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Court Hears Will Contest Over Real Property Dispute


A decedent died on 26 February 2009 and was survived by his two children. On 3 August 2009, the decedent’s last will and testament dated 9 February 2009 was admitted to probate (estate litigation, estate administration or will contest) and letters testamentary were issued. The will provided, among other things, that the named executor in the will would have the right to live in the decedent’s home for the remainder of his life and directions for the distribution of the remainder either after the named executor’s death or upon his vacating of the premises.
Thereafter, alleged creditors of the decedent’s estate petitioned the court for a summary judgment issued in their favor.

The petitioners based their assertion on a document entitled, “Sales Agreement,” dated April 29, 2006, between the decedent, who is defined in the agreement as “Seller”, and the petitioners, who are defined as “Buyers.” The petitioners alleged that by the terms of the agreement, the decedent granted the petitioners the right of first refusal to purchase the property for $1,600, 000.00 and that in the agreement the decedent acknowledged his receipt of two deposits by check totaling $350,000.00 that the petitioners paid to the decedent for the right of first refusal. A New York Probate Lawyer said the petitioner’s alleged that the decedent’s failure to offer the property to them for sale prior to conveying the property constituted a breach of the agreement by the decedent. The petitioners further claimed that the documentary evidence and the named executor’s deposition testimony conclusively demonstrated that the transfer of the property from the decedent to him was a fraudulent conveyance under New York Debtor and Creditor Law because it rendered decedent and his estate insolvent demonstrating an intent to evade his obligation.

It was testified by the named executor that when the decedent transferred the property to him there were two mortgages recorded against the property. One of the mortgagees who is the decedent’s sister has already commenced a foreclosure proceeding against the named executor in Supreme Court, Nassau County. Staten Island Probate Lawyers said the petitioners’ motion to intervene in that proceeding and to stay the action pending the determination of their claims in this proceeding was granted. In opposition to the instant motion, the named executor has filed an affidavit wherein he stated that he personally and as the executor of the estate agrees to pay the petitioners the sum of $300,000.00 from the proceeds of sale of the property, and, that he personally agrees to pay any claim determined by the court to be due to the petitioners. The named executor claimed that the pending foreclosure action has made it difficult to refinance the mortgage on the property or to market it for sale and that he offered to sell the property to the petitioners after the decedent’s death.

In a number of cases decided before the courts, a summary judgment may be granted only when it is clear that no triable issue of fact exists. The court’s function on a motion for summary judgment is “issue finding” rather than issue determination, because issues of fact require a hearing for determination. Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law. The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party. If there is any doubt as to the existence of a triable issue, the motion must be denied. If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. Suffolk County Probate Lawyers said that in doing so, the party opposing the motion must lay bare his proof. “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to overcome a motion for summary judgment.
Did the decedent breach the sales agreement? If so, are the petitioners entitled to damages? To what extent are the damages?

The court ruled that there are issues of material fact that bar the granting of a summary judgment to the petitioners. To note, the petitioners alleged that the decedent did not offer to sell the property to the petitioners as required by the terms of the sales agreement; however, the named executor contends otherwise, although the deposition testimony is incomplete and misleading. Nevertheless, the named executor has sworn that the decedent offered to sell the property to the petitioners prior to the decedent’s death. The court notes that the agreement on its face discussed only the circumstances where the decedent was required to inform the petitioners of his intent to buy a new property “[w]hen Seller [the decedent] finds a new home he wants to buy…” but that is not what occurred in the present case.

Losing a loved is hard and being involved in a lawsuit can be much harder especially when you are in the same situation as the above. If you don’t have the proper legal representation, things could be much worse. Don’t carry the entire burden alone. Let us help you. Consult Stephen Bilkis & Associates for assistance. Our legal teams of Nassau County Estate Attorneys or Nassau County Estate Litigation Lawyers are what you need.

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