Probate & Estate Litigation

Published on: March 20, 2014

Court Listens to Probate and Discovery Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that, before the court are a probate proceeding and a discovery proceeding. The decedent, died on June 14, 2008 a resident of Nassau County, survived by her four adult children. Decedent had been married for fifty (50) years. They divorced in April 2001. At the time of her death, decedent resided in property located at 55 Chestnut Hill, Roslyn, New York.

A New York Will Lawyer said that, these proceedings arise out of the same facts and involve four (4) documents. Decedent and her husband executed a joint will dated December 20, 1993. The joint will provided in relevant part the following: SECOND. Upon the death of one of us, leaving the other of us surviving, the entire estate of the one dying first and all property of which she or he has power of disposal, whether owned jointly or severally, is hereby given to the survivor, upon the condition, however, that whatever remains of the above estate after the death of the survivor shall be given as set forth herein Paragraph Fourth hereof. Paragraph FOURTH created a trust for the benefit of the testator’s grandchildren and an outright bequest. The will further provided: FIFTH: We have mutually agreed upon the foregoing disposition of our property, and, in consideration thereof, it is further mutually agreed by both of us that this Will shall be forever binding upon both of us and upon the estate of each of us, and shall bind our legatees, distributes (sic) and representatives. We further mutually agree that this Will shall be irrevocable and shall not be modified or revoked by either of us or by the survivor of us, except that it may be revoked or modified only by a writing subscribed by both of us and executed by both of us with the formality of a Will. SEVENTH: Upon the death of one of us leaving the other surviving, the survivor is hereby appointed executor or executrix of the estate of the one dying first; and upon the death of both of us.

A Bronx Probate Lawyer said that, decedent and her husband entered into a Marital Settlement Agreement in January 2001 which provided, in part, that: 7. The Husband and Wife have heretofore executed a Joint Irrevocable Last Will and Testament in New York, which is again reaffirmed by the parties as their Last Will and Testament, and both parties agree to maintain and support the obligation and covenants made therein and further agree not to attempt to Revoke such Last Will and Testament. Decedent and her husband owned two residences; one was a condominium in Boca Raton, Florida, the other, a condominium in Roslyn, New York. The Marital Settlement Agreement provided that Jerome acquired title to the Florida property and the decedent acquired the Roslyn property.

Published on: March 15, 2014

Court Hears Estate Case Regarding Foreclosure Action

by Stephen Bilkis

A New York Probate Lawyer said that this is an action transferred to this court from Supreme Court, Nassau County, defendant Countrywide Home Loans, Inc. (Countrywide), one of several defendants, moves the court for an order dismissing the complaint as against Countrywide. Plaintiffs oppose Countrywide’s motion and cross-move for summary judgment dismissing Countrywide’s answer, or, in the alternative, striking Countrywide’s fourth and seventh affirmative defenses.

A New York Will Lawyer said that, this action emanates from a foreclosure proceeding involving property located at 198-200 Wellesley Street, Hempstead, New York. That property was owned by the decedent who died intestate on July 13, 1986. Her brother, administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that her brother was the decedent’s sole distributee and that the subject property vested in him immediately upon his sister’s death. The brother then died testate on June 9, 1994. An administrator was appointed the voluntary administrator of his estate. The court’s file contains his original will which devises and bequeaths all of his property to his cousin. He died August 1, 2000. There was no deed executed from the estate of the decedents, nor was there a deed from the estate of the brother. Although the brother original will was filed in the court by Calhoun incident to the voluntary administration of the estate of the decedent, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the decedent, the administrators of his estate, and claim to be his only distributees.

A Long Island Probate Lawyer said that, the underlying action by plaintiffs is to vacate the tax lien foreclosure sale, the deed by which the current owners of record, defendants, obtained title, and the mortgage placed on the property by the defendant Countrywide incident to the purchase of the property by defendants. Plaintiffs 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 to provide that notice requires the vacating of the judgment in the foreclosure action and all subsequent deeds and mortgages.

Published on: March 6, 2014

Court Decides Case Regarding Lost Will

by Stephen Bilkis

A New York Probate Lawyer said a deceased man was survived by his wife and three adult children. Afterward, his last will was offered to probate. The man’s 2003 last will bequeathed his personal property, shares of stocks and real property to his wife. A trust is also established for the benefit of his wife, and upon her death, the property was to be held in trust for their three children until they reached the age of thirty.

A New York Will Lawyer said the article sixth of the man’s 2003 last will provides that the man’s interest for various companies and real property is to be held in trust for the benefit of his wife, but subject to the option of his son to purchase the same.

Afterward, the last will was admitted to probate and the letters testamentary was issued to the estate administrator.

Published on: March 5, 2014

Court Discusses Revocation of a Waiver

by Stephen Bilkis

On 22 April 2009, EB, a resident of Nassau County died purportedly leaving a will dated 20 March 2009. He was survived by his wife from a second marriage, JB, and by five children.

