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Family Brings Estate Administration Action


A woman resident of Israel died. She was survived by her husband and three children. The middle child filed a petition for letters of estate administration. The middle child’s petition alleged that her mother was an heir of the estate of her uncle and that the Chase Bank, which was the administrator of his uncle’s estate, failed to fully distribute the estate’s assets. The middle child petitioned for letters of estate administration to pursue the claim. The youngest daughter consented to her sister’s appointment. The eldest daughter of the woman who resides in Israel was served by mail and defaulted. Letters of estate administration were issued to the middle child of the deceased woman.

Eight months later, the middle child brought a proceeding to compel the bank to account for its administration of his deceased uncle’s estate. Shortly thereafter, a New York Probate Lawyer said the eldest daughter initiated proceedings in Israel to probate her mother’s will. The instrument left the deceased woman’s estate to her husband. If the husband predeceased her, the middle child receives $1 and the rest of the children will receive the balance of her estate in equal shares. The husband had died as a resident of Israel. His will was admitted to probate in Israel. Under his will, he left $1 to the middle child, $3,000 to the youngest daughter and the balance to the eldest daughter. The eldest daughter is the executrix of her father’s will and the nominated executrix under the proffered Israeli will of her mother.

The middle child filed objections in Israel to the probate of the Israeli will on the ground that her mother lacked testamentary capacity. Brooklyn Probate Lawyers said she also brought a proceeding in Israel to vacate the decree probating her father’s will. The eldest daughter and the bank, acting as trustees of the trust created for the deceased woman under the will of another brother, moved to vacate the letters of administration issued to the middle child. They claimed that the letters should be vacated because the deceased had a will, there were material misstatements in the petition for letters of administration, and she was not fit to serve as fiduciary.

The middle child and the youngest daughter have adopted identical positions in the estate litigation. For purposes of clarity, the court referred to their actions and positions as those of the administrator. The middle child filed an answer, alleging that the bank had no standing in the proceeding and that there had been no material misstatements of fact in the petition for the letters of administration. She claimed that their sister and the bank instituted the proceeding to vacate her letters of administration for their own nefarious reasons. She filed the instant order to show cause to enjoin the eldest daughter from prosecuting the probate proceeding in Israel but she did not reply to the motion.

A non-resident who commences a proceeding in New York confers personal jurisdiction on the court. In a proper case, it includes the authority to enjoin a party from prosecuting a related action in any other state or country. Bronx Probate Lawyers said the only question is whether the administrator has presented a proper case for injunctive relief.

An application for injunctive relief is addressed to the discretion of the court. To obtain a preliminary injunction, the applicant must show that he or she is likely to succeed on the merits, he or she risks irreparable injury without the injunction, and the equities favor the granting of an injunction. Injunctive relief is a drastic remedy. Accordingly, the applicant must show a clear right to relief.

The middle child has failed to establish a right to relief on a number of grounds. The application for injunctive relief is procedurally defective. The administrator seeks injunctive relief in a motion. The court cannot grant injunctive relief on an application made by motion only. To grant injunctive relief, the administrator must claim some right to affirmative relief. In her answer, the administrator does not seek affirmative relief. Without a pleading seeking affirmative relief, the court cannot grant injunctive relief. The requirement of an affirmative pleading is especially critical where the granting of the application would leave the issue of the validity of the deceased person’s will in permanent limbo. The administrator seeks to enjoin their sister from proceeding in the only court where the issue is raised. The result would be to, in effect, deny probate to the Israeli will without any hearing on the merits.

Lest the middle child be under some misapprehension, even if the objections were amended to request affirmative relief, injunctive relief is not available on the facts of the case. It is not clear that the court has the authority to entertain a petition to deny probate of a foreign will. There is no express statutory authority for such a suit. The law authorizes proceedings to probate a foreign will, as long as there is property to be administered.

Restraint of a foreign proceeding is such extraordinary relief that it should only be granted in exceptional circumstances. The middle child claims that the Israeli proceeding is fraudulent. There is nothing in the record to support the conclusive allegation. The fact that there has been a substantial delay in offering the instrument for probate is not evidence of fraudulent intent or delay that invokes the equitable doctrine of latches.

The middle child claims that her sister conspired to conceal medical evidence that would prove her mother lacked testamentary capacity. The only medical evidence identified is a letter from one of their mother’s treating physicians to her New York trustee describing the need for funds for her condition. This letter has been furnished to the applicants pursuant to this court’s decision in a related will contest trust accounting.

The middle child argues that Israeli probate procedure does not provide for comprehensive discovery. In support, she attaches an affidavit by an Israeli attorney that Israeli law does not include extensive pretrial procedures and many of the procedures allowed by law are not often used. The fact that the rule in the foreign state as to evidence is less liberal than that of New York is not sufficient to take the extraordinary step of enjoining a probate proceeding in the state of the domiciliary. Nor is the claim that the applicants will be required to incur the inconvenience or expense of litigating in foreign court sufficient to grant an injunction against the foreign proceeding.

The middle child argues that the Israeli proceeding should be enjoined because it threatens to interfere with the court’s jurisdiction and her mother’s estate administration. She claims that the eldest daughter brought the Israeli proceeding as part of a scheme to deprive the middle child of standing in her suit against the bank. On a superficial level, she is correct. It is always the case that the probate of an instrument after letters of administration are entered will affect the estate administration. Prosecution of the Israeli probate proceeding will not affect the authority of the court to determine the administrator’s claims of malfeasance in the estate of the deceased brother. It will only determine the appropriate parties to the estate litigation.

Finally, the middle child argues that the Israeli proceeding should be enjoined because Israeli courts will not accord comity to New York’s granting of letters of administration. However, comity is not a strong factor where probate is involved.

If New York courts would not apply comity to refuse to entertain the probate of the will of a non-domiciliary where letters of administration were issued by a sister state where the deceased was residing, there is no reason for the Israeli courts to apply comity to refuse to entertain the probate petition of the will of a domiciliary merely because the court has issued letters of estate administration.

For the above reasons, the application for an injunction prohibiting the eldest child from prosecuting in Israel the proceeding to probate the instrument dated January 12, 1987 is denied.

Family disputes arise when properties are not properly distributed however, there are situations that one particular child is trusted more than the other. When you encounter these kinds of situation, you may contact a Kings County Probate Lawyer or a Kings County Will Contest Attorney. Stephen Bilkis and Associates can also provide you with the most sought after Kings County Estate Lawyer to help you with your property related legal actions.

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