Queens

Published on: March 22, 2014

Court Analyzes Will Due to Allegations of Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said that the complainant moves to dismiss the objections filed contending that they are not legally cognizable. A deceased woman’s last will and testament nominated the accountant, her brother, as administrator of her estate and made him the beneficiary of the residuary that comprised 49% of the estate. The deceased’s son, who received a 35% share of the estate in trust, contested the will which was denied after the jury found the proponent had exercised undue influence. Preliminary letters then issued to the complainant were subsequently revoked.

A New York Will Lawyer said sources revealed that the first objection interposed to the account must be dismissed as legally insufficient. Further, no statute compels a fiduciary, prior to judicial settlement of his account, to make application to charge the estate with counsel fees acquired in offering the will for probate with the exception of an attorney-fiduciary who does not have at least one co-fiduciary who is not rendering legal services. Furthermore, an affidavit of services having been filed, the opponent’s claim that no documentation of the services rendered was presented lacks merit.

Queens Probate Attorneys said the center of the controversy revolves about the second objection which asserts the preliminary administrator has no right to recover commissions, or to charge the estate with counsel fees he incurred as the unsuccessful proponent.

Published on: March 19, 2014

Court Decides Case Regarding Accounting of Estate

by Stephen Bilkis

A New York Probate Lawyer said that, in this probate proceeding, counsel for the executor has objected to a request from the court’s accounting department for the payment of an additional fee of $625.00 pursuant to 22 NYCCR 207.20 [d] upon the executor’s required filing of his “List of Assets – Inventory”. The additional payment was requested based upon the inclusion in the completed form of real property located in North Carolina. The executor excluded that property from the gross value of the estate as reported on the probate petition (when the value based fee was initially calculated) because the form for that petition arguably required that improved and unimproved real property be listed only if it is located in New York State.

A New York Will Lawyer said the issue in this case is whether the court’s accounting department erred in requesting for the payment of an additional fee of $625.00 pursuant to 22 NYCCR 207.20 [d].

Pursuant to the language of SCPA 725, the Uniform Rules provide for the filing of the List of Assets – Inventory (22 NYCCR 207.20 [a]). That rule states in part: [a] The fiduciary or the attorney of record shall furnish the court a list of assets constituting the gross estate for tax purposes, but separately listing: [1] those assets that either were owned by the decedent individually including those in which the decedent has a partial interest, or were payable or transferrable to the decedent’s estate; and [2] those assets held in trust, those assets over which the decedent had the power to designate a beneficiary, jointly owned property, and all other non-probate property of the decedent. This list of assets shall be filed with the court by the latter to occur of the following events: Subsections [c] and [d] are also relevant to the analysis: [c] In the event such list of assets is not so filed, the court may refuse to issue certificates, may revoke the letters and may refuse to issue new ones until such list has been filed and the fees paid as provided in SCPA 2402. Failure to voluntarily file such list of assets may also constitute grounds for disallowance of commissions or legal fees. [d] If any additional filing fees are due, they shall be paid to the court at the time of the submission of any of the documents described in subdivision [a] of this section.

Published on: March 18, 2014

Court Decides Validity of Social Services Claim

by Stephen Bilkis

A New York Probate Lawyer said that, this is a proceeding brought by the executor of the estate of her father, to determine the validity of a claim made by the Nassau County Department of Social Services against the estate for public assistance rendered to wife of the decedent, from June 10, 1996 to October 3, 2002, while he was still alive. The couples had two children, who is mentally retarded. On August 11, 1972, the decedent was shot four times in what the executor described as a “bungled mob” assassination attempt. According to newspaper articles, the gunman mistook the decedent and three others for the mobsters he intended to kill. The decedent suffered serious injuries that left him unable to work for the remainder of his life. He began receiving Social Security disability benefits in January 1976 and, also received a Worker’s Compensation award.

