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Court Discusses Jurisdiction Issue in Probate Proceeding


A New York Probate Lawyer said a woman died in Greece and her premises was transferred into a trust, which is irrevocable. The trust document, which was in English, was prepared by the woman’s attorney. The said attorney was also named as the trustee of the trust. A deed transferring the estate into the trust was recorded in the county clerk’s office.

A New York Will Lawyer said the proposed last will prepared by the woman’s attorney has been offered to probate in the court. Sources revealed that the instrument donates the deceased woman’s residuary estate to one of the organization.

Afterward, Manhattan Probate Lawyers said the deceased woman’s sister initiated a proceeding in the Greek court with respect to an unsigned instrument. The opponents argue that the instrument has merely been published, which is of no effect since the deceased woman was a New York resident and any testamentary document can only be proved valid by the state court. The woman’s sister’s papers, on the other hand, stated that the instrument had been offered to probate in the Greek court.

In addition, the sister has filed an appeal in the court for ancillary validation with respect to the instrument and a petition for limited letters of administration.

New York CIty Probate Lawyers said the woman’s sister further alleges four causes of action in her summons and complaint sounding in fraud and undue influence and for a declaratory decision and equitable relief. She alleges that her sister’s attorney represented her sister because she was of advanced age, ill and unable to get around, and another man would hold title to the properties for the woman’s benefit and convenience. Based on records, the man is related to the woman’s attorney.

Subsequently, the attorney and the man told the woman that she should place title to the premises in the irrevocable trust in order to enable them to care for her.

Because of the said promises and the woman’s confidential relationship with her attorney, she established the trust. The woman did not intend to make a gift of the premises to the man. Rather, the woman was induced into creating the trust for convenience and Medicaid and tax planning purposes.

The woman’s sister asserted that the man and the attorney made false representations to her sister, deceived and defrauded her, exerted undue influence on her and exercised severe mental pressure, causing her to execute the trust and transfer the premises to the trust.

On the other hand, the counsel of the man argues that the action should be dismissed because the woman’s sister does not have standing to maintain the action in her individual capacity. The man also contends that the woman’s sister asks the court to set aside the conveyance of the premises which she, in fact, never owned.

In addition, the man argues that even if it is assumed that the woman’s sister had standing, the complaint must be dismissed for failure to meet the pleading requirements set forth in the law. The man further contends that the first cause of action, which unclearly sounds in fraud in the inducement, the second cause of action for undue influence, and the third cause of action, also appearing to be grounded in fraud, must be dismissed for failure to plead fraud and undue influence with particularity.

The woman’s sister also seeks an accounting from the man and the imposition of a constructive trust. But, the man claims that there is no fiduciary relationship, and, therefore, no obligation to account.

Lastly, the man asks the court to direct the county clerk to cancel the notice of pendency against the property because the woman’s sister wrongfully and maliciously affected title to the properties and interfered with its alienability. The man also seeks costs and expenses.

The deceased woman’s attorney also submits his own affidavit and the affidavit of his father and law partner.

The woman’s sister however opposes the motions to dismiss. The woman’s sister’s counsel argues that courts have long recognized that fraud and undue influence are seldom practiced openly but rather are the product of persistent and subtle pressure. Moreover, undue influence may be proved by circumstantial evidence. The counsel argues that the attorney admitted that the deceased woman had few friends after her husband’s death and little proficiency in English.

He alleges that the deceased woman did not know the man and only met the man’s mother years after her husband’s death. The counsel further contends that the deceased woman was increasingly dependent upon her attorney. In addition, the counsel argues that the attorney acknowledges that the deceased woman’s husband’s sudden death left her in a weakened mental state. They also claim that significant questions exist concerning the attorney’s statement that he had some discussion of various instruments with the woman regarding her desire to benefit the man.

The woman’s sister’s counsel also points out that the letter was well within the limitations period. He argues that although the attorney told the deceased woman that she would need the man’s consent to change the trust, he does not address whether he advised the woman that an action could be initiated if the man did not consent.

Sources revealed that the attorney was less than diligent in carrying out the woman’s desire to revoke the trust. Moreover, the woman’s sister’s counsel argues that the attorney admitted that after the woman expressed her desire to change the trust their communication became intermittent.

The woman’s sister’s counsel also argues that it is entirely possible that the attorney led the deceased woman to believe that he was taking steps to change the trust and revoke the gift to the man, even though he was not, which could explain why she included a bequest of the properties in the instrument. The counsel further argues that an appeal for limited letters of administration has been prepared and will be filed.

The man’s attorney has submitted a reply affirmation in which he argues that the woman’s sister has failed to address the material issues of the motion and instead attempts to divert the court’s attention with emotional statements. In addition, they asserted that the woman’s sister’s opposition papers make a number of factual misstatements.

The man’s counsel also argues that the argument of facts is immaterial as the woman sister’s claims are barred by the statute of limitations and are procedurally defective for failure to plead the elements of fraud and undue influence with particularity.

Consequently, the court finds that the request for an accounting is premature as the woman’s sister has not yet established her interest in the properties. As a result, a request for an accounting is denied without prejudice.

The opponents further argue that the court should exercise its discretionary powers and cancel the notice of pendency. The opponents claim that the woman’s sister’s claim was in bad faith. Consequently, they also seek the imposition of costs.

The woman’s sister argues that there is no basis to find that the action commenced was in bad faith. The sister asserted that the attorneys’ affidavit confirms that she acted in good faith because it raises many questions and contains many admissions. In addition, she argues that bad faith is a difficult burden to meet, which has not been met here.

Finally, the court finds no evidence of bad faith and declines to cancel the notice of pendency.

When a last will is offered for probate many issues come out and some people happen to be interested. Whenever you experience a will probate related issues, you can ask help from the Nassau County Probate Lawyer or Nassau County Estate Administration Lawyer. Also, you can have the legal assistance of the Nassau County Estate Attorney at Stephen Bilkis and Associates.

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