New York Probate and Estate Administration Lawyer Blog

Published on: February 21, 2014

Petitioners Assert Fraud and Undue Influence Regarding Construction of Will

by Stephen Bilkis

There is offered for probate as decedent’s last will and testament an instrument in his own hand in the following text: “This is my will if I should die on this my trip to India You are my sol heiress.”

A New York Probate Lawyer said that the objections to the probate of this document were interposed by decedent’s widow and his brother. Their objections asserting fraud, undue influence and lack of testamentary capacity were withdrawn prior to the trial so that the only remaining issues as to the validity of the paper’s execution as a will are those asserting that the instrument was not duly published by decedent and that he did not request the witnesses to attest it.

A New York Will Lawyer said a motion was made by the widow for a summary judgment that the propounded paper was subject to a condition which never occurred and consequently the instrument never became effective as the decedent’s will. It was urged in support of this motion that the propounded paper was intended to be operative only in the event of decedent’s death on a particular trip to India and, inasmuch as he did not make a trip to India and died in July 1954 in a New York City hospital, the instrument should not be admitted to probate. The court ruled that the motion for denial of probate would be held in abeyance for determination with other issues upon the trial. The Court of Appeals affirmed the order of this court and held that the effect of the alleged condition upon the validity of the propounded paper should be determined on the trial of the probate or other hearing at which the parties would have an opportunity to develop extrinsic facts in aid of a construction of the testator’s language. In accordance with this holding the parties have been permitted to introduce evidence in support of their respective contentions as to the validity and effect of the propounded paper.

Published on: February 14, 2014

Court Rules on Accounting Proceeding

by Stephen Bilkis

A New York Probate Lawyer said this is an accounting proceeding in which the court is asked to determine whether assets of the estate located in New York should be distributed directly to legatees or whether they should be transmitted to the California administrator for distribution there. A New York Estate Lawyer said that, the deceased until three years prior to his death had been a New York resident. He had prepared a will here naming the Chase Manhattan Bank executor. He then moved to California, purchased real estate, established his residence and executed three codicils to the will. The codicils disposed of his California realty, enlarged the legacy of a niece, a California resident, dropped one of the named executors but retained the Chase Manhattan Bank. Most of the estate is here in New York.

A New York Estate Will Lawyer said that, after decedent’s death, the executor petitioned for the probate of the will and codicils in this jurisdiction. A contest ensued which was subsequently settled and the objections were withdrawn. Letters testamentary were then issued to the Chase Manhattan Bank. Shortly thereafter, the decedent’s niece, a legatee, applied to the Los Angeles Probate Court for letters of administration. That court granted letters to the Public Administrator of Los Angeles.

A Nassau Probate Lawyer said that, although the letters issued to the Chase Manhattan Bank were in form letters of original probate, it would appear that in reality the deceased being a resident of California the domiciliary administration is there and the administration here is therefore in its nature ancillary. The Public Administrator of Los Angeles as administrator c.t.a. has objected to the proposal of the executor to distribute the assets in its possession to the legatees directly rather than to remit them to the domiciliary representative in California for distribution by him.

Published on: February 13, 2014

The issue in this case is whether the restrictive provision that was placed in the probate decree should be removed.

by Stephen Bilkis

A New York Probate Lawyer said that, the decree admitting this testator’s will to probate restrained the executor from paying or satisfying any legacy or distributive share until further order of the Surrogate. The executor now moves to have such restriction removed. The facts essential to a decision are not in dispute. At the time of his death on January 2, 1964 the testator was an American citizen domiciled in Switzerland. His will, which was executed in New York on November 6, 1961, attempted to exercise a power of appointment granted to this testator by the will of his mother and bequeathed his entire residuary estate to his second wife. Article TENTH of the will reads as follows: ‘I direct that this will be submitted for probate in New York County, State of New York, United States of America, and that the provisions of this will shall be governed by the laws of the State of New York in accordance with section 47 of the New York Decedent Estate Law.’

A New York Will Lawyer said that, the testator’s first wife, as the general guardian of two infant children, interposed objections in the probate proceeding. One objection concerned the effectiveness of the quoted text of the will since it was the contention of the general guardian that the testator’s property must be disposed of in conformity with Swiss law under which the infant children would be entitled to shares of the estate as forced heirs of the testator. This objection was not ruled upon in the probate proceeding but, because of the objection, the restrictive provision was placed in the probate decree.

The issue in this case is whether the restrictive provision that was placed in the probate decree should be removed.

Published on: February 12, 2014

Court Decides Issue of Jurisdiction Between U.S. and British Honduras

by Stephen Bilkis

A New York Probate Lawyer said that, the Government of British Honduras, appearing specially, petitioned this court for permission to appear specially in the contested probate proceeding for the purpose of taking appropriate steps to assert its rights in that proceeding. It alleges that the decedent was domiciled in British Honduras at the time of death, and that the Government has been cited as a party to the probate proceeding in British Honduras ‘as an interested party on the ground that if the decedent were found to have died intestate, then his estate would belong to the Crown as bona vacantia (abandoned property)’. The Government of British Honduras asserts that it has the right to intervene in the probate proceeding in New York because, under the law of the decedent’s domicile, all of the decedent’s property would, in the event of intestacy, vest in the Crown as statutory distributee and heir.

