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Brother Files Will Contest Against Sisters


A man had a son and two daughters. In 1995, the father and the son had a falling out. In December 1996, the father made a will leaving all of his real and personal properties to his two daughters in equal shares. The son was left out of the will entirely. Five months later, the father was hospitalized where he was diagnosed with senile dementia. He was declared to be mentally incompetent.

On the same day he was diagnosed with senile dementia, he signed a deed transferring to his daughter the ownership of his home in Kingspark, New York. He also executed a general power of attorney giving power to his two daughters. In September, the father died.
Two years after the death of the father, in September 2000, the son petitioned the Surrogate’s Court to be appointed as administrator of his father’s estate. Among his father’s properties, he listed his father’s house in Kingspark, New York.

A New York Probate Lawyer said that three months later, in December 2000, his sisters filed their petition for probate of their father’s will and for letters testamentary. In their petition for probate, they averred that their father had no real properties.

A copy of the petition for probate was furnished the son on January 2001. He filed his objection to the probate of the will in November 2001. A Staten Island Probate Lawyer said that in 2002, the sisters testified on deposition.

When the brother heard his sisters’ deposition regarding the general power of attorney and how their father had ceded title to his house to one of his sisters, the son filed an action against his sisters for fraud. He asks that the deed executed by his father conveying the house to his sister be set aside. He also testified that his sisters used the general power of attorney issued in their behalf by the father to withdraw all the money in their father’s retirement account and used the proceeds to buy insurance for themselves.
The sisters appeared in the action filed by their brother for fraud. They ask that it be dismissed saying that his action for fraud is barred because it was commenced beyond the period of six years from the commission of the alleged fraud; and because it was commenced beyond two years from the time that he discovered the fraud.
The brother said that he only discovered the fraud in September 2002 when his sisters testified during their deposition how they asked their father to sign a deed transferring ownership over his house to one of them. He claims that his father had senile dementia at that time and that he could not have given his consent to that deed.

The Court declared that the brother’s action is barred. He had known the facts from which fraud can be inferred since he was served a copy of his sisters’ petition for probate where they clearly stated that their father had no real property.

But the Court reversed the court’s dismissal of all of the son’s causes of action. The cause of action against the sisters’ withdrawal of their father’s retirement fund should not have been dismissed outright with the dismissal of the fraud complaint.

The Court reasoned that the Individual Retirement Account is not an asset of the estate. It cannot be passed by operation of law. Suffolk County Probate Lawyers said the son could not have known that his sisters have withdrawn all the money in those accounts until their deposition was taken. This cause of action should have been tried and not dismissed on motion of the sisters.

But then, during the pendency of this appeal, the brother has withdrawn his objections to the probate of their father’s will. And because of this, the will has been probated. The cause of action for withdrawal of all the money in the father’s individual retirement account cannot be tried jointly with the probate proceedings.

Contesting a will requires convincing evidence that shows that the will was not validly executed or that the testator had no capacity to make a will. A skilled lawyer is best equipped to give advice and to argue as to how to properly contest a will. At Stephen Bilkis and Associates, our legal team is ready to help you contest a will on legal and evidentiary grounds.

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