New York Probate and Estate Administration Lawyer Blog

Published on: February 29, 2012

Court Decides Lengthy Will Contest Proceeding

by Stephen Bilkis

In 1970, a doctor executed a will prepared by his attorney. The original will was retained in the attorney’s files and the doctor was given a conformed copy. The attorney died in 1972 and the doctor died in 1979, at which time the original will could not be located in the attorney’s files. The proceeding to admit the lost will for validation was commenced by the will proponent. The law provides that a lost or destroyed will may be admitted for validation only if it is established that the will has not been revoked; or execution of the will is proved in the manner required for the validation of an existing will, and all of the provisions of the will are clearly and distinctly proved by each of at least 2 credible witnesses or by 1 witness and a copy or draft of the will proved to be true and complete.

At trial, the proponent submitted evidence that the doctor did not revoke the original will since it was lost while in the possession of the attorney-draftsman. The appellant submitted evidence tending to show that the doctor had revoked the will by tearing it into pieces. Two of the witnesses who attested to the original will testified with respect to due execution but neither could remember any of the substantive provisions of the will.

A New York Probate Lawyer said that regarding the third requirement of the law, the legal secretary who typed the original will testified that she recognized her initials on the first page of the conformed copy of the will that was received into evidence. She also recognized that the type was the same used by her IBM typewriter. She recalled that the original will contained many provisions and that many bequests were made to foreigners. She further testified, however, that she never read the will after she typed it and could not remember any of the provisions of the original will. No other witness testified as to the contents of the original will.

Published on: February 28, 2012

Court Decides Will and Trust Dispute

by Stephen Bilkis

A resident of Connecticut died in 1936. He left a will duly admitted for validation in the State of Connecticut. He created a testamentary trust providing payment of the one third of the income to a life beneficiary, his nephew. The nephew bearing the same name as his uncle is a resident of Cattaraugus County, New York. The instant proceeding is brought in the Surrogate’s Court, Cattaraugus County in connection with the administration of the estate of the deceased nephew. The proceeding follows proceedings earlier brought in the validation court of Fairfield County, State of Connecticut referable to intermediate and final accountings of the testamentary trustee, a Chemical Bank.

A petition of a trust company for the determination of the validity and enforceability of claim of a chemical bank to the last will and testament of the man was filed. New York Probate Lawyers said that the trust company was the appointed representative for the administration of the estate and the said chemical bank was the beneficiary of a large trust set up by a will. The facts in support of the petition have been agreed to by opposing counsel in a written condition. It states that the man properly accepted to validate his will in the state of his residency.

The life beneficiary of a man died and with his death, payments of income terminated as well as the trust. The remaining principal of the trust was directed to be paid over to the designated remaindermen.

Published on: February 28, 2012

Court Rules on Complex Wills Case

by Stephen Bilkis

A son of a deceased man who filed an objection in a probate proceeding and the petitioner in an administration proceeding that was consolidated with the proceeding, has now noticed for settlement a decree dismissing the validation petition. He has also moved to have his application for letters of administration restored to the calendar. The deceased man’s daughter, the proponent in the validation petition, opposes her brother’s applications and, in effect, seeks to vacate her prior default in her brother’s motion to dismiss her petition.

When the father died, he was survived by three children. A New York Probate Lawyer said that the validation petition was filed provides for an equal distribution of the estate between the two children other than the son who made the objection. It appears from allegations made in the pending applications that the other son, the beneficiary of 50% of the properties under the will, died on April 2, 2006 and that he was not married and did not have any children.

The son who made the objection made several applications in the validation proceeding for relief based upon the proponent’s failure to provide requested discovery. The court’s last determination on the issue directed the production of certain documents by the proponent. Queens Probate Lawyers said that after the deadline passed without production of the additional documents, the son moved to dismiss the validation petition and the proponent’s counsel moved to withdraw from representing her, alleging that she had failed to keep appointments necessary to comply with the court’s directions. In the absence of any opposition, counsel’s application was granted and an order was entered, which not only relieved counsel from representing the proponent, but also provided that all proceedings were stayed for 30 days and that the son’s application to dismiss the validation petition shall be submitted without opposition at the expiration of the thirty (30) day period unless papers in opposition had been filed or an application had been made for an extension of time within the period of the stay. In the absence of any opposition or a request by the proponent for an extension of time to oppose the application to dismiss the validation petition, the court rendered a decision, granting the application on the grounds that the proponent had failed to produce documents pursuant to the direction of the court and had failed to diligently prosecute the proceeding.

Published on: February 27, 2012

Court Decides Will Contest

by Stephen Bilkis

A woman died and signed a will two days prior to her death. The will state that she left her entire estate to one man. But, she did have another will dated many years prior to her death. It states that she left her assets to her brother and sister, unfortunately they did died already, and it says if they died partial of the assets will be preceded to one of the Catholic Congregation and the remainder to her cousin and his wife.

