Brooklyn

Published on: June 17, 2012

Beneficiary Contests Last Minute Change to Will

by Stephen Bilkis

A man died at age 84 and he is a resident of Westchester County. The man’s sole heir is his 15-year-old granddaughter who is the daughter of his estranged son who predeceased the man in 2004. A New York Probate Lawyer said the man was also survived by 10 nieces and nephews, including the complainant nephew and the opponent niece. The man had been married twice, with both marriages ending in divorce — the second of which was finalized shortly before the man’s death.

The following pertinent facts have been gleaned from transcripts of pre-trial testimony given by the nephew and the niece and from affidavits submitted on their behalf. Around October 2004, shortly after the man underwent quadruple by-pass surgery, the man’s second spouse, left the man and purportedly seized nearly $140,000.00 of assets held in a joint account in their names. Over the next two years, the man was beset with numerous physical ailments such as pneumonia, broken shoulder, diabetes and kidney-related problems, which caused him to be hospitalized and undergo physical rehabilitation on numerous occasions during that period.

Shortly after the second spouse left him, the man contacted the nephew, who was the man’s personal accountant since the late 1990’s, in order to gain his assistance in trying to recover from his second wife the proceeds from the joint account. At that time, the man informed his nephew that under his then-existing will (executed in or around 1993), he had bequeathed his entire estate to his second wife, and he wanted to change his testamentary plan to bequeath his estate to his nephew and/or his nephew’s son. Thereupon, the nephew who resides in Rockland County contacted her counsel of record in the instant proceeding — with whom petitioner has had a mutual professional relationship for client referrals since the late 1990’s.

Published on: June 16, 2012

Beneficiaries Bring Will Contest Action

by Stephen Bilkis

On this proceeding, the beneficiaries of a woman asked for an order to suspend the verdict of the court with regards the admission to probate to the woman’s will. A New York Probate Lawyer said they also asked to vacate the letters testamentary issued to the woman’s caregiver. They also requested to grant them the opportunity to examine the attesting witnesses to the will, directing that objections be filed within a reasonable amount of time after the completion of the examination of witnesses and staying the administrator of the will from disbursing the estate proceeds. The abovementioned motion’s is opposed by the woman’s caregiver.

The aforesaid woman died seven months after the execution of her will. Her husband predeceased her and she never had any children, biological or adopted. Apparently, the woman was survived by her six beneficiaries who reside in Australia. The woman’s caregiver originally filed a petition for the validation of the woman’s will and asserts that the woman had no successors. On the probate petition of the caregiver, she states that she was the woman’s live-in companion, the beneficiary of woman’s entire estate, as well as the designated administrator. Further, the only other individual named by the caregiver as a person interested with the woman’s assets is her sister, a resident of Ukraine. The caregiver’s sister was listed as the successor beneficiary of the woman’s entire assets and the nominated successor as the administrator. Additionally, the petition reveals the woman’s address as the caregiver’s address.

On the basis of the information provided by the caregiver, an initial letter was issued however the court directed the caregiver to submit a family tree. The caregiver consequently submitted an affidavit stating that she wasn’t aware of any person capable of giving a family tree. The caregiver further advised the court that the woman spoke occasionally with someone and was also visited by another man but she didn’t know whether the two persons were related to the woman. Consequently, the counsel for various members of the woman’s family advised the court by letter that the woman had performed a will in which members of the woman’s family and the family of her late husband was named as the beneficiaries and co-administrators. A copy of the will was provided to the court, but counsel advised the court that the original signed document had not been located. The counsel then stated that the family members intended to prove that the given will was obtained by the caregiver by means of fraud and undue influence. Moreover, they alleged that the woman was not of sound mind or memory, not capable of making a will and that the will was not properly completed. Afterwards, the copy of the letter was sent to the caregiver’s counsel. Brooklyn Probate Lawyers said the letter also accused the caregiver of committing perjury when she made sworn statements in her petition that the woman left no heirs. As a result, the counsel of the woman’s family demanded that the petition for probate be modified to reflect the woman’s beneficiaries.

Published on: June 14, 2012

Family Brings Estate Administration Action

by Stephen Bilkis

A woman resident of Israel died. She was survived by her husband and three children. The middle child filed a petition for letters of estate administration. The middle child’s petition alleged that her mother was an heir of the estate of her uncle and that the Chase Bank, which was the administrator of his uncle’s estate, failed to fully distribute the estate’s assets. The middle child petitioned for letters of estate administration to pursue the claim. The youngest daughter consented to her sister’s appointment. The eldest daughter of the woman who resides in Israel was served by mail and defaulted. Letters of estate administration were issued to the middle child of the deceased woman.

