New York Probate and Estate Administration Lawyer Blog

Published on: April 9, 2012

Court Questions Appointment of Guardian ad Litem

by Stephen Bilkis

This case is not about estate litigation but about the petition of a guardian in Vermont County for ancillary committee designation covering the properties of his ward in New York County. The Guardian ad Litem in New York questioned the appointment of the petitioner as guardian of the old woman who was declared an incompetent due to old age and sickness and who is also a known resident of New York with substantial assets and properties therein. The guardian ad litem in particular questioned the proceedings conducted by the Court of Vermont County. He also poised an issue whether the New York court should assume jurisdiction and whether a resident committee should be assigned to act on behalf of the old woman with regards to her properties in New York. The question was also raised about the propriety of the petitioner particularly on how he became the guardian of the old woman.

A New York Probate Lawyer said that before the petitioner was assigned by the Vermont court as a guardian, he first acted under a general power of attorney for the old woman. This involved paying her dues and managing her finances that included signing checks for the old woman who is already suffering from mental illness. The Vermont County appointed the petitioner as guardian under the application made by the niece of the old woman and it started when the court required the appearance of the old woman to a probate hearing. Since the old woman is already bed-ridden and could no longer move around much less travel, the niece who is residing in Canada decided to apply to the court that the petitioner be appointed as guardian-adult which application was granted by the court of Vermont County. Upon appointment as guardian or committee, the petitioner then applied to a New York Court as ancillary committee covering all the properties of the old woman in New York.

In deciding the issues raised by the guardian ad litem, the court answered the same point by point. On the issue of whether the Court of Vermont County has jurisdiction over the person of the old woman who is a known resident of New York the court said that the findings of the Vermont court is not binding and this also applies to the appointment of a guardian. The Supreme Court of New York however also said that the proceeding in Vermont is not invalid totally and that there is reason to agree based on the findings of the Vermont court as testified by witnesses during the proceedings in that court, that the old woman is indeed no longer capable of managing her affairs due to old age and mental sickness.

Published on: April 8, 2012

Petitioner Seeks Order Vacating Settlement Agreement

by Stephen Bilkis

In this probate proceeding, petitioner filed a motion seeking an order of vacating a settlement agreement and a renunciation and disclaimer of its purported execution to render said stipulation effective.

Decedent was survived by his spouse, herein petitioner, and two children of decedent from prior marriage as respondents to the probate proceeding in Nassau County Surrogate Court.

A New York Probate Lawyer said the petitioner filed a petition for probate of decedent’s will in Nassau County Surrogate Court and preliminary letters testamentary was issued in her favor. Decedent’s son was represented counsel and negotiations for settlement proceeded between parties to the case. The dialogues resulted in a stipulation of settlement. Settlement stipulated that a certain asset plan of the decedent be divided equally among the spouse and two children of the decedent in trust. The will provided that residuary estate be allocated as follows: 65% to the spouse, 25% to the daughter, and 10% to the decedent’s sister.

Published on: April 8, 2012

Petitioner Alleges Fraud, Undue Influence

by Stephen Bilkis

A man executed a will in October 28, 1970. In this will, ninety per cent of his estate is left to charities and the remaining ten per cent is left to his sister. In this will also a bank and trust company was named as executor of the will.

After the testator died, the sister filed the petition for probate of the October 28, 1970 will. But the sister also produced a purported codicil executed by the testator dated November 20, 1970. In this codicil, the testator allegedly revoked the nomination of the bank and trust company as executor and instead nominated his sister as executrix.

Two charitable organizations who were distributees of the decedent in the October 28, 1970 will filed objections to the probate of the will and the codicil. The charitable organizations also filed a motion for leave of court to examine the witnesses of both the will and the codicil, the sister, the bank and trust company and the attorney who drafted the will and the codicil.

Published on: April 7, 2012

Can a Witness to a Will Signing Also be a Beneficiary?

by Stephen Bilkis

A New York attorney applied for letters of administration upon the request of the executor of a will. The said executor is also the beneficiary and a nephew of the decedent who was a New York resident at the time of her demise. Upon closer observation of the will, it was noticed that the beneficiary also stood as witness to the execution of the same as shown in the document. Under New York law, a witness cannot be a beneficiary at the same time and this is to avoid among others undue influence from coming into the picture in the execution of the will. This is the only question poised that must be determined by the court in this preliminary estate administration proceeding.

The facts of the case showed that the decedent was a resident of New York. She visited her nephews in Canada and there executed a will in front of 2 witnesses that included the designated executor-beneficiary. In the will, the decedent specifically designated her nephew as the sole beneficiary of her estate relating to personal property and also assigned him as the executor of the same. A New York Probate Lawyer said when the time for presentation of the will came, jurisdiction was acquired by the court over the persons of the 2 other nephews of the decedent but they decided not to participate in the proceedings. A consent and waiver from the other brother was obtained and as such there was no will contest that can hamper the proceedings from commencing under normal circumstances save for the perceived defect in the document as regards the formalities required by the law when it comes to the valid execution of a will.

The petitioner in this regard presented proof of the applicable laws in Canada. He argued that since the instrument was executed in the said country, then the formalities required in executing a will is controlled by the law of the place where it was executed. He argued further that since the will is valid where it was executed, then it must also be treated as valid in New York such that the formalities required by New York law in the execution of a last will and testament should not apply in this particular case. Long Island Probate Lawyers said that the nephew assigned as sole beneficiary-executor can also be a witness at the same time in the said instrument is not irregular under Canadian Law even if the same is not permitted in New York should not be an issue as the place where the instrument was made and deemed to have complied with the requirements must always be given weight.

