Probate & Estate Litigation

Published on: July 1, 2012

Court Hears Allegations of Fraud and Undue Infuence

by Stephen Bilkis

A petition for probate was filed. A contestant came forward in the probate proceeding contesting the due execution of the will and contesting as well the testamentary capacity of the testator. The contestant in his objection made general allegations of fraud and undue influence against the proponent of the will.

The proponent of the will then filed a motion for a bill of particulars. He demands that the party contesting the will be made to state specifically the acts or omissions as well as the time, the date, and the place where the specific acts of fraud and undue influence were perpetrated by him against the testator.

The Court is faced with the question of the extent a proponent may require a will contestant to provide specific and particular details of the fraud and undue influence he claims were committed by the proponent.

Published on: June 30, 2012

Will Contest Filed Based on Domocile of Decedent

by Stephen Bilkis

A citizen of the United States and resident of Kings County had lived most of his life in Kings County and has acquired properties and interests there. However, in the last years of his life he has lived in Casablanca in the Northern African French Protectorate of Morocco.

The Surrogate’s Court of Kings County entertained the probate petition but soon a will contestant appeared and filed his objection stating that the testator was already domiciled in Casablanca, Morocco at the time of his death.

The petitioner and the will contestant agreed to reserve the issue of determining the domicile of the testator until after the executor has filed a preliminary accounting/inventory of the properties comprising the estate of the testator.

Published on: June 29, 2012

Court Discusses Jurisdiction Issue Regarding Probate Proceedings

by Stephen Bilkis

A woman died in October 1951. She executed a last will and testament nine years earlier in 1942. This will was submitted for probate and was admitted into probate in St. Lawrence County. The legatees of a more recent will allegedly executed by the woman in June 1951 four months prior to her death, was also submitted for probate in Kings County.

The woman was born in St. Lawrence County. The testator was a licensed public school teacher and she has been assigned in various public schools up and down St. Lawrence County until she was thirty-three years old. St. Lawrence is her domicile of origin. In two periods of her life from February 1898 until September 1926 and again from March 1928 until January 1935, the woman was assigned in different schools in the different counties of New York.

When she got married, she lived with her husband for years in Lincoln, Nebraska. Later, in 1929, she and her husband left Lincoln, Nebraska and moved back to Brooklyn, New York. They later moved to a new house on Island Park, Long Island also in New York. A New York Probate Lawyer said until much later, when her husband had died, she sold the two houses she and her husband acquired at Island Park, Long Island.

Published on: June 28, 2012

Petitioners Request Letters of Administration

by Stephen Bilkis

A woman died on October 26, 2000. The alleged last will and testament was executed on March 23, 1995. Under the last will and testament, the woman left her estate to her two sisters, or the survivor. She named her elder sister as executor and the younger sister as successor. The elder sister predeceased the woman without issue. As a result, the entire estate was passed to the younger sister.

In 2005, the younger sister petitioned for the appointment of a guardian of her property. The court, finding that the younger sister had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, a niece, and a friend, as guardians of the woman’s property.

A New York Probate Lawyer said in May, 2007, a judge authorized the petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. The affidavit of the friend in support states that she located the copy among the woman’s important papers after her death. While the deceased woman must have had the original will, her house had been sold and the purchaser threw away all of the deceased woman’s papers. The affirmation of the deceased woman’s friend states that after the woman’s death, her home was taken over by her former handyman who threw away all of her papers.

Published on: June 27, 2012

Court Discusses Decedent’s Endowment Fund

by Stephen Bilkis

The wife of a chemical engineering professor left a piece of real property which comprised a substantial portion of her estate worth around $2,800,000 to a polytechnic university. She also left the sum of $2,000,000 as a charitable endowment gift to the same polytechnic university provided that it shall be used as an award to the Distinguished Professorship of Chemical Engineering. A New York Probate Lawyer said the rest of her estate was given as a gift to be used to fund graduate research fellowships or an endowment fund. According to her last will and testament, these cash sums should be restricted to the uses she had enumerated and trusts should be created and the income from the trusts can be used by the same university for general purposes to construct or acquire a building in the name of her late husband.

The woman’s husband was a professor of chemical engineering at the polytechnic university; they lived in the university and spent most of their lives at the university. She also left one quarter of her residual estate worth $126,000,000 to the university as a gift under the same conditions.

The will was probated and the executors rendered their accounting in 2003. In total, the polytechnic university received over $130,000,000 under the woman’s will and the university held $70,400,000 in an endowment fund in her husband’s name with the restrictions stated.

Published on: June 26, 2012

Ex-Wife Files a Claim Against the Estate

by Stephen Bilkis

The Facts:

On 3 March 1994, a decedent died. He was survived by his ex-wife and their four children. Under the decedent’s will dated 3 August 1988, he left his estate to the daughter (“the daughter”) of one of his sons (“son-one”).

