Probate & Estate Litigation

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: 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: 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.

Published on: April 20, 2020

Supreme Court Considered Whether a Wife’s Claim for Support Survives Her Death- Dean v. Dean, 2020 NY Slip Op 20042 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

In this case the Supreme Court considered whether a wife’s claim for spousal support survives her death and can be continued by her estate. It is not unusual for a divorce proceeding to stretch out over a number of years as the parties are not able to agree on various issues. However, in this case the couple never was able to reach a settlement and receive a judgment of divorce. Instead, the marriage ended with the death of the wife while the divorce was still pending.

The history of this unusual case is that the couple was in the middle of a divorce proceeding that was initiated 6 years ago when the court converted the pending divorce action to a proceeding for spousal support under Article 4 of the Family Court Act. While that proceeding was pending, the wife, who had been living in a nursing home after suffering a debilitating health crisis, died. The wife’s estate, through her executor, now seeks to continue the spousal support proceeding against the husband, thus converting the case to an estate litigation matter. The husband objects arguing that the wife’s claim for spousal support abated when the divorce proceeding ended.

The law of abatement is that for most actions abatement occurs upon the death of one of the parties if the issue involved in the case is personal in nature or involves the personal status of a party. A marriage and divorce are certainly personal matters. The marriage terminates upon the death of a party and the divorce action abates because there is no longer a marriage to dissolve. Because matters of spousal support are ancillary to a divorce action, they also abate upon the abatement of the divorce action. Thus, if this spousal support action was ancillary to the couple’s divorce, the husband would be correct in that the action would have abated. That is not the case here

Published on: April 13, 2020

Claim Against Estate Barred Due to Statute of Limitations- In re Hollis, 2020 NY Slip Op 860 (N.Y. App. Div. 2020)

by Stephen Bilkis

In this case the Appellant Division considered whether a claim against an estate was time barred.

The decedent, J. Hollis, died in October 2015. She was survived by six children. The decedent’s will had a specific provision related what should be done if any of her children owed her money at the time of her death. The provision provided that any money owed was to be deducted from that child’s inheritance.

Hollis, one of the decedent’s children, died three months later, in January 2016. His wife, B. Hollis was appointed the administrator of his estate. The executor of the estate of J. Hollis filed a claim against the estate of P. Hollis for $147,265.35, representing loans J. Hollis made to P. Hollis from 2005 to 2011, as one of the duties of an executor is collecting debts owed to the estate. From the opinion it is not clear whether P. Hollis had received a distribution from his mother’s estate. However, B. Hollis filed a motion for summary judgment disallowing so much of Peter’s claim as represented money purportedly borrowed by the decedent between April 2005 and January 2008 on the ground that recovery was barred by the six-year statute of limitations. Part of the estate administration process is to pay debts owed by the estate and settle claims against the estate.

Published on: April 6, 2020

Non-Marital Child Does Not Have Standing to Object to Probate- In re Prob. Proceeding of Mengoni, 2020 NY Slip Op 30728(U) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

In a contested probate case, the court considered whether an objectant had standing to participate in the probate proceeding based on a claim of being the child of the decedent.

Th decedent died in February of 2018, leaving a substantial estate. A petition to probate a purported will of decedent dated January 11, 2017 was filed by the decedent’s attorney and the drafter of the will. The will named him as the executor. The petitioner, A. Mengoni, among others, was named as an interested party as she was identified as an alleged daughter of decedent. The instant litigation was commenced when A. Mengoni filed objections to the will. The proponent of the will, decedent’s attorney and nominated executor, filed a motion to strike A. Mengoni ‘s appearance and dismiss her objections.

New York law requires that in order to participate in a probate proceeding, you must have standing to do so. Generally, only those who are named in a will as beneficiaries and the intestate heirs of a decedent have standing. Also, anyone who was a beneficiary of a prior will and would be adversely affected if the propounded will is probated would also have standing according to Surr. Ct. Proc. Act. Section 1410. In this case, A. Mengoni is basing her standing on being the child of the decedent, making her an intestate heir.

Published on: March 30, 2020

Motion for Standing as a Person Adversely Affected by Probating a Will- In re Prob. Proceeding for the Estate of Wilke, 2019 NY Slip Op 51220(U) (N.Y. Surr. Ct. 2019)

by Stephen Bilkis

In this case the Surrogate’s Court, Albany County, considered whether an individual had standing to object to probating a will based on having been named as a beneficiary in a prior will pursuant to pursuant to Surr. Ct. Proc. Act § 1410.

Before a person can become a party to a proceeding to probate a will the person must have legal standing. “Standing” means that the person has an interest in the outcome of the probate proceeding. Typically, those who have standing are limited to anyone who is mentioned in the will as a beneficiary or those who are intestate heirs of the decedent.

In this case the petitioner, R. Smith, who is not a beneficiary of the will submitted for probate and who is not an intestate heir of the decedent, is a beneficiary of a prior will. Smith intends to the object to the probate of the will already submitted, but first the Surrogate’s Court must consider Smith’s motion for standing as a person adversely affected by the admission into probate of the will.

Published on: February 17, 2020

Latham Standard Must Be Applied in Determining Eligibility To Serve as Fiduciary Under SCPA § 707, In the Matter of Walsh, 2007 NY Slip Op 51353(U) (N.Y. Sup. Ct. 7/10/2007)

by Stephen Bilkis

In this case the Surrogate’s Court considered whether the actions of a person who petitioned the court for letters of administration amounted to dishonesty, making him ineligible under Surrogate’s Court Procedure Act § 707.

An executor or estate administrator is the person who is responsible for managing an estate after the death of the testator. The person is referred to as an executor if he (or she) was named in the decedent’s will. In doing so the testator is merely nominating the person. The nominated person must still petition the Surrogate’s Court to receive “letters testamentary.” Letters testamentary is a legal document granting the authority to manage the estate and ultimately distribute its assets. If someone other than the person named in the will wants to be manage the estate and become the estate administrator, then he must petition the court for “letters of administration.” Without letters, whether the person was named executor in the will or not, he has no authority over the decedent’s estate. The court will only grant letters to petitioners who are eligible.

In Walsh, a brother and sister engaged in probation litigation related to the estate of their father. While the father nominated the sister to serve as the executor of his estate, the son petitioned the Surrogate’s Court for letters of administration. The dispute between the siblings centered on two main issues: whether the brother was dishonest about having possession of the father’s 2000 will and whether the daughter was in possession of property owned by the father’s estate.

Published on: February 10, 2020

Father, a Convicted Felon, Not Eligible to Serve as Administrator of the Estate of Minor Child, Passalacqua v. State (N.Y. Ct. Cl. 2012)

by Stephen Bilkis

One of the roles of the administrator of the estate is to bring claims on behalf of the estate. In this case, the administrator filed a wrongful death claim on behalf of the estate of his deceased minor daughter. The defendant responded by challenging the administrator’s eligibility to serve as estate administrator.

In New York there are rules related to who can serve as the administrator of an estate. These rules apply whether the person was nominated in a decedent’s will to serve as the executor or the person petitions the courts to serve as the administrator of an intestate estate. According to Surrogate’s Court Procedure Act § 707, anyone is eligible to receive letters unless he or she is ineligible. Among those who are ineligible are felons.

In Passalacqua v. State, the claimant father of the decedent alleges that the decedent died due to the negligence of the defendant. The claim alleges that the decedent, his 12-year old daughter, was attacked and killed by a parolee who was under the defendant’s supervision and that the defendant was “negligent, wanton, reckless and careless” in that he failed to provide reasonable and proper supervision of the parolee.