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Fraud Alleged in Will Contest Proceeding


A New York Probate Lawyer said the complainant alleges that she, along with her father and sister are joint tenants with rights of survivorship in a brokerage account maintained at a Securities Company. The account at the Securities Company was transferred to a joint account in a Financial Services Company. The complainant alleges that the joint account assets were transferred without her authorization to an individual account in the name of her father. She contends that the joint account holders’ written transfer authorization contained her forged signature. Two years later, her father died. In her complaint, the complainant wants to recover her lawful share of the funds in the joint and individual accounts.

A New York Will Lawyer said the defendant sister filed a Petition in the Surrogate’s Court for the probate of the decedent’s Last Will and Testament. The complainant was cited in the probate proceeding because she was adversely affected by the Will. The complainant took nothing under the Will. The complainant filed Objections to Probate of the Will in June, 2008. After conducting documentary discovery concerning the Will, the sister and the complainant entered into a Settlement Agreement pursuant to which the complainant executed a Withdrawal of Objections to Probate and Consent to Probate. The County Surrogate’s Court then issued a Decree admitting the Will to probate and issued Letters Testamentary to the sister. The consideration passing to the complainant under the Settlement Agreement consisted of personal property with respect to which the complainant claimed ownership. The parties agreed that the consideration referenced in the Agreement satisfied any right that the complainant had to any bequest, legacy, or other entitlement to the property of the Decedent or the Estate, wherever located. The complainant waived an accounting. The parties executed mutual general releases.

Bronx Probate Lawyers said the general release that the complainant executed in favor of her sister individually and in her fiduciary capacity may not be changed orally. The sister-in her individual and fiduciary capacity-executed a mutual release in favor of the complainant. The parties to the Settlement Agreement also agreed that the County Surrogate’s Court shall retain continuing jurisdiction in order to carry out, construe and enforce any of the terms of the Agreement.
The defendant sister and the Estate move to dismiss as to them based on the stipulation and the general release executed by the complainant. In the alternative, the sister and the Estate request the matter be transferred to the County Surrogate’s Court in the event the motion to dismiss is denied. The Agreement provides that the parties each consent that the County Surrogate, after the execution of the release and stipulation of settlement, shall retain continuing jurisdiction in order to carry out, construe and enforce any of the terms of the Agreement. A Surrogate initially recused himself from presiding over the contested probate proceeding because a member of the Court’s staff (an attorney formerly in private practice) drafted a prior testamentary instrument for the decedent. The matter was assigned to a Justice of the Supreme Court, Suffolk County, as acting Nassau County Surrogate. After the execution of the release and stipulation of settlement, the decedent’s will has since been admitted to probate by a decree of the Surrogate’s Court, Nassau County-not Suffolk County-and the decedent’s estate has been administered in Surrogate’s Court Nassau County.

Brooklyn Probate Lawyers said the complainant commenced the within action in Nassau County Supreme Court and asserts the action should not be transferred to Suffolk County but rather, remain in Nassau County Supreme Court since all the major parties reside in Nassau County, other than the complainant who resides in Florida. Neither the complainant nor the defendants and the Estate object to the Court’s deciding the within motions on the merits.

The complainant alleges in the complaint that she, together with the decedent and her sister, were joint tenants with right of survivorship maintained in a Securities Company in Garden City, New York. She alleges that the account had a value in excess of $450,000, and that the owners of the account signed an authorization instructing the Securities Company to issue a check in the amount of $2,492.00 to the decedent monthly.

The complainant further alleges that in the account was transferred by the defendant branch manager in the Rockville Centre office of the Financial Services Company to a Portfolio Company after which time it was managed by the said branch manager. The complainant alleges that the account was secretly and without her authorization consent or direction was transferred by the branch manager and the Portfolio Company to an individual account in the name of the complainant’s father. She further alleges that her signature on the letter authorizing the transfer of the Account was forged; and that the next day, on or about May 2, 2006, the branch manager and the Portfolio Company set up the new account as a joint account in the name of both the decedent and her sister, and that the application for that account also contained her forged signature. She alleges that on the date of the decedent’s death, the account had a value in excess of $700,000. According to her, all of the foregoing actions were part of a scheme to remove her from the account and conceal the removal from her, as part of the defendant’s scheme to defraud her and convert her property. The complaint contains five causes of action.
The complainant’s causes of action are based on her contention that assets from the joint account, with her father and her sister were transferred without her authorization in May 2006. Banking Law provides that a joint account holder is permitted to transfer assets from a joint account and that the banking organization making the transfer cannot be held liable unless it had a specific direction requiring the signature of all signatories.

