Suffolk County

Published on: October 24, 2014

Decedent’s Granddaughter Alleges Failure of Due Execution, Fraud

by Stephen Bilkis

New York Probate Lawyer said that on 20 March 2012, the decedent at the age of 107 years old died and left a will dated 1 August 1991. She was survived by three distributees, her daughter and the nominated executrix, OJ, and two grandchildren, AC and CC, children of decedent’s predeceased son, AKC.

A New York Estate Lawyer said that under the propounded instrument, after several pre-residuary cash bequests, the decedent left her real property to her daughter, and if her daughter predeceased her, to her son, the sole residuary beneficiary. On 30 September 1997, the first codicil to the propounded instrument was executed which added a few small pre-residuary cash bequests. On 3 September 1999, the second codicil was executed which again left the decedent’s real property to her daughter but in the event that her daughter predeceased her, such property was to be divided equally among her daughter’s three children subject to a life estate in decedent’s son-in-law, KJ.

Westchester County Probate Lawyers said that consequently, after the decedent’s death, the nominated fiduciary filed the probate petition.

Published on: October 14, 2014

Summary Judgment Motion Filed Based on Testamentary Capacity

by Stephen Bilkis

A New York Probate Lawyer said in this Will Contest proceeding, the decedent died in May 2006, survived by his wife and their two children, the proponent and the objectant. The wife suffers from Alzheimer’s disease. Her cousin and an attorney, were appointed her guardians pursuant to Article 81 of the Mental Hygiene Law and they have appeared for her in this proceeding. They filed a notice of election on her behalf.

A New York Estate Lawyer said that the proponent filed the petition for probate in June 2006 and jurisdiction was obtained over all necessary parties in August 2006. The propounded will leaves nothing to objectant, allegedly because the decedent believed that she had converted assets worth $3 million from him and from the wife by use of a power of attorney they had given her. In fact, he pressed criminal charges against her which resulted in her plea of guilty to a Class A misdemeanor. The objectant filed objections to probate; however, she never appeared for her deposition in this proceeding, nor did she ever produce any documents demanded by petitioner. Her initial reason for seeking to delay her deposition was that doing so would violate her Fifth Amendment right against self-incrimination. However, she never appeared for deposition even after the conclusion of the criminal matter when she no longer had a claim of constitutional privilege. She then averred that she was suffering from a psychological condition which prevented her from being deposed. Being unconvinced of that contention, the court, by decision and order, granted the summary judgment motion to the extent that objectant’s objections of fraud and undue influence, upon which the objectant bears the burden of proof, were dismissed.

Regarding petitioner’s motion for summary judgment, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in contested probate proceedings is appropriate where a contestant fails to raise any issues of fact regarding execution of the Will, testamentary capacity, undue influence or fraud.

Published on: October 13, 2014

Respondent Allegedly Fails to Comply with Document Production Request

by Stephen Bilkis

A New York Probate Lawyer said one of the decedent’s sons, the objectant in a probate proceeding and the petitioner in an administration proceeding that was consolidated with the probate proceeding, has now noticed for settlement a decree dismissing the probate petition. He has also moved to have his application for letters of administration restored to the calendar. The decedent’s daughter, the proponent in the probate petition, opposes her brother’s applications and, in effect, seeks to vacate her prior default in her brother’s motion to dismiss her probate petition.

A New York Estate Lawyer said that the decedent died in June 2000 survived by three children. The probate petition was filed in October 2001. The propounded instrument provides for an equal distribution of the estate between the two children other than the objectant. It appears from allegations made in the pending applications that the decedent’s other son, the beneficiary of 50% of the estate under the propounded instrument, died in April 2006 and that he was not married and did not have any children.

Suffolk County Probate Lawyers said the objectant made several applications in the probate proceeding for relief based upon the proponent’s failure to provide requested discovery. The court’s last determination on this issue directed the production of certain documents by the proponent by August 2005. After the August deadline passed without production of the additional documents, the objectant moved to dismiss the probate petition and the proponent’s counsel moved to withdraw from representing her, alleging that she had failed to keep appointments necessary to comply with the court’s directions.

