New York Probate and Estate Administration Lawyer Blog

Published on: December 27, 2013

Petitioner Seeks to Dispense with Service of Process of Will

by Stephen Bilkis

A petition for probate of the decedent’s will has been filed with the Probate Department of the New York Court. The petitioner is the nominated coexecutor and son of the decedent.

A New York Probate Lawyer said that the petitioner has requested that the court dispense with the service of process upon the grandchildren of the decedent who are persons adversely affected by the exercise of powers of appointment in the decedent’s propounded will.

“The Official Form of Probate Petition (Form No. 7) lists among the persons to be cited ‘all persons adversely affected by the purported exercise by such will of any power of appointment.’ Section 1403 does not make such persons essential parties to the probate. This omission was not an oversight on the part of the Legislature or the Commission on Estates. The inclusion of such persons was considered and rejected because it might happen that the parties would not be aware of any power of appointment until after the probate proceeding terminated and then the omission of an essential party to the proceeding could constitute an infirmity in the decree. The inclusion of the parties in the Official Form was intended to remind attorneys of the prudence of citing them.

Published on: December 26, 2013

Claimant Brings Suit Based on Oral Promise by Decedent

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application by the preliminary executors in a probate proceeding to dismiss a claim asserted against the estate. This claim to one-half of the estate was made by the claimant simultaneously with his opposition to a decree approving a compromise agreement which would dispose of a heavily litigated protracted will contest. Under several wills of the decedent, including this last will, he would be entitled to a $20,000 legacy. The claim is based on an alleged oral promise by the decedent to make a will which would give to the claimant one-half of the residuary estate in consideration of the claimant’s conveyance to the decedent of a one-half interest in a house on Fire Island. This house was sold on January 7, 1973 for $47,000. The claimant asserts that his interest in the estate is upwards of $500,000.

A New York Will Contest Lawyer said that, a bill of particulars served in support of the claim alleges that the agreement was partly oral and partly in writing. The writing is a will dated January 18, 1965 which was revoked by a later will. There were several later wills, and deeds affecting the Fire Island property. The first deed made on February 2, 1963 was given to the claimant as grantee by the decedent as grantor. That deed reserved to the decedent a life estate. The next deed dated January 16, 1965 was executed by the claimant, creating a joint tenancy with right of survivorship in himself and the decedent. The third deed is from the joint tenants as grantors to the decedent as grantee. The will relied upon by the claimant bequeaths to him one-half of the residuary estate after bequests of tangible personal property and eight general legacies of $5,000 each and another bequest relating to stock in a closed corporation.

The issue in this case is whether the claim should be dismissed on the ground that the claim is not maintainable because it is barred by the statute of frauds.

Published on: December 25, 2013

Court Decides Legality of Charitable Gift in Will Contest

by Stephen Bilkis

A New York Probate Lawyer said that, this is a proceeding pursuant to EPTL 8–1.1(c) for an order directing the method of effectuating a testamentary charitable gift in a situation where circumstances have changed since the execution of the will. The court is asked to apply its Cy pres power.

A New York Will Lawyer said that, the petitioners are the trustees of The Sailors’ Harbor in the City of New York, hereinafter referred to as ‘the Harbor’. The application is opposed by the Attorney General of the State of New York as the statutory representative of ultimate charitable beneficiaries. The petition requests permission of the court to relocate the facility presently maintained by the petitioners in Staten Island, New York, to the town of Sea Level, North Carolina. The Harbor is a charitable corporation established by an act of the Legislature of the State of New York pursuant to the will of the deceased admitted to probate by the Surrogate of New York County on July 10, 1801.

