Articles Posted in Probate & Estate Litigation

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In this case the Surrogate’s Court considered whether the petitioners presented sufficient evidence of undue influence for the court to declare a will invalid.  When J. Malone passed away, a petition to probate her will was filed.  Several relatives, collectively the objectantS, filed objections contesting the validity of the will on the grounds of lack of testamentary capacity, lack of due execution, and undue influence.

Under New York law, once a petition for probate is filed with the Surrogate’s Court, any interested party has the right to file an objection to probate.  However, the objecting party must state the basis for his (or her) objection.  Common grounds include lack of testamentary capacity, lack of due execution, undue influence, duress, and fraud.  Merely stating the basis for the objection is not enough.  The objectant must also provide evidence, either direct or inferential, of the existence of the basis for the objection.

In Malone, the petitioners moved for summary judgment dismissing all objections.  The objectants only opposed summary dismissal to the objection related to undue influence.  Thus, the Surrogate’s Court examined whether there was any evidence, direct or circumstantial, to support the objectants’ claim that J. Malone had been subjected to undue influence when she made her will.

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The issue before the Surrogate’s Court is whether the petitioner made enough of an effort to locate a lost will before petitioning the court to proceed with an intestate administration.

In the case of In re Estate of Karp, after the death of R. Karp, a “paper writing” of Karp’s 1995 will was found, but the original was not found.  It appears as if the will that was found was either a copy of the original or a draft of the will that was eventually executed. Regardless, the document found was not the duly executed last will and testament of R. Karp.  The petitioner, who was also one of the decedent’s distributees, asked that the court not admit that will to probate. Instead, the petitioner asked that the court appoint her as the administrator. In doing so, the court would have to find that R. Karp died intestate. Because she has an interest in the decedent’s intestate estate, under SCPA § 1002 the petitioner would be entitled to be appointed administrator.

Under the 1995 will, there were 21 beneficiaries.  However, not all of the 21 beneficiaries were also distributees.  There were only 5 distributees, included the petitioner.  If the will is not probated then most of the beneficiaries, including the objectants, would not be entitled to any part of the estate.

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In this case the Surrogate’s Court considered whether the petitioners presented sufficient evidence of undue influence for the court to declare a will invalid.  When J. Malone passed away, a petition to probate her will was filed.  Several relatives, collectively the objectantS, filed objections contesting the validity of the will on the grounds of lack of testamentary capacity, lack of due execution, and undue influence.

Under New York law, once a petition for probate is filed with the Surrogate’s Court, any interested party has the right to file an objection to probate.  However, the objecting party must state the basis for his (or her) objection.  Common grounds include lack of testamentary capacity, lack of due execution, undue influence, duress, and fraud.  Merely stating the basis for the objection is not enough.  The objectant must also provide evidence, either direct or inferential, of the existence of the basis for the objection.

In Malone, the petitioners moved for summary judgment dismissing all objections.  The objectants only opposed summary dismissal to the objection related to undue influence.  Thus, the Surrogate’s Court examined whether there was any evidence, direct or circumstantial, to support the objectants’ claim that J. Malone had been subjected to undue influence when she made her will.

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When a testator nominates someone to serve as the executor of his (or her) estate, the court does everything possible to fulfill the wishes of the testator by appointing that person.  Courts are loathe to substitute their judgement for that of the testator.  However, if the court determines that the executor nominated by the testator is not qualified or does not fulfill the duties of the job as required by law, it has the authority to decline to appoint the person as executor or to remove that person.

In Delaney, the decedent, H. Frankowski, died in 2013 leaving three children: J. Frankowski, A. Porter, and S. Roman.  J. Frankowski was appointed executor of H. Frankowski’s estate. When J. Frankowski died in 2014, the Surrogate’s Court appointed A. Porter as successor executor.  There were some irregularities related to the decisions that A. Porter made as executor.  As a result, on May 18, 2015, the Surrogate’s Court suspended A. Porter as successor executor and ordered that she no longer make any distributions from H. Frankowski’s estate.  However, the next month, on June 24, 2015, the Surrogate’s Court issued another order reinstating A. Porter. While she was given essentially the same authority as she had previously, the court restricted the amount of money that she could distribute from the estate to a maximum of $50,000.

A. Porter filed an accounting that included disbursements that she made after May 18, 2015 amounting to $198,668.31. In response, the petitioner, K. Delaney, who was also the executor of the estate of J. Frankowski, asked the court to immediately suspend A. Porter’s as successor executor for repeated violations of orders for the court. In response, A. Porter pointed out that she was not given proper notice of her suspension as she was not served with a certified copy of the order that suspended her as the law required.

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In the case of In re Carney’s Will, the Surrogate’s Court considered whether it should allow a  party to reopen probate and contest a will a year after the will was admitted to probate letters testamentary issued to the executor.

New York requires that certain procedures must be followed to ensure that anyone with a potential interest in an estate is notified that a probate petition has been filed.  This means that all interested parties must be notified and given the opportunity to object to the will.  Interested parties typically include anyone who is named in the will as a beneficiary, anyone who was named as a beneficiary in a prior will, anyone who is an heir of the decedent under the rules of intestate succession as described in EPTL § 4-1.1 and EPTL § 4-1.2, and known creditors.  In addition to listing the names of interested parties on the citation, the petitioner must send each of them a  notice known as “citation.”  This requirement protects rights of those who have an interest in the decedent’s estate by ensuring that they are aware of the proceedings and giving them the opportunity to participate in the proceedings.  For example, if an interested party is aware of when the hearing will be held to admit a will to probate, he can show up and file a will contest if he questions the validity of the will.  However, anyone entitled to a citation can waive it.  On the other hand, if the appropriate parties are not properly notified of a probate proceeding, the Surrogate’s Court may determine that it must reopen probate.  This is the very issue in the case of In re Carney’s Will.