A New York Will Lawyer said that the, wife was diagnosed with Alzheimer’s disease in 1992. On December 22, 1995, the decedent, as attorney-in-fact for his wife, executed an “Assignment to Petition the Court for Support Pursuant to 18 NYCRR 360-3.2.” It states that, in consideration of the medical assistance and care provided and to be provided to the wife by the New York State and Nassau County Departments of Social Services, she assigned to the Nassau County Department of Social Services (DSS) “so much of her right, title and interest to petition the court for support from my legally responsible spouse.” The decedent as the wife’s spouse, executed a “Declaration of the Legally Responsible Relative” on January 4, 1996. It states, “I, declare that I refuse to make my income and/or resources available for the cost of necessary medical care and services for the Medicaid applicant/recipient listed above.”

A Staten Island Probate Lawyer said the wife began receiving Medicaid on June 10, 1996 when she was placed in a nursing home. The record before the court includes a “Medical Assistance Institutionalized Spouse Budget Worksheet,” which was signed on March 11, 1997 by a representative of DSS. The worksheet bears the date of March 12, 1997 and lists the date of application as April 18, 1996.

Published on: March 10, 2014

Court Rules on Stipulation of Settlement

by Stephen Bilkis

In connection with a petition for probate, the court has before it for review a stipulation of settlement which was expertly negotiated and crafted by the guardian ad litem appointed to represent the interests of decedent’s sister.

A New York Probate Lawyer said that decedent, a resident of New Hyde Park, Nassau County, died in February 2009, leaving a last will and testament. She was survived by 19 statutory distributees, including four siblings and the 15 children of four predeceased siblings.

The propounded instrument leaves all of decedent’s property in three equal shares, two of which pass to decedent’s sisters. The will directs that the third equal share be paid over to decedent’s niece, who is the nominated executor and the petitioner herein. It makes no mention of decedent’s third surviving sister, who suffers from Alzheimer’s disease.

Published on: January 3, 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 Queens Probate Attorney 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: January 2, 2014

Court Discusses the Issuance of Premliminary Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said that, a motion and cross motion places in issue the rights of persons interested in this estate to obtain discovery from the preliminary executor pursuant to subdivision 4 of SCPA 1412. In 1963, based upon the recommendation of the Bennett Commission, the Legislature created a new type of letters called “preliminary letters testamentary” and a new fiduciary office called “preliminary executor”. SCPA 1412 describes in detail the powers and limitations of such office and the expeditious procedure by which such letters may be obtained. Before this new fiduciary office was created, when pressing matters of estate administration arose in the course of a delayed probate proceeding, the nominated fiduciary could be involved procedures obtain letters of temporary administration, a fiduciary office with rather limited powers.

A New York Will Lawyer said that, when it was originally enacted as SCA 153-a, as well as now, SCPA 1412, contained a subdivision which provided: “The court may limit preliminary letters testamentary to the receipt of assets specified in an order and may prohibit the collection of any other assets of the decedent, may make such directions as it deems proper and necessary in respect of the custody and preservation of all papers of the decedent and for making them available for examination and copying by any person or persons interested in the estate or may limit and restrict the person named in such letters in any manner that the court deems advisable for the effective protection of the rights of all persons who may have an interest in the estate of the decedent” (now subd. 4 of SCPA 1412).

A Queen Probate Attorney said the issue in this case is the construction of the phrase giving the court in issuing preliminary letters discretion “to make such directions as it deems proper and necessary in respect of the custody and preservation of all papers of the decedent and for making them available for examination and copying by any person or persons interested in the estate”.

Published on: December 26, 2013

Claimant Brings Suit Based on Oral Promise by Decedent

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application by the preliminary executors in a probate proceeding to dismiss a claim asserted against the estate. This claim to one-half of the estate was made by the claimant simultaneously with his opposition to a decree approving a compromise agreement which would dispose of a heavily litigated protracted will contest. Under several wills of the decedent, including this last will, he would be entitled to a $20,000 legacy. The claim is based on an alleged oral promise by the decedent to make a will which would give to the claimant one-half of the residuary estate in consideration of the claimant’s conveyance to the decedent of a one-half interest in a house on Fire Island. This house was sold on January 7, 1973 for $47,000. The claimant asserts that his interest in the estate is upwards of $500,000.

