Probate & Estate Litigation

Published on: June 21, 2012

Court Decides Non-Marital Child’s Status

by Stephen Bilkis

In a probate proceeding, two non-marital children have moved to have their status as children entitled to benefits under the after-born statute determined. In a prior decision, the court ruled that any question regarding a party’s status in a probate proceeding should be determined as a preliminary matter and stayed all other proceedings.

A New York Probate Lawyer said that rather than question any of the underlying facts, such as proof of paternity, the parties have consented to have the motion submitted assuming the truth of the non-marital children’s allegations for a determination of whether as a matter of law those allegations state a cause of action entitling the claimants to after-born status.

The father of the children died and was survived by eleven children; three from a first marriage, four from a second marriage and the four alleged non-marital children. The will offered for probate benefits only one child from the first marriage, the petitioner and named executor, who inherits the entire estate valued at several million dollars.

Published on: June 20, 2012

Probate Court Discusses Cy Pres Doctrine

by Stephen Bilkis

The Facts:

On 1 November 1995, a doctor (“the doctor”) died. On 8 July 1996, his will was admitted to probate (for estate administration or estate litigation). Under the will, the doctor bequeathed $3,500,000 to a hospital (“the Hospital”), to be held as the Endowment Fund in perpetuity, with the income only to be used for general purposes. This was in addition to the $1,000,000 that he and his wife gave the hospital for the same purpose in December of 1988. In addition, the doctor bequeathed 5% of his residuary estate (up to a maximum of $10 million) and one quarter of the balance of the residuary estate to the hospital. His will directed that these amounts be added to the Endowment Fund and administered under the conditions established under the will. The hospital received approximately $37,000,000 from the estate of the doctor dedicated to the Endowment Fund.

On 8 April 1998, the doctor’s wife (“the wife”) died. On 30 December 1998, her will was admitted to probate. Under the will, she bequeathed $4,000,000 to the same aforesaid hospital as the Endowment Fund, to be held either in perpetuity with the income to be used for general purposes, or in part or in whole for the construction or acquisition of a building to be called in their names. In addition, she left 20% of her residuary estate to the hospital, to be added to the Endowment Fund and administered under the conditions established under the will. A New York Probate Lawyer said the hospital received approximately $98,000,000 from the estate of the wife dedicated to the Endowment Fund.

Published on: June 19, 2012

Family Member Seeks to Invalidate Trust

by Stephen Bilkis

In situations of estate probate, there are often times when a person is appointed by the court to review the circumstances surrounding a will and to determine if the law has been followed in the distribution of the assets set forth in the document. This person is called the guardian ad litem. The guardian ad litem is an experienced attorney who’s responsibility is to prepare a detailed report where he lists his findings and based upon his findings, recommends the necessary action that should be taken to protect the interests of the person who has filed the complaint.

In the situation at hand, the decedent passed on May 9, 2007. There were four distributes named in the estate documentation. Two daughters were named, one son, and one granddaughter who is the child of a son who had passed prior to the death of the decedent. New York Probate Lawyer said one of the daughters filed a complaint with the probate court that the will naming only one of the son’s as the sole inheritor for the living trust of the decedent should be ruled invalid.

The reasons that were set forth to invalidate the living trust was that one of the daughters states that prior to the decedent’s death, the lone surviving son placed undue influence on the decedent up to and including fraud against the decedent while he was physically ill and depressed. The guardian ad litem in this case determined that the daughter might possibly have a case and determined that it was only proper for him to continue to represent the daughter in the future hearings in reference to the closing of the decedents affairs.

Published on: June 18, 2012

Court Discusses Non-marital Child Entitlement in Will Contest

by Stephen Bilkis

In a probate proceeding, two non-marital children have moved to have their status as children entitled to benefits under the after-born statute determined. In a prior decision, the court ruled that any question regarding a party’s status in a probate proceeding should be determined as a preliminary matter and stayed all other proceedings.

Rather than question any of the underlying facts, such as proof of paternity, the parties have consented to have the motion submitted assuming the truth of the non-marital children’s allegations for a determination of whether as a matter of law those allegations state a cause of action entitling the claimants to after-born status.

