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Second Wife Opposes Preliminary Letters Testamentary


A New York Probate Lawyer said a man died leaving a purported will dated March 20, 2009. He was survived by his wife from a second marriage and by five children, one of whom is under a disability. A guardian ad litem was appointed for the disabled child. The purported will provides that one-third (1/3) of the residuary estate is to be placed in a supplemental needs trust for the decedent’s wife. The remainder of the residuary estate is divided into seven equal shares with one share for each of the decedent’s children (other than the disabled child) and the decedent’s three step-children. The purported will nominates the decedent’s daughter and her husband, as executors. The purported will has been offered for probate by the nominated executors. A waiver and consent was signed by the wife from the second marriage on May 12, 2009 and filed on June 16, 2009.

The petitioners have filed an application for preliminary letters testamentary. The petition is opposed by the second wife. She has also moved to revoke her waiver and consent. She has filed an affidavit in support of the motions. According to her, she and the decedent were married in 1977. Each had been married previously, their former spouses having passed away. She had three children from her first marriage, and the decedent had five children from his first marriage. At the time of the marriage, she owned a residence in Sea Cliff, New York. Prior to the marriage, the decedent sold his residence and moved in with her.

A New York Estate Lawyer said the second wife claims that it was always their intention that upon her death, her residence would be given to her children reserving the right for decedent to reside there. In 2007, at the urging of the decedent’s daughter and son-in-law, the decedent and the second wife consulted with an attorney at which time she expressed her desire that the residence pass to her children. The attorney prepared a will for each of them and an Irrevocable Trust. The second wife claims she did not understand the intricacies of the trust agreement but was advised and assured that upon her death her children would get her residence.

A Staten Island Probate Lawyer said on December 2008, the second wife became ill from dehydration and was hospitalized. After a two week stay in the hospital, she entered a nursing home. She alleges that during her stay in the nursing home the petitioners began a process to make her eligible for Medicaid. She was not aware of what needed to be done to achieve this, and claims that at no time was she made aware of the fact that her residence would be transferred in a manner to prevent her from ever leaving it to her children. On April 21, 2009, the day before the decedent died, she re-entered the hospital for an emergency operation. She alleges that it was only after her husband was buried and while she was still in the hospital that she learned for the first time from her sons that such arrangements had been made so that her residence would not be going to her children. Instead, the residence could be sold and the proceeds shared by them together with the decedent’s children. Upon learning this, the second wife asked the attorney who prepared the will, to come see her to discuss the issue. She told her attorney that it was always her intention to leave the residence only to her children. She claims that it became apparent to her that the attorney was not acting in her interest.

Nassau County Probate Lawyers said as to her signature on the waiver and consent, the second wife claims that, to her knowledge, she never signed such a document, but that she may have signed other documents represented to her for the purpose of qualifying for Medicaid while she was in the nursing home. The second wife said that no one explained the waiver and consent to her or what executing such a document meant. She also alleges that she never saw her husband’s will. Accordingly, she asks for permission to revoke her waiver and consent so that she may file objections based, in part, upon her belief that her husband was not competent to sign a new will. She states that her husband suffered a stroke in early 1986. After surgery, he suffered another stroke in December 1986 which left him unable to speak. His speech returned somewhat over time but was never fluent. Thereafter, he suffered a number of mini-strokes. She claims that in March 2009, when the purported will was signed, he suffered from dementia to the extent that he would have been incapable of understanding and appreciating what he was doing or signing. She argues that the decedent would not have purposely and knowingly deprived her of her right to leave her residence to her children or to reside in her home after his death.

The second wife’s counsel has also submitted an affirmation in support of the motion. Her counsel stated that, as a result of the consultation with the attorney who prepared the will in 2007, the residence at Ransom Avenue was transferred into a joint irrevocable trust naming her daughter and her son in law as trustees. In early 2009, the couple as trustees transferred the residence out of the trust and into the daughter’s individual name. Thereafter, the daughter transferred the residence into the decedent’s name. Counsel claims this was done without her mother’s consent or awareness. Ten days later, the decedent executed a new will which provided that the home would be divided equally among the decedent’s children and the second wife’s children.

The second wife’s counsel also raises an issue with respect to the notary acknowledgment on the waiver and consent purportedly exercised by her. She claims that the notary whose signature and stamp appears on the waiver did not visit her at the nursing home on the date the waiver was purportedly signed or on any other date. According to the second wife’s counsel, the nursing home records indicate that the only visitor on that date was her attorney. Moreover, she asserts that the notary is the friend neighbor and/or co-worker of the Respondent son in law.

As to the application for preliminary letters, the second wife argues that she will be prejudiced if letters are issued because then the Ransom Avenue home can be sold.

The petitioners have filed an answer wherein they assert that the second wife had a complete understanding of each and every transfer, document, trusts or other legal matter relating to her and husband’s affairs. The Respondents claim that the second wife received verbal and written communications from her attorney and met with her alone on more than one occasion.

Moreover, her attorney never represented the petitioners. The Petitioners also claim that the decedent sold his house and paid for all the bills while they lived as husband and wife. While the decedent was doing this, the second wife made gifts of approximately $150,000.00 to her children. Petitioners allege that they had no input or advice in the estate planning process and that the decedent and the second wife relied upon expert legal advice. In addition, they contend that the decedent always had mental capacity.

The second wife’s allegation that the petitioners are not qualified to act as fiduciaries fails to go beyond conclusory allegations which are clearly insufficient to provide a basis for the denial of preliminary letters testamentary. She has failed to demonstrate good cause or serious wrongdoing which would permit the court to nullify the testator’s choice of fiduciaries.

Accordingly, the petitioners’ application for preliminary letters testamentary is granted.

Nevertheless, the second wife has raised an issue regarding the petitioners’ actions regarding the transfer of the Ransom Avenue house out of the trust and into her daughter’s individual name. Accordingly, the preliminary letters testamentary shall restrict the preliminary executors from selling the Ransom Avenue house without prior court approval.

Fighting for what you believe is yours would be easier if you have the right people at your side. If you are planning to pursue a will contest, the Bronx County Will Contest Lawyer or the Bronx County Estate Attorney from Stephen Bilkis and Associates are the best counsels to represent you.

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