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Plaintiff Brings Motion to Substitute Executor


Probate Lawyers this is a motion to substitute the executor of the Last Will and Testament of the deceased as plaintiff herein and to permit the said Executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.

A Kings County Estate lawyer said that the action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this Court. The deceased died on February 16, 1958. His Last Will and Testament was admitted to probate and the plaintiff was appointed Executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.
The branch of the motion to substitute the executrix as plaintiff in this action is granted.

However, a New York Estate Lawyer said the branch of the motion to amend the complaint is denied. In a case, plaintiff sought to amend his complaint to include additional causes of action for assault. The Appellate Division, reversing the court below, denied the motion saying. ‘Not only is there no satisfactory excuse for the failure of plaintiff previously to plead the additional assaults and to make his own affidavit in support of the motion for leave, but the delay has been inordinate, and recovery for the assaults now sought to be pleaded has been barred since June, 1950, or approximately 2 1/2 years prior to the making of the motion for leave to amend.’

Similarly, Manhattan Probate Lawyers said where there has been an inordinate delay in making the motion, sufficient excuse for the delay is not offered and the action for wrongful death has been barred since February 16, 1960 under Section 130 of the Decedent Estate Law .

New York City Probate Lawyer said the branch of the motion to amend the bill of particulars is granted only to the extent that plaintiff may include such other hospital and medical expenses which were incurred after the date the present bill of particulars was served.

In a proceeding pursuant to CPLR 7510 to confirm an arbitration award of a Rabbinical Tribunal, in which respondent Berger cross-moved to vacate the award, petitioners appeal from a judgment of the Supreme Court, Kings County (JONES, J.), dated August 8, 1980, that denied the petition and granted the cross motion on the ground that the subject of the arbitration, viz., the distribution of a decedent’s estate, was not an arbitrable matter in New York State.
In another case, Petitioners are a son and the sons-in-law of the decedent. Respondent is the decedent’s first-born son. Petitioners and respondent are English domiciliaries, as was decedent, who died a resident of England in September, 1977. One month before his death, the decedent wrote a letter, in Hebrew, in which he made certain dispositions of property and commanded that his son “do all that is necessary to fulfill my wishes expressed in this Will.” Among the directions in the letter were that any company “or Charity Company” in which he had an interest was to come under the sole direction of his “four children” and all benefits due him were to be divided equally among the four children.

When disputes arose, an interpretation of the “will” was sought by petitioners and respondent from a Rabbinical Tribunal. The submission was executed in Brooklyn, New York, but otherwise makes no reference to New York. Indeed, it states that the decision of the tribunal shall be valid according to “Jewish Law and the Law of England.”

A “Decision and Verdict” was rendered by the tribunal which states, inter alia, that “this verdict relates to all interests and properties of wherever situated, including, but not limited to.” This proceeding was brought to confirm the tribunal’s decision or award, evidently to obtain the compliance of the respondent. Confirmation was properly denied.

As Special Term stated, the distribution of a decedent’s estate is precluded from submission to arbitration on the ground of public policy.

It is clear that in the present case the letter does indeed purport to be the last will and testament of the deceased and to provide for the distribution of his estate. That the tribunal’s interpretation of the “letter” is an attempt to determine the distribution of a decedent’s estate is readily discernible from the “decision and verdict.” The tribunal’s decision may not, therefore, be confirmed. “The probate of an instrument purporting to be the last will and testament of a deceased and the distribution of an estate cannot be the subject of arbitration and any attempt to arbitrate such issue is against public policy”

Were the arbitration not against public policy, we would dismiss the proceeding on the ground of forum non conveniens. The agreement to arbitrate, although executed in New York, states that the decision of the tribunal will be valid under “Jewish Law and the Law of England.” Notably, New York is omitted. The decedent was a domiciliary of England and resident there at the time of his death. The petitioners and respondent are domiciled in England. The trust and charitable association, which disputedly own the co-respondent domestic corporations, are organized under English law.

If you have legal problems relating an estate, don’t hesitate to consul our Kings County Estate Lawyers here in Stephen Bilkis and Associates, we will provide you an advice which will solve your problems. For the probate of deceased’s last will and testament, you can consult our Kings County Probate Attorneys.

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