A New York Probate Lawyer said that under the purported will, one-third (1/3) of the residuary estate is to be placed in a supplemental needs trust for the decedent’s wife; the remainder of the residuary estate is to be divided into seven equal shares with one share for each of the EB’s children (other than P) and the decedent’s three step-children; and, it nominates KH, EB’s daughter, and PH, KH’s husband, as executors.

Consequently, the purported will was offered for probate by the nominated executors. On 12 May 2009, a waiver and consent was signed by JB. On 16 June 2009, it was filed with the court. P, one of EB’s children, is under a disability. Thus, a guardian ad litem was appointed for her.

Published on: March 4, 2014

Court Discusses Case Involving In Terrorem Clause

by Stephen Bilkis

A New York Probate Lawyer said a petition for the probate of an instrument dated 11 March 2008 was filed by the nominated executor before the court along with the recovery of property alleged to be an asset of the estate pursuant to SCPA 2103.

A New York Will Lawyer said the parties are: petitioner, the nominated executor; and, respondents, the children of decedent and children of a predeceased son.

The respondents seek: a stay of the probate proceeding pending conclusion of the SCPA 2103 proceeding; a stay of the probate proceeding pending a construction of the in terrorem clause in the instrument offered for probate; an order granting petitioner the right to depose the nominated successor executor prior to filing objections; and, an order granting petitioner the right to depose the nominated successor executor and attorney-draftsman of a prior instrument purporting to be the last will and testament of decedent, again, prior to the filing of objections.

Published on: March 2, 2014

Petitioners File Will Contest Based on Fraud

by Stephen Bilkis

A New York Probate Lawyer said that, this is a proceeding to vacate a decree of probate and to allow the petitioners to withdraw the waivers of process, consents to probate they executed on May 17, 1999. The petitioners are the decedent’s four adult children, the executor of the estate, opposes the requested relief. The husband is the decedent’s surviving spouse; he and the decedent were married in November 1991. He is not the father of the petitioners.

A New York Will Lawyer said that, on February 20, 2008, the court issued a decision and order wherein the court granted the petitioners’ counsel’s unopposed motion to withdraw as the petitioners’ counsel and stayed the proceedings for 30 days after a copy of the order was served by overnight delivery on the petitioners. A copy of the order was served as directed, and the period of the stay has expired. The petition to vacate the decree granting probate and for other relief has now been submitted for decision.

The decedent died on December 5, 1998 at the age of 57. Her last will and testament dated March 11, 1995 was admitted to probate by decree dated July 29, 1999, and letters testamentary were issued to the husband. The affidavit of subscribing witnesses annexed to the will states that the will was executed under the supervision of an attorney. The decedent left her entire estate to the husband. In the event that he had predeceased the decedent, the decedent bequeathed the estate to the petitioners, per stirpes.

Published on: February 26, 2014

The issue in this case is whether the United States estate tax should be allocated against legacies bequeathed in the Mexican will of the decedent.

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent was a citizen of the United States, domiciled in Mexico City, who possessed substantial assets in New York and in Mexico. On May 14, 1965 she executed a will in New York which disposed of all of her property ‘wheresoever’s situate’, directed that, regardless of her domicile at death, her will be offered for probate in New York County, that the administration of her estate be conducted subject to the jurisdiction of this court, and that her will and all dispositions therein be construed and regulated by the laws of the State of New York. The residuary estate administration was bequeathed in equal shares to two friends, one of whom resided in Brooklyn and the other in El Paso, Texas. The latter is the objectant here.

A New York Will Lawyer said that, on January 20, 1966–approximately eight months after the execution of her will in New York–the decedent executed a notarial will in Mexico City. An English translation of the Spanish text is incorporated in the probate decree of this court. The will contains several general legacies expressed in Mexican currency and ‘for the remainder of her estate (the testatrix) institutes as her sole heirs in equal one-third shares’ three individuals, all residents of Mexico City. This instrument made no mention of the New York will and no reference at all to estate taxes. It declares that ‘the testamentary provisions contained in this instrument shall apply only to the property or money which the testatrix has in the Mexican Republic’, and it appoints Mexican executors. A second notarial will was executed in Mexico on April 25, 1966. It is actually a codicil to the January will, revoking one general legacy and also the institution of one of the three as an heir, leaving the other two persons ‘as the sole heiresses in equal parts.’ This instrument also is silent with respect to estate taxes and their impact.

A Westchester County Probate Lawyer said that, the decedent died in Mexico on April 22, 1967. Her New York will and the two notarial instruments were offered for probate in this court. Preliminary letters testamentary were issued to the executor named in the New York will on June 2, 1967. By decree dated June 5, 1968 this court found that the will dated May 14, 1965 had been duly executed, that the instruments in the Spanish language dated January 20, 1966 and April 25, 1966 had been duly established as testamentary instruments in accordance with the laws of Mexico, and that the English translations offered for probate were true translations of the Spanish original. A New York Probate Lawyer said that, it decreed that the three paper writings be admitted to probate ‘as together constituting the last will and testament of the said Bessie Owen, deceased. Letters testamentary were directed to issue to Bankers Trust Company, the executor named in the New York will, ‘provided that such letters testamentary, and the authority, responsibility and accountability of Bankers Trust Company thereunder, shall not extend to property, money or matters administered in Mexico but shall otherwise be unlimited.’ Such letters were issued on June 7, 1968.

