New York City

Published on: April 10, 2014

Respondent Contends Court Lacks Subject Matter Jurisdiction

by Stephen Bilkis

In this Will Contest case, a motion by the executor for an order consenting to a transfer to this court of an action currently is pending in Supreme Court, New York County. Respondent argues that this court lacks subject matter jurisdiction of the dispute and that Nassau County is not the proper venue for the case.

A New York Probate Lawyer said that the decedent died in December 1993. The court admitted his Last Will and Testament to probate and issued letters testamentary to petitioner thereafter. Petitioner subsequently filed an accounting and a supplemental accounting, respectively, with this court. At the closing date of the latter, the estate held interests in real estate partnerships, all controlled by general partner. At a special meeting of the shareholders, decedent issued sixty shares of stock each to petitioner and respondent, with petitioner holding her shares in trust for respondent, and with respondent holding his stocks in trust for decedent, an arrangement referred to as a “tontine” trust. Evidenced in the meeting’s minutes is “the intention that the sole possession and ownership of the stock remain within the three parties and that the survivor of the three have sole possession of all the outstanding and issued stock of the corporation.” Also, new stock certificates would be issued when one of the parties died, and these would be evenly split and distributed to the remaining parties, with each holding his share in trust for the other. Petitioner disputes the existence of this arrangement, and respondent’s pending Supreme Court case pertains to petitioner’s actions as executrix relating to decedent’s sixty shares.

A New York Will Lawyer said the Surrogate Court’s subject matter jurisdiction has steadily expanded throughout the twentieth century. The Court of Appeals held in a case involving two living parties (one being a fiduciary of a decedent’s estate) and an eviction proceeding, that, “for the Surrogate’s Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate”.

Published on: March 31, 2014

Court Rules on Case Where Multiple Will Documents Involved

by Stephen Bilkis

A New York Probate Lawyer said the subject of this Probate proceeding is the question of revocation of a six-page handwritten document, an alleged carbon copy of which has been offered for probate as the last will and testament of the decedent.

According to a Nassau County Will Contest lawyer, the decedent is an attorney, who died in May 1977. Thereafter, letters of administration were issued to the Public Administrator, County of Nassau, who received the keys to the decedent’s residence from a Nassau County police detective and made a thorough search of the residence.

A New York Will Lawyer said among the decedent’s personal papers the public administrator found a sealed envelope bearing the words “Copy of Deed to Lutheran Cemetery,” “Copy of Last Will and Testament ” and the signature of the decedent. On the back of the envelope, written across the flap was the signature of the decedent.

Published on: March 24, 2014

Court Decides Disposition of Real Estate in Estate Case

by Stephen Bilkis

This is an application by the surviving spouse of the decedent for an advance payment of her elective share and for an order providing for immediate possession of certain real estate property. By stipulation, the parties provided for payment of $2,500 monthly to the spouse for twelve months, subject to the outcome of a pending appeal of an order regarding her elective share. The question of possession of the Florida property and the additional issue concerning disclosure of the petitioner’s address were submitted for decision.

A New York Probate Lawyer said the man died, survived by his wife and three adult children by a prior marriage. The nominated executor petitioned for probate of an instrument and a codicil. The codicil provides in part that being that the deceased man’s lovely wife likes so very much his home in Florida, and which they both enjoyed so very much together, that she is hereby given at his direction, the right and privilege to live in that house as long as she shall live, or unless she shall marry again. Being that he has been most generous to her, the rights and privilege shall be withdrawn and abrogated if she should make a will contest with its several codicils. These several added codicils are all for her benefit.

A New York Will Lawyer said the spouse filed objections to probate of both the will and codicil. She subsequently filed amended objections along with a cross-petition for probate of an alleged codicil, in the event that the prior documents were admitted to probate. The instrument granted a life estate to the spouse without the inclusion of an in terrorem clause and without any limitation concerning remarriage.

Published on: March 13, 2014

Petitioner Moves for Summary Judgment

by Stephen Bilkis

A New York Probate Lawyer said in an action transferred to the court from Supreme Court, Nassau County, one of several defendants, a Home Loan corporation, moves the court for an order dismissing the complaint against it. Plaintiffs opposed such motion and cross-move for summary judgment dismissing the answer, or, in the alternative, striking its fourth and seventh affirmative defenses.