A New York Will Lawyer said that, the petitioner has in effect been granted the right to appear specially and to move to assert its rights, because, the other parties to the proceedings having challenged the facts upon which the petition rested, the court placed the matter on its calendar for hearing. The Government of British Honduras appeared and was given full opportunity to present its claim of interest in this estate.

Long Island Probate Lawyers said the issue in this case is whether the Government of British Honduras has the right to intervene in the probate proceeding in New York because, under the law of the decedent’s domicile, all of the decedent’s property would, in the event of intestacy, vest in the Crown as statutory distributee and heir.

Published on: February 11, 2014

Court Decides if Widow Can Seek and Order Under Sec 20 of Surrogates Court Act

by Stephen Bilkis

A New York Probate Lawyer said that, the petitioner, asserting a status as the widow of the deceased, seeks an order under section 20 of the Surrogate’s Court Act re-opening the decree admitting the will to probate. In support of her application she relies upon the omission of the respondent executors to cite her in the earlier proceeding. She admits it to be her purpose, in the event she is successful on this application, to relieve herself of her default in serving a notice of election to take against the will which was admitted to probate on September 24, 1952, an event of which she has been shown to have been fully cognizant though at the time she made no attempt to intervene in the proceeding.

A New York Estate Litigation Lawyer said that, the issue has been joined by the filing of an answer in which it is alleged that the petitioner and the deceased were never married and that she has voluntarily relinquished whatever rights she might have had in his estate by an instrument executed by her as a release together with a written agreement of settlement which terminated an action she had instituted against the executors in the Supreme Court for monies loaned to the deceased, for work, labor and services rendered, and for breach of an agreement allegedly requiring the respondents ‘to provide for plaintiff’s good care and support.’ She was represented in that action and in the negotiations for settlement by competent counsel of her own selection.

A New York Will Lawyer said that, the executors, pleading the agreement and release in bar, have moved for summary judgment dismissing the petition on the merits. The petitioner had previously filed her reply in which she had challenged the effectiveness of the instruments upon which the respondents rely. This being the state of the pleadings the court is called upon on this motion to decide as a matter of law whether the release and agreement would be sufficient in content and context to bar the petitioner from asserting rights to which she would be entitled were she in fact the widow of the deceased and if so, to determine whether an issue of fact exists in connection with the question as to whether the documents are nevertheless incapable of producing that result because of the circumstances surrounding their execution and exchange.

Published on: February 11, 2014

Court Looks at Validity of Will Pursuant to Sec. 22a of Decedent Estate Law

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, a resident of this county, died in Great Barrington, Massachusetts on July 27, 1959. An instrument executed by her in Massachusetts has been submitted for probate. The facts regarding its execution are undisputed. The instrument was written, upon instructions of the decedent, by a friend of forty years standing and signed by the decedent on April 13, 1959 but it was not witnessed. Subsequently and on July 20, 1959 certain additions were written in by another person at the request of the decedent. These consist of a legacy of $1,000 and a direction that all expenses are paid first. These additions appear below the signature of the decedent. On the same day three persons signed as witnesses after the decedent had acknowledged her signature and declared the paper to be her will. Their signatures appear below the aforementioned additions.

A New York Will Lawyer said that, it is alleged in the petition that decedent’s estate consists solely of personal property and that she left no living relatives. The special guardian for unknown distributees has filed objections to the probate of the instrument upon the ground that it was not signed by the decedent at the end thereof. The proponent has moved to strike out the objections and to admit the propounded instrument to probate.

A New York Will Lawyer said the issue in this case is whether the estate of the decedent should be admitted to probate.

Published on: February 10, 2014

Petitioner Seeks Summary Judgment on Turnover Petition

by Stephen Bilkis

A New York Probate Lawyer said that, the administrator of the estate of the decedent, and petitioner in a turnover proceeding against respondent Companies, and law firm counsel to the Public Administrator of the County of New York, now seeks summary judgment and treble damages. Respondent cross-moves for summary judgment, seeking dismissal of the turnover petition and revocation of petitioner’s letters of estate administration.

A New York Will Lawyer said that, the decedent, a domiciliary of Brazil, died February 11, 2000, survived by no known distributee. On June 27, 2002, the administrator of the estate proffered decedent’s one-page handwritten will dated July 25, 1998. The will bequeaths decedent’s “holdings at the Citibank in New York” to him. During the pendency of the administrator’s probate proceeding, respondent company obtained probate in Brazil of a later will, dated March 12, 1999. On March 11, 2003, the Brazilian State of Bahia, Judiciary Power, 1st Family, Successions & Orphans Court appointed respondent the executor of decedent’s March 12, 1999 will. Article FIRST (of a certified translation of a court certified copy) of that later will provides: “That this was the only and exclusive testament, and any previous act was hereby revoked.”

