Manhattan

Published on: October 11, 2013

Court Discusses Validity of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner-appellee, instituted a proceeding in the county judge’s court, seeking construction of the will of the deceased as to her rights under that instrument. She asserted her status as surviving pretermitted spouse of the deceased and alleged that she was entitled to distribution of the estate as if the deceased had died intestate, or distribution as his sole surviving heir-at-law. A Bronx Probate Lawyer said that, the probate court, after hearing, entered the order appealed from, adjudging that the petitioner, as the surviving pretermitted spouse, was the sole distributee of the estate and that she should receive that portion of it which she would have received had her husband died intestate.

A Bronx Estate Administration Lawyer said that, the Will in question, dated February 9, 1955, was admitted to probate November 18, 1959, and petitioner was appointed as Administratrix Cum Testamento Annexo on January 29, 1960. At the hearing, she was the only witness to appear before the court. The estate was valued at approximately $114,000.00. There were no lineal descendants, the only blood relative of deceased being a sister.

A New York Will Lawyer said that, the testator, in the will, directed that he be interred near the remains ‘of my beloved wife, with terms of endearment being employed elsewhere in the will in reference to her. One of the bequests in the will gave: ‘(d) the sum of Thirty Thousand ($30,000.00) Dollars to the petitioner, now residing at 2610 Grand Avenue, Bronx, New York.’ The person bequeathed was one and the same person as the petitioner. Other bequests in the will ranged from $2,000.00 to $25,000.00 left to various friends of testator, to his sister, and to nine different charitable institutions.

Published on: October 10, 2013

Court Discusses Insurance Claim for Real Property

by Stephen Bilkis

Respondent Estate Company is the owner of commercial rental property located at 33 West 19th Street in Manhattan. Respondent had a commercial property insurance policy with appellant Insurance Company which included “Builders’ Risk Coverage,” covering damage to its property while undergoing renovation. A New York Probate Lawyer said that during the policy period, the roof of its building was opened in order to perform construction work. Inclement weather caused rain to enter the building through the roof opening, resulting in extensive damage to the property.

A New York Estate Lawyer said that, shortly after the occurrence, respondent claimed it promptly notified appellant of the loss. According to the respondent, however, appellant failed to investigate or adjust the claim until several weeks later. A New York Estate Litigation Lawyer said that, Appellant then denied the claim three months after that, stating that respondent’s loss was the result of repeated water infiltration over time and wear and tear rather than from a risk covered under the builders risk policy provision.

A New York Will Lawyer said that, respondent commenced this action against appellant, alleging that it breached the insurance contract by failing to properly investigate the loss and denying the loss as not covered under the policy. Respondent sought both direct and consequential damages that it claimed stemmed from appellant’s breach.

Published on: September 29, 2013

Court Hears Case for Will Contest Between Brother and Sister

by Stephen Bilkis

A son of the decedent, who is the objectant in a probate proceeding, petitions for the issuance of limited letters of administration to himself in order to obtain the decedent’s medical records and to commence an SCPA (Surrogate’s Court Procedure Act) discovery proceeding against the decedent’s daughter with regard to real property purportedly transferred by the decedent to her shortly after the decedent executed the instrument propounded in the probate proceeding. A New York Probate Lawyer said the daughter, who is the proponent of the instrument, filed objections only to that branch of the application seeking limited letters to commence the discovery proceeding. She argues that the son is going on a fishing expedition and any claim he might make concerning the realty transfer is barred by the statute of limitations.

The decedent died and was survived by the daughter, the petitioner and another son who post-deceased. A New York Will Lawyer said the executed propounded instrument gives the daughter a one-half interest in real property located in the Bronx, with the other half of that property divided equally between the two sons; however, a few weeks later, the decedent purportedly transferred the same property to the daughter and post-deceased son as joint tenants with rights of survivorship.

A Manhattan Probate Lawyer said limited letters of administration are issued pursuant to SCPA and in those instances where, as here, it is unlikely that the person who is the nominated or appointed fiduciary would pursue a claim either because it is against herself or against another party that the fiduciary would not be inclined to pursue.

Published on: September 24, 2013

Court Discusses the Surrogate’s Court Protection Act

by Stephen Bilkis

A New York Probate Lawyer said the decedent woman died leaving a will dated April 5, 1999 (the 1999 will) and two prior wills dated June 5, 1998 (the 1998 will) and November 26, 1997, all of which were filed with the court. All three wills nominate the decedent’s sister and the decedent’s nephew as co-executors.

The 1999 will provide that the decedent woman’s residuary estate shall be distributed 50% to her sister and 50% to her nephew and his wife. A New York Will Lawyer said that th 1998 will, however, provides that 50% of the residuary estate will be distributed to her sister, 25% to her sister’s son and his wife, and 25% to her nephew and his wife. All of the wills contain an in terrorem clause and dispense with the filing of a bond. An in terrorem clause is a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off or given only a dollar, instead of getting the full gift provided in the will.

