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Court Decides Property Ownership in Light of Two Separate Wills


A New York Probate Lawyer said in an action transferred to this court from Supreme Court, Nassau County, defendant moves for an order directing the County Clerk of Nassau County to cancel a notice of pendency filed in connection with the action and for an order quieting title in the defendant and for such other relief as to the court seems just.
A Nassau County Estate lawyer said that defendant is the grandson of plaintiff, the decedent in the probate proceedings currently pending before this court. Decedent’s daughter is representing the estate in the Supreme Court action in her capacity as preliminary executor. A brief recitation of the essential allegations in the pending proceedings and the identities of the parties involved may facilitate an understanding of the court’s decision on the instant motion.

The decedent and her husband took title to the subject premises in New York by deed. The deed identifies the grantees as the spouses thus presumptively creating a tenancy by the entirety. The husband died in November 1996. A New York Will Lawyer said that assuming the validity of the tenancy by the entirety, the decedent became the sole owner of the premises upon the husband’s death.

In March 1999, decedent executed a deed conveying title of the property to herself and her grandson, the defendant herein, as joint tenants with right of survivorship. Thereafter, a Brooklyn Probate Lawyer said the decedent executed a deed, conveying her remaining interest in the property to her daughter, reserving a life estate. Another deed was executed by decedent whereby decedent purportedly again conveyed her remaining interest in the property, this time outright to the grandson. The Supreme Court action transferred to this court seeks to vacate both deeds conveying an interest in the property to the grandson. The notice of pendency now sought to be canceled was filed in 2008.
In addition to the grandchildren, the decedent was survived by another daughter, and by four other grandchildren. One of those grandchildren is an infant and her interests are being represented by a court-appointed guardian ad litem.

In addition to the Supreme Court action, there are also two probate petitions which have been filed regarding the decedent’s estate. A Bronx Probate Lawyer said there are two Wills, the first will bequeaths decedent’s entire estate to the grandson, to the exclusion of all other distributees. A later will, bequeaths decedent’s entire estate to the daughter, also to the exclusion of all other distributees.

To be successful in her effort to attain ownership of the subject property, the daughter must prevail in the probate of the later will, and successfully vacate both deeds in favor of the grandson, executed five years apart. To complicate matters, there is evidently a $250,000.00 mortgage on the property which he has been paying, but which he claims he is no longer able to carry.

Furthermore, the daughter’ sister, who has been appointed the administrator of the estate of their father, alleges that the marriage between their parents appears to have been invalid as their mother, the decedent, was still married to another man at the time of their purported marriage. If that is true, then when the property was purchased in 1958, The spouses most likely took title as tenants in common, although even that is not entirely clear, the statutory provision creating a joint tenancy with right of survivorship in such circumstances not having been enacted until 1975. Thus, whether the daughter will ultimately prevail in her pursuit of full title to the subject property is, at best, questionable at this point. What is clear is that, assuming arguendo that the property is an estate asset, the only asset of the estate is encumbered by a large mortgage which none of the parties are evidently willing or able to pay. Regardless of her contention that the mortgage was obtained by the grandson and the obligation to satisfy the mortgage should also be grandson’s, the fact remains that unless the property is sold, there will likely be a foreclosure before all of the various lawsuits in this case have been either resolved or adjudicated, and foreclosure will be in no one’s interest. Although the daughter complains that the contract sales price of $450,000 does not reflect fair market value, she fails to provide any evidence whatever of that contention. The sister, as administrator of the estate of her father has indicated her support of the instant motion to cancel the notice of pendency, as has the guardian ad litem appointed to represent the interests of the infant distributee.

CPLR 6514(b), relied upon movant, permits the court to cancel a notice of pendency where the action was either brought in bad faith or is not being diligently prosecuted. Movant’s counsel has had great difficulty deposing Joann in this action and that might itself justify the canceling of the notice of pendency. CPLR 6515 provides additional grounds upon which to cancel a notice of pendency, and, even though not pled by the movant, that does not prevent the court from that granting relief. Specifically, CPLR 6515 authorizes the court in its discretion to cancel a notice of pendency upon such terms as are just, which generally means the moving party will give an undertaking in a sum fixed by the court.

Here, the court is satisfied that the undertaking proposed by grandson’s counsel that his firm will retain the entire net proceeds of sale in an interest-bearing escrow account until further order of this court, provides sufficient security to the plaintiff, considering the likelihood of her ultimate success on the merits, and all the other considerations extant in this case.

Accordingly, the motion is granted. The court directs the Nassau County Clerk to cancel the notice of pendency filed in connection with the instant action and determines that the grandson may convey good and marketable title to the subject premises pursuant to the terms of the contract of sale annexed to the moving papers.
Upon person’s death, the relationship of the heirs may deteriorate by reason of the properties left by the decedent. Here in Stephen Bilkis and Associates, our Nassau County Estate lawyers will make an effort to harmonize the strained relationship of the heirs by determining the amount each heir is entitled, in accordance with law. We also have our New York Will Contest attorneys who will help an heir who wants to question the will submitted for probate once deprived of what he is entitled to.

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