Published on: February 25, 2014

Court Decides Case Regarding Rhode Island’s Non-claim Statute

by Stephen Bilkis

A New York Probate Lawyer said that, plaintiff was a patient of the decedent doctor, a general dentist. He died on September 12, 2005. Although he lived in New York at the time of his death, a probate estate was commenced in Rhode Island where he possessed property and where, over a decade earlier, he had executed his will. On December 8, 2005, the decedent’s brother (who happens to be an attorney), was appointed as Executor of the Estate of the decedent (“the Executor”) In late December 2005, he sent plaintiff care of her attorney, a “Notice of Commencement of Probate,” which set forth information regarding the decedent’s Rhode Island probate estate.

A New York Will Lawyer said that, plaintiff commenced this dental-malpractice action against the Executor in June 2006. In her Verified Complaint, she alleges that the decedent committed malpractice while rendering dental treatment between September 11, 2004, and February 15, 2005. The Executor’s Verified Answer (dated August 24, 2006), includes the affirmative defenses of failure to “timely file a claim against decedent’s estate” pursuant to Rhode Island General Laws §§ 33-11-4, 5, 9 and “insufficient service of process.”

A Nassau County Probate Lawyer said that, pursuant to CPLR 3211, defendant Executor of the Estate of the decedent moves to dismiss this dental malpractice action commenced by plaintiff, arguing that plaintiff failed to comply with Rhode Island’s non-claim statute and failed to properly serve him. Plaintiff opposes the motion and, as a precautionary matter, cross-moves for an extension of time to properly serve the Summons and Verified Complaint.

Published on: February 24, 2014

Court Decides Validity of German Will

by Stephen Bilkis

In this proceeding the petitioner requests probate of a will executed in 1955 while the decedent was domiciled in New York County. A New York Probate Lawyer said that the petitioner is an appointed executor of a will which bequeaths the residuary estate to a New York charity. Decedent journeyed to Bavaria, West Germany in 1965 and executed a holographic will while still there in 1967; that will provides that it revokes all prior wills. She died, still in Germany, having neither home nor presence in New York from after departure in 1965 until her death in 1968.

A New York Will Lawyer said that Respondent cross-petitioner is the sole legatee under the later will, which was established in court proceedings in West Germany in 1972. Respondent cross-petitioner moved for summary judgment dismissing the petition and denying probate to the prior 1955 will. Respondent further petitions for ancillary letters c.t.a. on the basis of the 1967 will.

A Staten Island Probate Lawyer said that the court finds that judicial decrees, not administrative certificates, were rendered by courts of record in Germany in the establishment of the 1967 holographic will of the decedent. Furthermore, the ‘Certificate of Inheritance’ issued by the District Court in Germany constitutes a final decree and not merely an interlocutory determination. In addition a finding of German domicile was essential to the establishment of the 1967 will in Germany. On the basis of the recognized rules of comity, this court gives full recognition to the establishment of the 1967 will of the decedent in the German courts.

Published on: February 14, 2014

Court Rules on Accounting Proceeding

by Stephen Bilkis

A New York Probate Lawyer said this is an accounting proceeding in which the court is asked to determine whether assets of the estate located in New York should be distributed directly to legatees or whether they should be transmitted to the California administrator for distribution there. A New York Estate Lawyer said that, the deceased until three years prior to his death had been a New York resident. He had prepared a will here naming the Chase Manhattan Bank executor. He then moved to California, purchased real estate, established his residence and executed three codicils to the will. The codicils disposed of his California realty, enlarged the legacy of a niece, a California resident, dropped one of the named executors but retained the Chase Manhattan Bank. Most of the estate is here in New York.

A New York Estate Will Lawyer said that, after decedent’s death, the executor petitioned for the probate of the will and codicils in this jurisdiction. A contest ensued which was subsequently settled and the objections were withdrawn. Letters testamentary were then issued to the Chase Manhattan Bank. Shortly thereafter, the decedent’s niece, a legatee, applied to the Los Angeles Probate Court for letters of administration. That court granted letters to the Public Administrator of Los Angeles.

A Nassau Probate Lawyer said that, although the letters issued to the Chase Manhattan Bank were in form letters of original probate, it would appear that in reality the deceased being a resident of California the domiciliary administration is there and the administration here is therefore in its nature ancillary. The Public Administrator of Los Angeles as administrator c.t.a. has objected to the proposal of the executor to distribute the assets in its possession to the legatees directly rather than to remit them to the domiciliary representative in California for distribution by him.