrs. Grupp. According to a New York Probate Lawyer, it is the Surrogate court that determines the validity of a will. The will is not admitted if there is the lack of capacity, lack of due execution or undue influence. The courts typically refuse to address the ‘no contest’ clause before the probate. The court will interview the will witnesses and the lawyer. The Surrogate Court determined that is the will for Mrs. Grupp.

The terrorem clause was not very clear. This gives the petitioner an additional risk. It does not say specifically if all the people in the will be disinherited or only the person who opposed the will. A Bronx Probate Lawyers said that the court had good and compelling reason to deviate from the Davis rule. There were several differences with the Davies case. There were also concerns that the most-recent will is totally different from the planning goals of the testatrix who was to save on estate taxes to increase the legacies to certain individuals. The court was moving towards construction. In this way, they can ascertain the intent of the testator as to his will. It must be in the will itself.

Mrs. Grupp had intended for the charities to benefit as it is also showing on the prior will. As with the ‘no contest’ clause, they determined that if the deceased really wanted for all parties to be deprived, then she would have added words to that effect. The court is concerned about if Mrs. Grupp wanted even the charities to forfeit if the will is questioned. The court determined that the ‘no contest’ clause will not include the charities if in case the will was questioned as in previous will it has always been part and always first.

The last will and testament may be ambiguous at times, and sometimes you have questions which one will apply. Stephen Bilkis and Associates can assist you in the determination and give you expert legal advice. They will go through the step by step probate with you to make sure you are getting what should be for you. They will make sure you understand and see to it that what should be given to you is given to you.

At Stephen Bilkis & Associates, we have the best legal team anywhere in New York or Long Island. We know it is hard to get what is due to you when other people do not have your best interest at heart, we do. To get a free consultation call us at 1-800 NY - NY- LAW.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading "Lillian Sandow had two wills" »

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

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

The law does not prevent any person from giving all his estate to charity, nor does it require for them to give any part of the estate to relatives. The law aims to prevent giving an undue portion to charity when relatives have a better claim. A New York Probate Lawyer also states that the law intends to alienate charities but to protect family members if they decide to raise this statute.

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

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

Continue reading "Arthur D. Norcross, executed a will that gives all his residuary estate to charity" »

This is a case regarding the Estate of Julia Eckart and the claims of her children regarding each of their shares in the inheritance. According to reports given to a New York Probate Lawyer, the children of the deceased filed a case against the last will and testament of their mother because of the insufficiency of their inherited amount against that of which will go to other people, entities and charities.

Unbelievably, according to a Manhattan Probate Lawyer, Julia Eckart left each of her children the amount of $50 each. According to her will, she also left no other cash or property to the rest of her surviving relatives. That is why the surviving children, Charlotte Anna Eckart, Frank Darmody and Frank Darmody filed a case in court that says that their mother made an excessive contribution to charity and that they were left with nothing except for the $50 each that were provided to them by her last will and testament. The rest of Julia Eckart’s estate, including her real and personal property have been assigned to the Watch Tower Bible and Tract Society of Pennsylvania, which is a non-profit corporation in Brooklyn, New York.

Reports that reached the desk of a Nassau County Probate Lawyer said the court thoroughly examined the case according to the petition filed by the children. There was also a similar case before when a grandson was expressly disinherited on the will that was left by his grandfather. This was the Cairo case which was a long and hardly fought battle in court which now became a source of other similar cases as well. But according to the court, there should be two elements present in a case before it can be ruled as excessive charity. First, there should really be the intension to give too much of her estate to charity. Second, there is the intention to disinherit immediate family members like the spouse or children by the one executing the last will and testament.

In this case, it was proven that there was truly intent to give too much to charity because practically the Bible Watch Tower became Julia Eckart’s primary beneficiary. As for the second factor which is the intent to expressly disinherit her children, the court studied this angle carefully. Although there was a $50 inheritance, it is not the amount determined by law to which a person will already survive on a daily basis. That is why, after a long discussion and trial, the court was able to determine that the two factors were present to make this case an excessive charity.