A New York Will Lawyer said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by decedent, who died intestate in July 1986. Her brother administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that he was the sole distributee and that the subject property vested in him immediately upon his sister’s death.

Manhattan Probate Lawyers said the distribute brother then died testate in June 1994. Herein petitioner was appointed the voluntary administrator of the brother’s estate. The court’s file contains original will which devises and bequeaths all of his property to his cousin. The latter died in August 2000. There was no deed executed from the estate of the decedent sister to the brother, nor was there a deed from the estate of the brother to the petitioner. Although the brother’s original will was filed in the court by petitioner incident to the voluntary administration of the estate of the brother, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the petitioner, the administrators of his estate, and claim to be his only distributees.

Published on: March 3, 2014

Court Rules on Case Involving a Terrorem Clause

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is a petition for the probate of an instrument dated March 11, 2008. Petitioner is the nominated executor. Respondents are children of decedent and children of a predeceased son. Also pending before the court is a proceeding by the nominated executor for the recovery of property alleged to be an asset of the estate (SCPA 2103). The examinations of the attorney-draftsman, the nominated executor, and the attesting witnesses have been completed.

A New York Will Lawyer said that, on this motion, respondents seek: (1) a stay of the probate proceeding pending conclusion of the SCPA 2103 proceeding; (2) a stay of the probate proceeding pending a construction of the in terrorem clause in the instrument offered for probate; (3) an order granting petitioner the right to depose the nominated successor executor prior to filing objections; and (4) an order granting petitioner the right to depose the attorney-draftsman of a prior instrument purporting to be the last will and testament of decedent, again, prior to the filing of objections.

A Nassau Estate Litigation Attorney said that, in support of that branch of the motion which seeks a stay of this proceeding pending a construction of the instrument offered for probate, petitioners allege that the in terrorem clause violates public policy. An issue as to whether a provision of a last will and testament violates public policy must be resolved by construction of the instrument to determine the testator’s intent and the effect of the provisions on the persons to be influenced. However, the court has no authority to construe a will before its admission to probate. That branch of the motion is therefore denied.

Published on: February 28, 2014

Court Determines Possible Violation of No Contest Clause in Will

by Stephen Bilkis

In this Probate action, a daughter of the decedent filed a motion to stay the entry of a decree admitting the propounded instrument to probate; for an extension of time to file objections; for leave to examine the proponent and for a construction of the effect of a no-contest clause contained in the instrument offered for probate.

A New York Probate Lawyer said that the instrument offered for probate contains a clause revoking any bequest to any beneficiary who opposed probate of the will, participated in actions to set aside or invalidate any of its provisions or who aided another in doing so. The movant requests that prior to a determination of her application to examine the proponent, the court construe the clause and determine whether the examination would be in violation of the no-contest clause. The court may not construe an instrument prior to its admission to probate as a valid will. While there may be a construction of a will in a probate proceeding, this must come only after probate has been decreed for the reason that until the instrument has been probated, there is nothing before the court to be construed. Although the court cannot reach a construction of the specific clause of the proposed instrument it may determine whether the examination of the proponent amounts to conduct permissible under the public policy declaration in EPTL 3–3.5 as conduct not in violation of any no-contest clause.

A New York Will Lawyer said aso called In terrorem or no-contest clause is operative according to its terms subject to the provisions which spell out with particularity the conduct by the beneficiary or other person which does not, as a matter of substantive law, constitute a breach of a no-contest condition in a will occasioning a forfeiture of a benefit under the will.

Published on: February 27, 2014

Petitioner Files Motion to Dismiss for Lack of Jurisdiction

by Stephen Bilkis

This is a motion to dismiss a petition for original probate for lack of jurisdiction, both as a matter of law in the exercise of the court’s discretion.