Published on: September 16, 2014

Issue in this Case is Whether Deceased had Testamentary Capacity

by Stephen Bilkis

A New York Probate Lawyers said that, this is an appeal from a decree of the Surrogate of Bronx County, based on a jury verdict, denying probate. Proponent was the attorney for the deceased more than 20 years. The propounded will, dated December 29, 1963, and a prior will, dated November 13, 1950, had been drawn by proponent. The witnesses to the propounded will subscribed the testimonial clause. They were the proponent, his wife, and a neighbor of decedent, presently incapacitated. At the time of the execution of the propounded will, decedent was 81. Prior to December 26, 1963, although with symptoms of rheumatoid arthritis, decedent enjoyed good physical and mental health, had full possession of all his faculties, and was in full and personal charge of all his financial and personal affairs. The family physician, on December 26, 1963, examined decedent, observed symptoms of an upper respiratory infection with low grade temperature, and prescribed an antibiotic and rest. He thereafter treated the deceased daily at his home. On January 1, 1964, there appeared positive symptoms of pneumonia, and he was hospitalized. He died January 2, 1964.

A New York Estate Administration Lawyer said that, the sole beneficiary and named executrix under the propounded will is his widow, now deceased. They had been married 29 years. There are no issue. Decedent’s other distributees are two brothers in New York, and a brother, four nieces and a nephew in Italy. Decedent was estranged from one of his New York brothers. Decedent’s attorney testified he had several talks with decedent and his wife prior to December, 1963, regarding a new will. The 1950 will passed the residue of the estate to the wife after providing for legacies to a brother in New York and his two children, and a brother in Italy. Decedent instructed the attorney to prepare a will bequeathing his entire estate to his wife. The attorney complied by preparing the propounded will. On December 26, 1963, an appointment was made for the execution of the will at decedent’s home on December 29, 1963. It was executed and witnessed at about 4 P.M. on said date.

A Bronx Estate Administration Lawyer said that, the family doctor testified he treated the deceased on December 29, 1963, at 9 A.M., conversed with him, and found him perfectly normal mentally and physically, except for his cold symptoms. The attorney and his wife were with the deceased on said date between 2:30 P.M. and 5 P.M., and conversed with him at length on the contents of the will and their respective families. Their testimony is the decedent was mentally alert, rational and sociable. A neighbor, visited with decedent and his wife on said date between 5:30 P.M. and 8:30 P.M. Contestants’ witnesses, were present when she arrived, but departed before her. There was conversation in which decedent participated, and he enjoyed cookies which had been baked and brought by Vera.

Published on: September 3, 2014

Court Discusses Pour Over Will and Intervivos Trust

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will “pours over” into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

A New York Estate Lawyer said that on 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the “F Revocable Trust U/A dated 24 October 2003.” At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent’s long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent’s assets were transferred to the trust while he was alive. As a result, the will was designed to be a “catch all” so that any stray assets left in the decedent’s estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

Published on: August 20, 2014

Court Decides Case Regarding Letters Testamentary

by Stephen Bilkis

This is a probate proceeding in which objections have been filed to the granting of letters testamentary to an attorney who is the executor named in the decedent’s will.

A New York Probate Lawyer said that Decedent died in July 1970, leaving a will which gave her entire estate to her husband and named the proponent as executor. The husband having predeceased the testatrix, the propounded paper will have no effect as a testamentary instrument to dispose of decedent’s estate and accordingly, her property which consists primarily of a two-family house will pass as in intestacy. The distributees of the testatrix are two brothers and a sister who are residents of Italy and a nephew and niece residing in New York who are children of a predeceased sister.

It is alleged that a day or two after the death of the decedent, the executor named in decedent’s will received from decedent’s step-son who had been residing with decedent, papers and documents relative to the affairs of the decedent including the deed to premises, and a paper writing purported to be decedent’s last will and testament. After a passage of time in which efforts were made by the nephew and niece to ascertain without success whether there was in fact a will, the nephew and niece filed a petition in this court for letters of administration. Thereafter, letters of administration were granted to the nephew and niece.

