Articles Posted in Wills

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NY Slip Op 05266

The petitioner brought this case to enforce an oral agreement that would be void because of the statute of frauds. The petitioner’s grounds for this action are unconscionability of the statute of frauds. The court agrees that when promissory estoppel is satisfied it would be unconscionable and egregious to rely on the statute of frauds. Nonetheless, the court concludes that the petitioner can’t rely on this doctrine because the application of the statute of frauds would inflict injury on the petitioner and would be unfair. The court felt that while it would be unfair, it was not unconscionable.

The decedent owned an apartment building. His grandsons contend that before 2006, the had helped their grandfather with maintenance and snow removal on the property. Later, the grandfather asked the petitioners about taking over management duties of the property.

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BD is the brother of the decedent AR and the co-executor of his estate. He seeks a judicial construction of his brother’s will. He was left a 13-year-old cat and $6,000 for the care of the cat. If he is successful in this case, he would stand to receive $700,000.

AR stated in his will, he stated he loved siblings dearly but he made no bequest to them. He stated that the rest of the estate should be put in the Dawe family trust. The purpose of the will and trust was to fund a genealogical website.

To avoid the rule of perpetuities, after that, the money should go to a library in Connecticut.

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In re the Probate Matter of WB

BB was the decent in this matter and died at 95 years old with 2 daughters (TK and MA), which were the two distributes of her estate.

SV, a niece in law, submitted an instrument dated August 16, 2007, as BB’s last will and testament. The will stated that everything be divided between the petitioner and her husband, EV, a nephew in law. The decedent expressly left her two children out of the will. Understandably, both children filed objections to the validity of the document. They contend that the document wasn’t properly executed, it was a mistake and produced under fraud and duress. Petitioner moved for summary judgment. There was a cross-motion filed compelling discovery and arguing that triable issues of fact exist.

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NY Slip Op 02473

Decision

This hearing was made pursuant to Mental Hygiene Law Article 81. The purpose was to appoint guardians to a person and property for Mr. & Mrs. D, who appealed a previous decision whereby the Petitioners had successfully requested to set aside a deed from July 19, 2013 because of undue influence and incompetence, and to declare the judgment void.

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2017 NY Slip Op 04436

June 7, 2017

Giovanna Bajic and Angela Franke petitioned the probate court via SCPA 1420 for a will construction issue. They are appealing for an Order and Decree by the Queens County Surrogate Court, dated March 30, 2016. This court had denied their Motion for Summary Judgement and Petition.

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NY Slip Op 01314

February 21, 2017

On October 19, 2015, the Surrogates Court entered a will into probate. The court granted the respondent’s motion for summary judgment.

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A New York Probate Lawyer said that, in this contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other.

Since the decedent did not subscribe her name in the presence of the witness, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read.

Accordingly, the Court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to be her signature to said witnesses as required by the statute. The objections are sustained and probate is denied. Proceed accordingly. As an incident to a trustee’s final accounting, the Court is requested to fix an attorney’s fee pursuant to section 231-a, Surrogate’s Court Act payable out of the share of the issue of a deceased remainder man.

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In this miscellaneous proceeding, the respondent, administrator de bonis non, moves to dismiss the petition by two alleged creditors for revocation of his letters pursuant to CPLR 3211 (a) (2) and (3).

A New York Probate Lawyer said that the decedent died in April 1939, intestate. The decedent was the writer of some classic songs. He was survived by his wife and his father. Pursuant to the law of intestacy applicable at the time of the decedent’s death, the survivors were the decedent’s only distributees. In May 1939, the wife was appointed administrator of the decedent’s estate. She died in November 1973, a resident of New York County. She left a last will and testament which nominated executors. The first executor died in January 1983 leaving a will. Letters testamentary in his estate issued to his co-executor.

The respondent, who alleges that he is a grandnephew of the decedent, petitioned for letters of administration de bonis non with respect to the decedent’s estate by petition dated September 21, 2009. The petition filed by him in the administration proceeding recites that the decedent had eight brothers and sisters who were deceased and that five nephews/nieces and seventeen great-nephews/great-nieces “were surviving.” Nicholas’ petition for letters of administration de bonis non was supported by waivers and consents of twenty-one of the distributees identified and citation issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.

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