Probate & Estate Litigation

Published on: November 1, 2021

Court found no undue influence where the decedent’s testamentary plan is a natural progression. Probate Proceeding, Estate of Dorris (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

On May 21, 2017, at age 86, decedent E. Lowell Dorris passed away testate. He was survived by 4 nieces and a nephew. However, in his will, he named Luis Freddy Molano as his sole beneficiary. The value of the estate was around $350,000. The decedent’s four nieces initiated a will contest, alleging undue influence. Benjamin Robinson, the executor and also the attorney who drafted the will, requested that the court dismiss the objection of the nieces.

A court will not allow a will that was made under undue influence to be probated. Thus, if the nieces prevailed and the will was found to be invalid, the court would either probate a prior valid will or the court would declare the decedent to be intestate. If the decedent is intestate and the nieces are the decedent’s intestate heirs, the nieces would share in the decedent’s estate.

Undue influence means that the testator drafted a will because someone illegally influenced them to do so. In other words, the terms of the will do not reflect the wishes of the testator, but the wishes of the influencer. The following circumstances tend to show the existence of undue influence:

Published on: July 1, 2021

Court considered whether after-acquired assets must pass by intestacy. In re Estate of Keough, 2021 NY Slip Op 3948 (N.Y. App. Div. 2021)

by Stephen Bilkis

In this case, the Appellate Division considered whether assets acquired by a testator’s estate after the death of the testator should be distributed pursuant to the terms of a will or by the laws of intestate succession.

The purpose of a creating a will is to enable the testator to determine who gets their property after they pass away. Wills can be very general, e.g. leaving all property to one person such as spouse. Or, they can be very detailed, e.g. leaving specific property such as real estate, jewelry, or cash to different people. The common thread is that the testator’s intent is to leave their property, meaning whatever they have at the time of their death, to other people.

There are instances, however, when the decedent acquires property after their death. Because they had no knowledge of the property prior to their death, and certainly not at the time they made their will, they could not have intended to dispose of that property in their will.

Published on: June 28, 2021

Court rules that proof is required to establish joint bank account right of survivorship- In re Najjar, 2021 NY Slip Op 3777 (N.Y. App. Div. 2021)

by Stephen Bilkis

In this case, the Supreme Court of New York considered whether a joint bank account is estate property. It is commonly believed that with a joint bank account there is always the right of survivorship. This would mean that when one of the joint owners passes away, the proceeds of a joint bank account bypasses probate and automatically goes to the remaining joint owner. Under New York law, this is not the case.

In In re Najjar, the decedent and the respondent were joint owners of 4 bank accounts. The petitioner initiated estate litigation because she felt that money in the bank accounts was the property of the decedent alone and, upon her death, became the property of the decedent’ estate. The petition sought a declaration that the money in the joint bank accounts property belonged to the estate. Further, because the petition was also a co-executor of the decedent’s estate, the petitioner accused the respondent of unjust enrichment and breach of fiduciary duty. In response, the respondent sought summary judgment declaring that as the joint owner of the accounts, she was entitled to all of the money.

Under New York law, upon the death of one of the owners, ownership of the joint bank account does not automatically remain with the surviving owner. New York banking law states that a joint bank account creates a joint tenancy with right of survivorship only when the signature card for the account indicates the parties intended the right of survivorship to apply. Banking Law § 675 (a). In Najjar, the signature card did not have the right of survivorship designation. Thus, the respondent was not able to establish that under Banking Law § 675 there existed a statutory presumption of the survivorship.

Published on: June 1, 2021

Assets awarded from a wrongful death are not subject to a decedent’s creditors. In re Mcmillan-Hoyte, 2021 NY Slip Op 21090 (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

Estate administration has two main goals. One goal is to distribute the assets of a decedent according to the terms of their will. If there is no will, assets are distributed according to the law of intestate succession. The other goal is to pay the decedent’s debts as well as expenses related to estate administration. These two goals can be at odds with each other, particularly if there are not enough assets in the estate to pay all of the debts and also leave the beneficiaries and heirs with much or anything at all.