The court will determine further the exact condition of the estate, its value and everything that will affect their ruling. They will do the proper accounting before determining the fair amount that will be given to Julia Eckart’s children as well as to the Watch Tower Bible and Tract Society of Pennsylvania.

Continue reading "Estate of Julia Eckart " »

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

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

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

In September 20, 1972 there was a written agreement of settlement by the executor of the son’s estate, the executor of the mother’s estate Mr. McQuade and Mr. Tate as the administrator. This settled the objections to the son’s will and the mother’s will. Part of the settlement was that estate of the father will have a share in the settlement of the contest on the son’s will. They were going to give $25,000 to Nicholas’ estate.

Mr. Tate’s position was that Mr. McQuade did not take the necessary steps to make sure the father gets part of the son’s estate when it clearly showed that the will was to deprive the ward. A Manhattan Estate Lawyer mentioned that Mr. Tate further said that with Mr. McQuade being a beneficiary in the mother’s will and the guardian of Nicholas with the son’s will created a conflict of interest. This was not supported though because the mother had gotten advice from a separate counsel, and the will was drafted by the same lawyer who filed the contest on the son’s will. The father was the only beneficiary of the will. It also does not show that Mr. McQuade knew of what the mother had in mind for her last will and testament because it was only finalized three days before she died by a different lawyer.

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

The case was dismissed, and the court found that there should be no action to be taken. This may seem like Nicholas got the bad end of a stick. A trustworthy New York Probate Lawyer could have made sure that his interest was covered in both wills. This happens a lot to people when they do not have counsel.

Continue reading "After Nicholas’ son died in March 31, 1971, the court-appointed Mr. McQuade " »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading "The decedent died a childless widow" »

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

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

In the response, it is alleged that the petitioner violated in two ways. She tried to have the decedent declared incompetent when she was still alive. This was the first instance. The second instance is in the probate proceedings, where even if she did not appear to contest herself, she conspired with another to have the will disallowed. This, said a New York Will Contest Lawyer can be considered as a violation to the terrorem clause.

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

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

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

Continue reading "Court Rules on Will Contest Matter" »

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

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

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

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

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

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

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

It is a sad occurrence when children are orphaned by both parents in a very short span of time. This is what happened when a modern painter of high reputation, died on February 25, 1970 followed by his wife on August 26, 1970. They left two children. The daughter was already of age and the son Christopher was still a minor. Before the mother died, she already gave the court her petition to contest the will as the children’s guardian saying the bequest to the charitable institution was more than one-half of the estate.

The term of the will, from what a Nassau County Estate Administration Lawyer found was that the wife gets $250,000 plus their house and all its contents. Five of his paintings are to be given to the Tate Gallery, London. The remaining part of his estate is bequeathed to an art foundation, a non-profit organization. It contained additional stipulation where if his wife dies, or they subsequently die, their children get $250,000 and the house in New York, including all its contents in equal shares.

The executors still followed through with the proceedings to determine if the claim for the will contest is valid. The daughter appeared with her lawyer and the son with his guardian. The court has found out the paintings of the testator is valued at several millions of dollars. There is another court hearing in which the contract executed for one-eighth of the decedents works was valued at $1,800,000 was still being contested as not enough. The court has said it is definitely more than half of the residuary estate of the testator that was assigned to charity. A Nassau County Estate Litigation Lawyer said the court gave out is a decision in favor of the children on July 13, 1970.

In the law, the spouse, children, parents, even grandchildren of a decedent can contest a will if the bequest to charity is more than one-half of the residuary estate, granted that they will be gaining financially with a successful contest. A New York Probate Lawyer says this is not an assurance though, because if the will expressly state that the testator wants to disinherit his children, even if they are infants then they will be disinherited. The question before was why when a person is alive, they are not allowed to neglect their children but when they are dead, they can. This was addressed by another rule through the Family Maintenance Act were in the Surrogate Court will have the power to enforce reasonable provisional support in all solvent decedent’s estate. This means that the children who have lost their parents will not automatically be public charges. The child will be able to support himself until he reaches the age of maturity or can support himself, whichever comes first. In this case, it means that the court will take equitable portions from each gift to support the minor child. The remainder of the will upon the child reaching legal age or when he can already support himself will be distributed according to the will.

