Wills

Published on: August 7, 2012

Guardian ad Litem Contends Undue Influence

by Stephen Bilkis

This is a probate proceeding that questions the will of Vito DeMarco, the deceased. The case involves the administrator of the estate, Christina Matozzo versus the Trustee of the Vito DeMarco Living Trust, Anthony DeMarco. Mr. DeMarco is seeking to declare that the trust is invalid. The case is being heard in the Surrogate’s Court of the State of New York.

Proceedings

There are currently three different proceedings that are pending in regard to the Vito DeMarco estate. The first is the proceeding that seeks to assert that the Vito DeMarco Living Trust that is dated the 19th of March, 2001 as invalid.

Published on: August 6, 2012

Multiple Parties Seek to be Executor of Estate

by Stephen Bilkis

This is a matter of probate concerning the will of Evelyn May Hoelzer. The case is being heard in the Surrogate Court of the City of New York in Nassau County. The judge overseeing the hearing is John B. Riordan.

Probate Applications

This is a pending probate proceeding involving the will of Evelyn Hoelzer. There are currently two applications set before the court for preliminary letters testamentary. A New York Probate Lawyer said tne application is from Jeanne Schieck and the other is Richard Hoelzer. Jeanne is the decedent’s niece and Richard is the decedent’s brother.

Published on: August 5, 2012

Delay in Filing Documents Leads to Monetary Loss for Estate

by Stephen Bilkis

This is an appeal case being heard in the Second Department Appellate Division of the Supreme Court. The plaintiffs in the case are James P. Johnson III, et al. The defendant in the case is Murray Berger. The case also has Neil R. Gerst et al., as third party defendants, plaintiffs-appellants. Kenneth Murphy et al., are the third party defendants and respondents. The defendants, third-party plaintiffs-appellants are represented by Chesney, Murphy & Moran, Westbury. The third party defendant-respondent Kenneth Murphy is represented by Gabor & Gabor with Hope Senzer Gabor for counsel. The third party defendants-respondents Gary Darche is represented by both Koopersmith, Feigenbaum & Potruch and DiMascio, Meisner & Koopersmith.

Action

The defendant’s third party plaintiffs are seeking an appeal from an order made by the Queens County Supreme Court involving a case of legal malpractice. A New York Probate Lawyer said the original order granted the motions for summary judgment for the dismissal of the case in favor of the third party defendants. The order dismissed all of the third party complaints that were asserted against each of them.

Published on: August 4, 2012

Court Orders Preliminary Letters Testamentary

by Stephen Bilkis

This is a probate proceeding for the will of the deceased Stuart L. Ain. The case is being heard in the Surrogates Court of the city of New York located in Nassau County. The case is being overheard by Judge John B. Riordan.

Probate Proceeding

Stuart Ain, the decedent passed away on the 28th of October in 2006. He left a will that was dated the 27th of April, 2007. Victor Levin and William J. O’Brien were named as the executors of the will. William J. O’Brien renounced his appointment as executor. Michael and Jody, the decedents two adult children are the sole survivors.

Published on: August 3, 2012

Plaintiff Filed Objection to Probate of Will

by Stephen Bilkis

Suffolk Probate 13

The plaintiff in this case is Rachel Kuncman. The defendants in the case are Steven A. Sherman, American Portfolios Financial Services, Inc., the Abraham Salomon and Tobi Weinstein estates both individually ans as the executrix of the Abraham Salomon estate. The case is being heard in the Nassau County Supreme Court. The judge overseeing the case is Stephen A. Bucaria.

Case History

Published on: August 2, 2012

Respondent Claims Petitioner Lacks Standing

by Stephen Bilkis

A 19 years old woman was at the hotel located at Staten Island, New York. The said hotel is approximately one half mile from the woman’s residence where she resided with her mother. While at the hotel, the woman made her way to the roof of the hotel where she plunged to her death. Consequently, the woman’s mother’s attorney, who has an office in Staten Island, New York, filed for limited letters testamentary in order to bring an action for a potential wrongful death action.

A New York Probate Lawyer said the complainant mother apparently changed attorneys to one who has offices in Brooklyn and commenced the legal action by filing a summons and complaint with the Kings County clerk’s office. The summons stated that the venue was based on the mother’s residence at Brooklyn however the mother’s verified complaint stated that she was a resident of the County of Richmond. The verified complaint contains allegations of fact in support for a single cause of action for damages due to wrongful death and the woman’s conscious pain and suffering up until her death.

The hotel served an answer to the revised verified complaint that includes thirteen affirmative defenses. A Brooklyn Probate Lawyer said the third affirmative defense states that the mother’s complaint filed in Kings County are at improper venue, and that the place of trial of the action should be changed to a proper venue, a Richmond County. Submitted along with the opponents’ answer was a demand to change venue. When the mother did not respond to the demand to change venue to a proper county, the hotel filed the underlying notice of motion to change venue with the Richmond County clerk’s office.