A Brooklyn Probate Lawyers said that, in his will decedent directed that there be constructed and operated in perpetuity a home for ‘aged, decrepit and worn out sailors’ to be called The Sailors’ Snug Harbor. The site selected by the testator was real property located in what is now Greenwich Village in the Borough of Manhattan, New York. In 1828 a special act of the Legislature permitted the Harbor to erect its facilities upon the ‘Island of New York, or adjacent thereto’. The Tilden Act (enacted in 1893), later known as Personal Property Law § 12, now known as Estates Powers and Trusts Law Article 8, was not then in effect. The Surrogate now has power, where a disposition is made by will and whenever circumstances have changed since its execution, to direct that a disposition for charitable purposes be applied in such a manner as in the judgment of the court will most effectively accomplish the testator’s charitable intent. This is Cy pres power.

Published on: December 24, 2013

Petitioner Seeks to Amend Charitable Trust

by Stephen Bilkis

A New York Probate Lawyer said that, the testatrix died on April 7, 1970. Her will, dated January 30, 1967, was admitted to probate on June 9, 1970 and letters testamentary issued on June 24, 1970. In Paragraph SIXTH thereof she created a perpetual charitable trust to be known as ‘THE MEMORIAL FUND’, hereinafter referred to as the Trust. The beneficiary was the husband of the testatrix and died on February 6, 1961.

A New York Will Lawyer said that, the executors apply for a decree directing that testatrix’ will be deemed to be amended, or, in the alternative, construed to contain certain provisions which will comply with the changes made by Title I, Section 101(a) of the Tax Reform Act of 1969 which added Section 508(e) to the Internal Revenue Code of 1954. It became effective on December 31, 1969. Petitioners allege that the Trust will initially receive funds from three sources, i.e.: (a) an undetermined sum from this estate; (b) approximately $550,000 from the trustees of an Inter vivos trust created by this decedent by agreement dated October 9, 1967; and (c) $200,000 from the trustees of the decedent’s estate by virtue of the power of appointment in his will which was executed by this decedent in favor of the Trust.

The issue in this case is whether the petition to amend the testatrix should be granted.

Published on: December 23, 2013

Counsel Tries to Withdraw from Guardianship Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that, this motion to withdraw as counsel raises serious and important issues about the obligations of the court and of counsel when it appears that a client who is a defendant in a civil action lacks capacity to assist or participate in the defense of that action. Movant represents defendant in an action initially brought in Supreme Court, New York County, by her now-deceased mother. Following the mother’s death, her son, and brother, preliminary executor of the deceased’s estate, was substituted as plaintiff. While there are 11 separate causes of action, the common factual background involves claims that, while living with the deceased’s apartment, the movant engaged in a long course of harassment, threats and mistreatment of her mother that ended only when she was arrested and convicted for an assault on her mother resulting in the latter’s broken arm. Subsequent criminal charges against her, for allegedly soliciting her brother’s murder, were dismissed.

A New York Will Lawyer said that, after various proceedings in Supreme Court, during which the movant was first represented by the coundel, and then by another counsel the case was transferred to this court by order dated August 23, 2007. Since that time, as the case moved toward trial, the movant has gone through four separate sets of counsel. She was initially represented by the Law Offices; on January 15, 2008 and February 25, 2008.

In April 2008, the movant retained an attorney who had previously been employed at the Felder firm. The retainer agreement anticipated that it would secure the services of trial counsel, and in May 2008, after interviewing several firms, he was successful in matching with the law firm. Almost literally on the eve of trial, that firm sought an adjournment which was vigorously opposed by the counsel. The motion was granted, and the trial was adjourned to August 4, 2008, marked final against defendant. On July 18, the counsel moved for leave to withdraw on the grounds, inter alia, that “it has engaged in such conduct which renders it unreasonably difficult for to carry out its employment effectively” pursuant to DR 2-110 of the Code of Professional Responsibility. In support of their motion, they supplied an extensive in camera affidavit detailing issues and difficulties in their representation of the movant.