Continue reading "It is a sad occurrence when children are orphaned by both parents " »

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

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

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

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

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

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

Continue reading "Court Rules on Will Contest Proceeding" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The decedent executed a will that left all her estate after taxes and fees to a local cemetary association, and five well known charities. This constituted more than half of her estate.

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

To understand the Estates, Powers and Trusts Law regarding the excessive bequest to charity, one needs to determine first who can contest. The rule on contesting an excessive bequest to charity according to a Queens Probate Lawyers is that the person who is appealing against stands to gain pecuniary with a successful contest and that the bequest to charity is more than half of the estate. The law further supports it with the definition as to who these persons. Before September 1930, it could have been any relative. It was reduced by a revision in the law to linear descendants, wife, husband or parent. There has already been previous cases where in even the brothers or sisters, niece or nephew of a testator were not considered as people who could contest the will under the excessive bequest to charity. From 1860 to 1930, it would have been a proper objection made by a first cousin. The new statute that took effect in September 1, 1967 for the Estates, Powers and Trusts Law was taken from a revision in the Decedent Estate Law. It was made so that both provision worked side by side. Again, this limited the people who can contest a will through the excessive bequest to charity to a surviving parent, husband or wife, child or descendant.

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

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

When you are unclear as to what the law allows and prohibits particularly when it comes to last wills and testaments, it is important to speak with someone you can trust. We say trust because you need one that does not just want to get their fees from you without proper basis from the law but one who actually earns it fighting for your right.

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

On June 28, 1975, the decent died in West Monroe. He left a last will and testament dated November 27, 1972. The will was submitted to probate in November 1, 1977 and letters were issued to an executor of the estate and sole descendant. Prior to the settlement of the affairs, the executor died. This was November 5, 1981. In January 15, 1982, the nephew of the decedent petitioned the court for letters of administration. A New York Probate Lawyer said that the court granted this petition in January 19, 1982.

In January 7, 1983, the petitioner asked the court to rule on whether the decedent exercised his personal right under the excessive gift to charity. By May 4, 1983, a hearing was held to present evidence.

The decedent, upon the death of his mother contacted a lawyer regarding some of the provisions in his mother’s will. From the information a Nassau County Probate Lawyer got, the petitioner also asked if these certain stipulations in his mother’s will can be broken. Petitioner expressed his discontent with his mother’s will especially in the paragraph that allocates any remaining estate to be given to a hospital. The hospital at the time of the decedent's death was non-existent. In a letter dated January 12, 1982 from an attorney for the Hospital Planning Association, it was said that the the hospital was never created and will never be created.

The decedent, at some point retained a lawyer with regard to the decedent's estate. The lawyer advised that he could make a petition to determine an excessive gift to charity. This was executed by the Petitioner in March 8, 1978, which is within six months of the petitioner being appointed as executor. The lawyer then notarized and sent the petition via first-class mail, prepaid, properly addressed to the Surrogate's Court together with a cover letter dated March 8, 1978, requesting the Court Clerk to file the notice of election. The petition however, was never received. The court never knew of it until the petitioner filed this appeal.

The question that the court needed to address first is if an appeal that was executed but not filed be considered as a notice of election to contest a charitable disposition. Should it be treated as such and given effect?

The court then reviewed the terms of the law covering the contest of charitable donation through a will, and they have determined that even if there are no preceding cases the filing should be treated like the spouse’s right of election. The contest should be filed within six months and since twelve months have passed since the letters have been issued then the right no longer exists. A Nassau County Estate Litigation Lawyer said that the court deems this requirement as mandatory and indispensable.

The court could grant relief if the time that has passed is less than twelve months. Any rights that the petitioner had were extinguished with the lapse of the twelve months after the letters were issued. Although the actions of the petitioner would show that he intended to contest the will, the court considered it as unfiled as the law states that the filing with the court is not optional so the mailing is not filing.

This problem would not have happened if full attention was given to the contest when applied. A prudent lawyer would have taken care of it. They would check with the courts if it was received or sent it via courier to make sure it was received by the court clerks.

