New York City

Published on: February 13, 2014

The issue in this case is whether the restrictive provision that was placed in the probate decree should be removed.

by Stephen Bilkis

A New York Probate Lawyer said that, the decree admitting this testator’s will to probate restrained the executor from paying or satisfying any legacy or distributive share until further order of the Surrogate. The executor now moves to have such restriction removed. The facts essential to a decision are not in dispute. At the time of his death on January 2, 1964 the testator was an American citizen domiciled in Switzerland. His will, which was executed in New York on November 6, 1961, attempted to exercise a power of appointment granted to this testator by the will of his mother and bequeathed his entire residuary estate to his second wife. Article TENTH of the will reads as follows: ‘I direct that this will be submitted for probate in New York County, State of New York, United States of America, and that the provisions of this will shall be governed by the laws of the State of New York in accordance with section 47 of the New York Decedent Estate Law.’

A New York Will Lawyer said that, the testator’s first wife, as the general guardian of two infant children, interposed objections in the probate proceeding. One objection concerned the effectiveness of the quoted text of the will since it was the contention of the general guardian that the testator’s property must be disposed of in conformity with Swiss law under which the infant children would be entitled to shares of the estate as forced heirs of the testator. This objection was not ruled upon in the probate proceeding but, because of the objection, the restrictive provision was placed in the probate decree.

The issue in this case is whether the restrictive provision that was placed in the probate decree should be removed.

Published on: February 12, 2014

Court Decides Issue of Jurisdiction Between U.S. and British Honduras

by Stephen Bilkis

A New York Probate Lawyer said that, the Government of British Honduras, appearing specially, petitioned this court for permission to appear specially in the contested probate proceeding for the purpose of taking appropriate steps to assert its rights in that proceeding. It alleges that the decedent was domiciled in British Honduras at the time of death, and that the Government has been cited as a party to the probate proceeding in British Honduras ‘as an interested party on the ground that if the decedent were found to have died intestate, then his estate would belong to the Crown as bona vacantia (abandoned property)’. The Government of British Honduras asserts that it has the right to intervene in the probate proceeding in New York because, under the law of the decedent’s domicile, all of the decedent’s property would, in the event of intestacy, vest in the Crown as statutory distributee and heir.

A New York Will Lawyer said that, the petitioner has in effect been granted the right to appear specially and to move to assert its rights, because, the other parties to the proceedings having challenged the facts upon which the petition rested, the court placed the matter on its calendar for hearing. The Government of British Honduras appeared and was given full opportunity to present its claim of interest in this estate.

Long Island Probate Lawyers said the issue in this case is whether the Government of British Honduras has the right to intervene in the probate proceeding in New York because, under the law of the decedent’s domicile, all of the decedent’s property would, in the event of intestacy, vest in the Crown as statutory distributee and heir.

Published on: February 11, 2014

Court Looks at Validity of Will Pursuant to Sec. 22a of Decedent Estate Law

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, a resident of this county, died in Great Barrington, Massachusetts on July 27, 1959. An instrument executed by her in Massachusetts has been submitted for probate. The facts regarding its execution are undisputed. The instrument was written, upon instructions of the decedent, by a friend of forty years standing and signed by the decedent on April 13, 1959 but it was not witnessed. Subsequently and on July 20, 1959 certain additions were written in by another person at the request of the decedent. These consist of a legacy of $1,000 and a direction that all expenses are paid first. These additions appear below the signature of the decedent. On the same day three persons signed as witnesses after the decedent had acknowledged her signature and declared the paper to be her will. Their signatures appear below the aforementioned additions.

A New York Will Lawyer said that, it is alleged in the petition that decedent’s estate consists solely of personal property and that she left no living relatives. The special guardian for unknown distributees has filed objections to the probate of the instrument upon the ground that it was not signed by the decedent at the end thereof. The proponent has moved to strike out the objections and to admit the propounded instrument to probate.

A New York Will Lawyer said the issue in this case is whether the estate of the decedent should be admitted to probate.

Published on: February 11, 2014

Court Decides if Widow Can Seek and Order Under Sec 20 of Surrogates Court Act

by Stephen Bilkis

A New York Probate Lawyer said that, the petitioner, asserting a status as the widow of the deceased, seeks an order under section 20 of the Surrogate’s Court Act re-opening the decree admitting the will to probate. In support of her application she relies upon the omission of the respondent executors to cite her in the earlier proceeding. She admits it to be her purpose, in the event she is successful on this application, to relieve herself of her default in serving a notice of election to take against the will which was admitted to probate on September 24, 1952, an event of which she has been shown to have been fully cognizant though at the time she made no attempt to intervene in the proceeding.