While the testator’s goal may have been to provide for their family or other beneficiaries, the law generally puts the interests of creditors ahead of the interests of beneficiaries and heirs. Creditors are paid first according to a statutory order of priority. Beneficiaries and heirs receive distributions only if there are assets left over in the estate after creditors are paid and after expenses of administrations are paid.

There are potentially several different types of debts owed by a decedent at the time of their death or expenses incurred during administration. Under SCPA § 1811(1), debt must be paid according to the following order of priority.

Published on: April 26, 2021

Court suspended administrators due to wasting assets. In re Steward, 2021 NY Slip Op 2395 (N.Y. App. Div. 2021)

by Stephen Bilkis

The administrator of an estate is a fiduciary. As such, they are held to a high standard of conduct. They must perform their responsibilities with care and make the interests of the estate a top priority. They must be trustworthy and must not self-deal. If an administrator violates their duty of care, their actions can be challenged in court. If the court concludes that the administrator was in breach of their fiduciary duty, potential consequences include reversal of the problematic transaction, suspension, or removal.

In In re Seward, on April 2, 2001, the decedent’s will was admitted to probate and letters of administration were issued appointing co-administrators. Nearly 20 years later, in September 2018, a petition was filed to revoke the letters of administration, to suspend the administrators as fiduciaries, and to appoint a new administrator. The petitioners alleged that the administrators had allowed the estate to languish for nearly 20 years. Further, the petition alleged that one of the administrators was acting against the interests of the estate.

New York law provides that the Surrogate’s Court can suspend or revoke letters issued to an estate administrator or other fiduciary. Reasons for suspending or revoking letters include evidence that the fiduciary wasted or misapplied assets, damaged estate property, removed property without approval, or failed to follow an order of the court. SCPA 711

Published on: March 15, 2021

Father who failed to support child is not an intestate heir of child. In re Lee, 2021 NY Slip Op 30984(U) (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

When a person dies without a will, they would have died intestate. When this happens, their estate is distributed according to New York’s law of intestate succession to those who are considered the decedent’s next of kin. Typically, this means that the decedent’s surviving spouse and children would inherit. In the absence of either, the decedent’s parents would inherit.

Because minors do not have the capacity to execute wills, when a minor passes away, their parents are typically first in line to inherit unless they are disqualified. Under New York law, on petition, a parent can be disqualified from inheriting if they failed to support the child. Under Family Law Act § 413, parents have an obligation to support their children.

In the case of In re Lee, the decedent was 14-years-old when she died by suicide. She left an estate. It is unclear how much her estate was worth or how the decedent received the property in her estate. She was survived by her divorced parents. Her mother, the custodial parents, was appointed the administrator of the decedent’s estate. The mother filed a disqualification petition to prevent the decedent’s father from being named an intestate heir and inheriting from the decedent’s estate. The father opposed the disqualification petition on the ground that he was unable to pay more support than he did.

Published on: March 1, 2021

Medical records raise questions of the reliability of witness testimony in a testamentary capacity case. In re Ramirez, 68 Misc.3d 1207(A) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

Under New York law, for a will to be valid, the person making the will, known as the testator, must have been of “sound mind and memory” at the time the will was executed. Testamentary capacity refers to the mental ability of the testator to understand the meaning and impact of signing a will.

In In re Ramirez, the will of decedent Ulysses Ramirez was submitted for probate by his surviving spouse, Francesca. Francesca was Ulysses’ fourth wife. He was also survived by 2 adults sons from prior marriages, David and Mikhail. The decedent died on April 23, 2018, less than a year after he met Francesca. At the time he met Francesca, he was being treated for terminal prostate cancer. About 7 months after he met Francesca, Ulysses left the home he was living in with Mikhail and moved in with Francesca. Francesca and Ulysses were married in December 2017. He executed a new will on April 14, 2018, leaving all his property to Francesca and naming her the executor. The estate included his condominium where his son Mikhail lived, worth around $750,000. He died shortly thereafter. A will contest was initiated based on a number of reasons, including lack of testimony capacity.

