New York City

Published on: March 11, 2014

Court Discusses Appointment of Guardian Ad Litem

by Stephen Bilkis

A New York Probate Lawyer said in this probate proceeding, the guardian ad litem for the decedent’s minor children has submitted a preliminary report wherein she recommends that the purported will be admitted to probate if construed and/or reformed as suggested in her report.

A New York Will Lawyer said that the decedent died in June 2006, a resident of Nassau County. The decedent was survived by her husband and her two minor daughters. The will offered for probate is dated October 20, 2000. The will nominates the decedent’s husband as executor. Preliminary letters testamentary issued to the decedent’s husband on June 21, 2006. The gross testamentary estate is valued between $10,000,000 and $15,000,000.

A Long Island Probate Lawyer said the purported will disposes of the residuary estate in two parts, Fund A and Fund B. Fund A is given to a trust for the decedent’s husband for his life with the remainder payable to the decedent’s two children, or the survivor of them. Fund B, is given to the decedent’s husband outright. The proffered will directs that estate taxes, or similar death taxes, with respect to testamentary assets are to be paid out of Fund B. Article Third expresses the decedent’s intention to take maximum advantage of the available tax benefits so that there will be no federal estate taxes due with respect to her estate.

Published on: March 10, 2014

Court Rules on Stipulation of Settlement

by Stephen Bilkis

In connection with a petition for probate, the court has before it for review a stipulation of settlement which was expertly negotiated and crafted by the guardian ad litem appointed to represent the interests of decedent’s sister.

A New York Probate Lawyer said that decedent, a resident of New Hyde Park, Nassau County, died in February 2009, leaving a last will and testament. She was survived by 19 statutory distributees, including four siblings and the 15 children of four predeceased siblings.

The propounded instrument leaves all of decedent’s property in three equal shares, two of which pass to decedent’s sisters. The will directs that the third equal share be paid over to decedent’s niece, who is the nominated executor and the petitioner herein. It makes no mention of decedent’s third surviving sister, who suffers from Alzheimer’s disease.

Published on: March 9, 2014

Petitioner Claims Fiduciary is Unable to Serve

by Stephen Bilkis

A New York Probate Lawyer said the decedent died in January 2008 in Moscow, Russia, leaving a purported will which nominates the decedent’s attorney, and respondent, as executors. Preliminary letters testamentary issued to them by decree of this court in April 2008. The purported will bequeaths the decedent’s 75% interest in the Corporation to Petitioner, who allegedly owns the other 25% interest in the Corporation. The lawyer claims that he is the president of the Corporation and has been so since its formation in 2005. At the time of the decedent’s death, the Corporation owned real property and two automobiles. The purported will also include a $300,000.00 cash bequest to the respondent.

A New York Will Lawyer said that Petitioner is one of three women who were allegedly married to the decedent at the time of his death. She claims she married the decedent in December 2007, after his divorce from a former spouse became finalized in September 2007. The former spouse has filed suit in Russia attempting to invalidate the marriage between the petitioner and the decedent on the grounds that the divorce was invalid. The parties disagree over the status of the Russian proceeding. The preliminary executors contend that the Russian courts have determined that the divorce was not valid and that the determination is final. Both of them have filed a Notice of Right of Election in the probate proceeding.

Suffolk County Probate Lawyers said the petitioner has filed objections to the will, limited to the appointment of the fiduciaries. A guardian ad litem was appointed for the decedent’s child, who is eight years old. The child lives with the petitioner at the Peachtree Lane property. The guardian ad litem has filed his report wherein he has stated that he will not be filing objections to the purported will pursuant to a stipulation of settlement. Pursuant to the terms of that stipulation, the lawyer has agreed to assign to the son one-half of whatever she ultimately receives under the will. The court has authorized the guardian ad litem to sign the stipulation on behalf of his ward.

Published on: March 7, 2014

Court Hears Case Regarding Validity of Will

by Stephen Bilkis

A New York Probate Lawyer said in this contested probate proceeding, the proponent moves for an order granting summary judgment dismissing the objections and admitting the will to probate. The youngest son of the deceased man cross-moves for summary judgment to authorize the immediate distribution of $2,000,000.00.