Continue reading "Court Rules on a Will Contest Regarding Charitable Donation" »

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

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

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

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

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

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

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

Continue reading "Court Rules on Will Contest" »

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

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

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

The testator’s brother started the lunacy proceedings in November, 1929. The petition was not opposed at the hearing. In the hearing, the head of the hospital and previously consulting physician at Manhattan State Hospital testified as to the mental state of the decedent, which went undisputed.

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

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

Continue reading "Court Strikes Down Will for Lack of Capacity" »

A wife was named primary beneficiary and second wife of the decedent, and was named primary executor of all his estates in last June. But according to a New York Probate Lawyer,the decedent's son, by previous marriage filed an objection on the last will and testament of his father claiming his wife exercised excessive and unlawful influence on his father and that the Will was executed with fraud. He filed an objection to his father’s will because he believed that the wife was not the rightful person to execute or manage his father’s properties and other cash and assets. Unfortunately no such evidence was found by the court and the wife was still and remained to be the sole executor of the husband's will.

However, the wife went on and continued filing a case against the father's daughter. The wife claimed that the daughter sent two letters to the father's attorney and that both letters contained false accusations about her personality as well as her family’s reputation. They said letters were also sent to court as part of the evidence against the daughter. According to reports received by New York Estate Litigation Lawyer, the wife claimed that the daughter was objecting to the wife's inheritance and the letters were her way to contest her father’s will. It was noted that the wife had already filed a previous case against the daughter to remove her from participating in her father’s estate. The court ruled in favour of the daughter saying that there was no sufficient evidence or any cause to bar her from such participation. That is why the wife again filed another case, still pursuing to remove the daughter from her father’s will and testament. The wife further claimed that the daughter and father conspired against her to remove her from being the executor of their father’s estate. However, the wife's only evidence was the letters the daughter wrote and sent to the father's attorney.

The daughter on the other hand, said that she only wrote those letters because she was asked by the father's attorney for some background information on the mother and that those letters were never meant to hurt anybody or discredit anybody from anything. The court also said that it was also true that the daughter was not properly informed that her personal letters were going to be admitted as evidence against her in the court of law. A New York Will and Trust Lawyer was also informed that the daughter even signed a waiver and consent that her father’s will was valid and that the title as primary executor or beneficiary of his estate of properties were all executed legally and lawfully. These documents signed by the daughter with regards to her father’s estate and also with regards to her father’s chosen executor or beneficiary only made the mother's defense stronger, strong enough to dismiss the daughter appeal to remove her from her father’s last will.

Legal counsel understands how important you property is to you. They will always make sure that your properties are well taken care of and that it will only be given to person, people or public or private entities that you have chosen and no else. They will make certain that your loved ones are protected from those who would want to take advantage of them and of your estate.

Contact a New York Will Contest Lawyer from Stephen Bilkis and Associates. We have offices all throughout the Metropolitan area of New York as well as in Corona to serve you better. We will make sure that you get the correct legal advice for your case so that you can put your mind at ease. Remeber, without skilled legal counsel you may lose your rights, properties and estate which may cost you a significant amount of money which you can already add to your estate.

Continue reading "Court Rules on Will Contest Between Mother and Daughter" »

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

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

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

On this light, a New York Probate attorney also gathered that with regards to the legal fees in question, the respondents, Warshaw and Chase Manhattan only have the right to question the amount that Chardbourne and Parke will present, if it’s reasonable based on the services they performed but not the to question whether they are entitled to legal fees or not. The same findings would come about in New York City and Westchester county.

Continue reading "Chardbourne and Parke, LLP represented the people who are involved in a Will left by Renate Hoffman," »

According to a New York Estate Lawyer, this is a case about the estate of Bertha Weil Fitzgerald. Reports that reached his office said that the estate was left to a number of charitable institutions and couple of churches according to her will. These charities and churches are Catholic Charities of the Archdiocese of New York, including Manhattan and Staten Island, National Society for Prevention of Blindness, Inc., The Fresh Air Fund, First National City Bank as Committee of the Property of Paul S. Ames, Jr., Society for the Prevention of Cruelty to Children, Archbishopric of New York and for Terence Cardinal Cooke, The Salvation Army, Heart Fund, American Cancer Society Inc., and the New York Hospital-Cornell Medical Center.

