Brooklyn

Published on: November 12, 2012

Appellant Claims Undue Influence

by Stephen Bilkis

This is a case being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. The case involves a contested probate proceeding. The proponent in the case is appealing a decree made in the Surrogates Court of Queens County made on the 25th of May, 1962. The decree denied probate to the written instrument as the last will and testament of the decedent. It was adjudged that the will was executed under undue influence and fraud exerted upon her by the proponent.

Court Discussion and Decision

A New York Probate Lawyer said the proponent in this case is the son of the decedent and a lawyer. The two contestants in the case are the children of another son who is deceased. The proponent prepared the propounded instrument that bequeaths the estate in equal shares to him and his three sisters, but excludes the two contestants from any share of the estate.

Published on: November 9, 2012

Court Determines if Will is Valid

by Stephen Bilkis

This case involves a probate proceeding and is being heard in the Surrogate’s Court of Kings County. A New York Probate Lawyer said he instrument that is offered for probate in this matter is written on a regular piece of notebook paper that has been folding in half to form four pages. The entire paper is written in the handwriting of the decedent all the way down to the signature. The words “my will and testament” appear near the bottom of the page. Brooklyn Probate Lawyers said there are two witness signatures on the paper as well, along with their addresses. However, both witnesses are now deceased and there is no attestation clause.

Case Background

It is shown at the time the will was executed the decedent was a notary republic. The decedent deposited the will with the Surrogates Court of Queens County for safekeeping in June of 1933. The will remained in the custody of the said court until it was released to this court when the decedent passed away in 1965.

Published on: October 29, 2012

Court Revokes Commissions Collected by Executor

by Stephen Bilkis

This is a decision made in the Surrogate’s Court of the State of New York in Nassau County after a bench trial of the accounting of the executor of the estate. Before the trial the objectant by an order to show cause sough the revocation of letters testamentary that were issued to the executor. The application has been held in abeyance pending the trial of the accounting of the estate.

Case Facts

The decedent passed away on the first of May, 2004 and left behind a will that was admitted for probate. The decedent was survived by four children. The will bequests pre-residuary cash payments in the amount of $45,000 to three of his children. The will divides the residuary estate equally among all four children. Letters testamentary were issued to the oldest child as he was named as the executor of the estate.

Published on: October 24, 2012

Appellants Bring Appeal Regarding Codicil

by Stephen Bilkis

This is a matter dealing with the probate of a last will and testament. This case is being held in the Second Department, Appellate Division of the Supreme Court of the State of New York.

Appeal

The appellants are appealing and order that was made in the Surrogate’s Court of Queens County. The order is dated the 27th of March, 2007 and grants the motion made by the respondent for leave to file objections to the codicil. The order also denied their cross motion for a decree to admit the will and the codicil to probate and to direct the letters testamentary and letters of trusteeship to be issued to them. The were also denied the approval of a stipulation of a settlement that they made with the American Society for Technion-Israel Institute of Technology, Inc that was approved by the Attorney General of the State of New York.

Published on: October 12, 2012

Court Reviews Stipulations Made in Divorce Decree

by Stephen Bilkis

This matter deals with the estate of Michael Pavese who is deceased. A New York Probate Lawyer said the main issue before the court is whether or not the stipulations that were made with his spouse Barbara Pavese during their divorce action are valid and enforceable. Barbara Pavese has petitioned for a determination that the stipulations of the divorce agreement be declared as void and ineffective and that all the funds that are held in specific United States Treasury Accounts be released to her immediately as the joint tenant with the right to survivorship or in the alternative that at least half of the funds be released to her immediately.

Case Facts

Barbara and Michael Pavese were married in April of 1981. In May of 2001, Michael Pavese moved out of the marital home located in Lloyd Harbor, New York, in Suffolk County. Michael moved in with his brother Peter in Massapequa, New York, in Nassau County.

Published on: October 11, 2012

Court Discusses Cy Pres Doctrine

by Stephen Bilkis

The Facts of the Case:

On 15 June 2004, the decedent died testate at the age of 74 years of old, without a spouse or issue. The decedent’s last will and testament dated 21 November 1996 was admitted to probate, a will contest proceeding, by decree dated 29 September 2005. The will named a certain person as the nominated executor (for purposes of estate administration) who predeceased the decedent. Thus, letters testamentary issued to the nominated substitute executor, on 30 September 2005. The attorney who prepared the will filed a disclosure statement executed by the decedent on 21 November 1996, which complied with the statutory requirements as it then existed; filed with the court his affidavit that was sworn to on 6 October 2004 and his affidavit sworn to on 30 October 2004.

Thereafter, the attorney has filed his account as executor for the period from 15 April 2005 to 31 January 2009. The account shows total charges of $951,949.88, total credits of $534,915.54 and a balance on hand of $417,034.34. The petitioner is seeking a decree judicially settling the account, approving legal fees, accounting fees and commissions, relief under the doctrine of cy pres as to two charities named in the will that are no longer in existence and approval to deposit the remaining assets on hand with the New York State Comptroller on behalf of any unknown distributees of the decedent. The Attorney General of New York appeared and filed objections to certain legal fees requested by the petitioner’s firm and to the amount of the executor’s commissions as calculated. A New York Probate Lawyer said the Attorney General supports the petitioner’s requests that the balance of the residuary estate be deposited with the New York State Comptroller and that the court direct that the bequests to the two charities no longer in existence be distributed to charities with substantially similar purposes.