Published on: December 22, 2013

Petitioner Seeking Damages from Probate Attorney

by Stephen Bilkis

A New York Probate Lawyer said that, this is a motion to dismiss an amended petition filed in a pending accounting proceeding. The amended petition states two causes of action seeking damages in the amount of $20,000 (less disbursements of up to $3,000) from the movant arising out of his allegedly negligent performance of his duties as an attorney in connection with the settlement of the contested probate of this decedent’s will. There are four petitioners: two are hospitals and were the movant’s clients in the probate contest; the other two petitioners were parties to the settlement as persons interested in the estate but were not the movant’s clients. They are the decedent’s separated wife and the trustee of a pre-residuary trust. The question raised by this motion is the scope of the movant’s liability for negligence to persons with whom he had no privity of contract.

A New York Will Lawyer said the background facts here begin with a 1967 separation agreement between the decedent and his wife (who is, as indicated, one of the four petitioners) in which he undertook to execute a will creating a $325,000 trust to pay her $12,000 a year from income or, if income was insufficient therefor, from principal. After her death the remaining principal and any accumulated income was to be paid to the two hospitals who are co-petitioners. The trustee of this trust is the fourth petitioner.

A New York Will Contest Lawyer said that, in 1968, the decedent executed a will creating a pre-residuary trust which complied with the separation agreement. The residue of his estate was bequeathed to the same two hospitals. In 1972, he executed a new will which contained the same pre-residuary trust, but the residue under this will was bequeathed to his nephew. At this time he also created a substantial inter vivos trust which significantly reduced his testamentary estate. The beneficiary of the inter vivos trust was the said nephew.

Published on: November 18, 2013

Petitioner Files Motion to Compel Production of a Will

by Stephen Bilkis

The proponent, A, in this probate proceeding is a devisee and nominated co-executor under the propounded instrument dated 16 February 1994. A moves for summary judgment admitting the will to probate, dismissing the joint objections filed by B, the decedent’s cousin, who is the beneficiary of a larger bequest under an earlier testamentary instrument, and C, the decedent’s brother and distributee; and dismissing the brother’s petition for letters of administration.

A New York Probate Lawyer said the objectants oppose the motion and cross move to dismiss the proponent’s application for letters testamentary and for the appointment of either or both of them as the fiduciary of the estate. They allege that the 1994 instrument is invalid due to lack of due execution, lack of testamentary capacity, forgery, undue influence and fraud. They further assert that the petitioner’s prior felony convictions render him ineligible to be appointed a fiduciary of the estate.

On 23 October 2003, the decedent, a widow, died at the age of 77.

Published on: November 17, 2013

Court Discusses Will Valid Will Construction

by Stephen Bilkis

Decedent died in March 1990 at the age of 91 years. Her distributees are three nieces and one nephew. A New York Probate Lawyer said the propounded instrument is a two-page typewritten document containing a modest bequest to one of decedent’s nieces and bequeathing the residue of this estate, alleged to have a value in excess of $1,000,000.00, to decedent’s nephew. Decedent’s nieces filed objections to probate raising issues with regard to due execution, testamentary capacity, and fraud and undue influence in addition to the issue of revocation presented in the pending application.

A New York Will Lawyer said that proponents are the attorney-draftsman of the propounded instrument and his law partner in whose offices the instrument was executed on January 1980. The instrument was retained by proponents until it was filed for safekeeping in the Surrogate’s Court, Westchester County, on February 1980. The original of the propounded will was delivered to this court in connection with the probate proceeding.

It is alleged that decedent, accompanied by one of the objectants and her husband, had an appointment with an attorney during which she expressed her intention to revoke the will. She apparently did not know that the original will had been filed for safekeeping or have any other idea as to its location but she had brought a photocopy of the executed original. Prior to the appointment, decedent had written the word “Void” at the top of the first page of the photocopy. During the meeting with counsel, decedent wrote the word “Cancelled” across the first page of the photocopy under which notation she wrote the date and her initials. Decedent then cut her signature out of the second page of the photocopy. Queens Probate Lawyers said the latter two acts were performed in the presence of decedent’s niece, her husband, and two attorneys. Counsel subsequently retained possession of the altered photocopy and prepared a file memorandum which memorialized the transaction. Apparently decedent never executed a later will. Conservators of her property were subsequently appointed by the Supreme Court, Bronx County.