A New York Probate Lawyer said the father of the children died and was survived by eleven children; three from a first marriage, four from a second marriage and the four alleged non-marital children. The will offered for probate benefits only one child from the first marriage, the petitioner and named executor, who inherits the entire estate valued at several million dollars.

Published on: June 17, 2012

Beneficiary Contests Last Minute Change to Will

by Stephen Bilkis

A man died at age 84 and he is a resident of Westchester County. The man’s sole heir is his 15-year-old granddaughter who is the daughter of his estranged son who predeceased the man in 2004. A New York Probate Lawyer said the man was also survived by 10 nieces and nephews, including the complainant nephew and the opponent niece. The man had been married twice, with both marriages ending in divorce — the second of which was finalized shortly before the man’s death.

The following pertinent facts have been gleaned from transcripts of pre-trial testimony given by the nephew and the niece and from affidavits submitted on their behalf. Around October 2004, shortly after the man underwent quadruple by-pass surgery, the man’s second spouse, left the man and purportedly seized nearly $140,000.00 of assets held in a joint account in their names. Over the next two years, the man was beset with numerous physical ailments such as pneumonia, broken shoulder, diabetes and kidney-related problems, which caused him to be hospitalized and undergo physical rehabilitation on numerous occasions during that period.

Shortly after the second spouse left him, the man contacted the nephew, who was the man’s personal accountant since the late 1990’s, in order to gain his assistance in trying to recover from his second wife the proceeds from the joint account. At that time, the man informed his nephew that under his then-existing will (executed in or around 1993), he had bequeathed his entire estate to his second wife, and he wanted to change his testamentary plan to bequeath his estate to his nephew and/or his nephew’s son. Thereupon, the nephew who resides in Rockland County contacted her counsel of record in the instant proceeding — with whom petitioner has had a mutual professional relationship for client referrals since the late 1990’s.

Published on: June 16, 2012

Beneficiaries Bring Will Contest Action

by Stephen Bilkis

On this proceeding, the beneficiaries of a woman asked for an order to suspend the verdict of the court with regards the admission to probate to the woman’s will. A New York Probate Lawyer said they also asked to vacate the letters testamentary issued to the woman’s caregiver. They also requested to grant them the opportunity to examine the attesting witnesses to the will, directing that objections be filed within a reasonable amount of time after the completion of the examination of witnesses and staying the administrator of the will from disbursing the estate proceeds. The abovementioned motion’s is opposed by the woman’s caregiver.

The aforesaid woman died seven months after the execution of her will. Her husband predeceased her and she never had any children, biological or adopted. Apparently, the woman was survived by her six beneficiaries who reside in Australia. The woman’s caregiver originally filed a petition for the validation of the woman’s will and asserts that the woman had no successors. On the probate petition of the caregiver, she states that she was the woman’s live-in companion, the beneficiary of woman’s entire estate, as well as the designated administrator. Further, the only other individual named by the caregiver as a person interested with the woman’s assets is her sister, a resident of Ukraine. The caregiver’s sister was listed as the successor beneficiary of the woman’s entire assets and the nominated successor as the administrator. Additionally, the petition reveals the woman’s address as the caregiver’s address.

On the basis of the information provided by the caregiver, an initial letter was issued however the court directed the caregiver to submit a family tree. The caregiver consequently submitted an affidavit stating that she wasn’t aware of any person capable of giving a family tree. The caregiver further advised the court that the woman spoke occasionally with someone and was also visited by another man but she didn’t know whether the two persons were related to the woman. Consequently, the counsel for various members of the woman’s family advised the court by letter that the woman had performed a will in which members of the woman’s family and the family of her late husband was named as the beneficiaries and co-administrators. A copy of the will was provided to the court, but counsel advised the court that the original signed document had not been located. The counsel then stated that the family members intended to prove that the given will was obtained by the caregiver by means of fraud and undue influence. Moreover, they alleged that the woman was not of sound mind or memory, not capable of making a will and that the will was not properly completed. Afterwards, the copy of the letter was sent to the caregiver’s counsel. Brooklyn Probate Lawyers said the letter also accused the caregiver of committing perjury when she made sworn statements in her petition that the woman left no heirs. As a result, the counsel of the woman’s family demanded that the petition for probate be modified to reflect the woman’s beneficiaries.

