Staten Island

Published on: August 31, 2015

Court Discusses Outcome of Contested Probate Proceeding

by Stephen Bilkis

In a contested probate proceeding, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Kings County, dated April 11, 1986, as, upon a ruling made after close of all the evidence at a jury trial dismissing all her objections as a matter of law, dismissed her third objection alleging that the will was procured by the undue influence of the petitioner, admitted the will to probate and awarded letters testamentary to the petitioner.

The testimony at the trial established that the decedent MB had executed a will in 1977 which would have distributed her estate equally to her two sisters, who were then living, and the proponent of the will in question, PH, the surviving son of a third sister. In the event either of MB’s two sisters predeceased her, their shares would go to the objectant, LM, the daughter of one of those sisters. In December 1977MB fractured a hip bone and PH came to her aid and assisted her in getting to the hospital. A few days after MB’s accident, PH ended his employment as a tenured college professor and devoted his energies to assisting his aunt in her affairs, primarily acting as her financial advisor.

Specifically, MB executed a power of attorney in favor of PH; MB’s securities were removed from her safe deposit box by PH and he transferred them to a box in his name; MB’s bank accounts were transferred by PH into an account in the joint names of MB and PH, and PH signed MB’s name on the account application at her request; PH arranged for the dividend checks from MB’s securities to be deposited directly into another joint account which was opened in a similar fashion; and the bank statements from the joint accounts were sent to PH’s home although the proxy materials were sent to MB. In addition, PH assisted MB in finding various nursing homes wherein she resided after her 1977 accident and until her death in 1984.

Published on: July 19, 2015

This Case Involves the Enforcement of a Sister State Divorce Judgement

by Stephen Bilkis

This case involves the enforcement of a sister-state divorce judgment, with respect to arrears in alimony and support payments, pursuant to the Uniform Enforcement of Foreign Judgments Act (article 54 of the CPLR).

In January 1973, the plaintiff-wife commenced an action for divorce in the Superior Court of the State of Connecticut where she was then living and has continued to reside with her two minor children. While the action was pending, the parties executed a separation agreement on April 16, 1973. The agreement provided, Inter alia, for semimonthly payments to the plaintiff for alimony and child support. Thereafter on August 16, 1973, the plaintiff was granted a judgment of absolute divorce by the Connecticut court, specifically incorporating the terms of the separation agreement, the agreement surviving and not merging into the decree.

From the papers it appears that the defendant resided in Manhattan when the separation agreement was executed, and in Brooklyn when the divorce judgment was granted. There is no question of the defendant appearing in and being represented by counsel in the divorce action. Defendant currently lives in Brooklyn and is a practicing veterinarian. Plaintiff alleges that she is a housewife with part-time employment as a teacher in Stamford, Connecticut where her gross annual pay is $3,000.

Published on: July 17, 2015

Courts Discuss Notice of Pendency

by Stephen Bilkis

Upon the foregoing papers, nonparty Geneva Alston, Administrator of the Estate of Mattie Dickens, moves by way of order to show cause for an order 1) cancelling the notice of pendency filed against the subject property on May 19, 2008 by plaintiff Citimortgage, Inc, successor in interest by merger to ABN AMRO Mortgage Group, Inc. and 2) permanently barring as a lien and discharging of record a certain mortgage on the property dated August 22, 2007 given to plaintiff’s predecessor-in-interest by defendant TM, notwithstanding a recorded satisfaction of same dated December 4, 2007.

The owner of the subject property located at 748 Decatur Street in Brooklyn, having taken sole title as tenant by the entirety following the death of her husband, Pearlie Dickens. On February 9, 2006, Mattie Dickens died. The following day, TM executed a deed whereby she purportedly conveyed, as the executor of the Estate of Mattie Dickens, title to the property to herself as grantee. On July 10, 2006, TM executed a mortgage on the property in favor of Fremont Investment & Loan (Fremont) to secure a loan in the amount of $250,000.00. On August 22, 2007, TM executed a mortgage on the property in favor of plaintiff’s predecessor, ABN AMRO Mortgage Group, Inc. to secure a loan in the amount of $340,000.00. According to the settlement statement for the August 22, 2007 mortgage transaction, proceeds totaling $251,237.66 were used to pay off the prior Fremont mortgage. On September 6, 2007, Mortgage Electronic Registration Systems, as nominee for Fremont, issued a satisfaction of the prior $250,000.00 mortgage. The satisfaction of the Fremont mortgage was recorded on September 17, 2007.

On December 4, 2007, plaintiff issued a satisfaction of its $340,000.00 mortgage, apparently in error. The satisfaction of plaintiff’s mortgage was recorded on December 11, 2007. On May 19, 2008, plaintiff filed a notice of pendency on the subject property and commenced the instant action pursuant to Article 15 of the Real Property Actions and Proceedings Law (RPAPL) to vacate the December 4, 2007 satisfaction of mortgage and to restore its mortgage lien to its priority position nunc pro tunc.