According to the Will that was executed in 1970, all of these charities and churches shall receive each an amount of $50,000. The Fitzgerald Estate was valued at $2 million. The remainder of the estate shall be given to the Archbishopric of New York. However, Bertha Weil Fitzgerald had a 41 year old son who was, according to sources told a New York Probate attorney, legally entitled to the estate of his deceased mother. It was also said on the Will that Bertha did not intend to leave any amount r any part of her estate to her son, who was also invalid and incompetent. The son according to reports had been institutionalized since childhood and therefore was under no condition to care for himself much less to her mother’s estate. It was also noted that the grandmother, Bertha’s mother already left half a million dollars to her grandson when she passed away some years back.

This case was filed by the trust company of Bertha’s son claiming that the son, under their representation did not receive any notice about the Will of Bertha. They claim that the son was not able to file an objection to his mother’s last will and testament and that it was right to do so. It was also noted that by law an incompetent spouse or in this case a son can file for an objection if he or she was left with a sum leas than or not equal to the sum that were left to other beneficiaries in this churches and charitable institutions. It is also what is known as a case of excessive or too much charity.

Also, the New York Will Contest lawyer was also informed that the legal counsels of the charities and churches claimed that the objection of the son was not file in time and that it was already too late to file such an objection in court. It was however traced that the son was declared incompetent in 1971 a year after the Will was executed.

Continue reading "The Fitzgerald Estate was valued at $2 million" »

With an Estate amounting to almost two million dollars, E. Louise Grupp died in September 25, 1992. The will that was given for probate was only dated two weeks before Mr. Grupp died. The will was dated September 11, 1992. The executors who wear named in the will were Joan E. Maloney, Esq., and Eleanor G. Dunn. There was an older will filed with the court that was dated July 9, 1992. Interested parties had examined the witnesses to the will.
The will dated September 11, 1992 sets up the $300,000 trust for Ms. Nitterauer and places another $150,000 in trust for her sons. Aside from that she gets personal effects and the testator’s house. From what a New York Estate Lawyer gathered, the remaining part of the estate of the deceased goes to the Manufacturers and Traders Trust Company as trustee for the Buffalo Foundation to be held as a perpetual charitable fund in memory of Mrs. Grupp and her late husband. Nine charities are assigned as income beneficiaries of fund assets in various percentages totaling 95% of net income, with the recipients of the remaining 5% to be selected by the Foundation. If the foundation fails to qualify as a charity or any of the other named organizations then the trustee will select from qualifying charities.
A terrorem clause was also in this will. That if anyone contests the probate or any part of the will, their interest will be forfeited, and it will be treated like that person died before the testator.
The court had said that they have to determine if that will dated September 11 will be treated as the will for Mrs. Grupp. According to a New York Probate Lawyer, it is the Surrogate court that determines the validity of a will. The will is not admitted if there is the lack of capacity, lack of due execution or undue influence. The courts typically refuse to address the ‘no contest’ clause before the probate. The court will interview the will witnesses and the lawyer. The Surrogate Court determined that is the will for Mrs. Grupp.
The terrorem clause was not very clear. This gives the petitioner an additional risk. It does not say specifically if all the people in the will be disinherited or only the person who opposed the will. New York Estate Administration Lawyers in The Bronx and Staten Island said that the court had good and compelling reason to deviate from the Davis rule. There were several differences with the Davies case. There were also concerns that the most-recent will is totally different from the planning goals of the testatrix who was to save on estate taxes to increase the legacies to certain individuals. The court was moving towards construction. In this way, they can ascertain the intent of the testator as to his will. It must be in the will itself.
Mrs. Grupp had intended for the charities to benefit as it is also showing on the prior will. As with the ‘no contest’ clause, they determined that if the deceased really wanted for all parties to be deprived, then she would have added words to that effect. The court is concerned about if Mrs. Grupp wanted even the charities to forfeit if the will is questioned. The court determined that the ‘no contest’ clause will not include the charities if in case the will was questioned as in previous will it has always been part and always first.

