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Beneficiaries Bring Will Contest Action


On this proceeding, the beneficiaries of a woman asked for an order to suspend the verdict of the court with regards the admission to probate to the woman’s will. A New York Probate Lawyer said they also asked to vacate the letters testamentary issued to the woman’s caregiver. They also requested to grant them the opportunity to examine the attesting witnesses to the will, directing that objections be filed within a reasonable amount of time after the completion of the examination of witnesses and staying the administrator of the will from disbursing the estate proceeds. The abovementioned motion’s is opposed by the woman’s caregiver.

The aforesaid woman died seven months after the execution of her will. Her husband predeceased her and she never had any children, biological or adopted. Apparently, the woman was survived by her six beneficiaries who reside in Australia. The woman’s caregiver originally filed a petition for the validation of the woman’s will and asserts that the woman had no successors. On the probate petition of the caregiver, she states that she was the woman’s live-in companion, the beneficiary of woman’s entire estate, as well as the designated administrator. Further, the only other individual named by the caregiver as a person interested with the woman’s assets is her sister, a resident of Ukraine. The caregiver’s sister was listed as the successor beneficiary of the woman’s entire assets and the nominated successor as the administrator. Additionally, the petition reveals the woman’s address as the caregiver’s address.

On the basis of the information provided by the caregiver, an initial letter was issued however the court directed the caregiver to submit a family tree. The caregiver consequently submitted an affidavit stating that she wasn’t aware of any person capable of giving a family tree. The caregiver further advised the court that the woman spoke occasionally with someone and was also visited by another man but she didn’t know whether the two persons were related to the woman. Consequently, the counsel for various members of the woman’s family advised the court by letter that the woman had performed a will in which members of the woman’s family and the family of her late husband was named as the beneficiaries and co-administrators. A copy of the will was provided to the court, but counsel advised the court that the original signed document had not been located. The counsel then stated that the family members intended to prove that the given will was obtained by the caregiver by means of fraud and undue influence. Moreover, they alleged that the woman was not of sound mind or memory, not capable of making a will and that the will was not properly completed. Afterwards, the copy of the letter was sent to the caregiver’s counsel. Brooklyn Probate Lawyers said the letter also accused the caregiver of committing perjury when she made sworn statements in her petition that the woman left no heirs. As a result, the counsel of the woman’s family demanded that the petition for probate be modified to reflect the woman’s beneficiaries.

The caregiver filed a permission to change her attorney and after two months, she filed again another permission to change to another attorney. Consequently, the caregiver filed a revised petition where she was not listed as an interested person. Yet another amended petition was then filed on and in that last version, the caregiver acknowledged the existence of the six alleged beneficiaries. The court did not require that a supplemental citation be served on the newly acknowledged beneficiaries and a notice of appearance on their behalf had previously been filed. The caregiver’s attorney did not provide the counsel of the woman’s beneficiaries with a copy of the second revised petition or advise him or his clients that it had been filed.

The caregiver’s attorney asserts that sometime he telephoned an associate of the opposing counsel with the intention of inquiring whether the objections were going to be filed, but despite the associate’s assurance that she would call back the next day, the call was not returned.

The caregiver’s attorney had decided to grant the validation of the will and a notice of settlement was served personally on the office of the counsel of the woman’s beneficiaries. Consequently, no objections were filed within five days of the date of personal service. On the basis of the information contained in the second amended petition, the will offered by the caregiver was admitted to validate.

In support of the motion to vacate the decision of validation, Bronx Probate Lawyers said the opponent argues that the motion should be granted as the opponent had previously indicated that they seek to avail themselves of the right to file objections to the validation of the will presented by the petitioner and further believe that the proceedings should take place prior to the court making any determination on the objections to be filed by the opponents. They further assert that it will never happened as the opponents were unaware of the filing of the second revised complaint by the petitioner as the same was never served on their counsel and the opponent’s counsel erroneously believed that the notice of settlement served by the petitioner was for the re-issuance of temporary letters of the validation of the will.

In opposition, the caregiver’s attorney argues that the motion must be denied, as it does not meet the standard established by the court of appeals. Bases on records, a probate decree should be vacated only if the complainant can demonstrate the facts constituting a substantial basis for challenging the offered will and a reasonable probability of success on the merits of its undue influence claim.

The opposing counsel argues that the complainants did not meet the requirements for relief from a judgment or order. On the five categories of relief, the counsel of the complainants apparently argued that the situation surrounding the failure to timely file the objections to probate give rise to an excusable default. In support of the position, the complainant’s counsel points out that the caregiver’s attorney requested that the complainant’s counsel permission for the extension of temporary letters, but then served him with a notice of settlement for full letters, without any prior notification of the change in strategy and neglected to send him a copy or give notice of the second amended petition filed with the court. The complainant’s counsel states that he was away from the office when the notice of settlement was received and further claims that he reasonably assumed that the notice of settlement was for the previously agreed upon extension of preliminary letters and therefore did not object. The counsel also asserts that he was waiting for the second amended petition to be filed, after which he intended to proceed on behalf of his clients.

Consequently, even after a will has been admitted to probate, the court may examine the issues concerning its validity and effect. Under the unique facts presented in the case, the court is not presently satisfied as to the genuineness of the woman’s will. For that reason, the court vacates its decision that permitted to probate the woman’s will. The court also vacates the letters testamentary issued to the caregiver and will reissue preliminary letters testamentary to her. The caregiver stays as administrator from making distributions or expending any funds she may have already distributed to herself and the matter will appear on the court’s calendar for conference.

If you know someone who needs immediate help with her estate related lawsuits or last will and testament, contact Stephen Bilkis and Associates for advice and a free consultation.

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