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Family Alleges Undue Influence in Execution of Mother’s Will


In this estate in which there is a contested probate proceeding pending, the decedent was the defendant in a County Supreme Court action, commenced by his sister and two other parties who are the objectants in the probate proceeding (the movants). New York Probate Lawyers said the complaint in the Supreme Court action alleges that the decedent exerted undue influence on his sister to obtain a deed to her one-half interest in real property and converted funds held with the sister in a joint bank account. The movants now seek an order transferring the Supreme Court action to this Court and consolidating that action with the probate proceeding. The proponent in the probate proceeding, who is the respondent in this application, opposes the motion.

Although a party may seek the court’s consent to receive for trial any action pending before the Supreme Court which affects or relates to the administration of a decedent’s estate, only the Supreme Court can order the transfer of a proceeding pending before that court. A New York Will Lawyer said that consequently, the branch of the motion seeking an order directing transfer of the Supreme Court action must be made to the Supreme Court in the first instance.

Nevertheless, the gravamen of the Supreme Court causes of action clearly affect or relate to the administration of the decedent’s estate, and this Court has jurisdiction over all actions and proceedings relating to the affairs of the decedents, probate of wills, estate administration and actions and proceedings arising there under or pertaining thereto. Long Island Probate Lawyers said as the pending Supreme Court action appears to fall squarely within this Court’s jurisdictional imperative, if the Supreme Court in the exercise of its discretion deems that a transfer is warranted, then the Court consents to receive for trial the action pending in the Supreme Court which affects or relates to the administration of the decedent’s estate. Regardless of whether the Supreme Court directs that the action be transferred, the movants may seek the appointment of a temporary administrator in the event that the proponent does not seek preliminary letters.

As transfer of the Supreme Court action is dependent upon a motion to, and the exercise of discretion by the Supreme Court, any determination concerning the propriety of consolidating the Supreme Court action with the probate proceeding pending before the Court is premature.

Queens Probate Lawyers said on another probate proceeding, although a beneficiary of 50% of the residuary estate does not object to the admission of the will to probate or to the appointment of the nominated executrix as the executrix under the will, she requests by order to show cause that letters testamentary not issue to the nominated executrix unless this court imposes a bond requirement for the value of the assets. In support of the application, the movant asserts that she has firsthand knowledge that the proponent has had much difficulty even handling her own personal and financial affairs to the extent that judgments have been issued against her on behalf of several creditors. This allegation is not supported by further specificity or proof.

In opposition, the proponent filed an affidavit which raised an issue as to whether the order to show cause was properly served upon her; however, on the return date of the order to show cause, counsel for the proponent stated on the record in open court that this aspect of the opposition was withdrawn and the application should be decided on its merits. In her affidavit, the proponent unequivocally asserts that there are no judgments against her.

Thus, the court concludes that assuming that the discretion granted to the court to dispense with the filing of a bond under other statutory provisions may be extended to a nondomiciliary nominated executor notwithstanding the request for a bond by an interested party, the clear thrust of SCPA 710 (2) is that, in the absence of the nondomiciliary presenting the most compelling reasons why a bond should not be required, the court should require that a nondomiciliary executor file a bond upon demand by any interested party.

Here, the underlying application reveals that, at the time of the application for preliminary letters, the nominated executrix was domiciled in New Jersey and remains domiciled in that state to date. Under the facts and circumstances presented, and in light of the language of SCPA 710 (2), it is appropriate to require a bond to protect the objectant’s interests, rather than hold a hearing on the validity of her disputed concerns.

Accordingly, the motion is granted to the extent that the executrix shall post a bond, solely for the benefit of the objectant, in the amount of $135,000, representing one half of the value of the estate, the extent of the objectant’s interest therein.

Statutes are meant to protect the people regardless of the situation or the circumstances. If you need to be represented by the winning group of legal counsel in a last will related proceeding, consult the Bronx County Probate Attorney or the Bronx County Estate Administration Lawyer from Stephen Bilkis and Associates.

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