A New York Estate Litigation Lawyer said that, the issue has been joined by the filing of an answer in which it is alleged that the petitioner and the deceased were never married and that she has voluntarily relinquished whatever rights she might have had in his estate by an instrument executed by her as a release together with a written agreement of settlement which terminated an action she had instituted against the executors in the Supreme Court for monies loaned to the deceased, for work, labor and services rendered, and for breach of an agreement allegedly requiring the respondents ‘to provide for plaintiff’s good care and support.’ She was represented in that action and in the negotiations for settlement by competent counsel of her own selection.

A New York Will Lawyer said that, the executors, pleading the agreement and release in bar, have moved for summary judgment dismissing the petition on the merits. The petitioner had previously filed her reply in which she had challenged the effectiveness of the instruments upon which the respondents rely. This being the state of the pleadings the court is called upon on this motion to decide as a matter of law whether the release and agreement would be sufficient in content and context to bar the petitioner from asserting rights to which she would be entitled were she in fact the widow of the deceased and if so, to determine whether an issue of fact exists in connection with the question as to whether the documents are nevertheless incapable of producing that result because of the circumstances surrounding their execution and exchange.

Published on: February 10, 2014

Petitioner Seeks Summary Judgment on Turnover Petition

by Stephen Bilkis

A New York Probate Lawyer said that, the administrator of the estate of the decedent, and petitioner in a turnover proceeding against respondent Companies, and law firm counsel to the Public Administrator of the County of New York, now seeks summary judgment and treble damages. Respondent cross-moves for summary judgment, seeking dismissal of the turnover petition and revocation of petitioner’s letters of estate administration.

A New York Will Lawyer said that, the decedent, a domiciliary of Brazil, died February 11, 2000, survived by no known distributee. On June 27, 2002, the administrator of the estate proffered decedent’s one-page handwritten will dated July 25, 1998. The will bequeaths decedent’s “holdings at the Citibank in New York” to him. During the pendency of the administrator’s probate proceeding, respondent company obtained probate in Brazil of a later will, dated March 12, 1999. On March 11, 2003, the Brazilian State of Bahia, Judiciary Power, 1st Family, Successions & Orphans Court appointed respondent the executor of decedent’s March 12, 1999 will. Article FIRST (of a certified translation of a court certified copy) of that later will provides: “That this was the only and exclusive testament, and any previous act was hereby revoked.”

Westchester County Probate Lawyers said that, thereafter, CIS, presented with certified translations of: (1) decedent’s death certificate; (2) the March 11, 2003 certificate issued by the Brazilian State of Bahia, Judiciary Power, 1st Family, Successions & Orphans Court to respondent, as executor of decedent’s March 12, 1999 will; and (3) the March 12, 1999 will itself, transferred decedent’s investment account, which the administrator estimates at $70,000 to the respondent, as executor of decedent’s will.

Published on: January 5, 2014

Case Issue is Whether Court Erred in Denying Probate of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, the decree denying probate to the propounded instrument reserved for determination by supplemental decree all applications for costs, allowances, and fees. The attorney for petitioner who claims to be the sole statutory distributee of the decedent, asks the court to fix his reasonable compensation and costs and to direct payment from the general estate. The attorney did not proceed in the manner required by section 231-a, Surrogate’s Court Act, and hence his application must be based upon section 278. He is not entitled to costs or an allowance under that section. Even if he had proceeded under section 231-a, he would not be entitled to have his fee paid out of the general estate for he rendered no services of benefit to the estate. His services were solely for the benefit of his individual client.

A New York Will Lawyer said that, the position of the client was, as the attorney states, as anomalous one. A 1918 will has been admitted to probate in British Honduras ‘until a later Will be found’. A 1955 instrument was offered for probate here as a lost will. It was to the interest of the alleged distributee that the 1955 instrument be proved to have been duly executed (thus revoking the 1918 will), but that it be denied probate on the ground that it was not in existence at the time of the decedent’s death. The attorney was thus partly on one side in the contested probate proceeding and partly on the other side. He accordingly filed no pleading and took no active part in the contest. Before submission of the case to the jury he made motions appropriate to his client’s interests. He was otherwise quiescent, hopeful that the contending factions would destroy each other. The verdict of the jury was against the proponent on the question of the making of the will.

