Suffolk County

Published on: March 21, 2014

Petitioner Alleges Undue Influence Regarding Will Execution

by Stephen Bilkis

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, the daughter of the decedent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated June 25, 2007 to probate. The objectant, who is the son of the decedent, cross-moves for summary judgment denying probate to the propounded will dated June 25, 2007.

A New York Will Lawyer said the decedent, died on August 2, 2008, survived by four children. The decedent’s wife, predeceased the decedent, as did his daughter. The will offered for probate provides a $25,000.00 bequest to his son; the remaining amount of a private mortgage held by decedent for property located at 225 Hillside Avenue, Douglaston, New York is to be divided evenly among his daughters and the residuary is to be divided evenly among them. The will nominates the proponent as executor.

A Westchester County Probate Lawyers said that, the objectant has interposed the following objections to the propounded instrument: “1. the instrument propounded is not the last will and testament of the decedent. 2. The instrument is not the last will and testament of the decedent in that the signature affixed thereto, alleged to be the signature of decedent, is not, in fact, decedent’s signature. 3. The instrument offered for probate was not duly executed by the decedent in that he did not affix his signature at the end thereof, nor was such signature made by the decedent in the presence of each of the attesting witnesses, or acknowledged by him to have been made, to each of the attesting witnesses, nor did the decedent declare the instrument to be his last will, nor did at least two attesting witnesses each sign their names to said instrument as a witness at the end thereof at the request of the decedent and in his presence. 4. The instrument offered for probate was not duly executed by the decedent in that he did not publish the same as her will in the presence of the witnesses whose names are subscribed thereto and that the said alleged witnesses did not sign as witnesses in his presence or in the presence of each other. 5. The instrument offered for probate was not freely and voluntarily made by the decedent. Upon information and belief, the instrument, and the signature thereto, was obtained and procured by fraud, duress and/or undue influence practiced upon the decedent by the proponent or by other persons acting in concert or privity with her whose names are presently unknown to respondent. 6. That on the 25th day of June, 2007, the said decedent, was not of sound mind or memory and was not mentally capable of making a will. 7. Said instrument purported to be the last will and testament of the decedent, was revoked, because decedent executed a second original will on the same day he executed the instrument being offered in this probate proceeding, and only said instrument has been produced and offered for probate.”

Published on: March 16, 2014

Court Discusses Reasonable Attorney’s Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, submitted for decision in this accounting proceeding are the issues of (i) attorney’s fees; (ii) accountant’s fees; and (iii) commissions. The decedent, died on February 26, 1996, a resident of Nassau County, leaving a will dated March 9, 1984. The will was admitted to probate by decree dated May 18, 2004, and letters of administration issued to the Public Administrator on the same date. The summary statement shows charges to the accounting party of $289,650.33. This is the Public Administrator’s first and final accounting. The decedent’s will, after the payment of a $2,000.00 bequest to Mercy Hospital, Rockville Centre, New York, directs that the decedent’s residuary estate be paid to the Diabetes Association of New York, Inc. The Attorney General of the State of New York has appeared in this proceeding.

The issue in this case is whether the accounting matters in this probate proceeding should be granted.

A New York Will Lawyer said with respect to the issue of attorneys’ fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: March 14, 2014

Court Hears Case Regarding Probate with Foreclosure Involved

by Stephen Bilkis

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 Probate 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.

A New York Will Lawyer 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 9, 2014

Petitioner Claims Fiduciary is Unable to Serve

by Stephen Bilkis

A New York Probate Lawyer said the decedent died in January 2008 in Moscow, Russia, leaving a purported will which nominates the decedent’s attorney, and respondent, as executors. Preliminary letters testamentary issued to them by decree of this court in April 2008. The purported will bequeaths the decedent’s 75% interest in the Corporation to Petitioner, who allegedly owns the other 25% interest in the Corporation. The lawyer claims that he is the president of the Corporation and has been so since its formation in 2005. At the time of the decedent’s death, the Corporation owned real property and two automobiles. The purported will also include a $300,000.00 cash bequest to the respondent.

A New York Will Lawyer said that Petitioner is one of three women who were allegedly married to the decedent at the time of his death. She claims she married the decedent in December 2007, after his divorce from a former spouse became finalized in September 2007. The former spouse has filed suit in Russia attempting to invalidate the marriage between the petitioner and the decedent on the grounds that the divorce was invalid. The parties disagree over the status of the Russian proceeding. The preliminary executors contend that the Russian courts have determined that the divorce was not valid and that the determination is final. Both of them have filed a Notice of Right of Election in the probate proceeding.