Continue reading "E. Louise Grupp died in September 25, 1992. " »

Barbara Fairbairn, primary beneficiary and second wife of Howard Fairbairn was named primary executor of all his estates in June 1997. But according to New York Will Contest lawyer, Howard’s son, Richard Fairbairn by previous marriage filed an objection on the last will and testament of his father claiming Barbara exercised excessive and unlawful influence on his father and that the Will was executed with fraud. He filed an objection to his father’s will because he believed that Barbara was not the rightful person to execute or manage his father’s properties and other cash and assets. Unfortunately no such evidence was found by the court and Barbara was still and remained to be the sole executor of Howard Fairbairn’s will.

However, Barbara went on and continued filing a case against Howard’s daughter, Carolyn Desilva. Barbara claimed that Carolyn sent two letters Richard Fairbairn’s attorney and that both letters contained false accusations about her personality as well as her family’s reputation. The said letters were also sent to court as part of the evidence against Carolyn. According to reports, Barbara claimed that Carolyn was objecting to Barbara’s inheritance and the letters were her way to contest her father’s will. It was noted that Barbara had already filed a previous case against Carolyn to remove her from participating in her father’s estate. The court ruled in favour of Carolyn saying that there was no sufficient evidence or any cause to bar Carolyn from such participation. That is why Barbara again filed another case, still pursuing to remove Carolyn from her father’s will and testament. Barbara further claimed that Carolyn and Richard conspired against her to remove her from being the executor of their father’s estate. However, Barbara’s only evidence was the letters Carolyn wrote and sent to Richard’s attorney.

Carolyn on the other hand said that she only wrote those letters because she was asked by Richard Fairbairn’s attorney for some background information on Barbara and that those letters were never meant to hurt anybody or discredit anybody from anything. The court also said that it was also true that Carolyn was not properly informed that her personal letters were going to be admitted as evidence against her in the court of law. A New York Estate Administration lawyer was also informed that Carolyn even signed a waiver and consent that her father’s will was valid and that Barbara’s title as primary executor or beneficiary of his estate of properties were all executed legally and lawfully. These documents signed by Carolyn with regards to her father’s estate and also with regards to her father’s chosen executor or beneficiary only made Carolyn’s defence stronger, strong enough to dismiss Barbara’s appeal to remove her from her father father’s last will. Cases like this are handled in a similar way in Queens and Westchester County.

Continue reading "Barbara Fairbairn, primary beneficiary" »

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

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

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

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

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

Continue reading "Rogowsky made McGarry the sole beneficiary of the residential premises" »

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 Contest Will 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 New York Estate Attorney 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, according to New York Estate lawyer 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 trial lasted for nine days with dozens of evidences presented in favour 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 favour of Warren. Courts in Nassau and Suffolk Counties have been watching this case.

Continue reading "Warren to be the primary beneficiary of Rosen’s estate" »