A Manhattan Probate Lawyers said that, the attorney’s present contention that he represents a party who has succeeded in the contest is contrary to the record herein. He attempted to serve only his own client’s interests, he rendered no services of benefit to the estate and he was not successful insofar as his client’s cause is concerned. There is no basis for allowing him costs, compensation or allowance out of this estate. The attorney for the proponent in the probate proceeding request an allowance for their services. In prohibiting an award of costs to an unsuccessful contestant in a probate proceeding, section 278 explicitly excepts from that prohibition one ‘named as an executor in a paper propounded by him in good faith’, and it further affirmatively provides that ‘where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.’

Published on: December 31, 2013

Court Rules on Will Construction

by Stephen Bilkis

In this Estate Litigation case, the executor of the decedent’s estate has instituted this proceeding for construction of the decedent’s will.

A New York Probate Lawyer said that the testator, a resident of Paris, France, albeit a citizen of the United States died in March 1966. The value of his gross estate located in New York County at the time of his death was approximately $88,000. In addition there must be included in his estate for estate tax purposes a trust valued at approximately $2,500,000 over which he had a general testamentary power of appointment.

The power of appointment was derived by the decedent from his wife, also a resident of France and a citizen of the United States who died in April 1963 leaving a will which was admitted to probate in this court. A New York Will Lawyer said under her will a marital deduction trust was created of one-half of her residuary estate with the income thereof payable to the decedent for life.

Published on: June 27, 2013

Court Hears Venue Challenge in Will Contest Case

by Stephen Bilkis

On 16 July 1983, a decedent died leaving a will. He was survived by several children, one of whom receives less than his distributive share in the estate under the propounded will.

A New York Probate Lawyer said that on 8 September 1983, the probate petition, a will contest proceeding, was filed and on 9 November 1983, jurisdiction was complete. On 14 December 1983, preliminary letters were issued to the nominated fiduciary on consent. On 3 January 1984, objections were filed by the partially disinherited son. On 6 February 1984, examinations before trial were complete. Approximately 10 months after the filing of the objections, the partially disinherited son moves to dismiss the petition on the ground that the decedent was not domiciled in Nassau County but in Bronx County.

As provided for under Article 2 of the Surrogate’s Court Procedure Act, jurisdiction over domiciliaries of the State of New York rests solely with the county where the decedent died domiciled.

Published on: January 24, 2013

Landlord Commences Nonpayment Summary Proceeding Against Tenants

by Stephen Bilkis

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

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

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

Published on: December 29, 2012

Court Looks at Whether Defendant is Liable For Negligence

by Stephen Bilkis

A New York Probate Lawyer said in an action to recover damages for personal injuries, the plaintiffs allegedly sustained personal injuries when the limb of a tree fell onto the motor vehicle in which they were traveling, in the defendant Village of Great Neck Estates. Thereafter, a Nassau Estate Litigation Lawyer said that, the plaintiffs commenced this action, alleging, inter alia, that the accident and their resulting injuries were proximately caused by the negligence of the Defendant County of Nassau in failing, among other things, to remove a dead and/or diseased tree. A Nassau Estate Litigation Lawyer said that, the defendant County subsequently cross-moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the plaintiffs had not complied with the prior written notice requirement set forth in section 12-4.0 (e) of the Administrative Code of Nassau County and that it lacked both actual and constructive notice of the purported hazard. A Nassau Estate Litigation Lawyer said that, the defendant County additionally sought to dismiss the complaint insofar as asserted by the plaintiff Lakeysha Agugbo on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court properly denied the County’s cross motion and held that: In an action to recover damages for personal injuries, the defendant County of Nassau appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered February 21, 2007, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

The issue in this case is whether defendant is liable for damages, for the injuries sustained by the plaintiff on the ground that the resulting injuries were proximately caused by the negligence of the Defendant County in failing, among other things, to remove a dead and/or diseased tree.

The Court in deciding the case said that, Prior written notice statutes apply to “actual physical defects in the surface of a street, highway or bridge of a kind which do not immediately come to the attention of the town officers unless they are given actual notice thereof”. Accordingly, the Court held that, the prior written notice requirement invoked by the County does not apply to the facts of this case. Furthermore, the County failed to establish a prima facie case that it lacked actual and constructive notice of the alleged hazard in this case. Lastly, the Court held that, the plaintiff Lakeysha Agugbo was not required to establish that she sustained a serious injury in the subject accident as she did not allege any negligence on the part of the County in the use or operation of a motor vehicle. Instead, the allegations against the County related to premises liability. Therefore, the Court held that, the County does not qualify as a covered person within the meaning of Insurance Law § 5102 (j) and § 5104 (a).