Probate & Estate Litigation

Published on: February 7, 2012

Can an Appeal that was Never Filed Serve as Notice of a Will Contest

by Stephen Bilkis

On June 28, 1975, a man died in West Monroe. He left a last will and testament dated November 27, 1972. The will was submitted to probate in November 1, 1977 and letters were issued to a family member as the executor of the estate and sole descendant. Prior to the settlement of the affairs, this family member died. This was November 5, 1981. In January 15, 1982, the nephew of the deceased executor petitioned the court for letters of administration. The court granted this petition in January 19, 1982.

In January 7, 1983, nephew asked the court to rule on whether the decedent exercised his personal right under the excessive gift to charity. By May 4, 1983, a hearing was held to present evidence.

The decedent, upon the death of his mother contacted a lawyer regarding some of the provisions in his mother’s will. The nephew also asked if these certain stipulations in his mother’s will can be broken. He expressed his discontent with his mother’s will especially in the paragraph that allocates any remaining estate to be given to Hospital North. Hospital North at the time of decedents death was non-existent. In a letter dated January 12, 1982 from an attorney for the Hospital North, it was said that the Hospital North was never created and will never be created.

Published on: February 6, 2012

Court Rules on a Workers Compensation Claim in a Wrongful Death Matter

by Stephen Bilkis

In a work-related accident, the decedent suffered permanent substantial disability in October 1973. An employer’s workers’ compensation insurance carrier was instructed to pay disability benefits to him. The defendant had pre-existing diabetes so the carrier applied and was give reimbursement from the Special Disability Fund pursuant to Workers’ Compensation Law.

When the decedent died on January 7, 1982, his widow filed to claim death benefits because she alleged that the injury sustained in October 1973 was an underlying factor in her husband’s death. A New York Probate Lawyer said that in compliance with the Workers’ Compensation Law the carrier converted the claim and applied for reimbursement from the Fund. There was a hearing with before an Administrative Law Judge and the application of the wife for death benefits was granted. The carrier did not ask for a review of the Workers’ Compensation Board about the connection of the injury to the death.

There was a later hearing for the carrier’s application for reimbursement from the Fund. The fund asked the Administrative Law Judge not to make a ruling until they could get a review from the Workers’ Compensation Board if the wife’s claim was compensable. The request was denied and the request of the carrier for settlement was granted. The fund appealed to the Board stating the wife would have not been awarded benefits because the death was not related to the injury sustained in October 1973. The Board’s decision was that the fund lacked standing to raise the issue. A Queens Probate Lawyer got information that the fund appealed.

Published on: February 6, 2012

Court Rules on a Will Contest Matter

by Stephen Bilkis

Laurel G. Ellis died in June 1994. She left a last will and testament dated May, 25 1990. This will contain conditions in the bequest that favored her daughter, Florence. In the will, it gave 50% of the remaining estate after taxes and fees to Mrs. Ellis daughter and the remainder is divided equally between her sons, John and Richard. One would think it is unfair for the mother to do this, but with their history, you would understand why.

The previous will had the children sharing the estate equally, but after Mrs. Ellis’ husband died the sons’ relationship with their mother got worse and with her daughter better. There was even a letter sent by John to her mother that accused Florence of scheming to distance Mrs. Ellis from her sons. This was in March 1980. He even went as far as demand to have the old will reinstated and that Mrs. Ellis should not help Florence financially unless there is proof that she needs it. He stated in his letter that if his demand is granted, then he will not publicize the issue. A New York Probate Lawyer said John threatened to file a court case if what he wants is not done. In an undated letter to his brother Richard, he said the “estate would be in court so long that Florence would never see any of the money.”

In May 1990, she executed the will submitted for probate. Aside from the provision she placed in favor of her daughter, she added that her will is based on the “loving care and attention” her daughter has showed her and her late husband, unlike the behavior their sons showed. She said the will is a product of a long and careful thought and was not because of undue influence from Florence. Furthermore, in June 1993, she approached a new lawyer to draft a new will for her so that she could continue to express her desire to give the majority of her estate to Florence. The information a New York Probate Lawyer gathered said she was afraid her sons will cause trouble for her daughter. This is when the terrorem clause was added wherein if any of the beneficiaries directly or indirectly contest the will or any of its conditions, their right to their share in the estate is revoked, and that share will be divided between the remaining parties who have not contested.

Published on: February 5, 2012

Court Rules on a Will Contest Matter

by Stephen Bilkis

Bessie Schlanger filed an appeal with the Surrogate Court to require payment of a legacy. Ms. Schlanger was to receive 4% of the remaining estate after taxes and fees of Sarah Pasternack. She claims that if the part, which is $10,000, is not paid to her account most likely she will not be able to enjoy any of it. She is saying she is old and needs the legacy. A New York Probate Lawyer mentioned that Ms. Schlanger said the other beneficiaries have received their legacies.