Published on: July 5, 2015

Probate Court Called Upon to Interpret Will

by Stephen Bilkis

Mr. LM, a resident of Burlington, Vt., died in August, 1870, leaving a last will dated October 3, 1868, and a codicil thereto executed October 28, 1868, which will and codicil were admitted to probate in the state of Vermont on September 16, 1870, and letters testamentary thereon issued to Mrs. ALM, his widow, who was named as executrix of the will.

The testator left him surviving his widow, ALM, three sons, WM, GM and CM, and one daughter, AM, who were his sole heirs at law and next of kin. GM, one of the sons, died June 29, 1900, leaving him surviving three children, one of whom is the plaintiff in this action; Mrs. ALM, the widow, died September 22, 1904, a little over four years after the death of her son GM, the father of the plaintiff. At the time of the testator’s death his children were under age and unmarried. The testator died seized of certain real estate in the states of New York, New Jersey, and Vermont. The plaintiff brought this action to partition lands in the county of Kings in this state, asserting she had an interest therein for the reason that under the terms of the will the interest of her father, GM, one of the remaindermen, was subject to be divested by his death during the lifetime of his mother, the life tenant, and upon the death of the latter, GM having predeceased her, plaintiff with her sisters who were defendants in this action became vested with the share of their father, GM, under the will. The trial justice decided in favor of plaintiff. The judgment entered upon that decision was reversed by the Appellate Division, and the complaint dismissed. Plaintiff and her sisters, defendants, appeal to this court.

The provisions of the will of Mr. LM material to be considered here are as follows:

Published on: May 22, 2015

Court Discusses Will Provisions

by Stephen Bilkis

A New York Probate Lawyer said the holographic will of the testator, a physician, has been admitted to probate. The Court finds no difficulty in upholding the validity of the testator’s testamentary scheme as maintained by the two special guardians. Although inartistic in form the will makes testator’s intentions clear.

He first provided that if survived by his wife he gave all his ‘earthly possession to her without limitations whatsoever. In the event that I should outlive her then my estate shall be disposed of as follows.’ Then, stating that his estate was worth over $100,000, he directed the ‘administrators’ of his estate, later naming his two brothers-in-law as ‘executors and administrators,’ to pay all funeral and entombment expenses and all legitimate obligations outstanding. The rest of the will contains provisions for the use and sale of his residence, investment of estate funds, payment of annuities to his children, distribution of the whole estate to them or their children, and educational benefits to them, subject to various conditions. The testator died on January 24, 1954, survived by four children, 24, 22, 19 and 16 years old respectively at the time of his death. The three oldest children are married.

A New York Estate Lawyer said the Court construes the will as creating a single trust of his entire net estate, both real and personal, to be held until the youngest child, AB, becomes 22 years of age, to wit, July 29, 1960, or his earlier death. The alternative is not specified in the will but is supplied by law, thus avoiding invalidity of the trust by reason of a fixed termination date. The insertion of the date, July 29, 1960, was merely to indicate the date on which the youngest child would attain his twenty-second birthday and not to fix a date for the termination of the trust or that it was, in all events, to continue until that time. During the continuance of the trust or until the real property is sold any unmarried children may live in the residence mentioned in the will sharing the fixed charges and maintenance expenses of the property.

Published on: May 9, 2015

Probate Court Conducts an Accounting Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that records show that in the instant case, the decedent died on August 27, 2003 a resident of New York. She was survived by her son and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate on November 12, 2003 and letters testamentary issued to the executor for estate administration. The will provides that the residuary estate be divided equally between the two children but that the daughter, if unmarried, be given a two year right to occupy the decedent’s home provided she pay real estate taxes. The daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

Submitted for decision in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by him.

The court ruled that, as with any request for a fee, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate regardless of a retainer agreement. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: March 31, 2015

petitioner Seeks Interpretation of Tax Clause in Will

by Stephen Bilkis

The executors have requested construction of several provisions of Mrs. VK’s will admitted to probate in 1969.

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Probate Lawyers said the principal problem concerns the meaning of the tax clause. Since the bulk of the estate consists of stock in a family corporation, construction of the tax clause in turn may require a section 303 Internal Revenue Code stock redemption to meet the tax obligation.

Published on: March 26, 2015

Petitioner Brings Suit for Breach of Fiduciary Duty and Legal Malpractice

by Stephen Bilkis

A Probate Lawyer said that, in an action, inter alia, to recover damages for breach of fiduciary duty and legal malpractice, the defendant appeals from an order of the Supreme Court, Kings County, dated June 21, 2005, which denied his motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaint for failure to state a cause of action and on the ground that a defense was founded upon documentary evidence.

