Probate & Estate Litigation

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 11, 2012

Court Looks at Disposition of Decedent’s Gifts

by Stephen Bilkis

The Facts of the Case:

On 19 December 1947, a woman died. She was a resident of the Village of Millbrook, Dutchess County, New York. On 18 February 1948, her last Will and Testament was duly admitted to probate by decree of the Dutchess County Surrogate. Under the said will, after making certain specific devises, the testatrix, in paragraphs Fifth and Sixth of her said will, provided that:

Fifth: “I give, bequeath and devise to my executors hereinafter named all the rest, residue and remainder of my property including my house on Elm Drive, Millbrook, N. Y., to be held by them in trust for my brother, Pleasant Valley, N. Y., they to invest and reinvest the same and pay the income therefrom to him for as long as he lives. A New York Probate Lawyer said a portion of the principal may also be used for the support and maintenance of my said brother if deemed necessary in the sole judgment of my said executors and trustees.”

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.”

Published on: August 9, 2012

Court Discusses Supplemental Needs Trust

by Stephen Bilkis

This is a probate proceeding in regard to the deceased, Edward R. Barclay’s will. The case is being heard in the Surrogate’s Court of the State of New York in Nassau County. The judge in the case is John B. Riordan.

Probate Issues

In this particular probate case there are two issues set before the court. The first issue is that the spouse of the decedent, Josephine M. Barclay, is in opposition of the preliminary letters being granted to Peter and Kathleen Hesse. Additionally, Ms. Barclay has moved to revoke her waiver and consent.

Published on: August 8, 2012

Petitioner Objects to Jurisdiction

by Stephen Bilkis

This is a matter concerning the last will and testament of the deceased Kate Freeman Clark. The case is being heard in the Surrogates Court of Suffolk County.

Motion

The motion that is before the court is to have the probate proceeding in this court dismissed and surrendered to the Chancery Court of Marshal County in the state of Mississippi. The motion asks for this court to give up its jurisdiction in the case. The Surrogate Court of Suffolk County took jurisdiction in this case under section 45 of Subdivision 3 as the decedent left a considerable amount of personal property within this county.

Published on: August 7, 2012

Guardian ad Litem Contends Undue Influence

by Stephen Bilkis

This is a probate proceeding that questions the will of Vito DeMarco, the deceased. The case involves the administrator of the estate, Christina Matozzo versus the Trustee of the Vito DeMarco Living Trust, Anthony DeMarco. Mr. DeMarco is seeking to declare that the trust is invalid. The case is being heard in the Surrogate’s Court of the State of New York.

Proceedings

There are currently three different proceedings that are pending in regard to the Vito DeMarco estate. The first is the proceeding that seeks to assert that the Vito DeMarco Living Trust that is dated the 19th of March, 2001 as invalid.

Published on: August 6, 2012

Multiple Parties Seek to be Executor of Estate

by Stephen Bilkis

This is a matter of probate concerning the will of Evelyn May Hoelzer. The case is being heard in the Surrogate Court of the City of New York in Nassau County. The judge overseeing the hearing is John B. Riordan.

Probate Applications

This is a pending probate proceeding involving the will of Evelyn Hoelzer. There are currently two applications set before the court for preliminary letters testamentary. A New York Probate Lawyer said tne application is from Jeanne Schieck and the other is Richard Hoelzer. Jeanne is the decedent’s niece and Richard is the decedent’s brother.

Published on: August 5, 2012

Delay in Filing Documents Leads to Monetary Loss for Estate

by Stephen Bilkis

This is an appeal case being heard in the Second Department Appellate Division of the Supreme Court. The plaintiffs in the case are James P. Johnson III, et al. The defendant in the case is Murray Berger. The case also has Neil R. Gerst et al., as third party defendants, plaintiffs-appellants. Kenneth Murphy et al., are the third party defendants and respondents. The defendants, third-party plaintiffs-appellants are represented by Chesney, Murphy & Moran, Westbury. The third party defendant-respondent Kenneth Murphy is represented by Gabor & Gabor with Hope Senzer Gabor for counsel. The third party defendants-respondents Gary Darche is represented by both Koopersmith, Feigenbaum & Potruch and DiMascio, Meisner & Koopersmith.

Action

The defendant’s third party plaintiffs are seeking an appeal from an order made by the Queens County Supreme Court involving a case of legal malpractice. A New York Probate Lawyer said the original order granted the motions for summary judgment for the dismissal of the case in favor of the third party defendants. The order dismissed all of the third party complaints that were asserted against each of them.

Published on: August 4, 2012

Court Orders Preliminary Letters Testamentary

by Stephen Bilkis

This is a probate proceeding for the will of the deceased Stuart L. Ain. The case is being heard in the Surrogates Court of the city of New York located in Nassau County. The case is being overheard by Judge John B. Riordan.

Probate Proceeding

Stuart Ain, the decedent passed away on the 28th of October in 2006. He left a will that was dated the 27th of April, 2007. Victor Levin and William J. O’Brien were named as the executors of the will. William J. O’Brien renounced his appointment as executor. Michael and Jody, the decedents two adult children are the sole survivors.

Published on: August 3, 2012

Plaintiff Filed Objection to Probate of Will

by Stephen Bilkis

Suffolk Probate 13

The plaintiff in this case is Rachel Kuncman. The defendants in the case are Steven A. Sherman, American Portfolios Financial Services, Inc., the Abraham Salomon and Tobi Weinstein estates both individually ans as the executrix of the Abraham Salomon estate. The case is being heard in the Nassau County Supreme Court. The judge overseeing the case is Stephen A. Bucaria.

Case History