Staten Island

Published on: October 29, 2013

Petitioner Claims Grandmother’s Will Invalid Due to Lack of Capacity

by Stephen Bilkis

A New York Probate Lawyer said the last will was executed approximately one year prior to the owner’s death at the age of 89. Her successors are her three post-deceased children and her two daughters. But, the probate petition was not filed more than twenty years after the woman’s death.

All of the parties agree that the deceased woman suffered a stroke previously which resulted in her partial paralysis, and she required the assistance of an aide for the rest of her life. All of the testimony also indicates that after her stroke, the woman’s children assisted her in her daily affairs and she enjoyed close relationships with all of them as well as with her grandchildren. A New York Will Lawyer said until her death, she resided on the top floor of her two-family house, and her first son lived in the downstairs apartment where he remained until his death. Sources revealed that the deceased woman’s first son was a paraplegic after being shot.

At the trial, the attorney/draftsman testified that he had been an attorney for 52 years. During those years, the attorney drafted and supervised the completion of over 1,000 last wills.

Published on: October 22, 2013

Court Decides Ownership of Real Property in Will Contest Proceeding

by Stephen Bilkis

A New York Probate Lawyer said this is a Supreme Court partition action commenced by the decedent’s surviving spouse, during the pendency of a probate or will contest proceeding in this court seeking, inter alia, a declaration that the decedent’s interest in certain real property passed to him by operation of law at her death was dismissed by the Supreme Court on the grounds that the real property at issue was devised in the decedent’s propounded will in a different manner and that the dismissal was without prejudice as this court was the appropriate forum to determine the respective ownership claims to the realty. It is apparent that the disputed interest in realty is the only potential asset of the testamentary estate, so if the spouse is successful, there is no practical reason to proceed to probate the propounded instrument.

A New York Will Lawyer said pursuant to CPLR 3212, the spouse now moves for summary judgment seeking a declaration that the decedent’s interest in premises 2426 St. Raymond Avenue, Bronx, New York, passed to him by operation of law pursuant to a deed dated January 30, 1995. The deed lists the grantees as A, B C and D. C is the decedent’s sister. In the propounded will the decedent purports to devise her half share and interest in the real property located and known as 2426 St. Raymond Avenue to the decedent’s sister and the decedent’s spouse, D, in equal shares. The co-tenants of the realty, C and D, and the nominated executor oppose the application. They contend that the decedent’s interest in the premises is held as a tenant in common and passes under the will. Consequently, they assert that one-eighth of the property passes under the will to the decedent’s sister and one-eighth to the decedent’s spouse.

On 16 December 2000, the decedent died. She was survived by her spouse, B, as her sole distributee. A Staten Island Probate Lawyer said the amended probate or will contest petition lists the realty as the only testamentary asset. It appears that unless the decedent’s interest under the deed was a one-quarter tenant in common interest, the decedent left nothing that passes under the will.

Published on: October 18, 2013

Petitioner Files Claim to Compel Production of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner, pro se, in his status as attorney-in-fact for his mother, has instituted a proceeding seeking to compel the production of a will. Petitioner personally has no status in the estate of decedent. Decedent died on May 5, 1984. Based upon a probate petition filed on July 2, 1984, an instrument dated March 27, 1982 was duly admitted to probate by the entry of a decree dated July 13, 1984. Petitioner’s principal is decedent’s sister. She was not his distributee inasmuch as the decedent was survived by two grandchildren. Under the instrument already admitted to probate, the grandchildren are the primary beneficiaries. Decedent’s sister receives a $1,000 legacy. There are several other legacies, including bequests to infants and charitable organizations.

A New York Will Lawyer said that, petitioner alleges that there is a testamentary instrument prior in date to the will admitted to probate under which petitioner believes his principal receives a greater legacy and that such prior instrument is in the possession of the co-executor who is the respondent in the instant proceeding.

A Staten Island Probate Lawyer said that, as a consequence of the greater legacy to his mother in the prior instrument, petitioner intends to institute a further proceeding seeking to vacate the probate decree entered July 13, 1984 and in the event such application be granted, to file objections on behalf of his principal to the probate of the instrument which formed the basis for that decree.

Published on: October 15, 2013

Court Rules on Case Involving Attorney Client Privledge

by Stephen Bilkis

A New York Probate Lawyer said that in this proceeding, the court is faced with the primary issue of whether or not the respondent may be compelled to produce at her examination before trial petitioner’s own wills and trusts or whether or not the attorney-client privilege or the confidential, ambulatory nature of the will of a living person protects these documents from disclosure.