A New York Probate Lawyer said that decedent died in New Hampshire. Decedent was a non-resident of New York. The proponent-executrix, decedent’s widow, contends that decedent was and that she is a domiciliary of Vermont and that decedent was a citizen of the United States. The moving party, decedent’s daughter, contends that decedent was a domiciliary of Zurich, Switzerland and that he had dual nationality being a citizen both of the United States and of Switzerland. The moving party is herself a domiciliary of Spain.

A New York Will Lawyer is claimed that 90% of the assets of the estate are in a custody account in New York. There are some assets both in Switzerland and in Vermont including a house in Vermont and an apartment in Zurich. The propounded will was executed in New York and contains a clause directing that the construction of the will and the administration of the estate shall be governed by the laws of the State of New York. Two of the three subscribing witnesses to the will were stated in the will to be residents of New York and the third a resident of New Jersey. The substituted executors named in the will are apparently residents of New York. So far as appears, no probate proceeding or other proceeding for the administration of decedent’s estate is pending in Switzerland or Vermont or anywhere but in New York.

Published on: February 23, 2014

Petitioner Alleges Undue Influence Regarding Will Execution

by Stephen Bilkis

Decedent died in September 2005 at the age of 93, survived by two nephews, and the issue of a predeceased nephew. The 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to co-executors.

A New York Probate Lawyer said that in August 2006, a legatee of a small bequest discovered that decedent’s testamentary plan had been revised significantly from her penultimate will2 and, further, that decedent’s long-time attorney, had not supervised the 2005 Will’s execution. As decedent’s friend and investment advisor, the legatee had almost daily conversations with decedent and her home attendants in the months preceding execution of the 2005 Will.

A New York Will Lawyer said as he worked on an active trading floor, these telephone calls were recorded. The legatee recalled having had several conversations between March 2005 and May 2005, in the months after decedent had suffered a stroke and preceding execution of the 2005 Will, in which it seemed co-executors were assuming increased control over decedent’s finances and were pressuring decedent to change her will. Legatee requisitioned the tapes of those calls and brought the transcripts to the attention of the other co-executors. The transcripts, including conversations directly with decedent, depict behavior by co-executors that supports an allegation of undue influence.

Published on: February 22, 2014

Court Decides Settlement of Intermediate Account of the Executors

by Stephen Bilkis

In this proceeding for the settlement of the intermediate account of the executors the petition prays construction of provisions of the will which have created nine separate and distinct questions involving its interpretation.

A New York Probate Lawyer said that in Paragraph Third of her will, the testatrix made twenty-seven gifts to individuals and charitable institutions. Each of the bequests was described as consisting of ‘a sum equivalent to of my estate.’

‘It is conceded that as a general rule, absent some provision to the contrary, debts and administration expenses are deducted in computing the value of an estate when a fraction thereof has been bequeathed.

Published on: February 21, 2014

Petitioners Assert Fraud and Undue Influence Regarding Construction of Will

by Stephen Bilkis

There is offered for probate as decedent’s last will and testament an instrument in his own hand in the following text: “This is my will if I should die on this my trip to India You are my sol heiress.”

A New York Probate Lawyer said that the objections to the probate of this document were interposed by decedent’s widow and his brother. Their objections asserting fraud, undue influence and lack of testamentary capacity were withdrawn prior to the trial so that the only remaining issues as to the validity of the paper’s execution as a will are those asserting that the instrument was not duly published by decedent and that he did not request the witnesses to attest it.

A New York Will Lawyer said a motion was made by the widow for a summary judgment that the propounded paper was subject to a condition which never occurred and consequently the instrument never became effective as the decedent’s will. It was urged in support of this motion that the propounded paper was intended to be operative only in the event of decedent’s death on a particular trip to India and, inasmuch as he did not make a trip to India and died in July 1954 in a New York City hospital, the instrument should not be admitted to probate. The court ruled that the motion for denial of probate would be held in abeyance for determination with other issues upon the trial. The Court of Appeals affirmed the order of this court and held that the effect of the alleged condition upon the validity of the propounded paper should be determined on the trial of the probate or other hearing at which the parties would have an opportunity to develop extrinsic facts in aid of a construction of the testator’s language. In accordance with this holding the parties have been permitted to introduce evidence in support of their respective contentions as to the validity and effect of the propounded paper.