Eight months later, the middle child brought a proceeding to compel the bank to account for its administration of his deceased uncle’s estate. Shortly thereafter, a New York Probate Lawyer said the eldest daughter initiated proceedings in Israel to probate her mother’s will. The instrument left the deceased woman’s estate to her husband. If the husband predeceased her, the middle child receives $1 and the rest of the children will receive the balance of her estate in equal shares. The husband had died as a resident of Israel. His will was admitted to probate in Israel. Under his will, he left $1 to the middle child, $3,000 to the youngest daughter and the balance to the eldest daughter. The eldest daughter is the executrix of her father’s will and the nominated executrix under the proffered Israeli will of her mother.

The middle child filed objections in Israel to the probate of the Israeli will on the ground that her mother lacked testamentary capacity. Brooklyn Probate Lawyers said she also brought a proceeding in Israel to vacate the decree probating her father’s will. The eldest daughter and the bank, acting as trustees of the trust created for the deceased woman under the will of another brother, moved to vacate the letters of administration issued to the middle child. They claimed that the letters should be vacated because the deceased had a will, there were material misstatements in the petition for letters of administration, and she was not fit to serve as fiduciary.

Published on: June 12, 2012

Court Rules on Status of Joint Will

by Stephen Bilkis

The Facts:

On 17 October 1967, a husband and a wife (“wife-one”) executed a joint will.

On 27 September 1971, the wife died and the joint will, insofar as her estate was concerned, was admitted to probate in Kings County (for estate administration; estate litigation). At the time of her death, the husband and the wife owned as tenants by the entirety, two parcels of real estate and had a bank account in their joint names in a Brooklyn bank.

Published on: June 3, 2012

Petitioner Requests Preliminary Letters

by Stephen Bilkis

A man died on October 28, 2006 leaving a will dated April 27, 2006. The man’s last will nominates an attorney and a friend as executors. He was survived by his two adult children. The man’s friend renounced his appointment.

The will provides that the man’s entire residuary estate shall be distributed to his woman companion. The will specifically disinherits the man’s children. The attorney assigned as executor has petitioned for preliminary letters testamentary.

By order to show cause, the man’s daughter seeks an order denying the issuance of preliminary letters testamentary to the attorney; disqualifying the attorney from serving as executor of the estate; removing the assigned attorney executor as the attorney for the estate; compelling the attorney to comply with discovery demands previously served; compelling the attorney to produce and file with the court an alleged 2004 will of the man; appointing a guardian ad litem to represent the interests of the deceased man’s two infant grandchildren named as beneficiaries in the prior will; appointing the daughter as executor since she was alleged named as executor in the 2004 will; staying the issuance of preliminary letters to the attorney in pending a hearing on the order to show cause; and adjourning the law examinations. The decision addresses only the issue of whether preliminary letters should issue to the attorney.

Published on: June 2, 2012

Court Decides Jurisdiction Issue

by Stephen Bilkis

In an action to recover damages for medical malpractice and lack of informed consent, in which the accused Medical Center commenced a third-party action against the woman as successor executor of the estate of her husband. The woman appeals from an order of the Supreme Court which denied her motion to dismiss the third-party complaint based upon her allegation that her status as personal representative of the estate of her husband was terminated by operation of law.

New York Probate Lawyers said that on July 18, 2002, the complainant underwent surgery at the Medical Center and the woman’s husband served as the complainant’s anesthesiologist. The anesthesiologist died and his father, as the executor of the anesthesiologist’s estate, petitioned the Surrogate’s Court to have the will admitted to probate. The petition to admit the will to probate stated that the anesthesiologist died while a resident of New York, and that his wife was named in the will as successor executor. By decree, the will was admitted to probate and letters testamentary were issued to the anesthesiologist’s father. Thereafter, the father died.

The complainants commenced the main action against the Medical Center. The Medical Center commenced the instant third-party action against the wife, as successor executor of the anesthesiologist’s estate, seeking common-law indemnification. Brooklyn Probate Lawyers said the complainant, a resident of Colorado, retained Colorado attorneys. On behalf of their client, the law firm entered into a stipulation with the Medical Center, in which the complainant admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for the anesthesiologist. The stipulation also stated that the Medical Center will seek no recovery from the Estate of the anesthesiologist except to the extent of any professional liability insurance available to the Estate of the deceased anesthesiologist.

Published on: May 30, 2012

Court Decides Legal Fees for Estate Administration

by Stephen Bilkis

The Facts:

A decedent was survived by his wife, an adult son who is the petitioner herein, and four adult grandchildren. A New York Probate Lawyer said the decedent’s wife is a person under disability and her interests are being represented by a guardian ad litem appointed for that purpose by the court. Although SCPA 1404 examinations were demanded by the respondents, the examinations were never conducted, the parties having promptly entered into settlement negotiations.