The man filed a civil case to validate the earlier will, to which the other heirs from another will filed an objection. The eight day trial resulted on a denial to the motion, by which the jury found that the deceased person doesn’t have the legal ability to make a will and it was only done by influence. The man requests a higher court to review the lower court decision and again denied. The heirs of the late will filed a petition to legally validate it. They issued temporary letters and no objection has been filed. And the other man from earlier will seeks leave to file objections to the late will, a stay to pending appeal and an order requiring the temporary administrator to file a bond pending appeal.

A New York Probate Lawyer said that based on records, in order to file objections, the prospective objector must have an interest in the properties that would be adversely affected by the admission of the will to attest. The man argues that he has standing because he has an interest in the properties and would be adversely affected by validation of the late will. And, as an appellant, he has contingent interest in the properties. However, this is not sufficient to file objections. The adverse consequences must be the direct result from the admission of the will to validate. It is clear that the man is not adversely affected by the validation of the late will. The only ground on which he can objects to the validation of the will is that there is a valid later will, which is the earlier will. However, the argument has already been determined in the prior trial and been rejected. He also argues that the court should permit him to intervene under its discretion to permit any party with a fair or slightly possible financial interest to intervene.

Published on: February 27, 2012

Petitioner Contends Negligence of Guardian

by Stephen Bilkis

A guardian for an old man is accused of gross negligence, malpractice, inaction, unlawful and breach of authority relationship regarding his conduct and/or lack thereof in exercising a certain right of election on the old man’s behalf against the last will and testament of his deceased son.

The claim for compensatory and disciplinary damages results, allegedly, from the defendant’s failure as guardian of the father to have taken steps necessary to have enabled his ward to exercise his personal right of election against an excessive testamentary gift for educational purposes. While this probate proceeding concerned the will of the son who died, the facts herein involved concern the estates of three deceased because, as will appear more fully below, soon after the son died, the mother died and shortly thereafter, the father died.

A New York Probate Lawyer said that under the son’s will, the father, at the time of the son’s death, then over 90 years of age, was one of the son’s two beneficiaries, the other being the mother. The petition for validation of the son’s will was later amended to describe the father as being then a person under disability because he was incapable of managing his own affairs and a request made, in view thereof, for the appointment of a guardian to protect the father’s interests in his son’s estate. By order the then Surrogate appointed the defendant as guardian for the father in the validation proceeding of the son’s will. Parenthetically, the defendant was a long-time friend of the family. In the proceeding, the mother was separately represented by independent counsel.

Published on: February 26, 2012

Court Decides Will Probate Matter

by Stephen Bilkis

A man filed a motion to withdraw a waiver and consent he did for the legal validation of his cousins will. And, this motion is opposed by the primary representative of the estate and the four charities who are the beneficiaries under certain instruction.

This happened five months after the death of his cousin, he did a waiver and consent; however, an attorney appeared for him a month after, and this is also the return date of the citation in this proceeding, and indicated that he wanted to withdraw his consent for the legal processing of validation of the will. The assets consists of personal property valued more than a million.

The instruction was done when his cousin was about 95 years old. The single page, two-sided tool is a downloadable legal form and does not appear to be attorney supervised. The opposite side of the form shows his shaky and weak signature, and the signature of the two witnesses. One of those witnesses now serves as a primary person appointed to perform the will and formerly served as one of legal guardians. Apparently, the other witness was an aide at the facility where she resided at the time she signed the instruction.

Published on: February 26, 2012

Grandchild of Decedent Files Will Contest

by Stephen Bilkis

A woman has petitioned the court to vacate the probate of a will of a deceased person whom she is not related to and to permit her to file objections to the validation. The deceased man’s will was admitted to validation by the court and the estate was distributed in April, 2006.

According to records, answers and objections to her petition were filed by the executor, a grandson of the decedent, and two other grandchildren. Following a conference with the court, the parties attempted to reach a settlement, but were unsuccessful. Thereafter the matter was submitted to the court for a decision on the papers, including a reply and an additional affidavit in support of the petition.

According to a New York Probate Lawyer, the Petitioner raises several arguments in support of the relief requested. Primarily that she is in possession of a later will, in which she is named executor and a beneficiary. She states that she was neither cited nor waived citation in the proceeding which granted validation to the 1992 will, and that she intends to file objections to the validation based on the later will. She also alleges that the deceased, who died while an inpatient at a nursing home in New Jersey, was a resident of Manhattan, and not of Rockland County as alleged in the petition which resulted in the validation decree, and that, therefore, the proceeding should not have been brought in this court. The Petitioner filed the purported will in this court and filed her petition to vacate validation. The respondents, by their answer and objections, allege that the petition should be denied because the petitioner is guilty of laches, based on her unexplained and unjustified delay in offering the purported later will for validation and in bringing the instant proceeding, which will result in substantial prejudice to them if she is successful. They further argue that petitioner is unable to demonstrate a likelihood of success on the merits, because the 2001 purported will is not likely to be admitted to validation. They maintain that the 2001 document is suspicious on its face, that the deceased lacked sufficient capacity to execute a will in 2001 and that the 2001 document was the product of undue influence.

