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Court Decides Disposition of Family Business in Estate Case


A New York Probate Lawyer said the decedent died a resident of Nassau County in December 2010, survived by his sister, the petitioner; and by his brothers, respondent and movant herein. The decedent’s last will and testament executed in May 2000 was offered for probate by the petitioner, who is named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix in the propounded instrument. Preliminary letters testamentary issued to the petitioner by order of the court. The objectants have filed objections to probate of the will.

A Nassau County Estate lawyer said that the disputes presently before the court all relate to a supermarket, which was run by the decedent and his brother. The supermarket is comprised of three separate closely held corporations.

A New York Will Lawyer said the other respondents named in the proceedings brought by the sister are: the accountant for decedent, as well as for the brother and the various corporate entities involved in these disputes; and the replacement of the decedent replacement on the board of directors.

The sister commenced a SCPA 2103 discovery proceeding against respondents as the accountant for the supermarket, in order to, inter alia, prevent the brother’s interference with the operation and to compel him to turn over the cash receipts from the date of the decedent’s death to the present; to prevent the brother’s interference with the petitioner’s right to take part in the management of the other companies and to gain full access to the records of those corporations; to compel the brother to make available to the petitioner the books and records of the decedent.

In response to the petitioner’s discovery request, the brother had the technical director of the company which provides all computer related services for the supermarket‘s clone all of the cash registers at the supermarket. A hard drive containing a clone of the cash registers was provided to the petitioner’s counsel. Petitioner’s counsel was also apparently provided with three CD ROM disks, one each for the companies, which purportedly contain each corporation’s Quick Books history, including sales and banking records. It is unclear from the papers submitted to the court whether counsel for the petitioner has reviewed the three CD ROMS or the cloned records2 and whether they contain the material sought by the petitioner. At this juncture, there is no evidence that the cloning performed was improper or incomplete.

Bronx Probate Lawyers said in the absence of proof that a party intentionally destroyed or withheld evidence, the court should not direct the cloning of that party’s hard drives. Until the petitioner is able to review the cloned computer records and the CD ROMS, and demonstrate that the information provided by the respondents is incomplete, it would be precipitous of this court to order that the computers be cloned again. Therefore, so much of the petitioner’s order to show cause in the discovery proceeding as seeks to clone all of the computers at John’s Farms is denied at this time, with leave to renew. However, the respondents are ordered to refrain from removing or altering any data contained within the hard drives of the computers at John’s Farms, pending further order of this court.

Brooklyn Probate Lawyers said with regard to the petitioner’s request that her forensic accountants be given access to supermarket, such request is also denied at this time, with leave to renew, upon a showing that the respondents have failed to provide the petitioner with the documentation and data requested.

The petitioner also seeks a discovery conference in this matter, a request which the court deems reasonable, given the difficulties being encountered by the parties in completing discovery herein. A conference is therefore scheduled before a member of the law department for the purpose of scheduling all further discovery in this matter.

Regarding the petitioner’s request for costs and sanctions, the court declines to grant this request at this time. However, the court is disturbed by the cavalier attitude that the brother and his counsel have taken with regard to the court-ordered production of the home computer removed from the decedent’s home after his death. If after reviewing the information on the invoice provided by the petitioner as “Exhibit B” of her order to show cause and conducting a renewed search for the computer identified therein, the brother still cannot produce such computer, then he is ordered to provide the petitioner and this court with a detailed statement, under oath, by someone with direct knowledge of the facts, setting forth the means and methods used to conduct the search for the decedent’s home computer. Such affidavit must be submitted to the court before the date of the conference scheduled herein.

“[W]here the business of the decedent is a corporation, authority from the court is unnecessary”. “While SCPA 2108 has been held not to apply to a corporate business, the application may nevertheless be treated as one for advice and direction under SCPA 2107”.

Under SCPA 2107, a fiduciary may ask the court for advice and direction regarding the sale of estate property and in other “extraordinary circumstances.” In following the advice and direction, the fiduciary will be protected from liability. Generally, the property for which advice and direction is sought would be owned by the estate directly and not through corporate shares, but in practice, courts will give advice and direction where an estate owns all of the corporate shares, as opposed to owning a partial interest.

“[W]here the fiduciaries, through the medium of ownership of all of the shares of stock, control a close corporation, the Surrogate possesses the equitable power to disregard the corporate entity and may proceed to treat the estate fiduciaries and their corporate problems with respect to disposition of the corporate assets, and its effect upon the estate, upon the realistic basis that the fiduciaries and the management of the corporation are one and the same.”

The Court thus held that so much of the petition of the sister pursuant to SCPA 2103 to permit cloning all of the computers at the supermarket is denied with leave to renew, as is the request that her forensic accountants be given access to John’s Farms. Her request for a discovery conference is granted; the request for costs and sanctions is denied.

The petition of the sister seeking authorization to continue is granted; the application for specific authority to hire an employee is denied. The application for an order directing the brother to stop interfering with the management of the companies, to turn over all cash receipts that are in his possession, to stop taking, transferring or disposing of cash receipts, and to make available, deliver or turn over the books and records of the companies and the decedent to the sister as preliminary executor of decedent’s estate, is granted, except as to those records previously provided to petitioner.

A testator is free to divide his estate according to his desire. However, when a right of an heir was impaired, an opposition for the probate of a will must be filed. Here in Stephen Bilkis and Associates, we have Nassau County Probate lawyers who will represent you in court in opposing the distribution or division of the will. For a proper division of a will, you can consult our Nassau County Estate attorneys. They will advise you on the portion which you can dispose and which portion shall be accorded to your compulsory heirs. Contact us now for a proper advice..

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