Published on: November 15, 2013

Court Discusses Will Contest Proceeding

by Stephen Bilkis

In this Will Contest probate proceeding, the nominated co-executors, the decedent’s nephew, and an attorney who had worked with the decedent, move for summary judgment dismissing the objections of the decedent’s niece, and admitting the propounded instrument to probate.

A New York Probate Lawyer said the decedent, a renowned real estate attorney, executed the propounded instrument in the hospital in September 2003, the date that he was discharged from the hospital with terminal colon cancer. He was readmitted to the hospital and died on the same month at 78 years of age. The decedent’s distributees are his brother and his niece. The niece, the sole objectant, alleges that the decedent lacked testamentary capacity and that the will was the product of undue influence and fraud.

The propounded instrument contains the following pre-residuary bequests: the decedent’s personal property to his brother and his spouse; his cooperative apartment in the Bronx and its contents to her niece; the sum of $100,000 from the a Credit amount to be shared by the five children of the co-executor; and the balance of the tax exempt amount to be shared equally by his brother, brother’s wife and their son and the latter’s three children. The residuary estate is bequeathed to a charitable trust. The propounded instrument specifically states that no provision has been made for the decedent’s niece, or for his sister-in-law, who are the daughter and the surviving spouse, respectively, of the decedent’s predeceased brother, because they “have been adequately provided for from other sources.” The estate is valued at $1,800,000 in the probate petition.

Published on: November 14, 2013

Petitioner Claims Lack of Testimentary Capacity in Will Dispute

by Stephen Bilkis

In this probate proceeding, a New York Probate Lawyer said the proponent woman, wife of the decedent’s predeceased cousin and the nominated executrix under the propounded instrument moves for summary judgment. Specifically, she seeks dismissal of the decedent’s spouse’s objections to probate; admission of the will to probate; dismissal of the objectant’s petition for letters of administration; and costs and attorney’s fees against either or both the objectant and her counsel.

The decedent died at 72 years of age survived by his spouse and daughter as his only distributees. Under the propounded instrument, which contains an attestation clause and a self-proving affidavit, the objectant is the beneficiary of the marital abode, a cooperative apartment, and the balance of the estate is bequeathed to the daughter. A New York Will Lawyer said the objectant filed standard objections to probate, alleging lack of due execution, lack of testamentary capacity, fraud and undue influence. Her opposition to this motion is limited to her own affidavit. The attorney drafter states that he represented the decedent in 1990 in a divorce proceeding in which the decedent’s prior wife was the other party. In 1999 the decedent communicated with the attorney about changing his will. The decedent gave the attorney a copy of his March 18, 1997 will which apparently had been prepared by the father of the attorney who is now representing the objectant. On this copy, the decedent had crossed out the words “friend and companion” to describe the objectant and replaced them with the word “wife”, and changed her last name to reflect that it was the same as his own. He also crossed out the limitations on the objectant’s use of the cooperative apartment in which the couple resided. His daughter was the sole residuary beneficiary under this instrument and the decedent did not indicate that he wanted to change this clause. The attorney then prepared a draft of the will, increasing the objectant’s legacy to an outright interest in the cooperative apartment, and mailed it to the decedent.

A Westchester County Probate Lawyer said the decedent came to the attorney’s office on October 18, 1999, where he reviewed the will with the attorney before he executed it in the presence of the two attesting witnesses, who were employees of the law firm, and the attorney who supervised its execution. The attorney retained the original will and mailed a copy to the decedent. The attorney and the attesting witnesses all state that the will was executed in accordance with the statutory requirements. They also note that the decedent was alert and rational and that his appearance and speech were normal. The proponent avers that the decedent had discussed his testamentary plan with her and that the propounded instrument carries out his plan.