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Court Hears Case for Will Contest Between Brother and Sister


A son of the decedent, who is the objectant in a probate proceeding, petitions for the issuance of limited letters of administration to himself in order to obtain the decedent’s medical records and to commence an SCPA (Surrogate’s Court Procedure Act) discovery proceeding against the decedent’s daughter with regard to real property purportedly transferred by the decedent to her shortly after the decedent executed the instrument propounded in the probate proceeding. A New York Probate Lawyer said the daughter, who is the proponent of the instrument, filed objections only to that branch of the application seeking limited letters to commence the discovery proceeding. She argues that the son is going on a fishing expedition and any claim he might make concerning the realty transfer is barred by the statute of limitations.

The decedent died and was survived by the daughter, the petitioner and another son who post-deceased. A New York Will Lawyer said the executed propounded instrument gives the daughter a one-half interest in real property located in the Bronx, with the other half of that property divided equally between the two sons; however, a few weeks later, the decedent purportedly transferred the same property to the daughter and post-deceased son as joint tenants with rights of survivorship.

A Manhattan Probate Lawyer said limited letters of administration are issued pursuant to SCPA and in those instances where, as here, it is unlikely that the person who is the nominated or appointed fiduciary would pursue a claim either because it is against herself or against another party that the fiduciary would not be inclined to pursue.

The daughter’s contention that any grant of letters to the petitioner would be futile as any alleged claim would be barred by the applicable statute of limitations is premature until such time as the petitioner has completed disclosure and served a pleading requesting specific relief against her. Nonetheless, the court, in granting limited letters to the petitioner, is not authorizing him to use estate assets to pursue the claim, so his pursuit of the claim will initially be at no expense to the estate. In the event that the petitioner is ultimately successful in recovering assets on behalf of the estate, he may then seek to be reimbursed from estate assets for his expenses in litigating the claim.

Accordingly, a New York City Probate Attorney said the daughter’s objections to the issuance of such limited letters to the petitioner are dismissed and the petition is granted in its entirety. The dismissal of the objections is without prejudice to the daughter’s right to interpose any defense that she deems appropriate in the event that relief is sought against her individually.

In another probate proceeding, the executor seeks an order authorizing the payment of an infant’s $5,000 testamentary bequest directly to the infant’s mother in full satisfaction of the terms of the bequest under the will.

The decedent died and her will was admitted to probate by decree. The will includes a bequest of $5,000 to the infant, the decedent’s grand nephew, upon attaining the age of 25. The infant is approximately six years old. The infant resides in Greece with his mother. Article IV of the will, entitled “Executor Powers,” gives the executor the right to administer the estate using “informal,” “unsupervised” or “independent probate or equivalent legislation” designed to operate without unnecessary intervention by the probate court.

In support of his petition, the executor notes that SCPA allows the payment of a bequest that does not exceed $10,000 to the parent of an infant. He notes that no guardian has been appointed for the infant in the United States or Greece, and the will does not designate a trustee or create a trust. Finally, he notes that EPTL (Estates, Powers and Trusts Law) allows for the termination of uneconomical trusts in a manner that effectuates the intent of the testator.

Although the bequest to the infant when the infant reaches the age of 25 does not create a formal trust, and title to the funds vests in the beneficiary, the executor, as the donee of power during minority, is granted the authority to manage the infant’s bequest during his minority. As the donee of a power during minority, the executor is a fiduciary for the infant, and he is subject to the provisions of EPTL and the Prudent Investor Act.

Several County Surrogate’s Court cases address the authority of a donee of a power to manage an infant’s property, including the power to transfer the property to another under similar circumstances.

In this case, the provisions of the will create a donee of a power during minority, and it appears to be in the best interests of the infant for the executor to exercise that power by paying the modest bequest to the infant’s mother for the infant’s benefit. Accordingly, the application is granted in its entirety.

When beneficiaries of a last will are minor, choosing the right person as their guardian is making sure that their best interest is still protected. If you want to explore your legal options in a will related proceeding, consult a Bronx County Will Contest Lawyer or a Bronx County Probate Attorney from Stephen Bilkis and Associates.

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