Estate Administration

Published on: March 11, 2014

Court Discusses Appointment of Guardian Ad Litem

by Stephen Bilkis

A New York Probate Lawyer said in this probate proceeding, the guardian ad litem for the decedent’s minor children has submitted a preliminary report wherein she recommends that the purported will be admitted to probate if construed and/or reformed as suggested in her report.

A New York Will Lawyer said that the decedent died in June 2006, a resident of Nassau County. The decedent was survived by her husband and her two minor daughters. The will offered for probate is dated October 20, 2000. The will nominates the decedent’s husband as executor. Preliminary letters testamentary issued to the decedent’s husband on June 21, 2006. The gross testamentary estate is valued between $10,000,000 and $15,000,000.

A Long Island Probate Lawyer said the purported will disposes of the residuary estate in two parts, Fund A and Fund B. Fund A is given to a trust for the decedent’s husband for his life with the remainder payable to the decedent’s two children, or the survivor of them. Fund B, is given to the decedent’s husband outright. The proffered will directs that estate taxes, or similar death taxes, with respect to testamentary assets are to be paid out of Fund B. Article Third expresses the decedent’s intention to take maximum advantage of the available tax benefits so that there will be no federal estate taxes due with respect to her estate.

Published on: March 10, 2014

Court Rules on Stipulation of Settlement

by Stephen Bilkis

In connection with a petition for probate, the court has before it for review a stipulation of settlement which was expertly negotiated and crafted by the guardian ad litem appointed to represent the interests of decedent’s sister.

A New York Probate Lawyer said that decedent, a resident of New Hyde Park, Nassau County, died in February 2009, leaving a last will and testament. She was survived by 19 statutory distributees, including four siblings and the 15 children of four predeceased siblings.

The propounded instrument leaves all of decedent’s property in three equal shares, two of which pass to decedent’s sisters. The will directs that the third equal share be paid over to decedent’s niece, who is the nominated executor and the petitioner herein. It makes no mention of decedent’s third surviving sister, who suffers from Alzheimer’s disease.

Published on: March 9, 2014

Petitioner Claims Fiduciary is Unable to Serve

by Stephen Bilkis

A New York Probate Lawyer said the decedent died in January 2008 in Moscow, Russia, leaving a purported will which nominates the decedent’s attorney, and respondent, as executors. Preliminary letters testamentary issued to them by decree of this court in April 2008. The purported will bequeaths the decedent’s 75% interest in the Corporation to Petitioner, who allegedly owns the other 25% interest in the Corporation. The lawyer claims that he is the president of the Corporation and has been so since its formation in 2005. At the time of the decedent’s death, the Corporation owned real property and two automobiles. The purported will also include a $300,000.00 cash bequest to the respondent.

A New York Will Lawyer said that Petitioner is one of three women who were allegedly married to the decedent at the time of his death. She claims she married the decedent in December 2007, after his divorce from a former spouse became finalized in September 2007. The former spouse has filed suit in Russia attempting to invalidate the marriage between the petitioner and the decedent on the grounds that the divorce was invalid. The parties disagree over the status of the Russian proceeding. The preliminary executors contend that the Russian courts have determined that the divorce was not valid and that the determination is final. Both of them have filed a Notice of Right of Election in the probate proceeding.

Suffolk County Probate Lawyers said the petitioner has filed objections to the will, limited to the appointment of the fiduciaries. A guardian ad litem was appointed for the decedent’s child, who is eight years old. The child lives with the petitioner at the Peachtree Lane property. The guardian ad litem has filed his report wherein he has stated that he will not be filing objections to the purported will pursuant to a stipulation of settlement. Pursuant to the terms of that stipulation, the lawyer has agreed to assign to the son one-half of whatever she ultimately receives under the will. The court has authorized the guardian ad litem to sign the stipulation on behalf of his ward.

Published on: March 7, 2014

Court Hears Case Regarding Validity of Will

by Stephen Bilkis

A New York Probate Lawyer said in this contested probate proceeding, the proponent moves for an order granting summary judgment dismissing the objections and admitting the will to probate. The youngest son of the deceased man cross-moves for summary judgment to authorize the immediate distribution of $2,000,000.00.

