Suffolk County

Published on: November 14, 2013

Petitioner Claims Lack of Testimentary Capacity in Will Dispute

by Stephen Bilkis

In this probate proceeding, a New York Probate Lawyer said the proponent woman, wife of the decedent’s predeceased cousin and the nominated executrix under the propounded instrument moves for summary judgment. Specifically, she seeks dismissal of the decedent’s spouse’s objections to probate; admission of the will to probate; dismissal of the objectant’s petition for letters of administration; and costs and attorney’s fees against either or both the objectant and her counsel.

The decedent died at 72 years of age survived by his spouse and daughter as his only distributees. Under the propounded instrument, which contains an attestation clause and a self-proving affidavit, the objectant is the beneficiary of the marital abode, a cooperative apartment, and the balance of the estate is bequeathed to the daughter. A New York Will Lawyer said the objectant filed standard objections to probate, alleging lack of due execution, lack of testamentary capacity, fraud and undue influence. Her opposition to this motion is limited to her own affidavit. The attorney drafter states that he represented the decedent in 1990 in a divorce proceeding in which the decedent’s prior wife was the other party. In 1999 the decedent communicated with the attorney about changing his will. The decedent gave the attorney a copy of his March 18, 1997 will which apparently had been prepared by the father of the attorney who is now representing the objectant. On this copy, the decedent had crossed out the words “friend and companion” to describe the objectant and replaced them with the word “wife”, and changed her last name to reflect that it was the same as his own. He also crossed out the limitations on the objectant’s use of the cooperative apartment in which the couple resided. His daughter was the sole residuary beneficiary under this instrument and the decedent did not indicate that he wanted to change this clause. The attorney then prepared a draft of the will, increasing the objectant’s legacy to an outright interest in the cooperative apartment, and mailed it to the decedent.

A Westchester County Probate Lawyer said the decedent came to the attorney’s office on October 18, 1999, where he reviewed the will with the attorney before he executed it in the presence of the two attesting witnesses, who were employees of the law firm, and the attorney who supervised its execution. The attorney retained the original will and mailed a copy to the decedent. The attorney and the attesting witnesses all state that the will was executed in accordance with the statutory requirements. They also note that the decedent was alert and rational and that his appearance and speech were normal. The proponent avers that the decedent had discussed his testamentary plan with her and that the propounded instrument carries out his plan.

Published on: November 1, 2013

Petitioner Files Motion 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 Westchester County 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 28, 2013

Court Decides if Respondent was Able to Distribute Money via a Power of Attorney

by Stephen Bilkis

A New York Probate Lawyer said that, in this SCPA 2103 proceeding, the respondent moved to vacate her default and for other relief. The branch of the motion seeking to vacate the respondent’s default is now academic as a result of the court’s decision and order dated February 1, 2008. In that decision and order, the petitioner’s application to strike the respondent’s pleadings and to enter a default judgment in the sum of $173,000 was denied, provided that the respondent both paid the sum of $400 to cover the cost and fees for her failure to appear at a deposition and, thereafter, appeared to be deposed as directed.

A New York Will Lawyer said that, in her affidavit in support of the motion, the respondent’s request for “other relief” is: (1) dismissal of the petition on the ground “that no asset of the estate” was ever removed by her; (2) dismissal of the petition on the ground that the “Stipulation of Settlement” filed in the probate proceeding was intended to cover “all matters and claims,” including any claim that the respondent removed estate assets; and (3) the imposition of sanctions on the petitioner’s attorney for knowingly filing a “frivolous” petition. In the alternative, the respondent requests that the proceeding be scheduled for a hearing.

Nassau County Probate Lawyers said the issue in this case is whether the respondent was authorized to distribute monies from the decedent’s bank account to herself pursuant to a power of attorney.

Published on: October 23, 2013

Will is Challenged for Lack of Due Execution

by Stephen Bilkis

A New York Probate Lawyer said this is a contested probate proceeding wherein the objectants, the decedent’s two grandchildren and sole distributees, move pursuant to CPLR 3212 for summary judgment denying probate to the propounded instrument dated 28 March 2007 based on lack of due execution. The proponent, the decedent’s niece who is the nominated executrix and sole beneficiary under the instrument, opposes the motion.