Published on: July 23, 2014

The Issue in this Case is Whether Attorneys Fees Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A New York Will Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

Westchester County Probate Lawyers said the issue in this case is whether the attorney’s fee should be granted by the court.

Published on: July 9, 2014

Court Determines Legal Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A Nassau Estate Litigation Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

The issue in this case is whether the attorney’s fee should be granted by the court.

Published on: June 21, 2014

Will Challenged on the Grounds of Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding where JPM Bank (JPM), co-executor, moved pursuant to CPLR §5015(a)(2) to vacate the decree admitting to probate the decedent’s will dated 24 June 2005 (2005 Will) due to newly discovered evidence. Several charities, the residuary legatees under a prior instrument that are adversely affected by the 2005 Will, join in the application; and, movants seek removal of JPM’s co-executors and appointment of JPM as sole preliminary executor.

The following are the pertinent events that took place:

On 12 September 2005, the decedent died at the age of 93 years. He was survived by two nephews, MF and SF, and the issue of a predeceased nephew. On 21 February 2006, the 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to JPM, MF and ME.

Published on: June 20, 2014

Court Decides if Former Counsel is Entitled to Legal Fees

by Stephen Bilkis

A New York Probate Lawyer said that, in this estate, there are two separate proceedings to fix legal fees. In the first, the executor, the decedent’s nephew, petitions to fix and determine the reasonable legal fee and disbursements to be awarded to his former counsel, at an amount less than the $14,200 in legal fees and $1,415.37 in disbursements billed and sought by the said counsel. The counsel cross petition for an order fixing his fees and disbursements in the billed amount. The second proceeding pursuant to SCPA 2110, commenced by him, seeks an award of $9,590, including $340 in disbursements, for legal services rendered to a former client, the decedent’s daughter-in-law. The latter opposes the petition and cross-petitions to fix and determine his reasonable attorney’s fees and disbursements contending, inter alia, that the legal fees, to the extent valid, should be borne by the estate. The parties agreed to submit the issues in each proceeding on the papers, without a hearing.

A New York Will Lawyer said that, the decedent died on August 4, 2006. Letters testamentary issued on October 30, 2006. The decedent’s daughter-in-law and the decedent’s two grandchildren, the decedent’s only distributees, each receive one-third of the residuary estate. The share of each grandchild is to be held in trust until that grandchild reaches the age of 30 years. Although the counsel’s representation of the executor in connection with this estate commenced on or about August 11, 2006 upon the filing of the petition for letters testamentary, the executor did not execute a retainer agreement, setting an hourly rate of $250, until January 14, 2007. The probate petition indicated that the estate consisted of personal property valued at $137,000 and certain Bronx realty valued at $500,000. Thereafter, the executor filed an affidavit increasing the value of the personal property to $154,360.56 and the realty to $569,000.

A Bronx Estate Administration Lawyer said that, the counsel’s legal bills reveal that as of the date of the filing of the probate petition, he was in possession of a deed of the Bronx realty which was executed by the decedent on May 21, 2000, over six years prior to her death. The deed conveyed the realty to the decedent’s daughter-in-law while reserving to the decedent a life estate. Upon learning of the decedent’s death, the attorney who prepared and oversaw the execution of the deed provided it to him, who included the value of the realty in the probate petition. Following the admission of the will to probate, the executor and the counsel began collecting assets; in particular, they sought a date of death appraisal of the Bronx realty and personal property contained therein, and contacted brokers in order to sell the realty. The counsel’s bill reflects his involvement in meetings at the Bronx realty with the executor and appraisers, in obtaining brokers and receiving proposals from interested buyers and in drafting contracts of sale, although no closing ever occurred. During this time, it appears that disputes arose between the executor and the decedent’s daughter-in-law or her children concerning the sale of certain personal property, and the sales price of the Bronx realty. In addition, when the decedent’s granddaughter reached the age of 30, she requested through her mother a $10,000 distribution and, in response, the executor sent $6,000 instead of the $10,000 requested. These events prompted a January 3, 2008 letter from the counsel to the executor stating, inter alia, that he concurred with her recent rejection of an offer on the Bronx realty, and the executor should issue a check in the requested amount to the granddaughter and provide him and her with an accounting and cancelled checks for all expenses.