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Brother Battles Sister Over Father’s Estate


A man died at the age of 71 years and his wife, who had been battling cancer, also died the day before his own death. The deceased man’s successors are his children.

A New York Probate Lawyer said at the examination, the ten passbooks, the deceased man’s hospital records, the deceased man’s spouse’s hospital records, and the man’s daughter’s examination in the contested probate proceeding were admitted in evidence. Almost the entire balance in eight of the accounts had been withdrawn shortly prior to the death of the deceased man and the entire balance had been withdrawn from two accounts.

The accounts were payable as to either the deceased man or his spouse or the survivor in trust for the man’s daughter, to either the deceased man or his spouse or the survivor in trust for their granddaughter, to either the deceased man or his spouse or the survivor in trust for the son of the deceased man and to the deceased man or his spouse or the survivor.

A New York Will Lawyer said the man’s daughter conceded that she took the money and put it into a personal account in Florida. However, she contended that it was done at the direction of her parents. She further testified that she obtain all of the necessary withdrawal slips from either or both of her parents at a time when they were both in the hospital.

The man’s daughter did not remember exactly when she obtained the withdrawal slips or whether she collected the proceeds in person or by arranging for collection from Florida banks.

A Brooklyn Probate Lawyer said based upon the default of the man’s daughter, her brother uncontroverted allegations of fact, including the allegations as to the specific sums at issue and the dates of the wrongful withdrawals from the specified accounts, must be accepted as due proof.

Moreover, the man’s daughter claimed that she was the recipient of the gifts. Inasmuch as the deceased man can no longer give his version of the transactions, the man’s daughter had the burden of establishing all of the elements of each gift by clear and convincing evidence.

A Bronx Probate Lawyer said sources revealed that the huge hospital records support the contention that both the deceased man and his predeceased spouse is incapable to make valid donations during the last hospital stays of either of them. Therefore, even if the man’s daughter’s pleadings had not been stricken, it would have to be concluded that she failed to come forward with any proof to deny the records and to meet her burden of establishing that either the deceased man or his spouse had sufficient mental capacity to form the requisite donation intent to make a valid gift.

Subsequently, as to the five accounts payable to either the deceased man or his spouse or the survivor, the man’s daughter has wholly failed to sustain her burden of proof to establish that she was the receiver of a valid gift and her brother is entitled to recover the sum of $125,149.76 that was withdrawn from the said accounts together with interest from the date of each withdrawal.

Based on records, different issues are presented with regard to the withdrawals from the accounts which were in the deceased man’s name in trust for designated beneficiaries. In addition, there does not appear to be any authority directly in point as to whether the estate is entitled to pursue a claim for a wrongful withdrawal from those type of account where, as in the proceeding, there is no allegation that the recovery is needed to pay administration expenses, debts or for any other specific estate purposes.

With regard to the three accounts in trust for beneficiaries other than the man’s daughter, it would have been appropriate to add the said beneficiaries as parties to the proceeding so that they could have the opportunity to assert a claim to the proceeds wrongfully withdrawn from the accounts. However, in the absence of an application by any party, including the man’s daughter, to add the beneficiaries as parties, the issue is whether the assets should be denied any relief because they were not joined as parties.

Sources revealed that while the deceased man was alive the beneficiaries only had a mere expectancy and, consequently, during the period that the deceased man was the only party who could have asserted a claim based upon the withdrawals.

Consequently, the man’s son is entitled to recover the sum of $43,675.11 together with interest from the date of each withdrawal from the accounts which were in trust for two persons. However, the beneficiaries of the said accounts shall be necessary parties to an accounting proceeding or other appropriate proceeding in the event that the man’s son collects any portion of the funds withdrawn from the accounts.

The court remains to be decided whether the estate is entitled to recover for the withdrawals from the two accounts in trust for the man’s sister.

Based on records, a trust account differs from a joint account in that the beneficiary of the trust account cannot make any withdrawals during the depositor’s lifetime while each joint tenant has the power to make withdrawals from the account. As a result, there is a surreptitious element to an unauthorized excessive withdrawal from a joint account which is not present with regard to withdrawals from the trust accounts in the absence of a forgery or some other type of chicanery. Moreover, there is no rule that a beneficiary under a prior last will forfeits her legacy because she has offered for probate a later will, leaving the entire estate to her, which was denied to validate on the ground that it was not established that the deceased man had testamentary capacity. Similarly, it can forcefully be argued that the man’s daughter should not forfeit her rights under the trust accounts merely because the deceased man signed a withdrawal slip at a time when his daughter has not established that he had sufficient capacity to make a gift. The court states that if that’s all the man’s daughter had done, they might very well have denied the man’s son’s claim to the funds which apparently would have passed to the man’s daughter in approximately one month even if she had not made the withdrawals.

However, the evidence indicates that the man’s daughter’s withdrawals essentially left the deceased man bankrupt and deprived from other designated beneficiaries of the trust accounts of the funds that should have passed to them by operation of law. Moreover, the court states that it must be inferred from the man’s daughter’s default that she could not present any evidence which, even when viewed charitably, might have supported a conclusion that the deceased man was competent when he completed the withdrawal slips. Lastly, it appears that the man’s daughter took control of all of the deceased man’s assets without the knowledge of the deceased man’s other children. The said conduct makes all of the withdrawals, including the ones from the accounts of which she was the designated beneficiary as unconscionable and excessive as to hold that she forfeited any rights that she had in the said accounts as the surviving beneficiary of the trust account.

Consequently, the man’s son is entitled to recover the sum of $33,325.89, together with interest from the date of each withdrawal, from the two accounts of his sister.

When you want to execute a last will, you can seek legal assistance from the Bronx County Estate Lawyer or Bronx County Estate Administration Lawyer. On the other hand, if you were chosen to be an estate administrator and you want to offer for probate someone’s last will, you can have the Bronx County Probate Attorney at Stephen Bilkis and Associates.

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