New York Probate and Estate Administration Lawyer Blog

Published on: June 8, 2018

Petitioner Moves for Summary Judgment in Will Challenge Case – In re Will of Ballasalmo, 2017 NY Slip Op 50193(U) (N.Y. Surr. Ct., 2017)

by Stephen Bilkis

Ballasalmo died at the age of 95, leaving 2 daughters, Knuth and Ayers as her distributees. Petitioner, the decedent’s niece-in-law, submitted a document dated August 16, 2007, purportedly as Ballasalmo’s last will and testament. The will stated that Ballasalmo’s entire estate was to be divided between the petitioner and her husband. The decedent expressly disinherited her daughters. As to be expected, both daughters filed objections to the will. The bases for their objections include that the will was not properly executed, that the decdent lacked testamentary capacity, that it was a mistake, and that it was made under fraud and duress. In response, the petitioner moved for summary judgment dismissal of the decedent’s daughters’ objections.

Summary judgment dismissal is a strategy that allows the moving party to basically win the case without going through the time and expense of a trial. In order to win a summary judgment, the moving party must establish a prima facie entitlement to judgment. In this case, the petitioner mush show that the will was executed according to the requirements of New York law, and that the decedent had testamentary capacity at the time the will was executed. In support of her motion, the petitioner submitted a copy of the decedent’s will which includes an attestation clause as well as a contemporaneous self-proving affidavit. The petitioner also submitted the transcripts of the SCPA § 1404 examinations of the attorney draftsperson who also supervised the execution of the will and of two of the three attesting witnesses.

The evidence submitted established prima facie evidence that the will was properly executed and in statutory compliance.

Published on: May 12, 2018

Court Rejects Extrinsic Evidence in Will Construction Case – Bowler v. Benoit (In re Bruce), 161 A.D.3d 712 (N.Y. App. Div., 2018)

by Stephen Bilkis

In this probate case the court considered the question as to whether it has the authority to consider extrinsic evidence in the determining how to interpret ambiguous terms of a last will and testament.

In her last will and testament, decedent Bruce made a provision as to the disposition of her a portion of her estate, the literal meaning of which would make the provision invalid. In her will, the decedent sought to exercise her power of appointment directing the trustees of two separate trusts, to distribute the assets in her residuary estate to the LB Foundation. A person who writes a will or creates a trust can give his or her beneficiaries a power of appointment, which enables the beneficiaries to direct where their share of the estate or trust goes at their death. In this case, a 1969 trust of which the decedent was a beneficiary gave the decedent the power to determine where her share of the trust would go upon her death. However, due to the wording of the language of the decedent’s will, the literal reading of decedent’s request is not valid because it exceeded the powers that were granted to her in the 1969 trust.

Upon considering summary judgment motions from both the petitioner and the respondent, the Surrogate’s Court noted that the testator’s intent is deciphered from a sympathetic reading of her last will and testament. Accordingly, the court must read the distribution plan that appears to be in the will in light of the testator’s intention. It is clear that the decedent’s intention was to provide property to the LB Foundation. It follows that it did not make sense for her to make a disposition of property that she knew would be invalid.

Published on: May 6, 2018

The Estate of CF v The City of New York

by Stephen Bilkis

The respondent MJP holdings moves for an order dismissing the petition for lack of subject matter jurisdiction, and because a prior action is pending for the same issue in a different court.

Despite the fact that the proceeding was heard on 6/1/18, the history of this case goes back 40 years, starting with the death of the decedent’s grandmother CP. That litigation was only settled in 2017. Her 2 children have passed away. The estate of one child, J, is in litigation. The case with the other child, M, is being litigated as well.

The parties involved here are the petitioner, who is the executor of the decedent’s estate, the grandchild of the decedent, and daughter’s husband, and MJD Holdings.

Published on: May 2, 2018

Will Contest Ends in Summary Judgment

by Stephen Bilkis

Matter of S.