Published on: February 25, 2012

Court Decides Interesting Jurisdictional Will Issue

by Stephen Bilkis

In 1924, a woman died a resident of New York County leaving a will which was validated in New York County. In her will, she created a trust, the income of which was to go to her brother for life, the remainder to his next of kin, subject, however, to a power in him to make a different disposition by a general power of appointment in his will.

Her brother, the designated life beneficiary and heir of the power, was an American-born citizen who resided in Germany with his German wife and three German children for many years preceding his death there. In the fall of 1939, allegedly because he ‘was worried about the possibility that the German Government would confiscate the trust, he executed a will in which he exercised his power of appointment in favor of the petitioner. The will was executed in the German language and was formally valid under the law of Germany. At the suggestion of his son, the will was delivered for safekeeping into the hands of a notary in Berlin where it was placed in an office safe.

A New York Probate Lawyer said that in 1943, four years after the brother executed the will; the New York trustee of the Foster trust was served by the Alien Property Custodian with Vesting Order which vested in the United States Government the entire interest of the brother and his next of kin in the trust. Shortly thereafter, more than two years before he died, the building in Berlin in which his will was being stored was burned to the ground in a bombing raid and the will was destroyed.

Published on: February 25, 2012

Interesting Will Jurisdiction Issue

by Stephen Bilkis

A son from California filed for an order dismissing the pending proceeding to probate his mother’s New York Will that raises an interesting question of jurisdiction. The son argues the jurisdiction of the court to prove the validity of the Will of a non-residence which requests New York to prove valid and invokes New York law on the ground that her French legal residency has assumed jurisdiction over her estate. The motion is opposed by the Petitioners in the proceeding, the co-executors named in the Will, who are presently serving as preliminary executors.

The mother who made the Will was born a French citizen in 1899, and she became a naturalized United States citizen. She was a New York resident for about thirty years. For approximately seven years she was employed in the law offices in New York City. During this period she worked as secretary to one of that firm’s senior partners. A lawyer-client relationship with that firm also commenced during that time. The French Ordinary Residence Card issued indicates that the mother who made the Will stated that she returned to France on October 24, 1971.

A New York Probate Lawyer said the Will which is the subject of the jurisdictional attack was drafted by the firm in New York she worked for. It was allegedly executed by the deceased in the firm’s Paris office in 1972, and there is no challenge on the matter. Both the petitioners and the son refer to the 1972 document as the New York Will. Both sides seemingly agree that this Will, whether admitted to be proven valid in New York or established in accordance with French law, governs at most the property of the deceased mother which was physically located in New York when she died, and that it does not affect property actually located in France, which passes under the French Will.

Published on: February 24, 2012

Court Decides Will Contest Case

by Stephen Bilkis

An 87 year old deceased rich man who was never married and had no children had invested wisely and left a non-specific estate of over $7,000,000. His latest will executed left his residuary estate in equal shares to his sister, his brother, two children of his predeceased brother and his sister’s three children — the eldest son, the younger son and a daughter. His sister was named as executor however she died before her brother. His sister’s younger son is the successor executor. His nephew filed a petition to validate the 1988 will and was appointed as preliminary executor. Objections were filed by the deceased man’s brother and the two children of his predeceased brother. The objections alleged lack of authority capacity, fraud and undue influence.

In January, 1989, he was taken to a clinic after becoming dizzy and falling. In April, 1989, he had a stroke. He was seen by the doctors at his clinic, who documented the deterioration of his mental condition. In January, 1990, he established a trust for his sister and her children and ultimately transferred over $1,500,000 to it. In December, 1990, he was found wandering in the Bus Terminal. The nephew arrived at the terminal and returned his uncle to his apartment. However, he was soon discovered walking outside his apartment in his underwear. The police took him to a hospital, where tests showed organic brain syndrome of the Alzheimer’s type. He was placed in the Nursing Home for Adults, an adult care facility. He was hospitalized again where he was diagnosed as having advanced dementia and atrophy of the brain. He was discharged to an adult health care center. The other nephew brought a proceeding to be appointed his uncle’s conservator. He and another uncle were appointed as co-conservators. The rich man’s brother arranged for his brother to be transferred to a facility in California, where he died a few days later.

According to a New York Probate Lawyer, he objections to probate were tried before the Surrogate in a non-jury trial. The trial lasted nine days and was vigorously challenged. Based on the record, the Court found that the deceased rich man lacked the ability to execute a will in 1988. It further found that he was susceptible to undue influence due to his weakened physical condition, that his sister’s relationship with him was motivated by her interest in his money. It is further found that there was a confidential relationship between him and his sister created by her control over his finances. Critical to the finding that his sister had actually exercised undue influence over him in the will contest were the findings made by the Court that prior to 1986, he had given only small gifts to family members but that after his sister began to exert influence over him, he transferred almost $2,000,000 to trusts for the benefit of her children and that she signed checks to each of her children from an account he established. The nephew does not dispute receiving the money, but argues that he had no knowledge of any impropriety.