New York Probate and Estate Administration Lawyer Blog

Published on: September 2, 2019

New York Appellate Court Declares Prior Will Revoked After Motions for Summary Judgement- In re Harper, 2019 NY Slip Op 50333(U) (N.Y. Surr. Ct., 2019)

by Stephen Bilkis

The issue before the Surrogate’s Court is whether a copy of a subsequent will is sufficient to revoke a prior will and prevent it from being probated.

This matter is related to probating a will dated May 27, 1997, which is purported to be the last will and testament of decedent Harper. The petitioners are the executors named in the will, C. Harper and M. Harper. C. Harper is the decedent’s nephew, while M. Harper is his sister. The decedent has several distributees including his surviving spouse and children.

The will directs that the decedent’s personal property and real estate should be divided equally among his nephews, his sister, his 3 children. He left his surviving spouse the remainder of his estate. His will includes language that specifically disinherits any children born after execution of the document or any adopted children. The decedent’s surviving spouse and children filed objections to the will.

Published on: March 31, 2019

Court Decides Case Involving Promissory Estoppel

by Stephen Bilkis

NY Slip Op 05266

The petitioner brought this case to enforce an oral agreement that would be void because of the statute of frauds. The petitioner’s grounds for this action are unconscionability of the statute of frauds. The court agrees that when promissory estoppel is satisfied it would be unconscionable and egregious to rely on the statute of frauds. Nonetheless, the court concludes that the petitioner can’t rely on this doctrine because the application of the statute of frauds would inflict injury on the petitioner and would be unfair. The court felt that while it would be unfair, it was not unconscionable.

The decedent owned an apartment building. His grandsons contend that before 2006, the had helped their grandfather with maintenance and snow removal on the property. Later, the grandfather asked the petitioners about taking over management duties of the property.

Published on: November 28, 2018

Petitioner Seeks Guardianship of Disabled Sister- In re Harper, 2019 NY Slip Op 50333(U) (N.Y. Surr. Ct., 2019)

by Stephen Bilkis

In this case the Surrogate’s Court considers the whether to grant a petition for guardianship of a person who suffers from intellectual and physical disabilities and is unable to care for herself.

Petitioner Laut appeals the denial of a petition she filed under SCPA Article 17-A for guardianship of her disabled sister. The sister has suffered from severe, permanent disabilities all her life. She suffers from cerebral palsy and mental retardation and requires 24-hour care. She is unable to feed herself, is non-ambulatory, and is non-verbal. Using the Bayley scale of infant and toddler development, the sister has been determined to have a developmental equivalent of a 4-month-old.

The petitioner’s parents had cared for her sister her entire life. However, they both died in 2014. While the petitioner wanted to care for her sister after their parents’ deaths, she stated that she was unable to fully do so because she did not have legal guardianship over her sister. For example, she was not able to arrange for a lease for the sister’s apartment and she was not able to maintain the sister’s supplemental nutritional program. In denying her petition for guardianship, the Surrogate’s Court stated that a hearing pursuant to Mental Hygiene Law 81 was more appropriate.

Published on: November 4, 2018

Surrogate Court decides a will construction case where the provision of the will creating a trust failed – In re Dawe, 60 Misc.3d 949 (N.Y. Surr. Ct., 2018)

by Stephen Bilkis

In this case the Surrogate’s Court had to decide how to make sure that a testator’s overall testamentary plan remained intact where a portion of the will is determined to be invalid.

A. Dawe died on March 11, 2014. He was never married and never had children. He was survived by his two brothers, B. Dawe and R. Dawe. However, R. Dawe died in April 2014. The will was admitted to probate in September 2014, with B. Dawe being appointed as co-executor along with J. DeMuro, a friend of A. Dawe

In the will, the decedent made a specific gift to B. Dawe of his 13-year-old cat as well as $6000 to take are of her. The decedent was passionate about genealogy and spent a great deal of time researching Dawe family history. Decedent stated in his will that he is making no additional dispositions to his family. Instead, the decedent directed that the residue of the estate be transferred to the Dawe Family Trust that is to be used to continue and expand a genealogical website that the decedent created, and to create an archive of family genealogical data, photos and heirlooms. The will further provides that 21 years after the death of B. Dawe and his son, E. Dawe, the trust is to terminate and the remaining assets are to go to the Godfrey Memorial Library of Middletown, Connecticut.

Published on: September 13, 2018

Court Discusses Jurisdiction of Distributees and the Doctrine of Laches in Probate Matter – Nechin-Pescow v. S (In re Schnall), 154 A.D.3d 951 (N.Y. App. Div., 2017)

by Stephen Bilkis

In this case the Surrogate’s Court considered the issue as to whether to entertain an objection to probate of a will 30 years after it was originally admitted to probate.

This case relates to the probate proceeding of the will of decedent Schnall. Schnall executed the will in 1976. She died in 1980. Bostwick, Schnall’s daughter, consented to probate. The will was admitted to probate in a decree dated November 13, 1980. In 2009, nearly 30 years later, one of the decedent’s grandchildren filed a motion to vacate the probate decree. The basis of the motion was that several distributees of the decedent had not been named in the probate petition. In 2010 the Surrogate’s Court granted the motion, finding in instances where jurisdiction was never obtained over a necessary party, the decree admitting the will to probate is void as to that party.