A New York Will Lawyer said the man died on at the age of 81. He was survived by his three adult children as his sole distributees. The eldest son is the petitioner; the daughter is the objectant. The youngest son has filed an affirmation in support of his brother’s motion for summary judgment.

The instrument offered for probate was allegedly executed on August 28, 2010. It contains pre-residuary totaling to $525,000.00 bequests $100,000 to the eldest son’s wife, $100,000 to the eldest son’s child, $150,000 to the decedent’s sister, $100,000 to the decedent’s niece, and $75,000 to the decedent’s friend. The residue is bequeathed 2/3 to the eldest son and 1/3 to the youngest son. The daughter is expressly disinherited. She filed objections to probate alleging that the will was not duly executed, that the decedent lacked the capacity to make a valid will, and that the instrument is the result of undue influence and fraud having been perpetrated on the decedent by his eldest son.

Published on: March 6, 2014

Court Decides Case Regarding Lost Will

by Stephen Bilkis

A New York Probate Lawyer said a deceased man was survived by his wife and three adult children. Afterward, his last will was offered to probate. The man’s 2003 last will bequeathed his personal property, shares of stocks and real property to his wife. A trust is also established for the benefit of his wife, and upon her death, the property was to be held in trust for their three children until they reached the age of thirty.

A New York Will Lawyer said the article sixth of the man’s 2003 last will provides that the man’s interest for various companies and real property is to be held in trust for the benefit of his wife, but subject to the option of his son to purchase the same.

Afterward, the last will was admitted to probate and the letters testamentary was issued to the estate administrator.

Published on: March 5, 2014

Court Discusses Revocation of a Waiver

by Stephen Bilkis

On 22 April 2009, EB, a resident of Nassau County died purportedly leaving a will dated 20 March 2009. He was survived by his wife from a second marriage, JB, and by five children.

A New York Probate Lawyer said that under the purported will, one-third (1/3) of the residuary estate is to be placed in a supplemental needs trust for the decedent’s wife; the remainder of the residuary estate is to be divided into seven equal shares with one share for each of the EB’s children (other than P) and the decedent’s three step-children; and, it nominates KH, EB’s daughter, and PH, KH’s husband, as executors.

Consequently, the purported will was offered for probate by the nominated executors. On 12 May 2009, a waiver and consent was signed by JB. On 16 June 2009, it was filed with the court. P, one of EB’s children, is under a disability. Thus, a guardian ad litem was appointed for her.

Published on: March 1, 2014

Court Discusses Case Regarding CPLR 3101 (a)(4)

by Stephen Bilkis

A New York Estate Lawyer said that, in this probate proceeding the contestants move pursuant to CPLR 3101(a)(4) for an order to examine on oral questions non-parties and to direct them to produce certain books and records relating to the decedent. The non-parties are the Nassau County Police Department and the Nassau County Social Services Department. The relief sought is based on an affidavit prepared by the contestants’ attorney, wherein he states that the Nassau County Police Department and the Nassau County Social Services Department are in possession of information which will aid him in the preparation for trial.

A New York Will Lawyer said that, the Nassau County Police Department states that there is only one police blotter relating to the decedent and that it has attached a copy of same to its reply. It states that there are no other police blotters. The movants also request the examination of the lieutenant. The Police Department, in its reply, indicates that there is an Inspector but that it does not know specifically what information he would have. The proponent argues that the contestants have failed to show special circumstances for the examinations. Both the proponent and the Nassau County Social Services Department object to the production of records held by the Social Services Department and to the examination of any of its employees because they contend that such records are confidential and are not discoverable.

Westchester County Probate Lawyers said the issue in this case is whether proceeding the motion pursuant to CPLR 3101(a)(4) for an order to examine on oral questions non-parties and to direct them to produce certain books and records relating to the decedent should be granted.

Published on: February 25, 2014

Court Decides Case Regarding Rhode Island’s Non-claim Statute

by Stephen Bilkis

A New York Probate Lawyer said that, plaintiff was a patient of the decedent doctor, a general dentist. He died on September 12, 2005. Although he lived in New York at the time of his death, a probate estate was commenced in Rhode Island where he possessed property and where, over a decade earlier, he had executed his will. On December 8, 2005, the decedent’s brother (who happens to be an attorney), was appointed as Executor of the Estate of the decedent (“the Executor”) In late December 2005, he sent plaintiff care of her attorney, a “Notice of Commencement of Probate,” which set forth information regarding the decedent’s Rhode Island probate estate.