The objectors cited several irregularities surrounding the execution of the new will. The will was prepared based by Francesca’s personal attorney who never met or spoke with Ulysses and who lived 350 miles away. The attorney drafted the will and a power of attorney based on the instructions from Francesca that she provided via text messages. Francesca’s neighbor, Karen, and her neighbor’s son, Alexander, were the witnesses.

Published on: February 1, 2021

Father who failed to support child is not an intestate heir of child. Matter of Gonzalez, 196 Misc.2d 984 (N.Y. Surr. Ct. 2003)

by Stephen Bilkis

A last will and testament allows a testator to specific who will receive their property upon death. It is an effective way to ensure you’re your property goes to who you want to receive it. However, many people do not leave wills, dying intestate. As result, New York’s law of intestate succession applies and dictates who gets the property in the decedent’s estate. The surviving spouse and children, if any, would be entitled to inherit. In the absence of either, the decedent’s parents would be next in line to inherit, followed by siblings.

In Gonzalez, the 27-year-old decedent died in the World Trade Center on September 11, 2001. She was survived by her father, sister, and brother. The brother and sister applied for letters of administration. Separately, the father did as well. The brother and sister petitioned the court for summary judgment granting their petition for the issuance of letters of administration. Their request for summary judgment also requested that the court dismissed the decedent’s father’s petition despite the fact that the father was the decedent’s presumptive distributee.

The petitioners argued that the father is disqualified from inheriting because he failed to or refused to provide for her or that he abandoned her. As a result, under EPTL 4-1.1 her estate should be distributed as if the father had predeceased the decedent. That would mean that the petitioners would be her distributees.

Published on: January 4, 2021

Claim against estate dismissed for jurisdictional reasons- Dubois v. Beaury, 1:20-CV-86 (FJS/CFH) (N.D.N.Y. Nov. 30, 2020)

by Stephen Bilkis

In this case, the United States District Court, N.D. New York considered whether the plaintiff could proceed with a lawsuit against a decedent’s estate. The decedent had lived in New York State for many decades and had even served as the Superintendent of the Division of State Police. However, the decedent died in Conyers, Georgia in May 2019 and had been a resident of Georgia since 2012. Despite this, plaintiff filed a lawsuit in New York against the decedent’s estate.

Under New York law, an estate is not an entity that can be sued. Any action against an estate must be brought against the person or entity named as administrator of the estate. At the time of the lawsuit, no one had been appointed to serve as administrator of the decedent’s estate.

The plaintiff sought to appoint a public administrator of the decedent’s estate. Under N.Y. Surr. Ct. Proc. Act Law § 1002(1)), in case of intestate estates, New York allows any interested party to petition the court to grant letters of administration to the party named in the petition. Even though the widow of the decedent had the right to be appointed administrator, she has not sought such appointment and seemed to indicate that she did not wish to be appointed. The plaintiff pointed out that under the New York Surrogate’s Court Procedure Act, a public administrator can be appointed if no one who had a greater right to be appointed is available or willing to serve as administrator.

Published on: July 27, 2020

Court concluded that no undue influence existed. Kotsones v. Kreopolides, 185 A.D.3d 1473 (N.Y. App. Div. 2020)

by Stephen Bilkis

The proponents of the will are children of the decedent. When they sought to have the decedent’s will admitted to probate, an objection was filed on the grounds that the will had been procured by the proponent’s exerting undue influence over the decedent.

Undue influence exists when someone uses their position of trust with respect to a testator to illegally influence the testator to create a will they would not have otherwise made. Oftentimes undue influence occurs when the testator is vulnerable due to failing physical health or mental decline. In almost every case, the person who exerts the undue influence is a position of trust with respect to the testator such as being their caregiver or financial advisor. In fact, in Kotsones, the court cites Blase v. Blase, 148 A.D.3d 1777 (2017) by noting that it has been established that “where there was a confidential or fiduciary relationship between the beneficiary and the decedent, [a]n inference of undue influence arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction.”

The court noted that for a relationship to be confidential, there must be inequality in the relationship as well as a controlling influence. In other words, for there to be a confidential relationship that would allow for inference of undue influence, the circumstances must be such that the parties are not able to deal on terms of equality.