On 11 April 2007, the decedent died at a nursing home at the age of 87. She left a four-page, typewritten instrument that was witnessed at Kings Harbor Multicare Center, where the decedent was a patient, by two witnesses, contains an attestation clause, was prepared by an attorney who supervised its execution, and has a self-proving affidavit attached. It appears that the sole asset of the estate is real property where one of the objectants currently resides.

A New York Will Lawyer said the motion for summary judgment is based on only one of the three grounds interposed in the objections, namely, that the instrument was not duly executed, in that the decedent did not declare it to be her last will and testament in the presence of witnesses and that the witnesses were not aware that they were in fact witnessing the decedent’s will.

Published on: October 17, 2013

Court Discusses Potential Statute of Limitations Issue

by Stephen Bilkis

A New York Probate Lawyer said that, defendants move pursuant to CPLR 3211(a)(5) to dismiss plaintiff’s complaint contending that plaintiff’s claims are barred by the applicable statute of limitations and pursuant to CPLR 3211 (a)(7) dismissing plaintiff’s causes of action on the ground that said causes fail to state a cause of action.

Plaintiff, the sister of defendant, brings this action to recover the value of property described as 797 Southern Boulevard, located in Bronx County, and to impose a constructive trust to prevent defendants from transferring this property. A New York Will Lawyer said that, the complaint, which parenthetically was not, verified by the plaintiff, charges plaintiff’s sister with influencing their mother to transfer the property in Bronx County to her which according to the plaintiff was to be held in trust for the beneficiaries of their mother’s estate. Obviously unless plaintiff’s undue influence claim is sustained, the court need not pass upon the cause of action for a constructive trust. Moreover, this action initiated here in Bronx County in essence, challenges the testamentary capacity of the decedent, plaintiff’s mother who transferred the Southern Boulevard property by deed to plaintiff’s sister. Plaintiff fails to set forth information regarding whether any of the Wills executed by the decedent were admitted to probate nor does Counsel for plaintiff provide this court with such information.

A Nassau County Probate Lawyers said that, as previously noted plaintiff’s complaint is not verified by plaintiff and in response to defendants’ motion to dismiss, plaintiff submits a short affidavit which makes conclusory assertions that adds little to the complaint. Manifestly, plaintiff’s counsel’s affirmation and his verification of the allegations set forth in the complaint are without probative value.

Published on: October 16, 2013

Court Decides Validity of an Election under Decent Estate Law

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding to determine the validity of an election under subdivision 7 of section 18 of the Decedent Estate Law.

The court is faced with the issue of whether or not under the circumstances herein, the respondent has lost his right of election by reason of his failure to serve the notice upon the executor personally and by failing to file and record it in the court as expressly required by statute.

A New York Custody Lawyer said on 17 November 1947, the testatrix died a resident of Bronx. She was survived by her husband and eight children, one of whom is an infant. On 20 April 1948, her will was admitted to probate in this court and letters testamentary was issued on the same day to one of her sons.

Published on: October 7, 2013

Court Decides Ownership of Multiple Parcels of Property

by Stephen Bilkis

A man died on January 30, 1956. His will was duly admitted to probate by decree of this court entered on March 5, 1956. Letters of testamentary were issued there under to the decedent’s spouse, the nominated executrix. A New York Probate Lawyer said the man’s will bequeathed one-third of the residuary estate to his spouse and the remaining two-thirds, in equal shares, to his three children with the further direction that the share of his two daughters be held in a trust fund until they each attained the age of 23 years. The man’s daughters attained the age of 23 years in 1959 and 1961, respectively.

The record reflects that deceased man’s estate apparently consisted of ownership of, or interest in, numerous unimproved parcels of real property located in Bronx County. A New York Will Lawyer said the record further reflects that many of said parcels were intermittently sold by the executrix in the years after her husband’s death, and that the proceeds thereof were utilized to pay the indebtedness on other properties, to satisfy outstanding loans, to defray expenses associated with retention of the remaining parcels, and to pay the living expenses of herself and her children. None of the proceeds derived from these sales were ever placed into any bank account or trust fund for the man’s daughters as directed by the will.

