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Court Decides if Respondent was Able to Distribute Money via a Power of Attorney

A New York Probate Lawyer said that, in this SCPA 2103 proceeding, the respondent moved to vacate her default and for other relief. The branch of the motion seeking to vacate the respondent’s default is now academic as a result of the court’s decision and order dated February 1, 2008. In that decision and order, the petitioner’s application to strike the respondent’s pleadings and to enter a default judgment in the sum of $173,000 was denied, provided that the respondent both paid the sum of $400 to cover the cost and fees for her failure to appear at a deposition and, thereafter, appeared to be deposed as directed.
A Bronx Estate Lawyer said that, in her affidavit in support of the motion, the respondent’s request for “other relief” is: (1) dismissal of the petition on the ground “that no asset of the estate” was ever removed by her; (2) dismissal of the petition on the ground that the “Stipulation of Settlement” filed in the probate proceeding was intended to cover “all matters and claims,” including any claim that the respondent removed estate assets; and (3) the imposition of sanctions on the petitioner’s attorney for knowingly filing a “frivolous” petition. In the alternative, the respondent requests that the proceeding be scheduled for a hearing.

A New York Will Lawyer said the issue in this case is whether the respondent was authorized to distribute monies from the decedent’s bank account to herself pursuant to a power of attorney.

The court in deciding the case said that, neither of the grounds advanced by the respondent supports dismissal of the petition. A Brooklyn Probate Lawyer said the issue of whether the respondent was authorized to distribute monies from the decedent’s bank account to herself pursuant to a power of attorney raises factual issues that can only be determined after a hearing. With respect to the respondent’s contention that the written stipulation filed in the contested probate proceeding in this estate released her from liability for any claims that the estate had against her, it is well settled that a stipulation of settlement, as is the case with other contracts, is to be enforced according to its terms and without resort to extrinsic evidence where the language is clear and unambiguous on its face. Furthermore, “stipulations of settlement are favored by the courts and not lightly set aside”.

Here, Long Island Probate Lawyers said the stipulation of settlement filed in the probate proceeding contained, inter alia, the following whereas clauses indicating that: (1) objections to the propounded instrument were filed by the decedent’s sole distributee; (2) the respondent was to receive one-half of the net proceeds from the sale of certain real property pursuant to the terms of the propounded instrument; and (3) “the parties to this agreement wish to resolve all claims and disputes with regard to the will of the decedent and the pending probate proceeding.” After the whereas clauses, the parties to the stipulation, including the respondent, agreed, in pertinent part, that the propounded instrument would be admitted to probate, that the respondent would receive 41% of the net proceeds of the sale of the realty and that the entire residuary estate would be paid to the objectant. Inasmuch as the stipulation expressly states that it resolves all claims and disputes with regard to the decedent’s will and the probate proceeding, and makes no reference to any claims that the estate might have against the respondent, the respondent’s contention that the stipulation also encompasses estate claims against her contradicts the clear and unambiguous terms of the stipulation and may not be considered by the court.

For the reasons stated above, the court held that the branches of the motion seeking to dismiss the SCPA 2103 petition are denied. Moreover, in light of the respondent’s failure to establish that the proceeding should be dismissed, there is no basis to impose sanctions against the petitioner’s counsel for commencing a frivolous proceeding. Consequently, the branch of the motion seeking sanctions is also denied. This proceeding shall be placed upon the ready-for-trial calendar of the court upon compliance with Uniform Rules for Surrogate’s Court (22 NYCRR) §§ 207.29 and 207.30. The Chief Clerk shall mail a copy of this decision and order to all counsel.

If you have issues concerning the validity of a will or with the probate proceedings, seek the help of a Bronx Probate Attorney or Bronx Estate Litigation Attorney at Stephen Bilkis and Associates.

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