A New York Will Lawyer said the man died on at the age of 81. He was survived by his three adult children as his sole distributees. The eldest son is the petitioner; the daughter is the objectant. The youngest son has filed an affirmation in support of his brother’s motion for summary judgment.

The instrument offered for probate was allegedly executed on August 28, 2010. It contains pre-residuary totaling to $525,000.00 bequests $100,000 to the eldest son’s wife, $100,000 to the eldest son’s child, $150,000 to the decedent’s sister, $100,000 to the decedent’s niece, and $75,000 to the decedent’s friend. The residue is bequeathed 2/3 to the eldest son and 1/3 to the youngest son. The daughter is expressly disinherited. She filed objections to probate alleging that the will was not duly executed, that the decedent lacked the capacity to make a valid will, and that the instrument is the result of undue influence and fraud having been perpetrated on the decedent by his eldest son.

Published on: March 4, 2014

Court Discusses Case Involving In Terrorem Clause

by Stephen Bilkis

A New York Probate Lawyer said a petition for the probate of an instrument dated 11 March 2008 was filed by the nominated executor before the court along with the recovery of property alleged to be an asset of the estate pursuant to SCPA 2103.

A New York Will Lawyer said the parties are: petitioner, the nominated executor; and, respondents, the children of decedent and children of a predeceased son.

The respondents seek: a stay of the probate proceeding pending conclusion of the SCPA 2103 proceeding; a stay of the probate proceeding pending a construction of the in terrorem clause in the instrument offered for probate; an order granting petitioner the right to depose the nominated successor executor prior to filing objections; and, an order granting petitioner the right to depose the nominated successor executor and attorney-draftsman of a prior instrument purporting to be the last will and testament of decedent, again, prior to the filing of objections.

Published on: March 3, 2014

Court Rules on Case Involving a Terrorem Clause

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is a petition for the probate of an instrument dated March 11, 2008. Petitioner is the nominated executor. Respondents are children of decedent and children of a predeceased son. Also pending before the court is a proceeding by the nominated executor for the recovery of property alleged to be an asset of the estate (SCPA 2103). The examinations of the attorney-draftsman, the nominated executor, and the attesting witnesses have been completed.

A New York Will Lawyer said that, on this motion, respondents seek: (1) a stay of the probate proceeding pending conclusion of the SCPA 2103 proceeding; (2) a stay of the probate proceeding pending a construction of the in terrorem clause in the instrument offered for probate; (3) an order granting petitioner the right to depose the nominated successor executor prior to filing objections; and (4) an order granting petitioner the right to depose the attorney-draftsman of a prior instrument purporting to be the last will and testament of decedent, again, prior to the filing of objections.

A Nassau Estate Litigation Attorney said that, in support of that branch of the motion which seeks a stay of this proceeding pending a construction of the instrument offered for probate, petitioners allege that the in terrorem clause violates public policy. An issue as to whether a provision of a last will and testament violates public policy must be resolved by construction of the instrument to determine the testator’s intent and the effect of the provisions on the persons to be influenced. However, the court has no authority to construe a will before its admission to probate. That branch of the motion is therefore denied.

Published on: March 1, 2014

Court Discusses Case Regarding CPLR 3101 (a)(4)

by Stephen Bilkis

A New York Estate Lawyer said that, in this probate proceeding the contestants move pursuant to CPLR 3101(a)(4) for an order to examine on oral questions non-parties and to direct them to produce certain books and records relating to the decedent. The non-parties are the Nassau County Police Department and the Nassau County Social Services Department. The relief sought is based on an affidavit prepared by the contestants’ attorney, wherein he states that the Nassau County Police Department and the Nassau County Social Services Department are in possession of information which will aid him in the preparation for trial.

A New York Will Lawyer said that, the Nassau County Police Department states that there is only one police blotter relating to the decedent and that it has attached a copy of same to its reply. It states that there are no other police blotters. The movants also request the examination of the lieutenant. The Police Department, in its reply, indicates that there is an Inspector but that it does not know specifically what information he would have. The proponent argues that the contestants have failed to show special circumstances for the examinations. Both the proponent and the Nassau County Social Services Department object to the production of records held by the Social Services Department and to the examination of any of its employees because they contend that such records are confidential and are not discoverable.