2017 NY Slip Op. 07446

October 25, 2017

Published on: April 17, 2018

Court will void a transaction completed by a person who was incompetent at the time the transaction was executed – Nurse v. Dacres (In re Nurse), 160 A.D.3d 745 (N.Y. App. Div., 2018)

by Stephen Bilkis

In this case the Surrogate’s Court had to consider issues related to a contested guardianship under Mental Hygiene Law Article 81 and invalidating a property conveyance by the person who is the subject of the guardianship. Mental Hygiene Law Article 81 provides that upon petition, the Surrogate’s Court can appoint a guardian to handle the personal and/or financial affairs of a person who has been found to be incapacitated and would suffer harm in the absence of a guardianship.

Here, it was discovered that R. Nurse transferred 50% ownership in real property to his stepson, Dacres. R. Nurse’s biological children, M. Nurse and H. Nurse, stepped in and petitioned the court to be appointed co-guardians of R. Nurse. They also requested that the court void the transaction that conveyed R. Nurse’s property to Dacres. At the hearing, evidence was produced that confirmed that R. Nurse had dementia. Further, there was clear evidence that R. Nurse was incompetent at the time that he signed the deed and that he was subject to undue influence. Thus, the court voided the deed and granted the petition of M. Nurse and N. Nurse to be appointed co-guardians. Dacres appealed.

In ruling in favor of the petitioners, the court noted that the general rule is that it is assumed that a person is competent. The burden is on the petitioner to prove with clear evidence that the party is not competent. When it comes to voiding a property conveyance, the burden is on the petitioner to show that the party was not competent at the time of the conveyance.

Published on: February 25, 2018

Court upholds restrictions on the sale of property disposed of in a will – Bajic v. Bonanno (In re Bonanno), 2017 NY Slip Op 4436 (N.Y. App. Div., 2017)

by Stephen Bilkis

In this probate proceeding the court had to address an issue related to the construction of terms in the will related to the restriction on the disposition of real estate.

Decedent M. Bonanno died in 2002, leaving a last will and testament dated August 1, 1983. The Surrogate’s Court admitted the will to probate. The will provided that specific real estate that she owned in Queens go to her 4 children, and that it not be sold while her children remained single, and while any of them still lived in the property. It also stated that when the property was sold, the proceeds would be divided equally among her four children. Two of the decedent’s children petitioned the court for a construction of the provisions of the will related to the real property. They sought an order stating that each of 4 sibling owns a ¼ share of the property in fee simple without restriction. After filing the petition, the petitioners also filed a motion of summary judgment on the petition. The Surrogate’s Court denied the motion and the petitioners appealed.

In a summary judgment motion, the moving party has the burden of making a prima facie showing that based on the undisputed material facts, he or she is entitled to judgment as a matter of law. If the moving party is able to do this, then the burden shifts to the opposing party to rebut the moving party’s motion and show that there are material facts in dispute.

Published on: October 11, 2017

Court grants summary judgment dismissal of objections to probate where the objectants are unable to show improper execution, lack of testamentary capacity, or undue influence – Estate of West v. West, 147 A.D.3d 592 (N.Y. App. Div., 2017)

by Stephen Bilkis

In this case the Surrogate’s Court had to determine if a will should be invalidated due to improper execution, lack of testamentary capacity, and undue influence. On October 19, 2015, the Surrogate’s Court entered the will of decedent L. West into probate. An objectant, P. West, raised objections to the will, questioning its validity. The respondent moved for summary judgment that the will was indeed valid. The court granted the respondent’s motion concluding that he had successfully proven that the will was duly executed.

When someone files a motion for summary judgment, he or she is asking the court to decide immediately that the based on the undisputed facts, he or she should win the case without it going to trial. To prevail, the moving party has the burden of producing evidence that he or she is entitled to summary judgment. If the moving party is able to do this, then the burden shifts to the non-moving party to rebut the moving party’s prima facie showing.

Here, the proponent of the will moved for summary judgment asking the court to dismiss the objectant’s claim that the will is was not properly executed. In support of his motion, the proponent of the will submitted the will’s attestation clause and the affidavit and testimony of the witnesses. Thus, the proponent proved that the will was duly executed. The objectant did not successfully raise a triable issue of fact related to the will’s execution.