In opposition to the motion by the defendants Portfolio Company and the branch manager, the complainant argues that they should not be permitted to hide behind the language of Banking Law since the complainant’s signature on the transfer documents was a forgery and the bank’s own internal rules and regulations required the valid signature of all three depositors on a document directing a transfer of the account. Counsel for the complainant has cited no authority to contradict the language of Banking Law. The protection provided in prior statutes for the banking organization in paying out to either of the co-tenants has not been disturbed.
In light of the fact that the Portfolio Company was not given contrary written instruction, pursuant to Banking Law, the Portfolio Company could have closed the joint account with only the signature of the defendant sister and her father to the exclusion of the signature of the complainant. The motion by the defendants Portfolio Company and the branch manager dismissing the complaint as to them based on Banking Law is granted.

A release is a jural act of high significance without which the settlement of disputes would be rendered all but impossible. When a release is clear and unambiguous on its face and was knowingly and voluntarily entered into, it will be enforced as a private agreement between the parties. A release will not be treated lightly and will be set aside by a court only for duress, illegality, fraud, or mutual mistake.

In opposition to the motion to dismiss, the complainant argues that the general release and Settlement Agreement be set aside or limited based on the allegation that a forgery and fraud were committed and that the general release was given under fraudulent circumstances.
After the issue of letters testamentary, the attorneys for the estate sent a letter to the complainant’s former attorney stating that a bank account in the name of her father had five beneficiaries name. The account had a balance of $450,774.27. The defendant sister sought the complainant’s consent to close the account, place $ 112,400 in the estate account to pay the estate taxes allocable to the account and distribute the balance among the beneficiaries.
The complainant asserts the existence of this Account was hidden from her since her sister did not want her to know there was an account created by their father three months before his death that left her $90,000. Further, she contends the discovery of the account goes against the decedent’s last Will and contradicts a purported DVD in which he describes why he left the complainant only one dollar. The complainant states that if she had known about the account she probably would not have withdrawn her Objections to probate and the case would not have been settled. Her other belief is that her sister probably thought that she could receive all of the funds in the account. Only when the defendant sister learned that the holder of the account insisted on her son’s and her signatures was she advised of the discovery.

The complainant alleges that this newly discovered Account led her to wonder if there were other accounts established by her father that had not been disclosed. She went through some of her old storage files and found a document from the Securities Company. She contacted the Securities Company and was advised the account had been transferred to the Portfolio Company.

A crucial element of fraud is justifiable reliance. The complainant was represented by counsel. As a respondent in a probate proceeding she had the ability to discover documents regarding the decedent’s assets. Even considering the allegations of the complaint to be true and according the complainant the benefit of every favorable inference, there is an absence of justifiable reliance to state a cause of action to recover for fraud or collusion against the decedent and/or the defendant sister.

A party bears the risk of a mistake when he is aware, at the time a contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient. A party cannot rely upon her ignorance of a condition which she could have discovered using ordinary care the court denied an application by the co-administrator of the decedent’s estate to reform a stipulation of settlement which provided for a distribution of the decedent’s probate and non-probate assets after she later discovered that one of the non-probate assets was a Totten trust for her benefit, finding that her failure to ascertain the beneficiary designation on the largest of the decedent’s bank accounts could only be ascribed to negligence.

The complainant had the opportunity to make use of any or all of the aforesaid discovery devices prior to signing the release and settlement agreement. Moreover, she had the option of waiting for the production by the estate of a copy of ET-706 Form — US Estate Tax Return prior to signing the release in order to ascertain all of the testamentary and non-testamentary assets. She knowingly and voluntarily negotiated and entered into the Settlement Agreement with her sister and the Estate, the clear intent of which was to resolve all issues concerning the estate and the assets of the decedent. She expressly agreed to waive any interest in the assets of the estate. In the within action, the complainant acknowledged she had records regarding the disputed account in her possession prior to signing the release. Moreover, the settlement in the context of the probate proceeding was extensive and she had the opportunity to ascertain the existence of all testamentary and non-testamentary assets of the estate before signing the settlement agreement and release. Her failure to make the inquiries that precipitated this action before she executed the settlement agreement render her reliance on any alleged misrepresentations unreasonable and unjustifiable as a matter of law.

Motion by the defendant sister and the Estate dismissing the complaint as to them is granted. The court has considered the complainant’s remaining arguments and finds them to be without merit.

In will probate proceeding, family members are the ones who usually fight over estates. To win your will contest, it is best to be represented by the Nassau County Will Contest Lawyer or the Nassau County Probate Attorney together with the Nassau County Estate Litigation Attorney from Stephen Bilkis and Associates.

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