Articles Posted in Nassau

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In an action to recover damages for personal injuries and for wrongful death, the defendant (hereinafter Standard) appeals from so much of an order of the Supreme Court, Kings County, dated December 16, 1985, as, inter alia, denied its cross motion to dismiss the complaint as against it.

The decedent initially commenced this action for personal injuries against the defendant Standard, claiming that he was injured by the inhalation of asbestos. Special Term granted the motion of the decedent’s daughter, to be substituted as the plaintiff in place and stead of her father in her capacity as the executrix of his estate and to amend the original complaint to include a cause of action for her father’s alleged wrongful death. Special Term denied Standard’s cross motion to dismiss the complaint as against it, rejecting Standard’s argument that the Surrogate’s Court, Kings County did not have the power to declare the executrix of her father’s estate and probate his will since he was a domiciliary of Florida at the time of his death.

Pursuant to SCPA 204, when the jurisdiction of a court is called into question in a collateral proceeding, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclusively established by an allegation of the jursidictional facts contained in a verified pleading. Contrary to Standard’s assertion, there were no fraudulent statements in the petition. While the petition alleged that the decedent was a domiciliary of Kings County, it also indicated that decedent had died in a Florida nursing home. In addition, annexed to the petition were papers intended to inform the Surrogate of the decedent’s connection with Florida. Thus, the Surrogate was supplied with all of the relevant facts, and in the absence of fraud, the defendant has no standing in a collateral proceeding to have the determination overturned.

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A New York Probate Lawyer said that, this proceeding requires consideration of SCPA 205 (L 1984, ch 128, effective June 21, 1984) which substituted the flexible and waivable concept of venue for the inflexible and non-waivable concept of subject matter jurisdiction in all proceedings brought in the Surrogates’ Courts of the state. As a result of this new statute, each Surrogate’s Court in every county now has statewide subject matter jurisdiction subject only to the consideration of venue. An issue of the proper venue has been raised in this proceeding.

A New York Estate Lawyer said that, for many years before her death, decedent resided in New York County. On June 21, 1984, she was admitted to Montclair Nursing Home in Nassau County, where she died seven months later on January 31, 1985. The issue of venue arises because proceedings have been commenced in both the Surrogate’s Court of Nassau County and the Surrogate’s Court of New York County. On July 26, 1985, an instrument dated September 18, 1981 was offered for probate in Nassau County. Four days later, on July 30, 1985, decedent’s sole distributees (two nieces) petitioned for letters of administration in this court. Needless to say, these petitioners contend that the instrument propounded in Nassau County is invalid. The basis for their contention is not relevant to this decision.

The issue in this case is whether the venue of the estate proceeding is proper.

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A New York Probate Lawyer said this action emanates from a foreclosure proceeding involving property located in New York. That property was owned by a woman who died intestate. Her brother administered her estate as voluntary administrator. It appears, although it is not entirely clear, that the brother was his sister’s sole distributee and that the subject property vested in him immediately upon his sister’s death. The brother then died estate. A cousin was appointed the voluntary administrator of the brothers’ estate. The court’s file contains the brothers’ original will which devises and bequeaths all of his property to his cousin. The cousin died and there was no deed executed from the estate of the woman to her brother, nor was there a deed from the estate of the brother to his cousin. Although the brother’s original will was filed in the court by his cousin incident to the voluntary estate administration of the brother, the will was never offered for, or admitted to, probate. The complainants are the non-marital children of the cousin, the administrators of his estate, and claim to be his only distributees.

A New York Will Lawyer said the real estate taxes at the subject property were delinquent and one woman purchased a tax lien from the County of Nassau. In April 2002, she commenced a tax lien foreclosure action on the tax lien. The notice required to be sent pursuant to Nassau County Administrative Code was sent to the person occupying the property and to the Public Administrator of Nassau County as the administrator of the estate of the woman, the Public Administrator having been appointed as such pursuant to a creditor’s petition filed by the woman.

The underlying action by the complainants is to vacate the tax lien foreclosure sale, the deed by which the current owners of record, the defendants obtained title, and the mortgage placed on the property by the defendant incident to the purchase of the property by the defendants. The complainants contend that as the fee owners of the subject property at the time the foreclosure action was commenced, they were entitled to notice of the proceeding and the failure of the woman to provide that notice requires the vacating of the judgment in the foreclosure action and all subsequent deeds and mortgages.

