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Court Discusses Supplemental Needs Trust


This is a probate proceeding in regard to the deceased, Edward R. Barclay’s will. The case is being heard in the Surrogate’s Court of the State of New York in Nassau County. The judge in the case is John B. Riordan.

Probate Issues

In this particular probate case there are two issues set before the court. The first issue is that the spouse of the decedent, Josephine M. Barclay, is in opposition of the preliminary letters being granted to Peter and Kathleen Hesse. Additionally, Ms. Barclay has moved to revoke her waiver and consent.

The decedent, Edward R. Barclay died on the 22nd of April in the year 2009. He was a resident of Nassau County. Mr. Barclay left a will that was dated the 29th of March, 2009. Survivors of the decedent include his second wife, Josephine and five children. One of the children, Patricia, is disabled and under the care of a guardian ad litem.

The will provides that one-third of the estate is to be placed in a supplemental needs trust for the wife. The remainder of the estate is divided among the children of the decedent, including three step children, but excluding Patricia. The will names Mr. Barclay’s daughter Kathleen Hesse and her husband Peter, as the executors of the estate. The executors have offered the will for probate and filed an application for preliminary letters testamentary. Josephine opposes this application.

Josephine signed a waiver and consent on the 12th of May in 2009 and this was filed on the 16th of June. She has now made a move to revoke her waiver and consent.

Widow’s Argument

Josephine and the decedent were married in 1977. When the two were married, both of their previous spouses had passed away. A New York Probate Lawyer said Josephine had three children from her first marriage and the decedent had five children from his previous marriage. When they were married the decedent sold his home and moved into a home that was owned by Josephine.

Josephine claims that it was their intention that the home be left to her children upon her death. The right for the decedent to remain living there was reserved. In 2007, the couple consulted with an attorney and a will was prepared for both of them and a trust agreement was arranged. Josephine claims that she was told that when she passed away her children would inherit her residence. She claims that after she fell ill and entered a nursing home the petitioners started a process to make her eligible for Medicaid. A Queens Probate Lawyer said she states she was not aware that her home would not be going to her children until her husband had died. Josephine claims that she does not remember signing the waiver and consent form.

Court Decision

In this particular case the revocation of the waiver is denied. While there are cases where a party is permitted to withdraw waiver and consent it is felt that in this matter there is issue of whether the notary acknowledged the signature made by the plaintiff. This waiver is being sought before a decree has been issued in the case and for this reason it is denied. A Staten Island Probate Lawyer said the court is scheduling a conference for the case to further discuss evidence and to determine if the waiver and consent is in fact valid.

Probate matters can take a long time to conclude. There are many issues that may arise in such cases. If you need help determining your rates in a matter of probate, contact Stephen Bilkis & Associates. Our offices are located in New York City and we will be happy to discuss your case with you during a free consultation.

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