In February 14, 1980, the will of Sally Lippner, deceased, was contested by her daughter Suzanne H. Epstein. Ms. Lippner died in January 11, 1980, and the will questioned is dated December 1, 1979. In Ms. Lippner’s last will and testament, she bequeathed all her property to five charities. There is a gift of Israeli bonds to the State of Israel. The will also state that her daughter Ms. Epstein receives no part of her estate as she had adequately provided for her in her lifetime.
The will further specify that in case that the will fail and becomes useless all the property will go to her trustees. In conformance to the trust agreement that she has set up while she was alive. The inter vivos trust was also set on the same date of the will. The paperwork says that the trust will be funded if in any case that the gift, devise or legacy made under the last will and testament made by Ms. Lippner will be ineffective. The trustees on the document are the same people named as executors of her will. Meaning, the trustees will give the income from the fund to the same charities she has named in her will, says a New York Estate Administration Lawyer. After five years, the charities then will receive the principal divided equally between them.
Ms. Lippner’s will included a “no contest” clause. A New York Probate Lawyer also said, from the records, it specifically stated that any person who will contest the will, it does not matter what reason will lose the right to any part of the estate which, would have been theirs. Aside from these papers documenting litigation between the Ms. Lippner and her daughter, Ms. Epstein, was attached. It had the history of the litigation to show that Ms. Epstein, although the only descendant was really intended to be excluded from the estate distribution.
Ms. Epstein filed four final objections to probate. The first one was the failure of due execution, second was forgery, third was the lack of testamentary capacity and the last one was fraud and undue influence. Failure of due execution, according to a New York Estate Lawyer, is the will having all the requirements of the law like having two witness signatures. The excessive nature of the will was not included because the courts decided that if the will fail by any other reason, then, the disposition to the charitable institutions will go with it.
The executor asserted that Ms. Epstein is not in the position to contest the will. This he states that is because either way she will not get anything. If the will take effect, she gets nothing. If the will fail, she still gets nothing.
What a New York Probate Lawyer got from the court’s review was that the ‘no contest’ clause does not affect the daughter’s right to contest. Her claim is to discredit the whole will. If the will become ineffective because of her reasons then the ‘no contest’ clause will also be worthless. The part of the will that says that her daughter is to receive nothing from her will is for the estate itself, does not affect her right for the probate. If Ms. Epstein was only arguing the part of the will for excessive charitable gift then she would most probably be denied the case, but what she is disagreeing with was the will as a whole. The rule, as it is in New York City and Queens, that if the person who is contesting will receive a monetary benefit invalidates the contest only applies if the will is attacked in part. The inter vivos trust need not be discussed as it is a separate agreement. For these reasons, the appeal for summary judgment to dismiss the objections to the probate was denied.

Continue reading "There is a gift of Israeli bonds to the State of Israel" »

The late Anna Nicole Smith brought democrats and republicans together in her historical and controversial lawsuit, claims a New York City Probate Lawyer.

Smith had been married to billionaire J. Howard Marshall II for less than a year when he died. She claimed that he had promised her millions of dollars even though reports show he had cut the star out of his Will.

Smith reportedly tried to use her bankruptcy claim to over ride her late husband’s will and went on to claim that his son had manipulated the situation so he and the rest of the family would receive more money.

After the first round of verdicts on this case with just one judge, that ruled in Smith’s favor to the tune of $450 million, it became clear to court officials and liberals and conservatives the importance “That the constitutional guarantee that lawsuits will be decided by a fully independent and impartial judge.”

The second round of trials in Texas was more traditional with witnesses and an atmosphere that called Smith a liar basically. New York City Probate Lawyers called this trial “Hollywood style.” This would not be the case if this took place in Nassau or Suffolk County.

With this, new representation has been hired, “Mr. Davis, a liberal and former counsel to a Democratic president; Mr. Rivkin, a conservative and former counsel to a Republican president,” said a New York Estate Planning Lawyer.

Liberals, conservatives and the Supreme Court hope to find common ground with this case and make the right decision, concluded a Lawyer.

Continue reading "Liberals and conservatives can agree? New York Estate Planning Lawyers give their take." »

We all want to trust those we love to do the right thing. For some, that blind faith in family and loved ones to do what is right may prove to be detrimental. According to a report by a NY Estate Planning Lawyer, when a will, trust or inheritance is concerned, people get dollar signs in their eyes, so much so that they become irrational in their thinking and in turn, in their behavior. Since money is touted as the most important survival tool in our country, once some people have access to it, they will take it even if it belongs to someone that they have loved and respected all of their lives. 

Such is the case for an 89 year old woman whose grandson was named the trustee of her estate, which included her house, social security checks and a trust fund that had been gifted to her 35 years ago. Within just two weeks of having been awarded the position of trustee, the grandson began removing money out of his grandmother’s accounts and plugging it back into his own, now defunct, carpet and construction businesses. 

The New York Estate Planning Lawyer reports that the elderly woman went from having $105,000 to live on for the rest of her life to losing her house and having her bank account blasted to less than $6000 by her grandson, who was caught after his own mother, the daughter of the elderly woman, realized what he was doing and called authorities. 

Though the money is gone and the grandmother is now living in a small trailer with no money, revealed the New York Estate Planning Lawyer, the woman has forgiven her grandson and is worried that if he goes to jail for his crimes against her then she will never see another penny from him, leaving her worse off than before. In Brooklyn and Manhattan this action could be prosecuted by the authorities. It just goes to show that in matters of financial planning, blood relation is not always a guarantee that your finances will be safe.

