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Court Makes Determination Where Multiple Wills Involved


This is a case being heard in the Supreme Court, Special Term, in Queens County Part I. The case before the court is a motion made by the defendant for an order to dismiss the complaint and each of the causes of action against them on the ground that the court does not have jurisdiction over the subject matter and that the complaint does not state facts that are sufficient to support a cause of action.

Case Background

A New York Probate Lawyer the plaintiff’s mother and the defendant are the children and only survivors of the decedent who passed away as a resident of Queens County. The plaintiff is the assignee of her mother who lives in Italy. During her life the decedent owned a piece of real property located in Corona.

The decedent executed a will in September of 1946. The will left the decedent’s estate in equal parts to the plaintiff’s mother and the defendant. A document that is purported to be a later will written in 1952 leaves only a dollar to the plaintiff’s mother and gives the rest of the estate to the defendant. This latter instrument was filed by the defendant, but it was not probated.

The plaintiff argues that the second will was not duly executed by the decedent. Plaintiff states that the decedent did not publish it to the witnesses whose names appear on the document and the witnesses did not sign the will in her presence or in the presence of each other. The plaintiff further argues that the will was not executed on the date that it says and that the decedent was not of sound mind at the time of the execution of such a will and the will was not voluntarily executed, but was procured by fraud and undue influence.

In a second cause of action the plaintiff states that on the 17th of November, 1954, the defendant recorded a deed, dated and allegedly acknowledged on the 15th of November, 1954 for the purpose of conveying the decedent’s real property to the defendant. Plaintiff argues that the deed was not duly executed by the decedent and that she was not of sound mind at the time and the instrument was procured by fraud and undue influence.

In a third cause of action the plaintiff alleges that the defendant has resided in an apartment at the decedent’s premises for several years without paying. Plaintiff alleges that her mother came to visit the decedent and the defendant attempted to prevent her from receiving her visa. She states that the decedent became senile and mentally incompetent and did not recognize her mother and the defendant used this condition to fraudulent induce the decedent to execute the alleged second will and deed to take possession of the decedent’s entire estate.

The plaintiff is seeking a judgment to have the first will probated and the second will to be deemed null and void.

Court Discussion and Decision

Long Island Probate Lawyers said i most cases the Supreme Court will not retain jurisdiction in a cause where the Surrogate’s Court has concurrent jurisdiction unless there are special facts that require it. These special facts exist in this case as the relief that is being demanded requires the cancelation of a deed and the trust of real property. This type of relief is beyond the jurisdiction of the Surrogate’s Court.

When reviewing the facts of the case the court is denying both the first and second branches of the motion made by the defendant.

There are many issues that may arise out of probate. If you need legal advice regarding these issued contact Stephen Bilkis & Associates at one of our New York City offices. We are happy to provide you with a free consultation to discuss your issue and determine the best course of action.

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