Suffolk County Probate Lawyers said the petitioner has filed objections to the will, limited to the appointment of the fiduciaries. A guardian ad litem was appointed for the decedent’s child, who is eight years old. The child lives with the petitioner at the Peachtree Lane property. The guardian ad litem has filed his report wherein he has stated that he will not be filing objections to the purported will pursuant to a stipulation of settlement. Pursuant to the terms of that stipulation, the lawyer has agreed to assign to the son one-half of whatever she ultimately receives under the will. The court has authorized the guardian ad litem to sign the stipulation on behalf of his ward.

Published on: March 4, 2014

Court Discusses Case Involving In Terrorem Clause

by Stephen Bilkis

A New York Probate Lawyer said a petition for the probate of an instrument dated 11 March 2008 was filed by the nominated executor before the court along with the recovery of property alleged to be an asset of the estate pursuant to SCPA 2103.

A New York Will Lawyer said the parties are: petitioner, the nominated executor; and, respondents, the children of decedent and children of a predeceased son.

The respondents seek: a stay of the probate proceeding pending conclusion of the SCPA 2103 proceeding; a stay of the probate proceeding pending a construction of the in terrorem clause in the instrument offered for probate; an order granting petitioner the right to depose the nominated successor executor prior to filing objections; and, an order granting petitioner the right to depose the nominated successor executor and attorney-draftsman of a prior instrument purporting to be the last will and testament of decedent, again, prior to the filing of objections.

Published on: March 1, 2014

Court Discusses Case Regarding CPLR 3101 (a)(4)

by Stephen Bilkis

A New York Estate Lawyer said that, in this probate proceeding the contestants move pursuant to CPLR 3101(a)(4) for an order to examine on oral questions non-parties and to direct them to produce certain books and records relating to the decedent. The non-parties are the Nassau County Police Department and the Nassau County Social Services Department. The relief sought is based on an affidavit prepared by the contestants’ attorney, wherein he states that the Nassau County Police Department and the Nassau County Social Services Department are in possession of information which will aid him in the preparation for trial.

A New York Will Lawyer said that, the Nassau County Police Department states that there is only one police blotter relating to the decedent and that it has attached a copy of same to its reply. It states that there are no other police blotters. The movants also request the examination of the lieutenant. The Police Department, in its reply, indicates that there is an Inspector but that it does not know specifically what information he would have. The proponent argues that the contestants have failed to show special circumstances for the examinations. Both the proponent and the Nassau County Social Services Department object to the production of records held by the Social Services Department and to the examination of any of its employees because they contend that such records are confidential and are not discoverable.

Westchester County Probate Lawyers said the issue in this case is whether proceeding the motion pursuant to CPLR 3101(a)(4) for an order to examine on oral questions non-parties and to direct them to produce certain books and records relating to the decedent should be granted.

Published on: January 8, 2014

Plaintiff Claims In Rem Proceeding was Defective Due to Proceedural Errors

by Stephen Bilkis

A Probate Lawyer said this case involves a poor estate administration. Plaintiff sues to foreclose a mortgage on certain property because of defaults in the payment of installments of interest by the mortgagor, XYZ Corp. The City of New York, as a party defendant, claims unencumbered title to the subject premises as the result of an In Rem foreclosure which was instituted in 1975 for tax arrears. Plaintiff alleges that the City of New York’s claim of title is a nullity and therefore that such claim cannot defeat this action to foreclose the mortgage.

The facts of the case are as follows:

On March 22, 1966, ABCD Bank became the owner and holder of a mortgage covering certain vacant and unimproved land located at Richmond Avenue and Drumgoole Road on Staten Island, New York.

Published on: January 7, 2014

Wrongful Death Damages are Limited by Estates Powers and Trusts Law

by Stephen Bilkis

An Probate Lawyer said by appeal by the plaintiffs in an action to recover damages for conscious pain and suffering and wrongful death, from so much of an order of the Supreme Court, entered October 6, 2000, in Richmond County, as (1) granted that branch of the defendants’ motion which was for partial summary judgment dismissing the cause of action of Plaintiff MC to recover damages for the wrongful death of her brother, M, and (2) denied their motion for partial summary judgment, in effect, declaring that MC is permitted to assert a cause of action to recover damages for wrongful death.

An Estate Lawyer said it is well settled that the damages recoverable in a wrongful death action are limited by the Estates Powers and Trusts Law (EPTL) to fair and just compensation for the pecuniary injuries suffered by the survivors of a decedent for whose benefit an action is commenced. These compensable damages include the loss of support, services, voluntary assistance, the prospect of inheritance, and the medical and funeral expenses. The question presented here is whether the beneficiary of a renunciation to the proceeds of a wrongful death action, as the next distributee in line, is limited in her recovery to the amount of pecuniary loss suffered by the renouncing party, or, whether, as the now sole distributee, she is entitled to recover for her own pecuniary losses resulting from the decedent’s death.