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A New York Probate Lawyer said that, a person claiming to be a creditor of the decedent applies for the issuance to him of ancillary letters of administration. It is conceded that the decedent was domiciled in Ohio, and that letters of administration were issued by a competent tribunal of that State to another person. The petition alleges that the decedent left personal property in New York consisting of ‘Royalty contracts of United Music Corporation.’ The Ohio administrator submitted an answer on September 18, 1962, alleging that there are no assets of the decedent within the State of New York. He does admit the contract between the decedent and United Music Corporation, ‘a publisher in the County of New York’, but he makes the somewhat ambiguous allegation that ‘no revenue or income’ was at that moment due the estate except ‘some writers’ royalties.’ He also asserts that there is no need for ancillary administration because, in his status as domiciliary administrator, he has been collecting the royalties due under that contract, and has experienced no difficulty in the prompt collection of them. He denied knowledge or information as to the validity of the petitioner’s claim, and he requested that if ancillary letters are to be issued, they be issued to him. The Public Administrator asserted that his right to letters were superior to that of the petitioner and requested the issuance of letters to him. During the proceeding the petitioner conceded the superior right of the Public Administrator to letters. The matter was placed upon the calendar for hearing of the contested issue as to the existence of any asset in New York County.

A New York Will Lawyer said that, after the matter was placed upon the hearing calendar, the Ohio administrator attempted to avoid meeting that issue by going through a form of sale of all the decedent’s rights under the contract. In October, 1962 he applied to the Ohio court for permission to sell all of the decedent’s interest in the musical composition ‘Huckle Buck’, which is the composition published by United Music Corporation, and he obtained judicial permission to sell it ‘at the best price obtainable’. No mention was made in that application of the proceedings in this court or of the petitioner’s claim. On October 31, 1962, the Ohio administrator signed an instrument which purports to transfer to a third person all of the decedent’s interest in the composition, the copyright thereto, and any extension and renewal. The consideration recited in that instrument is $2,500 and payment of that sum to the Ohio administrator was proven.

A Nassau County Probate Lawyer said that, an officer of the United Music Corporation was called as a witness by petitioner. It appears that the decedent had assigned to that corporation all of his interest in the composition, and the corporation agreed to pay specified royalties. Royalties were regularly paid during the decedent’s lifetime, and up to the end of June 1961. In August, 1961, the sum of $2,137.68 was paid to the estate, presumably for the period ending June 30th. The witness testified that royalties were being held by the corporation and that for the period July 1, 1961 to December 31, 1962, the accrued royalties amounted to $2,729.73. There was a lack of agreement among counsel as to how long the copyright still has to run, and definitive proof on that question was not submitted. It appears, however, that the copyright is still in existence. We do not have proof of the precise amount of accrued royalties on October 31, 1962. That figure was always obtainable by the administrator from United Music. The only figure near that date is the $2,729.73 accrued on December 31st, just two months later. Thus it is clear that in this hasty sale, the Ohio administrator sold for $2,500 the estate’s interest in accrued royalties of an approximately equal sum and also all of the estate’s future interests in the musical composition, the royalties, the copyright and any extension or renewals. If the sale is a bona fide sale, it was an incredible bargain for the purchaser, who not only bought nearly two thousand eight hundred dollars at a discount but all rights to future royalties.

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In this Estate Litigation action, the will of the testatrix bequeathed her husband a general legacy of $2,500 and named him as income beneficiary of a trust of one-half of the residuary estate. The remaindermen of this trust are charities as also are the legatees of the remaining one-half of the residuary estate. The husband filed objections to the probate of the will and challenged the bequests to charities as violative of Decedent Estate Law, § 17.

A New York Probate Lawyer said that negotiations between the husband and the charities resulted in an agreement by the terms of which the husband withdrew his objections to probate, consented to the admission of the will to probate and renounced and released any and all rights granted to him by Decedent Estate Law, § 17. Five charitable organizations agreed, in the same instrument of settlement, that immediately upon the issuance of letters testamentary the executrix would pay to the husband the sum of $26,000. The agreement stated that ‘except as in this stipulation and agreement provided, all of the provisions of aforesaid Will shall remain in full force and effect’.

The executrix now is accounting and has computed the amount of the husband’s trust in compliance with the provisions of the will and has deducted the $26,000 payment to the husband from the share of the residuary estate which, under the will, is payable to charities. IA New York Will Lawyer said certain of the latter have objected to this allocation of the settlement figure and they assert that the payment to the husband under the settlement agreement should have been deducted, in the manner of an administration expense, from the full residuary estate prior to the computation of the amount of the residuary trust.

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The decedent died in November 2005. A New York Probate Lawyer said its distributees are the spouse, the claimant and two other children. Preliminary letters testamentary issued to the claimant, by order entered and letters testamentary issued to him. In the probate petition, the claimant listed estate assets consisting of personal property of $100,000 and Bronx realty valued at $500,000. The decedent’s will devises the Bronx realty outright to the spouse, and divides the residuary estate 61% to the spouse, 7% to each of his three children and 3% to each of six grandchildren.

A Bronx County Probate attorney said that the documents and the claimant’s deposition testimony reveal that, following the decedent’s divorce from the claimant’s mother, the claimant became a tenant in common in the Bronx realty with the decedent, by purchasing his mother’s 50% interest therein for $40,000. Thereafter, the day the will was executed, the claimant conveyed his 50% interest in the realty to the decedent for $50,000, which the claimant admittedly received. The deed recites that the conveyance was in consideration of $50,000 and any other valuable consideration “paid” by the decedent.