Nechin-Pescow filed an amended probate petition in 2013 and filed a second amended probate petition ion 2014. Bostwick objected to probate, arguing undue influence and a lack of testamentary capacity. Two grandchildren of Schnall, Beesmer and Elchoness, filed motions for summary judgment dismissing Bostwick’s objections. The Surrogate’s Court denied the motion.

Published on: August 25, 2018

Appellant’s Claim Barred Due to Res Judicata, Collateral Estoppel

by Stephen Bilkis

Matter of A.

NY Slip Op 05842

The co-executor of the estate petitioned the court pursuant to 2103 to determine if certain funds were withheld from the estate of A. This appeal is from 2 Surrogate Court orders brought by A.S. Those orders denied AS her cross-motion pursuant to CPLR 3211(a)(5) to dismiss the petition regarding two bank accounts. This appeal is dismissed. The second order superseded the first. One bill of costs is awarded to petitioner, payable to A.S.

Published on: June 8, 2018

Petitioner Moves for Summary Judgment in Will Challenge Case – In re Will of Ballasalmo, 2017 NY Slip Op 50193(U) (N.Y. Surr. Ct., 2017)

by Stephen Bilkis

Ballasalmo died at the age of 95, leaving 2 daughters, Knuth and Ayers as her distributees. Petitioner, the decedent’s niece-in-law, submitted a document dated August 16, 2007, purportedly as Ballasalmo’s last will and testament. The will stated that Ballasalmo’s entire estate was to be divided between the petitioner and her husband. The decedent expressly disinherited her daughters. As to be expected, both daughters filed objections to the will. The bases for their objections include that the will was not properly executed, that the decdent lacked testamentary capacity, that it was a mistake, and that it was made under fraud and duress. In response, the petitioner moved for summary judgment dismissal of the decedent’s daughters’ objections.

Summary judgment dismissal is a strategy that allows the moving party to basically win the case without going through the time and expense of a trial. In order to win a summary judgment, the moving party must establish a prima facie entitlement to judgment. In this case, the petitioner mush show that the will was executed according to the requirements of New York law, and that the decedent had testamentary capacity at the time the will was executed. In support of her motion, the petitioner submitted a copy of the decedent’s will which includes an attestation clause as well as a contemporaneous self-proving affidavit. The petitioner also submitted the transcripts of the SCPA § 1404 examinations of the attorney draftsperson who also supervised the execution of the will and of two of the three attesting witnesses.

The evidence submitted established prima facie evidence that the will was properly executed and in statutory compliance.

Published on: May 12, 2018

Court Rejects Extrinsic Evidence in Will Construction Case – Bowler v. Benoit (In re Bruce), 161 A.D.3d 712 (N.Y. App. Div., 2018)

by Stephen Bilkis

In this probate case the court considered the question as to whether it has the authority to consider extrinsic evidence in the determining how to interpret ambiguous terms of a last will and testament.

In her last will and testament, decedent Bruce made a provision as to the disposition of her a portion of her estate, the literal meaning of which would make the provision invalid. In her will, the decedent sought to exercise her power of appointment directing the trustees of two separate trusts, to distribute the assets in her residuary estate to the LB Foundation. A person who writes a will or creates a trust can give his or her beneficiaries a power of appointment, which enables the beneficiaries to direct where their share of the estate or trust goes at their death. In this case, a 1969 trust of which the decedent was a beneficiary gave the decedent the power to determine where her share of the trust would go upon her death. However, due to the wording of the language of the decedent’s will, the literal reading of decedent’s request is not valid because it exceeded the powers that were granted to her in the 1969 trust.

Upon considering summary judgment motions from both the petitioner and the respondent, the Surrogate’s Court noted that the testator’s intent is deciphered from a sympathetic reading of her last will and testament. Accordingly, the court must read the distribution plan that appears to be in the will in light of the testator’s intention. It is clear that the decedent’s intention was to provide property to the LB Foundation. It follows that it did not make sense for her to make a disposition of property that she knew would be invalid.

Published on: May 6, 2018

The Estate of CF v The City of New York

by Stephen Bilkis

The respondent MJP holdings moves for an order dismissing the petition for lack of subject matter jurisdiction, and because a prior action is pending for the same issue in a different court.

Despite the fact that the proceeding was heard on 6/1/18, the history of this case goes back 40 years, starting with the death of the decedent’s grandmother CP. That litigation was only settled in 2017. Her 2 children have passed away. The estate of one child, J, is in litigation. The case with the other child, M, is being litigated as well.

The parties involved here are the petitioner, who is the executor of the decedent’s estate, the grandchild of the decedent, and daughter’s husband, and MJD Holdings.

Published on: May 2, 2018

Will Contest Ends in Summary Judgment

by Stephen Bilkis

Matter of S.

2017 NY Slip Op. 07446

October 25, 2017