The answer given by the executor of Ms. Pasternack’s estate is that Ms. Schlanger in not entitled to be paid because she violated the terrorem clause of the last will and testament. It stated in the sixth paragraph of the will that if any of the beneficiaries or people mentioned in her will contests or does an act to contest the will, they will forfeit their right the bequest. It further states that if they testify against the probate of the will, then they will lose their right to the legacy. Their part will be, in effect, put back to the remaining interest and shared by the other recipients.

In the response, it is alleged that Ms. Schlanger violated in two ways. She tried to have Ms. Pasternack declared incompetent when she was still alive. This was the first instance. The second instance is in the probate proceedings, where even if she did not appear to contest herself, she conspired with another to have the will disallowed. This, a Nassau County Probate Lawyer maintains, can be considered as a violation to the terrorem clause.

Published on: February 5, 2012

Court Rules on a Motion in Limine

by Stephen Bilkis

MBIA Insurance Corporation (MBIA) filed a motion in limine for the court to allow MBIA to use statistical sampling to be able to present evidence for fraud and breach of contract and also to prove damages against Countrywide Home Loans, Inc., Countrywide Securities Corp. and Countrywide Financial Corp. (collectively Countrywide). A motion in limine is a request for a judge to rule if evidence may or may not be introduced in a trial. This can be done before or during a trial. Countrywide opposed this motion. A New York Probate Lawyer said that this is usually done to make sure that a jury will not see a possibly damaging evidence.

On September 27, 2010, a hearing was held to examine the evidence. MBIA presented an expert witness in the person of statistician Charles D. Cowan, Ph.D. Dr. Cowan gave testimony as to his proposed method of sampling the fifteen residential mortgage-backed securitizations (RMBS), which is the issue. The court requested that the different groups submit additional arguments on October 13, 2010. The requested that these opinions be delivered by letter.

One of the motions of the defendant is that the petition was premature. A Long Island Probate Lawyers mentioned that the court in this case did not set time limits with the motions in limine. Although MBIA presented this very early in the trial, it is legal and timely. The defendants, Countrywide, as well contends that legal and factual issues prevent the decision regarding MBIAs appeal. Countrywide says that there are disputed issues that must be settled first before the use of sampling. They stated that with the granting of the motion of MBIA, the court would improperly resolve legal questions that have not yet been fully discussed by the parties in court.

Published on: February 4, 2012

Court Rules on a Will Contest Matter

by Stephen Bilkis

Joseph Alexander died November 23, 1975, leaving his adopted son, Ronald Alexander. After the probate of his will, his son filed a petition contesting the amount given to charities as in excess percentage amount allowed by law. Executors were placed to check if the claim was valid, and the courts were asked to determine the effect of the ‘no contest’ clause of the will.

In his will, he gave all his properties, a flat in Switzerland and $25,000 per year to his son. In the event that his son dies before the end of the trust then the remaining amount will be put back to his estate.

Joseph Alexander also included in the will that in his lifetime, he had provided his son loans. He had paid indebtedness acquired by his son from other people. He expressly states in his last will and testament, from what a New York Probate Lawyer gathered, that if his son directly or indirectly oppose the probate of his will, Ronald Alexander will not getting any part of his estate and will only get $1 per annum.

Published on: February 4, 2012

Court Rules on a Will Contest Matter

by Stephen Bilkis

A proponent of the will of Lina G. Shapiro, petitioned the court at the foot a probate decree to charge the person objecting to the will personally. The probate decree allows this application to be made after the decree has been final.

A New York Probate Lawyer said that when a person files an objection to a last will and testament in good faith and with reasonable grounds, he is entitled to have his protest investigated without him bearing the cost. There was a previous case whereby the Appellate Court reversed a decision of a surrogate court for an objectant to be charged personally because there was some evidence that supported his objection to the lack of testamentary capacity and to negative bad faith. This was in the Coddington will.

Good faith is mainly reliant on whether there is a considerable basis for a will contest. The court cited some examples, like with the Kurowski’s will, where the court charge the cost of the contest personally to the objectant because she had a sworn data that validates the will she is contesting. The Roger’s estate was mentioned because the court assigned the cost to the person who contested because there was no evidence to support his claim. This is not the sole basis for imposing the cost to an unsuccessful contestant.

Published on: February 3, 2012

Court Rules on a Case Against the Government

by Stephen Bilkis

Plaintiffs filed a motion against New York State Department of Taxation and Finance for their Statewide Offset Program. A New York Probate Lawyer says that the plaintiffs are taxpayers who are saying that in allowing the offsets, the defendants have violated their rights to notice under the due process and their right to oppose the debts where they offset the refunds. They allege that the program allows the offsetting of their income tax refund to any debt owed by the taxpayer to the New York State Office of Temporary Disability Assistance (OTDA). The plaintiffs are asking for relief and a class certification.