In Carney, E. Carney, the sole distributee of the decedent’s will, petitioned the Surrogate’s Court to re-open the decedent’s estate because he claimed that the waiver of citation that he signed was obtained fraudulently.  Three days after the decedent passed away, his funeral was held.  At the funeral, an attorney presented E. Carney with a waiver of citation and asked him to sign it.  E. Carney had the opportunity to read the waiver, and his mother advised him not to sign it.  After reading the waiver and being assured that by signing the waiver he would not be giving up any rights that he had in the estate, E. Carney signed the waiver.  The waiver was clear in stating that by signing it E. Carney would not receive notice of the probate proceedings.

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In a contentious probate case, the specific issue that is before the Surrogate’s Court is whether it should revoke the letters of the preliminary executor based on misrepresentations and negligence.

Under New York law, regardless of who a testator nominates in his (or her) will to serve as executor of his estate, the Surrogate’s Court will only appoint that person if he is qualified.  In order to serve as an executor, the person must be at least 18 years old, must be a U.S. citizen or legal resident living in New York, must not have been adjudicated to be incapacitated, and must not have been convicted of a felony.  After being appointed, the Surrogate’s Court can revoke an executor’s authority upon a finding that he is no longer qualified because of negligent or improper management of the estate, or that he is no longer capable of managing the estate. Examples of actions that would be grounds for removing an executor include stealing of assets from the estate, mismanagement of estate assets, failure to pay creditors, failure to timely account to beneficiaries, or substance abuse.

In the Estate of Haber, the Surrogate’s Court appointed E. Haber as the preliminary executor after a prior preliminary administratrix was removed by the court.  E. Haber is also the half-brother of the objectants.  In an effort to convince the court that E. Haber was not fit to serve as executor, the objectants cited several actions of E. Haber as grounds for removal.  In his place, the objectants wanted the court to either appoint one of them as executor, or a third party.

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The issue before the Surrogate’s Court is whether a copy of a subsequent will is sufficient to revoke a prior will and prevent it from being probated.

This matter is related to probating a will dated May 27, 1997, which is purported to be the last will and testament of decedent Harper. The petitioners are the executors named in the will, C. Harper and M. Harper. C. Harper is the decedent’s nephew, while M. Harper is his sister. The decedent has several distributees including his surviving spouse and children.

The will directs that the decedent’s personal property and real estate should be divided equally among his nephews, his sister, his 3 children. He left his surviving spouse the remainder of his estate. His will includes language that specifically disinherits any children born after execution of the document or any adopted children. The decedent’s surviving spouse and children filed objections to the will.

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In this case the Surrogate’s Court considers the whether to grant a petition for guardianship of a person who suffers from intellectual and physical disabilities and is unable to care for herself.

Petitioner Laut appeals the denial of a petition she filed under SCPA Article 17-A for guardianship of her disabled sister. The sister has suffered from severe, permanent disabilities all her life. She suffers from cerebral palsy and mental retardation and requires 24-hour care. She is unable to feed herself, is non-ambulatory, and is non-verbal. Using the Bayley scale of infant and toddler development, the sister has been determined to have a developmental equivalent of a 4-month-old.

The petitioner’s parents had cared for her sister her entire life. However, they both died in 2014. While the petitioner wanted to care for her sister after their parents’ deaths, she stated that she was unable to fully do so because she did not have legal guardianship over her sister. For example, she was not able to arrange for a lease for the sister’s apartment and she was not able to maintain the sister’s supplemental nutritional program. In denying her petition for guardianship, the Surrogate’s Court stated that a hearing pursuant to Mental Hygiene Law 81 was more appropriate.

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In this case the Surrogate’s Court considered the issue as to whether to entertain an objection to probate of a will 30 years after it was originally admitted to probate.

This case relates to the probate proceeding of the will of decedent Schnall. Schnall executed the will in 1976. She died in 1980. Bostwick, Schnall’s daughter, consented to probate. The will was admitted to probate in a decree dated November 13, 1980. In 2009, nearly 30 years later, one of the decedent’s grandchildren filed a motion to vacate the probate decree. The basis of the motion was that several distributees of the decedent had not been named in the probate petition. In 2010 the Surrogate’s Court granted the motion, finding in instances where jurisdiction was never obtained over a necessary party, the decree admitting the will to probate is void as to that party.

Nechin-Pescow filed an amended probate petition in 2013 and filed a second amended probate petition ion 2014. Bostwick objected to probate, arguing undue influence and a lack of testamentary capacity. Two grandchildren of Schnall, Beesmer and Elchoness, filed motions for summary judgment dismissing Bostwick’s objections. The Surrogate’s Court denied the motion.

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The respondent MJP holdings moves for an order dismissing the petition for lack of subject matter jurisdiction, and because a prior action is pending for the same issue in a different court.

Despite the fact that the proceeding was heard on 6/1/18, the history of this case goes back 40 years, starting with the death of the decedent’s grandmother CP. That litigation was only settled in 2017. Her 2 children have passed away. The estate of one child, J, is in litigation. The case with the other child, M, is being litigated as well.

The parties involved here are the petitioner, who is the executor of the decedent’s estate, the grandchild of the decedent, and daughter’s husband, and MJD Holdings.

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