The propounded instrument bequeaths the entire estate to the decedent’s lifetime trust, which in turn leaves the entire estate to petitioner, to the exclusion of the surviving spouse and grandchildren. The parties have entered into a stipulation of settlement, subject to the court’s approval, which permits the will’s admission to probate, effectively guarantees the surviving spouse her elective share, and distributes the net estate after payment of debts, administration expenses, and the elective share, into two parts, one part to be distributed to the petitioner and the other to be divided equally among the grandchildren.

Published on: May 25, 2012

Peittioner Challenges Jurisdiction of Probate Proceeding

by Stephen Bilkis

This is a probate case involving the last will and testament of Daniel Joseph Roach. The case is being heard in the Surrogate’s Court of Suffolk County in the state of New York. The petitioner and proponent in the case is Mary A. Hennessy. She is represented by Joseph L. Callahan. The respondent in the case is Daniel Joseph Roach Jr. He is represented by the law firm of Fennelly & Fennelly from New York City.

The respondent in this case, Daniel J. Roach Jr. is appearing especially in front of this court to challenge the jurisdiction in regard to the probate proceeding of the decedent, Daniel Joseph Roach. The respondent states that at the time of his death, Daniel Joseph Roach was a resident of Kings County and therefore the probate should be held in the Kings County Surrogate Court.

Facts of the Case

Published on: May 21, 2012

Court Interpretes Zoning Ordinance

by Stephen Bilkis

The complainant operates a manufactured home park on real estate he owns in a residential zone in Chemung County. Residents of the park place manufactured homes on lots leased from the complainant. A New York Probate Lawyer said in 2009, the complainant’s estate administration manager approached the accused, the Town Enforcement Officer, to inquire about obtaining a building permit to install a manufactured home owned by the complainant on a lot in the park to be offered for sale to the public. The accused Town Enforcement Officer advised the complainant that the proposal was a commercial use prohibited by the Town Zoning Code. The complainant then applied to the Town Zoning Board of Appeals for an interpretation of the ordinance. After a public hearing, the Zoning Board of Appeals determined that the complainant’s proposed use was prohibited. The complainant commenced the proceeding to annul the determination and Supreme Court dismissed the petition. The complainant appealed.

The Town Zoning Code defines a manufactured home park as a parcel of land under single ownership which is improved for the placement of mobile homes and manufactured homes for non-transient use and which is offered to the public of two or more mobile and manufactured homes. In a provision entitled Commercial Sale of Mobile and Manufactured Homes, the zoning ordinance provides that a mobile and manufactured home park shall be established for the purpose of permitting habitation of such mobile or manufactured homes. Bronx Probate Lawyers said no sales lot or area shall be used for the purpose of selling mobile or manufactured homes. Relying upon the emphasized language, the Zoning Board of Appeals found that the complainant’s proposal to place an unoccupied manufactured home on a lot for sale would have the effect of transforming the said residential lot into a dedicated lot or area for the commercial sale of a mobile home and was an illegal commercial sale of a mobile home within a residential district. The Zoning Board of Appeals further distinguished the complainant’s proposal from sales of mobile homes by individual owners in anticipation of moving and finding that such casual sales did not violate the ordinance but nonetheless would have to be monitored on a case by case basis.

The Supreme Court accorded deference to the decision of the Zoning Board of Appeals, but that heightened standard was not merited. Brooklyn Probate Lawyers said a fact-based interpretation of a zoning ordinance that determines its application to a particular use of property is entitled to great deference. However, deference is not required when reviewing a pure legal interpretation of terms in an ordinance. The meaning of the term sales lot or area in the ordinance at issue presents a purely legal question in which no deference to the Zoning Board of Appeal’s interpretation is required.

Published on: May 3, 2012

Defenant Appeals Jury Verdict

by Stephen Bilkis

In this case, Scott H. See Jr. is the appellant. Baltic Estates, Inc. are the respondents.

History

A New York Probate Lawyer said this case involves the recovery of damages for personal injuries. There was another action that was tied to this one, but the two were eventually consolidated. With the limitations involved in his brief, the plaintiff makes an appeal against an order issued by the Supreme Court of Dutchess County which was entered in July of 2008. This order denied a motion that the appellant made which moved for the dismissal of a verdict reached by a jury. The conclusion reached by the jury had been on the side of the defendant in regards to the liability in the case. The appellant contends that the majority of the evidence should have lead the jury to rule in his favor instead of falling on the side of the defendant, which he feels is grounds for a new trial. By the same token, he appeals against the judgment made by the court on February 24th, 2009. This ruling was also in favor of the defendant.