Manhattan Probate Lawyers said the petition filed with the court, the decedent’s nephew offered the 1999 will for probate. The decedent’s sister, although named in the 1999 will as a co-executor has failed to join in the petition. Thereafter, by petition filed with the court, the sister applied for preliminary letters testamentary based upon her nomination as co-executor under the 1998 will. In her prayer for relief, the sister asked that preliminary letters issue solely to her alleging that the nephew has made no attempt to have a preliminary appointment made in the matter. By petition, the decedent’s nephew petitioned for preliminary letters testamentary based upon his nomination as co-executor under the 1999 will. The nephew requests that preliminary letters issue solely to him since the decedent’s sister may object to admission of the 1999 will to probate because her son would receive a portion of the residuary estate under the 1998 will.

Published on: September 6, 2013

Court Reviews Legal Fees In Estate Administration Case

by Stephen Bilkis

Submitted for decision in this intermediate accounting proceeding is the issue of fees and commissions.

On 6 October 1999, A died. She left a will dated 8 August 1997. On 11 April 2000, the will was admitted to probate and on the same date, a letters testamentary was issued to B, her son. B died on 6 May 2002. This is an intermediate accounting by C as executor of the estate of the deceased executor B. The accounting covers the period from 6 October 1999 through 6 May 2002. The summary statement shows charges to the accounting party of $2,384,134.60.

A New York Probate Lawyer said that with respect to the issue of attorney fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate as held in Matter of Stortecky v Mazzone. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily as held in Matter of Brehm.

Published on: August 21, 2013

Petitioner Files a Petition to Compel an Accounting

by Stephen Bilkis

Decedent, by codicil, nominated his attorney and that attorney’s accounting partner as co-executors of his estate. It was apparent from the outset of the probate proceedings that this estate was of sufficient financial magnitude as to fall within those provisions entitling each fiduciary to seek a full commission.

According to a New York Probate Lawyer, decedent died in November 1976, and permanent letters were issued by decree. The five objectants constitute decedent’s widow and four children, all of whom comprise the primary beneficiaries of this estate. Probate was accomplished without objection to the nominated fiduciaries. Decedent’s youngest issue, then an infant, was represented by a guardian ad litem. It does not appear that decedent’s three adult issue were individually represented by counsel in the probate proceedings. The fiduciaries’ administration of this estate continued without objection until the filing of their final account. This account was filed subsequent to the bringing on of a petition to compel an accounting. The examination of the schedules constituting this account indicates an administration with some complexity.

A New York Will Lawyer said the objections which the accounting parties seek to have dismissed relate to the right of the two fiduciaries to each seek a full commission. The issues relative to the co-executors’ administration of the estate and whether that administration would justify some form of reduction in their compensation is not presently before the court. More particularly, it is now claimed that the co-fiduciaries, one of whom was the attorney draftsman of the codicil containing his appointment, “negligently, unethically, improperly, and/or fraudulently” failed to inform the testator of the standards for two full commissions and that two commissions should, therefore, not be paid.

Published on: July 24, 2013

Petitioner Claims Decedent Lacked Capacity in Will Contest Action

by Stephen Bilkis

The decedent, a former court reporter, died at the age of 78 following an almost two-week hospitalization. The propounded instrument was executed one day prior to the decedent’s death, while he was hospitalized. A New York Probate Lawyer said the amended probate petition indicates that the decedent’s distributees are four first cousins, each of whom was served with process. One of the cousins requested that a subpoena duces tecum be “so ordered” by the court in order to obtain the decedent’s hospital records, and her time to file objections was extended to 10 days after the completion of the SCPA 1404 examinations. Ultimately, she did not file objections.

According to a New York Will Lawyer, a judicial subpoena duces tecum issued for the production of the decedent’s hospital records. In addition, SCPA 1404 examinations were conducted of the witnesses to the propounded instrument, as well as of its drafter, a non-attorney who also works in the court system and was a friend of the decedent and the movant. Prior to conducting SCPA 1404 examinations, the objectant filed initial objections asserting that the decedent lacked testamentary capacity, the propounded instrument was not properly executed pursuant to EPTL 3-2.1, and was procured by the undue influence of the movant.

New York City Probate Lawyers said the non-attorney drafter testified at her SCPA 1404 examination that the decedent first spoke about leaving everything to the movant about three years prior to his death, upon his return from a California trip. According to the drafter, the decedent always stated that he knew he should have a will, but he was “superstitious” and believed that, if he signed one, he would die. The decedent also stated repeatedly that the movant was “like a son” to him and he wanted to leave his estate to the movant. Over the years, particularly when the decedent did not feel well and raised the subject, the drafter encouraged the decedent to retain a lawyer to draw up a will or, alternatively, to complete a Blumberg form will and she gave him blank forms, noting that he did not have to sign any draft or form until he felt death was imminent. The drafter, the decedent and the movant were all friends and used to dine together, and the drafter considered the movant to be like “family.” Specifically, although the decedent and the drafter were friendly, each of them had a closer relationship with the movant.