Published on: September 20, 2017

Court Decides if a Will Was Properly Executed- In re Levine’s Will, 149 N.Y.S.2d 843 (N.Y. Surr. Ct. 1954)

by Stephen Bilkis

The issue before the Surrogate’s Court is whether a will was properly executed. New York estate law requires that in order for a will to be valid, it must meet certain technical requirements related to execution. That is the requirement now, and it was also the requirement decades ago when the will at issue in this 1954 Surrogate’s Court case was executed.

Decedent Estate Law, § 21 provides that in order for a will to be valid, there are 4 requirements related to execution: 1. The will must be signed by the testator at the end. 2. The testator must sign the will in the presence of two attesting witnesses. Otherwise, the testator must acknowledge to the witnesses that he signed the will. 3. At the time that he signed the will or acknowledged that he signed the will, the testator must also declare to the witnesses that the document that he signed was indeed his last will and testament. 4. The two attesting witnesses must also sign the will at the end.

In the case of In re Levine’s Will, the court had to decide if the second requirement was met that the decedent signed her will in the presence of two witnesses, or acknowledged to the witnesses that the signature on the will was indeed hers. One of the witnesses, Glackman, was not present when the decedent, B. Levine, signed her will. Therefore, in order for the execution of the will to be compliant with the statute, the decedent must have acknowledged to Glackman that she did actually sign the will. Levine did not do this.

Published on: September 16, 2017

Petitioner seeks to revoke letters of administration – In the Matter of Construction and Effect of the Revocable Trust Agreement, 20 Misc.3d 383 (N.Y. Surr. Ct., 2008)

by Stephen Bilkis

In this case, the Surrogate’s Court was asked by two of the decedent’s creditors to revoke the estate administrator’s letters of administration because in petitioning the court for letters of administrator, the petitioner mispresented his status as a distributee of the decedent’s estate.

The decedent, J. Young, was a successful songwriter. He died in 1939 intestate. The term “intestate” means that Young died without having executed a valid will. He was survived by his spouse and his father. Under New York’s intestacy laws, they were his only distributees. In May 1939, Young’s wife was appointed administrator of his estate. She died in November 1973, leaving a properly executed will that named co-executors.

In September 2009, the grandnephew of the decedent, N. Young, petitioned the court for letters of administration de bonis non with respect to the decedent’s estate. Pursuant to Surrogate’s Court Procedure Act § 1007 , letters of administration de bonis non are letters that allow for the administration of assets that remain in an estate in situations where the original executor or previous administrator is unable to do so. The petition filed by the grandnephew, the respondent in this case, was supported by waivers and consents of twenty-one of the distributees identified. A citation was issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.

Published on: September 16, 2017

Court Decides if Petitioner Made a Case for Summary Judgment

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the motion of the nominated successor co-trustee of the trusts created under Paragraphs Second, Third and Sixth of the will of the decedent. Movant seeks summary judgment pursuant to CPLR 3213 granting his petition for appointment as successor co-trustee pursuant to SCPA 1502. In the alternative, movant asks the court to issue an order pursuant to CPLR 3126 striking the objections to his appointment which were filed by a trust beneficiary, for her failure to provide discovery.

The decedent died on February 14, 2008, survived by his wife, hereinafter, “the objectant”, his son, and his daughter. Decedent left a will dated October 27, 2004, as amended by codicil dated October 12, 2006. The will and codicil were admitted to probate by this court on April 4, 2008. In Paragraph Second of the will, decedent established a credit shelter trust for the benefit of the objectant. In Paragraph Third of the will, decedent established a generation-skipping trust for the benefit of the objectant. In Paragraph Sixth of the will, decedent created a residuary trust for the benefit of the objectant. In connection with each of the three trusts, letters of trusteeship were issued by this court on April 4, 2008, to the three nominated trustees and the objectant.

One trustee submitted his written resignation as trustee on February 2, 2010. The nominated successor trustee, executed a renunciation on February 11, 2010. On May 13, 2010, the trustee filed a petition with this court for permission to resign and for the appointment of hereinafter, “movant”, the next successor trustee nominated by the decedent in his will.