A New York Will Lawyer said in the petition filed, the claimant commenced this proceeding alleging the following: (1) the claimant was unable to exercise good judgment at the time he transferred his interest in the property to the decedent as the claimant was then suffering from a bipolar disease; (2) the decedent took advantage of his poor judgment by acquiring his interest, which was worth hundreds of thousands of dollars, for “inadequate” consideration of only $50,000; and, (3) the decedent failed to honor his promise to pay the claimant an additional $250,000 at an unspecified later date. The claimant seeks either the $250,000 claimed, or a reconveyance of his interest in the realty for $50,000.

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A New York Probate Lawyer said that, in this uncontested proceeding to probate a will dated December 2, 1991, the issue presented is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses. The third attesting witness does not receive any disposition or appointment under the will.

The issue in this case is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses.

A New York Wills Lawyer said the court in deciding the case said that, EPTL 3-3.2(a)(1) provides that an attesting witness to a will to whom a beneficial disposition is made is a competent witness who can be compelled to testify with respect to the execution of such will but that the disposition to the attesting witness is void “unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.” The purpose of the statute is to preserve the maker’s testamentary scheme to at least some extent by making all attesting witnesses competent while preserving the integrity of the process of will executions by removing the possibility that attesting witnesses who receive a disposition under the will might give false testimony in support of the will to protect their legacies.

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A New York Probate Lawyer said that, in this SCPA 2103 proceeding, the respondent moved to vacate her default and for other relief. The branch of the motion seeking to vacate the respondent’s default is now academic as a result of the court’s decision and order dated February 1, 2008. In that decision and order, the petitioner’s application to strike the respondent’s pleadings and to enter a default judgment in the sum of $173,000 was denied, provided that the respondent both paid the sum of $400 to cover the cost and fees for her failure to appear at a deposition and, thereafter, appeared to be deposed as directed.

A New York Will Lawyer said that, in her affidavit in support of the motion, the respondent’s request for “other relief” is: (1) dismissal of the petition on the ground “that no asset of the estate” was ever removed by her; (2) dismissal of the petition on the ground that the “Stipulation of Settlement” filed in the probate proceeding was intended to cover “all matters and claims,” including any claim that the respondent removed estate assets; and (3) the imposition of sanctions on the petitioner’s attorney for knowingly filing a “frivolous” petition. In the alternative, the respondent requests that the proceeding be scheduled for a hearing.

Nassau County Probate Lawyers said the issue in this case is whether the respondent was authorized to distribute monies from the decedent’s bank account to herself pursuant to a power of attorney.

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A New York Probate Lawyer said this is a contested probate proceeding wherein the objectants, the decedent’s two grandchildren and sole distributees, move pursuant to CPLR 3212 for summary judgment denying probate to the propounded instrument dated 28 March 2007 based on lack of due execution. The proponent, the decedent’s niece who is the nominated executrix and sole beneficiary under the instrument, opposes the motion.

On 11 April 2007, the decedent died at a nursing home at the age of 87. She left a four-page, typewritten instrument that was witnessed at Kings Harbor Multicare Center, where the decedent was a patient, by two witnesses, contains an attestation clause, was prepared by an attorney who supervised its execution, and has a self-proving affidavit attached. It appears that the sole asset of the estate is real property where one of the objectants currently resides.

A New York Will Lawyer said the motion for summary judgment is based on only one of the three grounds interposed in the objections, namely, that the instrument was not duly executed, in that the decedent did not declare it to be her last will and testament in the presence of witnesses and that the witnesses were not aware that they were in fact witnessing the decedent’s will.

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A New York Probate Lawyer said that, petitioner, pro se, in his status as attorney-in-fact for his mother, has instituted a proceeding seeking to compel the production of a will. Petitioner personally has no status in the estate of decedent. Decedent died on May 5, 1984. Based upon a probate petition filed on July 2, 1984, an instrument dated March 27, 1982 was duly admitted to probate by the entry of a decree dated July 13, 1984. Petitioner’s principal is decedent’s sister. She was not his distributee inasmuch as the decedent was survived by two grandchildren. Under the instrument already admitted to probate, the grandchildren are the primary beneficiaries. Decedent’s sister receives a $1,000 legacy. There are several other legacies, including bequests to infants and charitable organizations.

A New York Will Lawyer said that, petitioner alleges that there is a testamentary instrument prior in date to the will admitted to probate under which petitioner believes his principal receives a greater legacy and that such prior instrument is in the possession of the co-executor who is the respondent in the instant proceeding.

A Staten Island Probate Lawyer said that, as a consequence of the greater legacy to his mother in the prior instrument, petitioner intends to institute a further proceeding seeking to vacate the probate decree entered July 13, 1984 and in the event such application be granted, to file objections on behalf of his principal to the probate of the instrument which formed the basis for that decree.

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