Probate & Estate Litigation

Published on: December 16, 2021

Court denies petition for summary judgement approving compromise petition allocating the entire settlement to wrongful death where there was evidence of conscious pain and suffering. Matter of Qyra 2014 NY Slip Op 24187

by Stephen Bilkis

In the Matter of Qyra, the Surrogate’s Court considered an issue related to the allocation of the money award in a wrongful death lawsuit. On February 25, 2010, while walking in Central Park, Elmaz Qyra was struck by a tree branch and died. The administrator (personal representative) of his estate filed a lawsuit to recover damages and was awarded a $3,000,000 settlement. The administrator petitioned the Surrogate’s Court to issue a decree allocating the entire settlement to wrongful death. The objectant argued that a portion should be allocated to personal injury.

When someone dies as a result of negligence, the personal representative of the decedent’s estate can bring a lawsuit to recover losses suffered by the decedent as well as losses suffered by the decedent’s family. If the lawsuit is successful and money is awarded, the Surrogate’s Court must determine how to allocate the money- to personal injury, to wrongful death, or a combination of both. The manner of allocation determines to whom the money is distributed.

Sums that are allocated to personal injury compensate the injured party—the decedent—for the conscious pain and suffering they suffered because of the negligence. Since the money awarded for personal injury belongs to the decedent, it is considered probate property and is added to their probate estate. Sums that are allocated to wrongful death compensate the decedent’s next of kin for the losses they suffered because of the negligence. That money is distributed directly to the next of kin. It is never a part of the decedent’s estate.

Published on: November 15, 2021

Creditor objected to allocation of wrongful death award. In re Estate of Domingo Torres, Sr. (2002)

by Stephen Bilkis

While the case of In re Estate of Domingo Torres, Sr. turns on the narrow issue of whether to grant the New York City Department of Social Services (DSS) more time to file objections to the account filed by the personal representative, here we will look at why the DSS wants the Surrogate’s Court to hear its objections.

At the time that Torres passed away, he owed the DSS $87.903.76. As part of the estate administration process, New York law requires that the personal representative pay debts owed by the decedent out of estate assets before assets are distributed to the decedent’s beneficiaries or heirs. However, debts can only be paid to the extent there are funds in the estate to do.

As required, the DSS filed a claim against the decedent’s estate for $87.903.76. Even though it appeared as if the claim was valid and timely filed, it was denied simply because the estate did not have the money to pay it. However, the personal representative filed a lawsuit against the party responsible for Torres’ death and recovered $300,000. From that money, the DSS expected to be able to recover the money it was owed.

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: September 15, 2021

The special needs of a disabled child should be considered in determining her share of her father’s wrongful death lawsuit proceeds. Conejero v. LaJam, 190 Misc. 2d 393 (N.Y. Sup. Ct. 2002)

by Stephen Bilkis

When someone passes away due to the negligent actions of another person or entity, a wrongful death action can be filed by their personal representative to seek damages. Depending on the specifics of the case, if the lawsuit is successful, the amount awarded can be allocated either as a wrongful death award, a personal injury award, or a combination of both. The manner in which the money is classified determines how it is ultimately distributed.

Money that is allocated as personal injury is awarded to compensate the decedent for the conscious pain and suffering they experienced from the injury or circumstances that resulted in their death. It includes physical pain, even if suffered for a very short time prior to death. It also includes fear, shock, and anguish experienced by the decedent as a result of the circumstances that caused their death. Because personal injury money is the decedent’s loss, it is added to their probate estate. Just like any other asset that is part of a decedent’s probate estate, personal injury money can be used to pay estate debt. Any money leftover would be distributed to the decedent’s beneficiaries and heirs as required by their will or New York law.

Money that is allocated as wrongful death is awarded to the family of the decedent to compensate for economic losses they will suffer as a result of the loss of the decedent’s financial support. Because money allocated to wrongful death is to compensate losses suffered by the decedent’s family (distributees), that money goes directly to the appropriate family members and not to the estate.

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.