On July 2, 1998, M, a 26-year-old off-duty New York City Police Officer, died in a collision between his motorcycle and a motor vehicle owned by the defendant G, and operated by the defendant J. At the time of his death, the decedent was survived by his mother, D, and his 22-year-old sister, MC. The decedent died intestate.

Published on: January 1, 2014

Decedent’s Widow Seeks to Revoke Preliminary Letters Testimentary

by Stephen Bilkis

A New York Probate Lawyer said that, in the pending probate proceeding, the decedent’s widow has sought to revoke the preliminary letters testamentary issued to the decedent’s sisters, the nominated executrices under the will, and to disqualify the sisters from appointment as executrices. The sisters have questioned the status of the widow and have sought a construction of the decedent’s will. The widow has cross-moved for summary judgment and for an accounting. The parties are also disputing the ownership of the contents of the decedent’s safe deposit box. A hearing was held with respect to the issues of the widow’s status and the ownership of the safe deposit box contents.

A New York Will Lawyer said that, the decedent died on May 20, 1980, at eighty years of age. He left a will, dated January 19, 1973, which has been offered for probate. The decedent’s will provides a bequest to his wife, of “all my furniture, furnishings, automobiles and all my other household goods and effects.” The will then give a $2,500 legacy to the decedent’s brother, and gives all of the decedent’s “jewelry and articles of personal adornment”, in equal shares, to the decedent’s sisters. The will then provide as follows: “SIXTH: I give and bequeath to my wife, if she survives me, such part of my estate as my wife would have received had I died intestate domiciled in the State of New York. In the event that my wife, shall die with me in a common accident or disaster, or under such circumstances as to make it impossible or difficult to determine which of us died first, or within sixty (60) days after my death, I direct that my wife shall be conclusively deemed not to have survived me. “SEVENTH: In the event that my wife, shall predecease me, or shall be deemed not to have survived me in accordance with the provisions of paragraph “Sixth”, all property, of all kinds, wherever situated, belonging to me at the time of my death, shall pass in accordance with the provisions of paragraph “Eighth”. “EIGHTH: All the rest, residue and remainder of the property which I own at my death I devise and bequeath to my sisters, or the survivor. If neither of said sisters of mine shall survive me, I devise and bequeath my residuary estate to my brother.”

A Westchester County Probate Lawyer said that, the decedent’s two sisters are named as executrixes under Article NINTH of the will. The proof adduced at the hearing established the following facts concerning the status of the decedent’s wife who claims to be the decedent’s widow. The decedent married his wife on September 10, 1963 in Greenwich, Connecticut and a valid marriage certificate is in evidence. The decedent and his wife lived together as husband and wife continuously from the date of their marriage until the decedent’s death in 1980. The decedent had been married twice before. The second marriage ended with the death of the wife in 1960. The first marriage terminated by divorce decree dated January 18, 1943 issued by the Supreme Court, County and State of New York which provided that:

Published on: December 23, 2013

Counsel Tries to Withdraw from Guardianship Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that, this motion to withdraw as counsel raises serious and important issues about the obligations of the court and of counsel when it appears that a client who is a defendant in a civil action lacks capacity to assist or participate in the defense of that action. Movant represents defendant in an action initially brought in Supreme Court, New York County, by her now-deceased mother. Following the mother’s death, her son, and brother, preliminary executor of the deceased’s estate, was substituted as plaintiff. While there are 11 separate causes of action, the common factual background involves claims that, while living with the deceased’s apartment, the movant engaged in a long course of harassment, threats and mistreatment of her mother that ended only when she was arrested and convicted for an assault on her mother resulting in the latter’s broken arm. Subsequent criminal charges against her, for allegedly soliciting her brother’s murder, were dismissed.

A New York Will Lawyer said that, after various proceedings in Supreme Court, during which the movant was first represented by the coundel, and then by another counsel the case was transferred to this court by order dated August 23, 2007. Since that time, as the case moved toward trial, the movant has gone through four separate sets of counsel. She was initially represented by the Law Offices; on January 15, 2008 and February 25, 2008.

In April 2008, the movant retained an attorney who had previously been employed at the Felder firm. The retainer agreement anticipated that it would secure the services of trial counsel, and in May 2008, after interviewing several firms, he was successful in matching with the law firm. Almost literally on the eve of trial, that firm sought an adjournment which was vigorously opposed by the counsel. The motion was granted, and the trial was adjourned to August 4, 2008, marked final against defendant. On July 18, the counsel moved for leave to withdraw on the grounds, inter alia, that “it has engaged in such conduct which renders it unreasonably difficult for to carry out its employment effectively” pursuant to DR 2-110 of the Code of Professional Responsibility. In support of their motion, they supplied an extensive in camera affidavit detailing issues and difficulties in their representation of the movant.