Westchester County Probate Lawyers said that, thereafter, CIS, presented with certified translations of: (1) decedent’s death certificate; (2) the March 11, 2003 certificate issued by the Brazilian State of Bahia, Judiciary Power, 1st Family, Successions & Orphans Court to respondent, as executor of decedent’s March 12, 1999 will; and (3) the March 12, 1999 will itself, transferred decedent’s investment account, which the administrator estimates at $70,000 to the respondent, as executor of decedent’s will.

Published on: January 8, 2014

Plaintiff Claims In Rem Proceeding was Defective Due to Proceedural Errors

by Stephen Bilkis

A Probate Lawyer said this case involves a poor estate administration. Plaintiff sues to foreclose a mortgage on certain property because of defaults in the payment of installments of interest by the mortgagor, XYZ Corp. The City of New York, as a party defendant, claims unencumbered title to the subject premises as the result of an In Rem foreclosure which was instituted in 1975 for tax arrears. Plaintiff alleges that the City of New York’s claim of title is a nullity and therefore that such claim cannot defeat this action to foreclose the mortgage.

The facts of the case are as follows:

On March 22, 1966, ABCD Bank became the owner and holder of a mortgage covering certain vacant and unimproved land located at Richmond Avenue and Drumgoole Road on Staten Island, New York.

Published on: January 7, 2014

Wrongful Death Damages are Limited by Estates Powers and Trusts Law

by Stephen Bilkis

An Probate Lawyer said by appeal by the plaintiffs in an action to recover damages for conscious pain and suffering and wrongful death, from so much of an order of the Supreme Court, entered October 6, 2000, in Richmond County, as (1) granted that branch of the defendants’ motion which was for partial summary judgment dismissing the cause of action of Plaintiff MC to recover damages for the wrongful death of her brother, M, and (2) denied their motion for partial summary judgment, in effect, declaring that MC is permitted to assert a cause of action to recover damages for wrongful death.

An Estate Lawyer said it is well settled that the damages recoverable in a wrongful death action are limited by the Estates Powers and Trusts Law (EPTL) to fair and just compensation for the pecuniary injuries suffered by the survivors of a decedent for whose benefit an action is commenced. These compensable damages include the loss of support, services, voluntary assistance, the prospect of inheritance, and the medical and funeral expenses. The question presented here is whether the beneficiary of a renunciation to the proceeds of a wrongful death action, as the next distributee in line, is limited in her recovery to the amount of pecuniary loss suffered by the renouncing party, or, whether, as the now sole distributee, she is entitled to recover for her own pecuniary losses resulting from the decedent’s death.

On July 2, 1998, M, a 26-year-old off-duty New York City Police Officer, died in a collision between his motorcycle and a motor vehicle owned by the defendant G, and operated by the defendant J. At the time of his death, the decedent was survived by his mother, D, and his 22-year-old sister, MC. The decedent died intestate.

Published on: January 5, 2014

Case Issue is Whether Court Erred in Denying Probate of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, the decree denying probate to the propounded instrument reserved for determination by supplemental decree all applications for costs, allowances, and fees. The attorney for petitioner who claims to be the sole statutory distributee of the decedent, asks the court to fix his reasonable compensation and costs and to direct payment from the general estate. The attorney did not proceed in the manner required by section 231-a, Surrogate’s Court Act, and hence his application must be based upon section 278. He is not entitled to costs or an allowance under that section. Even if he had proceeded under section 231-a, he would not be entitled to have his fee paid out of the general estate for he rendered no services of benefit to the estate. His services were solely for the benefit of his individual client.

A New York Will Lawyer said that, the position of the client was, as the attorney states, as anomalous one. A 1918 will has been admitted to probate in British Honduras ‘until a later Will be found’. A 1955 instrument was offered for probate here as a lost will. It was to the interest of the alleged distributee that the 1955 instrument be proved to have been duly executed (thus revoking the 1918 will), but that it be denied probate on the ground that it was not in existence at the time of the decedent’s death. The attorney was thus partly on one side in the contested probate proceeding and partly on the other side. He accordingly filed no pleading and took no active part in the contest. Before submission of the case to the jury he made motions appropriate to his client’s interests. He was otherwise quiescent, hopeful that the contending factions would destroy each other. The verdict of the jury was against the proponent on the question of the making of the will.

A Manhattan Probate Lawyers said that, the attorney’s present contention that he represents a party who has succeeded in the contest is contrary to the record herein. He attempted to serve only his own client’s interests, he rendered no services of benefit to the estate and he was not successful insofar as his client’s cause is concerned. There is no basis for allowing him costs, compensation or allowance out of this estate. The attorney for the proponent in the probate proceeding request an allowance for their services. In prohibiting an award of costs to an unsuccessful contestant in a probate proceeding, section 278 explicitly excepts from that prohibition one ‘named as an executor in a paper propounded by him in good faith’, and it further affirmatively provides that ‘where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.’