A New York Will Lawyer said that, plaintiff commenced this dental-malpractice action against the Executor in June 2006. In her Verified Complaint, she alleges that the decedent committed malpractice while rendering dental treatment between September 11, 2004, and February 15, 2005. The Executor’s Verified Answer (dated August 24, 2006), includes the affirmative defenses of failure to “timely file a claim against decedent’s estate” pursuant to Rhode Island General Laws §§ 33-11-4, 5, 9 and “insufficient service of process.”

A Nassau County Probate Lawyer said that, pursuant to CPLR 3211, defendant Executor of the Estate of the decedent moves to dismiss this dental malpractice action commenced by plaintiff, arguing that plaintiff failed to comply with Rhode Island’s non-claim statute and failed to properly serve him. Plaintiff opposes the motion and, as a precautionary matter, cross-moves for an extension of time to properly serve the Summons and Verified Complaint.

Published on: February 21, 2014

Petitioners Assert Fraud and Undue Influence Regarding Construction of Will

by Stephen Bilkis

There is offered for probate as decedent’s last will and testament an instrument in his own hand in the following text: “This is my will if I should die on this my trip to India You are my sol heiress.”

A New York Probate Lawyer said that the objections to the probate of this document were interposed by decedent’s widow and his brother. Their objections asserting fraud, undue influence and lack of testamentary capacity were withdrawn prior to the trial so that the only remaining issues as to the validity of the paper’s execution as a will are those asserting that the instrument was not duly published by decedent and that he did not request the witnesses to attest it.

A New York Will Lawyer said a motion was made by the widow for a summary judgment that the propounded paper was subject to a condition which never occurred and consequently the instrument never became effective as the decedent’s will. It was urged in support of this motion that the propounded paper was intended to be operative only in the event of decedent’s death on a particular trip to India and, inasmuch as he did not make a trip to India and died in July 1954 in a New York City hospital, the instrument should not be admitted to probate. The court ruled that the motion for denial of probate would be held in abeyance for determination with other issues upon the trial. The Court of Appeals affirmed the order of this court and held that the effect of the alleged condition upon the validity of the propounded paper should be determined on the trial of the probate or other hearing at which the parties would have an opportunity to develop extrinsic facts in aid of a construction of the testator’s language. In accordance with this holding the parties have been permitted to introduce evidence in support of their respective contentions as to the validity and effect of the propounded paper.

Published on: February 11, 2014

Court Decides if Widow Can Seek and Order Under Sec 20 of Surrogates Court Act

by Stephen Bilkis

A New York Probate Lawyer said that, the petitioner, asserting a status as the widow of the deceased, seeks an order under section 20 of the Surrogate’s Court Act re-opening the decree admitting the will to probate. In support of her application she relies upon the omission of the respondent executors to cite her in the earlier proceeding. She admits it to be her purpose, in the event she is successful on this application, to relieve herself of her default in serving a notice of election to take against the will which was admitted to probate on September 24, 1952, an event of which she has been shown to have been fully cognizant though at the time she made no attempt to intervene in the proceeding.

A New York Estate Litigation Lawyer said that, the issue has been joined by the filing of an answer in which it is alleged that the petitioner and the deceased were never married and that she has voluntarily relinquished whatever rights she might have had in his estate by an instrument executed by her as a release together with a written agreement of settlement which terminated an action she had instituted against the executors in the Supreme Court for monies loaned to the deceased, for work, labor and services rendered, and for breach of an agreement allegedly requiring the respondents ‘to provide for plaintiff’s good care and support.’ She was represented in that action and in the negotiations for settlement by competent counsel of her own selection.

A New York Will Lawyer said that, the executors, pleading the agreement and release in bar, have moved for summary judgment dismissing the petition on the merits. The petitioner had previously filed her reply in which she had challenged the effectiveness of the instruments upon which the respondents rely. This being the state of the pleadings the court is called upon on this motion to decide as a matter of law whether the release and agreement would be sufficient in content and context to bar the petitioner from asserting rights to which she would be entitled were she in fact the widow of the deceased and if so, to determine whether an issue of fact exists in connection with the question as to whether the documents are nevertheless incapable of producing that result because of the circumstances surrounding their execution and exchange.