The court rules that these documents are not protected by the attorney-client privilege. A New York Wills Lawyer said the confidential nature of these documents, however, dictates that disclosure should be compelled only upon a strong showing of necessity. In this case, the court finds that a limited disclosure is appropriate to enable the petitioner to properly prepare for trial.

The petitioner in this case is the decedent’s sister who commenced this proceeding to set aside and declare invalid a lifetime trust created by the decedent and two wills which were executed respectively on the date that the trust was created and the date that the trust was amended. Petitioner moves for the entry of an order directing that the decedent’s other sister, the respondent, to produce her previous and existing wills and/or trusts and any of her wills and/or trusts prepared by Atty. RL or his office. On the other hand, the respondents have cross-moved for a protective order with regard to the requested disclosure and for an order dismissing that branch of the petition seeking to declare the decedent’s wills invalid.

Published on: October 9, 2013

Court Discusses Kinship Hearing

by Stephen Bilkis

This is a motion after a kinship hearing, holding that the entire distributable estate of a deceased woman should be deposited with one person. The complainant seeks to leave to present additional testimony.

A New York Probate Lawyer said the request for the alternative relief of reopening the hearing appears to present a case of first impression under the attorney-client privilege. The complainant contends that it is permissible for an attorney to testify about history statements made by the deceased woman to him when she consulted him for the purpose of preparing a last will. It is conceded that the consultation did not result in any last will being completed. Subsequently, an objection to the aforesaid offered testimony was sustained at the trial. The complainant’s position is that since the attorney is a disinterested witness, who is willing to testify about matters which will not reveal information of a confidential nature, the attorney-client privilege should not be utilized to seal his lips.

A New York Will Lawyer said sources revealed that the attorney-client privilege is the oldest of the privileges currently recognized.

Published on: October 8, 2013

Court Discusses Decedent’s Gift to Charity

by Stephen Bilkis

A man died and his last will was admitted to probate approximately five months thereafter. A New York Probate Lawyer said the complainant in this matter has a one-quarter remainder interest in the residuary trust established under the man’s last will.

One of the paragraphs in the last will is at issue that states that the hospital will be used to endow charity beds and for charitable purposes only as a memorial to the man’s sister and to himself.

A New York Wills Lawyer said that upon the death of each of several income heirs, the complainant received a principal payment for its remainder interest in the above testamentary trust. The amount of the principal payments received by the complainant is $157,452.10 in total. The present value of the funds held by the complainant, including accumulated interest, subject to the provisions of the deceased man’s last will totals approximately $850,000.00.

Published on: October 2, 2013

Court Discusses Will Construction Statute

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested probate proceeding, the primary issue is whether the “within one thirty day period” for the completion of the will ceremony prescribed by EPTL 3-2.1(a)(4) commences on the date of the signature or the date of the first acknowledgment where the testator has signed the will prior to any acknowledgment of his signature. Although this appears to be a case of first impression, a literal reading of the statute coupled with its legislative history clearly indicates that the period does not commence until the first acknowledgment.

A Bronx Will Contest Lawyer said that, the propounded instrument is dated May 5, 1987. Decedent died on August 1, 1987. Two of the attesting witnesses executed their depositions in the Probate Department of the court. Each of them indicated that the other witnesses were not present when deponent signed the will as a witness and neither witness could pinpoint the date on which he or she had signed the will. One of the witnesses stated, “I do not know when I signed the will but I believe it may have been in July.” Their depositions raised serious questions not only as to whether more than thirty days had elapsed between the date that decedent had signed the will and the date that her signature was acknowledged to the second witness but also as to whether more than thirty days had elapsed between the acknowledgment of decedent’s signature to the first and second witness. Inasmuch as probate of a will may not be allowed unless the court is satisfied as to the validity of its execution (SCPA 1408), the matter was referred to the Principal Law Assistant to take testimony.

A New York Will Lawyer said that, two attesting witnesses and proponent testified. Proponent stated that, at the request of the decedent, on March 31, 1987 he delivered from a law firm to the decedent the will together with instructions for its execution. On the Saturday before Memorial Day, decedent returned the executed will. One of the attesting witnesses was positive that she was the first witness to whom decedent’s signature was acknowledged. This occurred, in May, 1987, most likely a weekday, perhaps on a Wednesday. The other witness who testified had to be subpoenaed. Although he had previously indicated that he did not “believe” that he had witnessed the will before July, 1987, he now testified that “I have no recollection when I signed the will, but if they are stating that they saw my signature in early May on that will it very well is possible that I signed it” then.