Published on: April 7, 2012

Man Dies with 11 Children, Only 1 Named in Will

by Stephen Bilkis

In January 13, 2007, the father died survived by 11 children: three from the first marriage, four from the second marriage and four alleged non-marital children. The purported will was offered for probate benefits only one child from the first marriage, Angela Manning, who inherits the entire estate and named executrix.

Allegedly, in June 24, 1996, the deceded executed his will. In that he underwent a DNA tests in 2005 and 2006 which revealed that he is the biological father of the claimants who were born long before the execution of the decedent’s will. They claim that the only the non-marital children known or acknowledged after the execution of the will shall be presumed to be inadvertently disinherited as an after born child with whom the same right shall be extended.

Normally, a child is entitled to after born rights if born after execution of the will. There is no exception to this rule other than for a child adopted after the execution of a will, though born previously.

Published on: April 6, 2012

Court Determines of Undue Influence Involved in Will Case

by Stephen Bilkis

A lady testator co-owned an apartment building in New York with her two sisters. The bulk of her estate came from her share in the rent income she derived from the apartments and the value of the apartment building and its premises. She executed a will on September 16, 1997 naming her two sisters as co-executors with their neighbor. She gave legacies to her seven nephews and nieces, the children of her two sisters but she provided that the remainder of her estate will be shared equally by the three executors and in the event that her sisters die ahead of her, the estate will go to their neighbor.

As it turned out, the testator’s two sisters died ahead of her. The testator herself lived until she was 93. She died on June 18, 2006. Their neighbor brought the petition for probate of her will.

The nephews and nieces of the testator all object to the probate of the will on the grounds that it was not genuine; it was not validly executed; it was executed by mistake; it was executed without testamentary capacity; it is the product of their aunt’s neighbor’s undue influence on her; it is the product of duress exercised by their aunt’s neighbor on her; and it was procured by the neighbor’s fraud.

Published on: April 6, 2012

Court Decides Jurisdiction of a Will Contest

by Stephen Bilkis

This is an appeal filed in the Supreme Court by a party who objected to the probate of the will of a decedent in the Surrogate Court of New York.

The facts of the case state that the decedent was a resident of New York. Sometime in his life, he became a resident of Austria and it was also in the said country that he eventually died. The will of the decedent was submitted for determination in Austria and two years after, the said will was again presented to a Surrogate Court of New York County. A New York Probate Lawyer said that as per reading of the last will and testament, it established the fact that the decedent was a resident of New York and at the same time named a legatee to receive half of the estate. The legatee assigned in the will is also a resident of New York. The properties covered in the will also referred to the properties owned by the decedent and located in the State of New York

The hearing in the court of New York was objected to because of the question regarding the domicile of the decedent. It is alleged that the decedent was a domiciliary of Austria at the time of his death and therefore the court of Austria has jurisdiction in the estate administration of the decedent. Another issue was that the court of Austria has already taken cognizance of the will and in the process of adjudicating on the same. The appellant in effect said that since the Austrian court is already in the process of determining the matters involving the will contest surrounding the will of the decedent, the Surrogate Court of New York must no longer assume jurisdiction because another court which has the proper jurisdiction has already assumed power over the case.

Published on: April 5, 2012

Court Determines if it has Proper Jurisdiction for Probate

by Stephen Bilkis

In this case, the only issue that has to be determined by the court is whether or not it has jurisdiction to entertain the probate of the decedent’s last will and testament.

The facts of the case state that the decedent was a resident of New York when he executed his last will and testament. The said will was executed in New York on March 24, 1974 and the executor assigned is also from New York. A few months after the will was executed and during the same year, the testator was removed from his residence in New York by his niece because he needed personal care and attention due to old age and sickness. From New York the decedent was then transferred to the place of residence of the niece which is in Pennsylvania. The following year, the niece was able to get an appointment as guardian of the decedent from a court in Pennsylvania based on the fact that the decedent then is already incompetent. The guardian later removed all the personal properties in New York leaving only the house owned by the decedent as the only estate left in New York.

A New York Probate Lawyer said that upon the death of the decedent, the named executor in the will sent to the guardian the copy of the will executed by the decedent. The lawyer of the guardian wrote back and stated in the letter that the guardian had already applied for letters of administration and that his client treats the said will as invalid. The court of Pennsylvania later on also issued the letters of administration applied for by the guardian. This started the will contest between the parties.

Published on: April 5, 2012

Petitioner Brings Will Contest Action

by Stephen Bilkis

A man executed a will in January 23, 1962. In this will the man made bequests of jewelry and personal property; devises of real property; and a trust to his widow. The value of the gifts and benefits he gave to her in the will amounted to $7,500,000.00.

He also made a bequest to his four daughters in the form of a trust amounting to $1,700,000. The four daughters were to share the trust.

He also made a bequest for each of his five sons in the form of individual trusts amounting to $1,450,000.00 each.

Published on: April 4, 2012

What are Appropriate Legal Fees in an Estate Case?

by Stephen Bilkis

On 4 July 2009, the decedent died prompting the petitioner to employ the services of a lawyer. A retainer Agreement was entered into by the parties stipulating the amount of attorney’s fees to be paid. Thereafter, the petitioner questioned the amount billed by the lawyer as his attorney’s fees alleging a wrong calculation of the estate as the basis, among others.

How much should, actually, be the attorney’s fees? What should be included or excluded?

A New York Probate Lawyer said the court has ruled that the ultimate responsibility for approving legal fees that are charged to an estate and the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate lies with them. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the court is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.