A New York Will Contest Lawyer said that, a bill of particulars served in support of the claim alleges that the agreement was partly oral and partly in writing. The writing is a will dated January 18, 1965 which was revoked by a later will. There were several later wills, and deeds affecting the Fire Island property. The first deed made on February 2, 1963 was given to the claimant as grantee by the decedent as grantor. That deed reserved to the decedent a life estate. The next deed dated January 16, 1965 was executed by the claimant, creating a joint tenancy with right of survivorship in himself and the decedent. The third deed is from the joint tenants as grantors to the decedent as grantee. The will relied upon by the claimant bequeaths to him one-half of the residuary estate after bequests of tangible personal property and eight general legacies of $5,000 each and another bequest relating to stock in a closed corporation.

The issue in this case is whether the claim should be dismissed on the ground that the claim is not maintainable because it is barred by the statute of frauds.

Published on: May 31, 2013

Petitioners Look for Power to Evict Tenants from Property

by Stephen Bilkis

The Facts of the Case:

On 30 December 2006, the decedent died a resident of Nassau County leaving a last will and testament dated 13 July 2006. On 19 March 2007, the will was admitted to probate and letters issued to A and B as co-executors and co-trustees. After making some specific bequests, the decedent left her residuary estate to her four daughters, A, B, C, and D, in equal shares; and placed C’s share in a Supplemental Needs Trust under her name created pursuant to Article Fourth of the will. Under the will, the trustees were given discretion in distributing income and principal to C; that at C’s death, the remainder of the trust, if any, will pass to C’s son, CC; and D is the named successor fiduciary. The estate contains approximately $125,000.00 in personal property and three homes, which are valued in the aggregate at $1,285,000.00.

Thereafter, a New York Probate Lawyer said five miscellaneous proceedings were filed with the court in connection with the estate administration and that of the trust. On 10 December 2008, some of the issues raised were resolved in a stipulation of partial settlement entered into by all the interested parties, viz: that A and B, as co-trustees of the supplemental needs trust, would enter into a contract for the purchase of property-two which C and CC agreed to use as their long-term primary residence; that C and CC, who were residing in decedent’s real property, property-one, would vacate that property and move to property-two; and that the fiduciaries are obliged to put property-one up for sale within 90 days after respondents move out. Pursuant to the agreement, the co-executors purchased property-two and made it available to respondents as of 16 March 2009. Nonetheless, respondents refused to move out of property-one, and the agreement does not specify a date by which they are required to do so.

Published on: December 21, 2012

Court Determines the Proximate Cause of Injuries

by Stephen Bilkis

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 New York Probate 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.

Queens Probate Lawyers said 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).

Published on: December 20, 2012

Court Decides Whether Determination and Notice of Violation is Null and Void

by Stephen Bilkis

The plaintiffs own 1 of 20 lots comprising a subdivision known as Estates at Brookview. As such, the plaintiffs are members of the Estates at Brookview Homeowner’s Association (hereinafter the Association) and subject to its bylaws and “Declaration of Restrictions, Covenants, and Easements” (hereinafter the Declaration). In the fall of 2004 the plaintiffs constructed a shed on their property. Upon inspection of the completed structure by the Town of Chester’s Building Inspector, the shed was approved and the plaintiffs were issued a certificate of compliance.

A New York Probate Lawyer said after complaints about the shed were received by the Board of Directors of the Association, the plaintiffs received a document entitled “Determination and Notice of Violation” (hereinafter the DNV), issued by the Board, advising them that their shed violated certain provisions of the Declaration. The plaintiffs contend that the Board lacked the authority to issue the DNV.

As a result, a New York Estate Litigation Lawyer said that, plaintiffs filed an action for summary judgment, declaring that the document entitled “Determination and Notice of Violation” issued by the Board of Directors of the Estates at Brookview Homeowner’s Association is null and void. A New York Estate Litigation Lawyer said that defendants filed a cross motion for summary judgment and for an award of an attorney’s fee pursuant to the Association’s bylaws and “Declaration of Restrictions, Covenants, and Easements.