Published on: October 1, 2013

Court Rules on Probate Case Regarding Testamentary Capacity

by Stephen Bilkis

A New York Probate Lawyer said that, in this motion for summary judgment, the nominated executor under the propounded instrument dated January 14, 1949 seeks a judgment admitting the will to probate. The New York Province for the Society of Jesus (the Jesuits) is the sole beneficiary under the propounded instrument and the President of the Society is the nominated executor.

A New York Will Lawyer said that, the decedent died on December 28, 1986 at the age of 72. He was survived by two brothers, one of whom filed objections to probate. The objectant alleged that the instrument was not executed in accordance with the required statutory formalities, that it was a product of fraud and undue influence and that decedent executed it by mistake without having read it. The objectant subsequently died and his daughter, in her capacity as the executrix of his estate, was substituted as a party in his place. Movant contends that the objections fail to raise any legitimate factual issue as to the validity of the instrument.

A Nassau County Probate Lawyers said that the movant notes that a Jesuit is free to dispose of his property to whomever he wishes prior to taking his final vows. However, in conjunction with taking his final vows, which include a pledge to be completely dependent upon the Society, a Jesuit is required to execute a will leaving his entire estate to the Society. He is also required to execute other documents in which he represents that he does not believe that he presently owns any property and that, if he is mistaken in this belief, he shall give it to the Society. He also agrees to renounce any property that he might thereafter be entitled to receive by inheritance and that he will give to the Society any property thereafter acquired by gift or legacy other than by inheritance. Decedent entered the Society on February 1, 1932 and took his perpetual vows in 1934. It was not until January 1949, that he executed the propounded instrument, the other required documents and took his final vows.

Published on: September 26, 2013

Court Rules on Letters of Testamentary

by Stephen Bilkis

This is a probate proceeding which has been pending since January 15, 1973. The decedent died and was survived by a husband who was alleged to be incapacitated and who was named as her executor and sole beneficiary in her will.

A New York Probate Lawyer said in connection with the right to letters testamentary, the court rendered a decision directing the issuance of letters testamentary to the petitioner, who was one of the two substituted co-executors, directing him to file an accounting complying with Rule of the court.

Subsequently there were numerous letters from the various parties interested in this estate but nothing was done either by the petitioner or his then attorney to comply with the decision of the court.

Published on: September 23, 2013

The issue in this case is whether the surrogate court erred in directing a guardian ad litem to commence a proceeding on his ward’s behalf.

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested probate proceeding, the petitioner, the decedent’s surviving spouse who is the nominated executor, the sole residuary beneficiary and the trustee of the Article SIXTH trust under the offered instrument. Upon motion of petitioner, this matter was transferred to this court by order of the Surrogate’s Court, New York County dated June 26, 2006. The decedent died on March 17, 2006 survived by his wife and his two adult daughters by his prior marriage. One daughter is an incapacitated person who has been deaf, blind and mentally retarded since birth.

A New York Will Lawyer said that, under the propounded instrument the decedent provided for a $500,000 trust for his incapacitated daughter, remainder to her sister or her issue. The will also provides a specific bequest of $1,000,000 to his daughter. According to the application for preliminary letters testamentary, the size of decedent’s gross estate is approximately $52,000,000. The daughter has appeared by counsel in this proceeding and indicated she has no objection to the will.

A Nassau Will Contest Lawyer said that, the guardian ad litem for the incapacitated daughter appointed by this court has filed his report. The guardian ad litem concludes that jurisdiction has been obtained over his ward. The guardian ad litem further concludes that after his investigation of the circumstances of the drafting and execution of the will, that there are no grounds for objecting to the instrument for failure of due execution, no evidence of mental disability or lack of testamentary capacity of this decedent nor any indication of the exercise of undue influence by anyone. Thus, he concludes no basis exists to deny probate to the propounded instrument. However, the guardian ad litem does report to the court concerning a property settlement agreement dated January 20, 1952 between the decedent and his former spouse. The agreement was incorporated into an interlocutory judgment of divorce entered March 3, 1952 in the Los Angeles County Superior Court of the State of California. In pertinent part the agreement provides in paragraph 17 thereof: “17. Husband agrees that he will by testamentary disposition leave not less than one-half of his net estate, after payment of debts and taxes, to his daughters in equal proportions.”