A Westchester County Probate Lawyer said that upon an application by the daughters, on August 9, 1985, the court entered an order directing the fiduciary to render and seek judicial settlement of her account. The executrix subsequently filed her account on April 11, 1986. Separate sets of objections were filed thereto by the deceased man’s daughters and son.

Published on: October 5, 2013

Court Decides Validity of Will Instrument

by Stephen Bilkis

A New York Probate Lawyer said a man died with assets having a value of slightly less than $1,000,000, divided approximately equally between testamentary and non-testamentary assets. The proposed last will contains pre-residuary legacies to each of the man’s two nieces, his only successors, and to a friend.

The residuary estate is given in equal shares to two men, and their shares pass to their respective issue in the event they predeceased the deceased man.

Based on records, the main difference between the proposed last will and the deceased man’s penultimate will is that under the penultimate will, man B shared the residuary estate with man’s A’s mother and as the mother predeceased the deceased man and that last will did not contain an alternate disposition to her issue, man B would have been the sole beneficiary of the residuary estate under the penultimate will.

Published on: October 4, 2013

Court Discusses Putnam Rule in Will Contest

by Stephen Bilkis

A New York Probate Lawyer said that, in this probate proceeding, decedent’s will was previously admitted to probate by decree entered on April 15, 1983. These were dealt with on an interim basis by the decree admitting the instrument to probate prohibiting any distribution of the legacies which were then subjudice. A hearing with respect to those issues has now been completed.

A New York Will Lawyer said that, the decedent’s will was executed on November 18, 1976. She died on June 26, 1979, at the age of eighty-one years. At the time of her death, decedent was a resident of a facility named Fort Schuyler House, where she resided since 1974. In addition to a large number of general bequests to individuals and charitable organizations, the will contains a bequest in the sum of $2,000 to the wife of the attorney-draftsman of the instrument, a bequest of $3,500 to the Executive Director of the above facility at the time decedent resided therein, and a general legacy of $2,500 plus the entire residuary estate to the Assistant Executive Director of decedent’s residence until 1977. The attorney-draftsman of the instrument is the named executor. Decedent had never married and had no issue. Her distributees are eight cousins, all of whom reside in England. No objections to the admission of the propounded instrument to probate were interposed by any of decedent’s distributees.

A Bronx Estate Administration Lawyer said that, the legacy to the attorney-draftsman’s wife presents a simple fact question within the well established perimeters of the Putnam rule. The proof on this subject established that the attorney-draftsman was admitted to practice in 1932. He first met decedent in 1967. Initially, their relationship was social. It gradually became professional with the attorney-draftsman regularly handling such matters as preparing decedent’s income tax returns. In 1972, the draftsman prepared an earlier will for decedent. A copy of this will is in evidence, although the original was destroyed upon the execution of decedent’s present will. The 1972 instrument contains a series of general legacies to cousins of decedent, other persons and a long list of charities. The residuary estate is left to St. Barnabas Hospital. This hospital is reduced to a $2,500 legacy in the instant will.

Published on: September 30, 2013

Court Discusses Problem with Will’s Signature and Format

by Stephen Bilkis

In this probate proceeding, the propounded instrument upon its face raises a question as to its conformity requiring that a will be signed by the testator “at the end thereof”. A New York Probate Lawyer said in the instant instrument, the testatrix’s signature appears below that of the subscribing witnesses. The problem is compounded by the manner in which the testatrix misused a printed will form.

Examination of the printed form reflects that after utilizing the areas reserved for dispositive provisions and the designation of a fiduciary, the area for the testatrix’s signature is ignored and left blank, as are the blanks in the printed attestation clause. After the blank attestation clause appears the signature of two subscribing witnesses and their respective addresses. A New York Will Lawyer said that each of these subscribing witnesses appeared before the Probate Clerk and testified that at the time of execution they were shown an instrument, the decedent stated it was her will, she signed it in their presence and thereafter, in the decedent’s presence and at her request, the witnesses affixed their signatures to the instrument.

Beneath where there appear the respective signatures of the subscribing witnesses is a printed “Affidavit of Subscribing Witness.” This affidavit is filled in with the testatrix’s name as if she were a subscribing witness to her own will. The line at the end of the affidavit is signed by the testatrix and a notarization of her signature is on the instrument.