Published on: June 15, 2012

Family Questions Mental Capacity of Decedent

by Stephen Bilkis

On this contested probate proceeding, the guardian for the infant beneficiaries seeks for authorization to retain a medical expert to be paid from the assets’ proceeds.

It was initiated when a man died at the age of 88 and he was survived with seven children and two grandchildren. Afterwards, a man was appointed as the guardian for infant grandchildren of the deceased. Separate objections have been filed by the deceased children and the guardian on behalf of his charges. Based on records, the gross estate is estimated between $26 million and $35 million, consisting primarily of silver holdings, a yacht, farmland and real properties in New York and Connecticut.

Consequently, the proposed will was completed three weeks before the man died from lung cancer. It is offered for validation by the attorney-drafter. Under the proposed will, the deceased made pre-residuary inheritance of specific property, his interest in a corporation to some of his children, devised real property to one child, made monetary reward to his caretakers and disposed of his residuary estate to one of the charitable foundation he established in 1974.

Published on: June 14, 2012

Family Brings Estate Administration Action

by Stephen Bilkis

A woman resident of Israel died. She was survived by her husband and three children. The middle child filed a petition for letters of estate administration. The middle child’s petition alleged that her mother was an heir of the estate of her uncle and that the Chase Bank, which was the administrator of his uncle’s estate, failed to fully distribute the estate’s assets. The middle child petitioned for letters of estate administration to pursue the claim. The youngest daughter consented to her sister’s appointment. The eldest daughter of the woman who resides in Israel was served by mail and defaulted. Letters of estate administration were issued to the middle child of the deceased woman.

Eight months later, the middle child brought a proceeding to compel the bank to account for its administration of his deceased uncle’s estate. Shortly thereafter, a New York Probate Lawyer said the eldest daughter initiated proceedings in Israel to probate her mother’s will. The instrument left the deceased woman’s estate to her husband. If the husband predeceased her, the middle child receives $1 and the rest of the children will receive the balance of her estate in equal shares. The husband had died as a resident of Israel. His will was admitted to probate in Israel. Under his will, he left $1 to the middle child, $3,000 to the youngest daughter and the balance to the eldest daughter. The eldest daughter is the executrix of her father’s will and the nominated executrix under the proffered Israeli will of her mother.

The middle child filed objections in Israel to the probate of the Israeli will on the ground that her mother lacked testamentary capacity. Brooklyn Probate Lawyers said she also brought a proceeding in Israel to vacate the decree probating her father’s will. The eldest daughter and the bank, acting as trustees of the trust created for the deceased woman under the will of another brother, moved to vacate the letters of administration issued to the middle child. They claimed that the letters should be vacated because the deceased had a will, there were material misstatements in the petition for letters of administration, and she was not fit to serve as fiduciary.

Published on: June 13, 2012

Court Decides Status of Real Estate in Decedent’s Estate

by Stephen Bilkis

The Facts:

On 31 May 1988, a man (the testator) executed a last will and testament in which he devised and bequeathed a life estate interest in premises located at Hopkins Avenue, County of Kings, State of New York, (Hopkins Avenue property) to defendant, including the right for her to collect all rents as they become due for her own use and benefit.

On 25 November 1988, the testator died. On 17 March 1989, letters of administration of the estate of the testator were issued to the testator’s relative. Thereafter, as administratrix, she entered into a contract to sell the subject premises to a Brokerage Corp.

Published on: June 12, 2012

Court Rules on Status of Joint Will

by Stephen Bilkis

The Facts:

On 17 October 1967, a husband and a wife (“wife-one”) executed a joint will.

On 27 September 1971, the wife died and the joint will, insofar as her estate was concerned, was admitted to probate in Kings County (for estate administration; estate litigation). At the time of her death, the husband and the wife owned as tenants by the entirety, two parcels of real estate and had a bank account in their joint names in a Brooklyn bank.