The Court in determining the granting of the motion of the plaintiff’s for class certification determined that issues and facts that are common to the wished-for class outweighs the concerns that are specific to the individual class members. Queens Probate Lawyers mentioned that the court found the question of the violation of OTDA to the due-process clauses of the Constitutions of the United States and New York by certifying debts to DTF without giving plaintiffs’ adequate notice or a meaningful opportunity to contest the underlying debts is common to all the members of the proposed class.

The general position of the defendant is that the plaintiffs would not be entitled to recover any damages. They would not be compensated for the government’s violation of their due-process rights if the violation is not the reason for the plaintiff’s losses. The plaintiffs were not able to show evidence of the loss that they are claiming to have incurred because of not having the opportunity t contest the main debt. The court agrees with the defendant’s position on the compensation not being granted if the loss is not a direct result of the violation. The plaintiffs though, ask for the offsets plus interest. A Nassau County Estate Lawyer stated that the opposition indicates that if the opportunity to contest the debt is granted, each plaintiff will have to prove his or her individual case.

Published on: February 3, 2012

Court Rules on a Will Contest Matter

by Stephen Bilkis

In the mater of the last will and testament of Clara Louise Bonesteel, a petition was filed with the Appellate Court with in relation to the decision made in a jury trial. The last will and testament was disputed as not being a valid will for the decedent. The jury found that the last will and testament is legitimate and said that it can be entered into probate.

The case that is filed with the court is with regard to the challengers of the will to be able to get a copy of the stenographic minutes of the trial at the expense of the estate. The law states that a copy of the stenographer’s minutes may be supplied to the contestant and charged to the expense of the estate if they can determine that the contest was made in good faith. It does not matter if the contest was successful or unsuccessful as long as it was made in good faith. In the case of Byron’s will, the court decided that good faith is not to be established before the contest as it will promote prolonged trials because the person contesting the will is assured that the costs will be shouldered by the decedent’s estate. To determine good faith after the trial is a way to ensure that the contest is already in good faith because one will bear the cost otherwise.

In law, there is also a rule of stare decisis. This states that any court lower than the Appellate Court should follow the decision made already by the Appellate Court with regard to the same issues. This applies to other judges even if not from a lower court, but of course not a higher one. In the case regarding Harned’s will, the Surrogate Wingate of Kings County followed the decision of the Appellate Division of the First Department, there was no differing decision from his own Appellate Division in his department. A New York Probate Lawyer mentioned that the decisions of other Special Terms are not controlling. The judge at special term has the duty to follow a decision made by the Appellate Court of another division pending the decision of his own Appellate Division of the Court of Appeals offers a different ruling.

Published on: February 2, 2012

Court Rules on a Will Contest Matter

by Stephen Bilkis

The case regarding Genevieve Tisdale’s estate is about getting a jury trial in connection to the revocable trust executed by her at the same time with her last will and testament. Ms. Tisdale died on October 6, 1995. It is said that her will dated December 15, 1994 was executed with about $2.1 million revocable trust. The estate in the will was under $400,000. The trust fund is the one to be used for estate taxes and other expenses. The estate is divided to different beneficiaries, including charities. The bequest ranged from $10,000 to $200,000. There was an amendment made to the cash gifts made on July 31, 1995.

Michael L. McDermott was the draftsman of both the will and the trust. He is also named as the guardian of the net estate except the tangibles. He is to allocate the state according to the will. If the trust fails, the will also is refers to its terms. Mr. McDermott, a New York Probate Lawyer mentioned, is an Illinois lawyer not admitted in New York. Three months before the testatrix signed the will was the first time that they had met. This issue was already submitted to court.

Five of the family beneficiaries, which are all nieces and nephews, petitioned the court to withhold the trust in both proceedings after the will enter probate. They also asked that in both cases, there be a jury trial on their protest about the execution, capacity, undue influence and fraud. The recipients particularly object to, allegedly, the charitable beneficiaries reflecting Mr. McDermott’s choices and not the decedent’s. They cited the provision for twenty-five percent of the trust remainder is distributable to Spring Hill College in Mobile, Alabama, which is Mr. McDermott’s alma mater. Twenty-five percent of the trust remainder is given to the Evans Scholars Foundation where Mr. McDermott is a trustee. Twenty-five percent of the trust remainder is gifted to National Louis University located in the Chicago suburb where Mr. McDermott lives. Lastly, $250,000 is distributable to Misericordia Home in Chicago. They also claim that Ms. Tisdale is your typical New Yorker, who has lived in the Upper East side of Manhattan most of her adult life.