Published on: July 1, 2013

Court Discusses Labor Law Issue

by Stephen Bilkis

The defendant third-party plaintiff, corporation-one, owned real property where it was building a group of town houses. It hired the third-party defendant, corporation-two, to perform carpentry work and hired the defendant corporation-three to perform roofing work.

A New York Probate Lawyer said the plaintiff, an undocumented alien, was an employee of corporation-two. While standing on a makeshift scaffold, constructing a staircase between the second and third floors inside one of the new townhouses, the plaintiff was struck by a package of shingles that fell from the roof through an opening created for a skylight. The impact caused the scaffold to collapse, and the plaintiff fell to the basement, resulting in severe and permanent injuries, broken bones, head and neck injuries, and the like.

Consequently, a New York Will Lawyer said the plaintiff commenced a personal injury against corporation-one and corporation-three and sought to recover damages for the injuries he sustained in the aforesaid construction accident. Plaintiff asserted causes of action based on common-law negligence and violations of the Labor Law. In a cross claim against corporation-three, and in a third-party action against corporation-two, corporation-one sought contractual and common-law indemnification.

Published on: December 28, 2012

Court Applies the Business Judgment Rule

by Stephen Bilkis

The plaintiffs own 1 of 20 lots comprising a subdivision known as Estates at Brookview. As such, the plaintiffs are members of the Estates at Brookview Homeowner’s Association (hereinafter the Association) and subject to its bylaws and “Declaration of Restrictions, Covenants, and Easements” (hereinafter the Declaration). A New York Probate Lawyer said that in the fall of 2004 the plaintiffs constructed a shed on their property. Upon inspection of the completed structure by the Town of Chester’s Building Inspector, the shed was approved and the plaintiffs were issued a certificate of compliance.

After complaints about the shed were received by the Board of Directors of the Association, the plaintiffs received a document entitled “Determination and Notice of Violation” (hereinafter the DNV), issued by the Board, advising them that their shed violated certain provisions of the Declaration. The plaintiffs contend that the Board lacked the authority to issue the DNV.

As a result, a New York Estate Litigation Lawyer said that, plaintiffs filed an action for summary judgment, declaring that the document entitled “Determination and Notice of Violation” issued by the Board of Directors of the Estates at Brookview Homeowner’s Association is null and void. A New York Estate Litigation Lawyer said that defendants filed a cross motion for summary judgment and for an award of an attorney’s fee pursuant to the Association’s bylaws and “Declaration of Restrictions, Covenants, and Easements.

Published on: December 17, 2012

Court Determines the First and Final Account for the Administrator

by Stephen Bilkis

The Facts of the Case:

On 22 February 2004, a resident of Hicksville died with a will dated 6 November 2002, months after a guardian was appointed on her behalf under Mental Health Law Article 81. The decedent left all of her property, other than a $15,000.00 bequest to a corporation, to “A”, to the exclusion of her family members. The will named “X” as executor and after he offered the will for probate it was revealed that he had a felony record, making him ineligible to serve as a fiduciary. Thus, on 2 May 2005, “X” renounced his appointment. The nominated successor to the named executor had previously renounced her appointment as well.

On 4 May 2005, “A” petitioned the court for letters of administration, for estate administration (estate litigation). However, “A” also had a felony record and was ineligible to serve. Therefore, on 9 June 2005, the court appointed the Public Administrator of Nassau County as temporary administrator. A New York Probate Lawyer said that the decedent’s distributees appeared and filed objections to the probate of the will, and notices of appearance were filed on behalf of “A”, the New York State Attorney General and the aforementioned corporation. On 22 November 2005, all of the interested parties entered into a stipulation of settlement. On 1 February 2006, the will, as reformed and restated by the settlement agreement, was admitted to probate, and full letters of administration, were issued to the Public Administrator. Under the terms of the stipulation, articles second and fifth of decedent’s will were reformed so that three of the decedent’s distributes will share in 2/3 of the decedent’s real property and her residuary estate; the remaining 1/3 will pass to “A”; that the decedent’s real property will pass to these parties in kind, so as not to be subject to a commission, and that the property would be sold and the proceeds held in an attorney’s escrow account; and that before any distributions are made to the interested parties from the escrow account, the sales proceeds will be used to pay the bequest to the aforesaid corporations, the commission of the Public Administrator, and all debts, fees and estate administration expenses of the estate.