Published on: August 1, 2012

Daughter Contests Father’s Will

by Stephen Bilkis

In a proceeding, a daughter of a deceased man filed a motion for a decision without trial and objected the petition for probate of her father’s will. The petition was brought by the sister of deceased man and the nominated estate administrator under the last will and testament.

The last will and testament of the deceased man was offered for validation. In his will, the man directed that his entire estate be distributed to his sister. The document reflects that the attesting witnesses were the draftsperson of the will and the draftsperson’s legal assistant. The daughter however filed multiple objections to the will, focusing primarily on an alleged lack of due implementation. The daughter’s counsel examined the two attesting witnesses.

The motion requesting the decision without trial upon objections for the validation of the will and dismissal of the proceeding was followed a lengthy delay in which a settlement was reached concerning payment of the deceased person’s non-probate death benefits, however no settlement was reached in connection with the distribution of the deceased person’s property. In the daughter’s affidavit, she alleges that her aunt cannot appropriately demonstrate due implementation of the proposed last will and testament. In support for the statement, the daughter presents that the one witness cannot recall the will signing ceremony, that the self-proving affidavit was improperly notarized, that the her father failed to initial each page of his will and the proponent’s counsel did not produce her for examination.

Published on: July 29, 2012

Court Says Testator has Right to Choose Who Settles Their Estate

by Stephen Bilkis

In a probate proceeding, a New York Probate Lawyer said that the petitioner, Joanne Zaccaria, appeals from so much of a decree of the Surrogate’s Court, Kings County, denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of Paula M. Venezia, and granted those branches of the motion of the objectant, Edward Hayes Pennington III, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

The issue in this case is whether the Surrogate Court in this probate proceeding erred in denying petitioner’s cross motion for the issuance of preliminary letters testamentary on the estate of the testator, and granted that branch of the motion of the objectant, Edward Hayes Pennington III, to issue letters of administration to him.

The Court reversed the decision insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Surrogate’s Court, Kings County, for an evidentiary hearing in accordance herewith, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

Published on: July 28, 2012

Court Decides Executor Commission

by Stephen Bilkis

In a probate proceeding case, the decedent died on July 3, 2003, leaving a will dated November 22, 1971. The petitioner-executor was an attorney admitted to practice in this state and drafted the will offered for probate. Thereafter he maintained limited contact with the decedent. A New York Probate Lawyer said that, petitioner has submitted an affidavit in which he states that about 1995 he retired from practice and in early 1996 moved to Virginia but then moved back to Owego, New York, in September 1998. Throughout this period he retained his license to practice law until it lapsed at the end of 2000. Since petitioner is no longer licensed to practice he has retained separate counsel to represent him in his capacity as executor.

Thereafter, SCPA 2307 was enacted effective August 2, 1995 the said statute is applicable to the estates of decedents dying after January 1, 1996. It provides that an attorney-draftsman of a will in which he is named as executor can receive full commissions only if the written disclosure of dual fees required by the statute was executed by the testator. In this case there is no written disclosure from the testator. Alternatively, the statute permits full commissions with respect to wills executed prior to January 1, 1996, if the attorney-executor establishes to the satisfaction of the court reasonable grounds to excuse the absence of a written acknowledgment. A Kings Probate Lawyer said that, in his affidavit submitted herein, petitioner argues that after he retired from practice in 1995, “I was unable to remain knowledgeable of current changes to New York State law, including changes to the Surrogate’s Court Procedure Act.” Petitioner’s affidavit does not indicate any attempt to make the required disclosure. Nevertheless, petitioner was licensed to practice as an attorney, both in 1971 when the will was drawn and in 1995 when the law changed.

The issues in this case are whether petitioner-executor is entitled to his full commission, notwithstanding the failure of the testator to make written disclosure of dual fees as required by the statute; and whether the fact that petitioner had retired from the practice of law and has hired separate counsel to represent him as executor of the estate are reasonable grounds to excuse the absence of the written acknowledgement.

Published on: July 27, 2012

Court Decides Sales Tax Question

by Stephen Bilkis

The Facts:

On 20 December 1979, the Audit Division of the State Tax Commission issued a Notice of Determination and Demand for Payment of Sales and Use Taxes Due for the period 1 June 1976 through 31 August 1979. Petitioner filed a petition for revision of that determination and for refund of sales and use taxes under Articles 28 and 29 of the Tax Law.

A New York Probate Lawyer said on 21 November 1985, a hearing was held. On 28 May 1986, a decision was made which modified the Determination but left an amount due of $83,884.58. On 28 May 1986, the Commission notified petitioner of the Decision and advised that petitioner had now exhausted his right of review at the administrative level.