A Kings Probate Lawyer said that, the plaintiff and her young daughter were beneficiaries of the estate of the plaintiff’s mother. The defendant, an attorney, was retained by the plaintiff’s brother, as the executor of the estate, to probate the will and collect the assets of the estate. In November 2004 the plaintiff commenced this action to recover damages for breach of fiduciary duty, legal malpractice, and negligent misrepresentation. In a vague and mostly conclusory amended complaint, the plaintiff asserted three causes of action against the defendant. The first cause of action alleged that in December 2001 the defendant, acting as a fiduciary, was negligent in securing the sum of $297,000, which was intended for the plaintiff and her child, by not giving the money to the plaintiff. The second cause of action alleged that the defendant “negligently represented to the plaintiff that he was her attorney” and that he negligently “drafted a will, deed, and several other documents” to the plaintiff’s detriment. The third cause of action did not recite any theory of recovery but simply sought an award of an attorney’s fee. The amended complaint also requested punitive damages. The defendant moved to dismiss the amended complaint pursuant to CPLR 3211 (a) (1) and (7) for failure to state a cause of action and on the ground that a defense was founded upon documentary evidence. The Supreme Court erred in denying the motion.

The issue in this case is whether plaintiff is entitled to recover damages for breach of fiduciary duty, legal malpractice, and negligent misrepresentation.

Published on: March 24, 2015

Court Hears Attorney Malpractice Action Regarding Probate Case

by Stephen Bilkis

A Probate Lawyer said that, in a malpractice action brought against an attorney-at-law by a named devisee, who was allegedly deprived of his devise as a result of defendant’s negligence in causing plaintiff to act as an attesting witness to the execution of the will, defendant moves for judgment under Rule 107, subd. 5, Rules of Practice, upon the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon. Since the argument of the motion the plaintiff has served an amended complaint. By consent of the parties it is the amended complaint, now alleging three causes of action instead of one, which the court presently has under consideration.

A Kings Probate Lawyer said that, the first and second causes of action are grounded in negligence, while the third seeks to allege an action in fraud. The facts are simply stated in the complaint. In January 1953 the plaintiff and his mother engaged the professional services of the defendant to prepare a last will and testament for the plaintiff’s mother. The said will included a devise of specific real property to the plaintiff. The defendant ‘negligently requested the plaintiff to be an attesting witness to the will.’ Presumably at about the same time as the hiring, plaintiff did act as one of two attesting witnesses to the execution of the will. The defendant retained possession of the will thereafter, though for what purpose is not revealed. Plaintiff also alleges as negligence, in his second cause of action, that ‘holding the will and not informing the plaintiff or the plaintiff’s mother’ that the devise to the plaintiff was void by virtue of plaintiff’s having acted as a witness thereto. About seven years later, in December 1959, the mother died. The will was thereafter, in January 1960, filed for probate in the Surrogate’s Court. It was then that plaintiff allegedly discovered that the devise to him had been voided by having acted as an attesting witness. As a third cause of action the complaint alleges, without other supporting evidentiary facts, that the plaintiff was damaged ‘by reason of the deceit of the defendant in connection with the possession of the will from the time of the execution of the will to the time of the filing of the will and the defendant’s actions prior to and subsequent to the death of the plaintiff’s mother.’ Under the foregoing ‘deceit’ allegation, plaintiff demands treble damages pursuant to Section 273 of the Penal Law.

A New York Estate Lawyer said in this motion plaintiff argues that no actionable wrong was committed at the time the will was drawn. He claims that ‘the cause of action accrued only when the plaintiff suffered the actual damage,’ and that ‘injury was not produced until the death of the testatrix and the filing of the will’. Plaintiff contends, that a cause of action ‘accrues only when the forces wrongfully put in motion produce injury.’ Plaintiff’s principal argument appears to be that defendant was under a duty during the seven-year period, when he had possession of the will, ‘to contact the testatrix or the plaintiff and advise either of them that the will was defective,’ ‘that the negligence of the defendant continued during the period,’ and the ‘defendant’s failure to avert danger to the plaintiff’s property constituted further and continuing negligence.’

Published on: March 21, 2015

Defendant Claims That Plaintiff Should Have Applied for Guardian Ad Litem Proceeding

by Stephen Bilkis

Defendant moves, pursuant to subdivision 8 of Rule 107 of the Rules of Civil Practice, to dismiss plaintiff’s complaint on the ground that the cause of action cannot accrue against the infant defendant because of his infancy.

Probate Lawyers said the action is brought by the infant plaintiff against the infant defendant for a separation on the ground of alleged cruel and inhuman treatment. It appears from the papers before the court that both of the parties are under 21 years of age. Before instituting this action, plaintiff applied for and secured the appointment of a guardian ad litem. Thereafter, the summons and complaint were served upon both the infant defendant and his father with whom he resided. Defendant now asserts that plaintiff should have applied for the appointment of a guardian ad litem for the defendant before making service of the summons and complaint herein.

A New York Estate Lawyer said the issue before the court is whether it is the obligation of the plaintiff to apply for and secure the appointment of a guardian ad litem for the defendant prior to the service of process, or whether it is the obligation of the defendant, after having been served with the summons and complaint, to himself apply for such relief.