Westchester County Probate Lawyers said the issue in this case is whether proceeding the motion pursuant to CPLR 3101(a)(4) for an order to examine on oral questions non-parties and to direct them to produce certain books and records relating to the decedent should be granted.

Published on: February 28, 2014

Court Determines Possible Violation of No Contest Clause in Will

by Stephen Bilkis

In this Probate action, a daughter of the decedent filed a motion to stay the entry of a decree admitting the propounded instrument to probate; for an extension of time to file objections; for leave to examine the proponent and for a construction of the effect of a no-contest clause contained in the instrument offered for probate.

A New York Probate Lawyer said that the instrument offered for probate contains a clause revoking any bequest to any beneficiary who opposed probate of the will, participated in actions to set aside or invalidate any of its provisions or who aided another in doing so. The movant requests that prior to a determination of her application to examine the proponent, the court construe the clause and determine whether the examination would be in violation of the no-contest clause. The court may not construe an instrument prior to its admission to probate as a valid will. While there may be a construction of a will in a probate proceeding, this must come only after probate has been decreed for the reason that until the instrument has been probated, there is nothing before the court to be construed. Although the court cannot reach a construction of the specific clause of the proposed instrument it may determine whether the examination of the proponent amounts to conduct permissible under the public policy declaration in EPTL 3–3.5 as conduct not in violation of any no-contest clause.

A New York Will Lawyer said aso called In terrorem or no-contest clause is operative according to its terms subject to the provisions which spell out with particularity the conduct by the beneficiary or other person which does not, as a matter of substantive law, constitute a breach of a no-contest condition in a will occasioning a forfeiture of a benefit under the will.

Published on: February 27, 2014

Petitioner Files Motion to Dismiss for Lack of Jurisdiction

by Stephen Bilkis

This is a motion to dismiss a petition for original probate for lack of jurisdiction, both as a matter of law in the exercise of the court’s discretion.

A New York Probate Lawyer said that decedent died in New Hampshire. Decedent was a non-resident of New York. The proponent-executrix, decedent’s widow, contends that decedent was and that she is a domiciliary of Vermont and that decedent was a citizen of the United States. The moving party, decedent’s daughter, contends that decedent was a domiciliary of Zurich, Switzerland and that he had dual nationality being a citizen both of the United States and of Switzerland. The moving party is herself a domiciliary of Spain.

A New York Will Lawyer is claimed that 90% of the assets of the estate are in a custody account in New York. There are some assets both in Switzerland and in Vermont including a house in Vermont and an apartment in Zurich. The propounded will was executed in New York and contains a clause directing that the construction of the will and the administration of the estate shall be governed by the laws of the State of New York. Two of the three subscribing witnesses to the will were stated in the will to be residents of New York and the third a resident of New Jersey. The substituted executors named in the will are apparently residents of New York. So far as appears, no probate proceeding or other proceeding for the administration of decedent’s estate is pending in Switzerland or Vermont or anywhere but in New York.

Published on: February 23, 2014

Petitioner Alleges Undue Influence Regarding Will Execution

by Stephen Bilkis

Decedent died in September 2005 at the age of 93, survived by two nephews, and the issue of a predeceased nephew. The 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to co-executors.

A New York Probate Lawyer said that in August 2006, a legatee of a small bequest discovered that decedent’s testamentary plan had been revised significantly from her penultimate will2 and, further, that decedent’s long-time attorney, had not supervised the 2005 Will’s execution. As decedent’s friend and investment advisor, the legatee had almost daily conversations with decedent and her home attendants in the months preceding execution of the 2005 Will.

A New York Will Lawyer said as he worked on an active trading floor, these telephone calls were recorded. The legatee recalled having had several conversations between March 2005 and May 2005, in the months after decedent had suffered a stroke and preceding execution of the 2005 Will, in which it seemed co-executors were assuming increased control over decedent’s finances and were pressuring decedent to change her will. Legatee requisitioned the tapes of those calls and brought the transcripts to the attention of the other co-executors. The transcripts, including conversations directly with decedent, depict behavior by co-executors that supports an allegation of undue influence.