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Court Hears Case to Validate a Will


The last will is accepted for probate but the co-administrator requests a decision to dismiss the objections pertaining to the account of the first daughter of the deceased. The second daughter of the deceased and her co-administrator join in their appeals of while the first daughter opposes the motions. The separate motion submitted by the first daughter seek for partial decision without proceedings on her claim to enforce the terms of the deceased of a prior mutual reciprocal will and an agreement not to revoke it. The co-administrator as well as the second daughter opposes the motion.

The mutual reciprocal will was completed by the deceased and his wife. The couple agreed to leave each other’s one-half of their net estates in trust with the remainder of the trust to be passed on another trust in equal shares to their two daughters. A New York Probate Lawyer said their residuary properties are left in trust with equal shares to their two daughters until the daughters reached the age of thirty-five. On the same date, the couple also completed a separate agreement not to revoke their mutual reciprocal wills without the consent of each other. The agreement further states that it will result to the benefit of their heirs.

The parties agree that there are no factual issues to be determined and that the issue of law to be determined is whether the mutual reciprocal wills and the agreement are valid and enforceable to support the first daughter’s claim as a creditor for a one-half share of their father’s properties. Westchester County Probate Lawyer said that consequently, no trial is needed.

The court records revealed that the wife died before her husband and the mutual reciprocal will was accepted for validation by the court. It is acknowledged that after the wife’s death, neither the spousal trust nor the residuary trusts for the two daughters were established by the husband and the wife’s brother. It is further acknowledged that the husband completed six wills and appendices prior to the issuance of letters of administration. The first daughter signed an agreement to revise the generation skipping trust (GST) established in the appendices as to set aside one-third of the GST and to hold that one-third as a separate fund for the benefit of the first daughter’s heir and to sign a consent to validate. Subsequently, in accordance with the agreement, the first daughter signed and delivered a waiver of process and consent for validation of the will.

The co-administrators filed a petition for legal settlement and intermediate accounting showing excess cash on hand. Suffolk County Probate Lawyers said that the first daughter submitted modified objections to justify the claims of being entitled to the deceased father’s mutual reciprocal will and agreement. Being entitled to the said mutual will and agreement gives the daughter a 50% interest of his properties plus 50% of all lifetime gifts and transfers made by the father. The first daughter also filed a claim as a creditor for one-half of the assets based upon the mutual reciprocal wills and agreement which was rejected by the co-administrators. Succeeding on it, the first daughter served her third modifies objections to account. Repeating the aforesaid objections and adding the allegation that the deceased father made lifetime gifts to the second daughter and her children in excess of those gifts made to the first daughter and her daughter. The co-administrators filed replies to all the objections by asserting numerous confirmatory defenses.

It is also acknowledged that while preparing the two later wills, the first daughter accompanied her father to the attorney draftsman’s office and that she participated in communications and discussions to the will provisions. The co-administrator argues that in doing so, the first daughter sanctioned the changes which her father made in his subsequent wills. They further alleged that the changes made were inconsistent with the provisions of the mutual reciprocal will and the first daughter in so doing lost her right to enforce the mutual will and agreement. The later will is the same with the previous mutual will, leaving the entire assets to both daughters equally, who by this time were over the age of 35 years. The inheritances to the relatives were omitted in the later will and subsequent wills. The later will leaves certain property equally to the two daughters and the remainder in two equal trusts, one for each daughter, which continue beyond the termination period of the trusts establish by the previous mutual wills. The appendix changes the trustees but leaves the beneficial scheme intact. Therefore, there is no evidence that the first daughter contributed to these wills in any way which would constitute a waiver of her rights under the previous mutual wills and agreement.

The second daughter and her co-administrator have also stated that they were unaware of the mutual wills prior to the death of the deceased father. Their lawyer stated in a letter that they did not know about it. The co-administrators did not provided a notice in the validation petition to the first daughter who is unfavorably affected by the proposed will and appendices by virtue of the mutual wills and agreement. However, it reveals that there is no indication in their mother’s assets proceeding that the first daughter received a copy of the mutual Will. Other than knowledge by public notice of the recorded documents, there is no evidence that any of the parties or the attorneys of the co-administrators actually knew of the mutual wills and agreements until after the death of their father.

The co-administrator asserts that because the first daughter failed to assert her rights under her mother’s will. She should be considered to have waived her claim under her father’s mutual will and agreement and stop from asserting any such rights. They further alleged that the law of limitations on the first daughter’s claim began to run when her mother’s will was validated. However, her mother did not breach the previous agreement stating that any failure to fund the residuary trust was a violation of legal duty of the co-administrators and co-trustees under the will and pertained only to the first daughter’s rights in relation to her mother’s assets.

With regards to the first daughter’s motion for partial decision without judgment and asking to enforce the terms of her father’s previous mutual will and agreement is granted by the court. Based on certain facts the motion is granted to the extent that her claim against the assets in relation to her interest in the deceased mutual will and agreement is valid and enforceable. It is further granted to the extent that said claim is in the amount of 50% of the net assets value, together with 50% of the total gifts made by the father to the first daughter, second daughter, the three grandchildren and to others which would defeat the purpose of the mutual wills and agreement, minus the value of the gifts received by the first daughter and her daughter. The exact amount of the claim is to be determined after a full accounting of all the gifts made by the father to his heirs.

The court also ordered that the motion to dismiss the objections of the modified objections is denied. The motion to dismiss the objections is denied in all respects. The motion for partial dismissal in favor of the claimant enforcing the terms of the deceased father’s mutual will and agreement is granted.

In order to validate a last will, services of a skilled attorney is needed. We can never know when we would need the assistance of a qualified lawyer when will validation requires a property administrator. When things get rough in property litigation, the services of our legal team at Stephen Bilkis and Associates are just a phone call away.

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