On 3 November 1994, the will was admitted to probate and letters testamentary were issued to the son-one’s wife, the nominated executor.

Published on: June 25, 2012

Court Discusses Whether a No-Contest Clause Only Applies to Heirs

by Stephen Bilkis

A woman executed a will two weeks before she died in September 1992. She left an estate worth $2,000,000. Her will was offered for probate by the executors. During the proceedings, it was discovered that the woman filed with the Surrogate’s Court a prior will dated July 1992. The provisions of the 1992 did not provide for cash gifts to the attorney who drafted the will or to his wife who testified as to the due execution of the will, unlike the September 1992 will.

The charitable foundation contends that if the September 1992 will is found to have not been duly executed or if fraud or undue influence were brought to bear on the testator in the September 1992 will so as to also make bequests to the lawyer and his wife in her will, the residual estate which will be put in trust for the foundation would have been bigger.

The charitable foundation wishes to object to the probate of the September 1992 will but the will also contains a provision that if any of the beneficiaries of the will shall object to the probate of the will, the legacy made for them shall be revoked. A New York Probate Lawyer said this kind of provision is called an “in terrorem” or non-contest clause. It is meant to put the fear of disinheritance in the heart of those who were named beneficiaries in the will so that the estate will not be reduced by having to spend on legal costs.

Published on: June 24, 2012

Court Rules That Trust Acted as a Substitute Will

by Stephen Bilkis

A man created a living trust. A living trust is one where all the man’s assets are put in a trust with a bank or trust company and the income earned by his assets will be paid out to the man himself. The problem with this living trust the man created was that he bought the trust document in a pre-printed fill-in-the-blank form: he never went to a lawyer to have the lawyer create a trust document for him, tailor-cutting the provisions of the document so that it would fit his circumstances.

The trust he created came in a document that was sent to him in the three-ring-binder contained a Certificate of Trust, and Affidavit of Trust, a Living Will, a property power of attorney, a health care power of attorney and a copy of the man’s will which was stapled. The man can just cut out and paste those provisions that he didn’t like and keep the provisions that he did like and wished to retain. Glued to the ring binder is a sticker that showed the name and copyright of the lawyer who created the fill-in-the blank trust and will. The three-ring binder is part of an estate-planning product that also includes a seminar, a handbook and a computer software program which allows the person who purchased the portfolio to create a will and print it.

A New York Probate Lawyer said the living trust was created sometime on April 30, 1996. On the same date, the man also executed a will. The man’s will provided that all of the properties of his estate which were included in the living trust will be revoked upon his death and the entirety of his estate will pass on to his dear friend. This provision was later amended by the testator before his death on September 9, 1996. The amended provided that only 99.75 per cent of the entire estate under the living trust will be given to his dear friend and the remaining .25 will pass on to another friend.

Published on: June 23, 2012

Decedent’s Son Sues for Specific Performance

by Stephen Bilkis

A man and his male domestic life partner were co-owners of a cooperative apartment in Brooklyn, New York. They also co-owned a house in Southold, New York.

In his last will and testament, the man named his domestic life partner as his executor. He also left to him his share in the proprietary lease of the Brooklyn apartment and shares of stock. The man also gave cash gifts to his nephews amounting to $10,000 each.

The domestic life partner presented his the will for probate. The sons of the testator appeared during the probate proceedings but signed waivers signifying that they were waiving all objections they may have in the will. The will was admitted into probate in 2001 and letters testamentary were given to the testator’s domestic life partner.

Published on: June 22, 2012

Court Dicusses Rule of Perpetuities

by Stephen Bilkis

Issues of estate probate can be difficult to figure out. The wishes that a decedent places into their will should be considered as indelible in most cases. However, sometimes a will contains requirements that are not only difficult, but unreasonable for the decedent to place on their progeny. In one case that was heard in New York, Kings County Probate on December 23, 2008, conditions of this type were discussed.

In the incident case, the decedent left several pieces of property to different relatives. However, she placed numerous prerequisites on the acceptance of the property. She required that her family home be left to her niece and must not be sold. She stated that in that residence, the family was required to provide a room for an indigent friend of hers for free for the remainder of his life. She also left a property that was her family business to three members of her family. Two of these family members were people who lived in other countries.

A New York Probate Lawyer said the decedent’s niece filed a motion in probate that the requirements of the will were in violation of the rule against perpetuities. The rule against perpetuities was established to support the public policy of free transfer of property without restrictions on the living by the dead. It prevents an owner of property from putting limits on the power of future owners of the property. The rule against the restraint on alienation of property prevents an owner from creating requirements in their wills that block the recipient from selling or giving away the property as they see fit. In order to determine if the requirement of the will is reasonable, it must have limitations set forth in the document in reference to its duration, price and purpose.