Published on: October 9, 2012

Plaintiff Brings Will Contest Action

by Stephen Bilkis

This case deals with the plaintiffs Henry Rogers Benjamin Jr. individually and as the trustee of the trusts under article 13 of the will of Henry Rogers Benjamin, William E. Benjamin II, and William E. Benjamin III, Anne R. and Henry Rogers Barry, Douglas Benjamin, Gregory Benjamin, Theodore Benjamin, Christopher M. Benjamin, Alexandra Benjamin Vose, Beatrice Benjamin, Cynthia Barry Bidwell, and Anne E. Green. The defendants in this case are Morgan Guaranty Trust Company of New York and Morgan Guarantee Trust Company as the trustee of trusts under paragraphs a and b of article 13 of the will of Henry Rogers Benjamin and the Southampton Hospital Association and Memorial Hospital for Cancer and Allied Diseases.

Case Background

A New York Probate Lawyer said the decedent passed away on the 22nd of February, 1967. He left a will that was admitted for probate on the 13th of March, 1967. In the 13th article of his will the decedent devised and bequeathed half of his residuary estate in trust with the net income payable to his spouse during her lifetime. The trustees were given the discretionary power to invade the marital trust for the benefit of his spouse. He offered guidance to the trustees in the form of directing that his spouse receive a minimum of $1,000,000 per year utilizing the net income augmented by the principal. The spouse was given general power of appointment over the marital trust. If the spouse was to default on her power or exercise the power invalidly, the remaining principal of the marital trust would go to the decedent’s descendants, who are the plaintiffs in this case.

Published on: August 14, 2012

Court Looks at Construction of Will

by Stephen Bilkis

This involves a case where the court uphold the principle that the intention of the testatrix is of paramount importance which must be respected after it has been presented and admitted to probate. If the executrix intends to dispose the subject property in the will, the court suggested that she may do so through application for the sale of the real property pursuant to sections 233 of the Surrogate’s Court Act.

On October 28, 1931, decedent’s holographic will was admitted to probate on September 25, 1956. In paragraph ‘Third’ of the will, testatrix provided in part as follows: ‘I give to my daughter In trust for her god child and my grand son my home with all furnishings * * *. I positively wish no encumbrance such as a mortgage or lean (sic) to be placed upon this property * * *. This home is not to be rented or leaset for any business whatever. * * *. I give to my daughter * * * to make sure that she may have a home during her life time. At her death this property goes to her God-child * * *.’ The grandson survived testatrix but has since died.

Petitioner seeks permission from the probate court to sell the real property described in the will.

Published on: August 12, 2012

Court Looks at Intention Underlying Will Documents

by Stephen Bilkis

The Facts:

On 27 December 1919, a testatrix died leaving a will dated 11 February 1905 which was duly admitted to probate on 18 June 1920. Except for the printed portions of the form used, the instrument was entirely written by pen and ink. After providing for the payment of her lawful debts, the said testatrix devised all her property, real and personal, to her friend who was also named as the sole executrix with the further proviso that after her friend dies, the balance or what is left shall go to her brothers or their heirs, naming them; that it shall be equally divided between her brothers or their heirs. However, upon testatrix’ death, her friend took possession of all the real and personal property of the testatrix and made conveyances, transfers, assignments, sales, and alienations, individually and as executrix. The assets of the estate were disposed of among several persons.

Thereafter, the Public Administrator of the County of Kings filed an application for a construction of testatrix’ will and other relief.

Published on: August 10, 2012

Petitioner Seeks Order

by Stephen Bilkis

The petitioner has filed for an order to show cause before the court. The petitioner seeks an order under Rule 137 of the Rules of Civil Practice to direct respondent to appear and testify pursuant to a Commission issued out of the Probate Court of the Commonwealth of Massachusetts, Middlesex County. Under such action pending in the sister state, petitioner seeks to obtain from the defendant-wife, the custody of their minor child. A New York Probate Lawyer said to bolster his case so that child custody (father’s rights) is granted in his favor, the movant contends it is necessary to prove that his wife is not mentally fit to care for their infant child.

The respondent who is a psychologist opposes the petition and contends that the granting of such an order would compel him to violate a statutory prohibition regulating his conduct by forcing him to disclose privileged matters between him and a person alleged to be his patient.

From the papers submitted, the court notes that respondent, after having been served with the subpoena, did appear pursuant thereto before the designated commissioner on 7 July 1962; that he answered the first three interrogatories as to his name, address and profession; that as to the balance of the queries, he declined to answer on the ground that such disclosure would reveal confidential relations and communications between himself, as a psychologist, and a client, and as such, is privileged under Section 7611 of the Education Law. The law on privileged communications, under the said Education Law, provides that: “The confidential relations and communications between a psychologist registered under the provisions of this act and his client are placed on the same basis as those provided by law between an attorney and his client, and nothing in this article shall be construed to require any such privileged communications to be disclosed.”