Continue reading "Granson is the alleged thief of Grandma's money reports a New York Probate Attorney" »

There is no inheritance tax for 2010, but that will not benefit most of us who plan to live to 2011 and beyond. The inheritance tax may or may not return in some form in 2011 – Congress hasn’t decided yet – but luckily, the gift rules remain pretty much the same, a New York Estate Lawyer reports.
Gifts of up to $13,000 a year per person to any number of people can be passed on without any taxes whatsoever. Married couples who file jointly can double the amount to $26,000. A Gift Tax Return has to be filed for any gifts over that amount.
That doesn’t mean a gift tax is involved. One can grant a million dollars in gifts, above and beyond the yearly $13,000 before the gift tax. Most people will never have to worry about that. There are a number of other exclusions and provisions regarding gifts and estates, which means reading up on IRS regulations is very important to make the most of your money, a New York Estate Lawyer notes. Lawyers in Brooklyn and Long Island are well versed in these new rules.
Gifts are not the only way to avoid paying extra in taxes. A 529 Qualified State Tuition Plan for educating a child can allow gifting a certain amount without triggering the gift tax. A Roth IRA for the kids can also be a good way to give money without triggering tax. Funding someone else’s benefits, up to the gift limit, can also be a way to pass money along, a New York Estate Lawyer reports.
Your money should be yours to give out as you like. A New York Estate Attorney can help you make that a reality. The law can be complicated, and a professional like a New York Estate Attorney can make it a great deal easier to deal with.

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Joseph Alexander died November 23, 1975, leaving his adopted son, Ronald Alexander. After the probate of his will, his son filed a petition contesting the amount given to charities as in excess percentage amount allowed by law. Executors were placed to check if the claim was valid, and the courts were asked to determine the effect of the ‘no contest’ clause of the will.
In his will, he gave all his properties, a flat in Switzerland and $25,000 per year to his son. In the event that his son dies before the end of the trust then the remaining amount will be put back to his estate.
Joseph Alexander also included in the will that in his lifetime, he had provided his son loans. He had paid indebtedness acquired by his son from other people. He expressly states in his last will and testament, from what a New York Will Contest Lawyer gathered, that if his son directly or indirectly oppose the probate of his will, Ronald Alexander will not getting any part of his estate and will only get $1 per annum.
The contest of the charitable bequest, according to the executors had no standing, because he will not receive any pecuniary benefit if the contest was successful. The executors cited the Cairo case where the grandson was expressly disinherited. Although, there was another case that was reconsidered by the Court of Appeals, which was Eckhart, this case is more similar to the Cairo case.
In this case, the will specifically state the loans and payments the testator has made for his son. According to a New York Probate Lawyer, the executors also were pushing the ‘no contest’ clause of the will. The court also does not favor the ‘no contest’ clause. The Court of Appeals has held that the challenge to the validity of an excessive charitable gift cannot result to have a person disinherited. So the filing of the case is not a violation to the terrorem clause.
The law still maintains that if the testators wish is expressly to disinherit a relative, then it will be upheld. Observers said that in this case, Joseph Alexander only explicitly stated that if his son contests the probate, then he will forfeit his share in the will. The son did not contest the probate. In was within the probate that the son expressed his concern on the amount of the bequest to charity. The question is if he will get monetary compensation if the contest is successful. This was determined to be missing. Even if the contest is successful as per the will, his son still gets the fixed amount per annum and the flat in Switzerland.
The law has a different treatment for children born within wedlock and outside wedlock when it comes to claims for support from a deceased parent. Out of wedlock minors are given support in the amount determined by Surrogate court up until the age of 21. This is taken from the deceased parents’ estate. This is typically not greater than what was determined before the parent died as their support. These are not available minors born within wedlock.
Ronald Alexander was not to be disinherited because of the case he filed to have the gift to charity checked as may be more than the half of the estate. He is still entitled to his legacies whatever the outcome of the contest is. This is also true in The Bronx and Long Island.

Continue reading "Joseph Alexander died November 23, 1975, leaving his adopted son, Ronald Alexander" »