Bronx

Published on: November 16, 2015

Widow Refuses to Submit Will to Probate

by Stephen Bilkis

In a probate proceeding, the decedent’s widow, appeals from stated portions of a decree of the Surrogate’s Court, Kings County, dated February 13, 1991, which, inter alia, upon refusing to admit a will to probate, impressed a constructive trust upon the entire estate for the benefit of the beneficiaries named in the will, and directed disposition of the decedent’s estate.

The decedent and his wife, the appellant, executed mutual wills that were mirror images of each other. The couple was childless and wanted their assets to be shared equally by their respective relatives. Accordingly, simultaneous with the execution of the wills, they executed a written contract which prohibited either party from revoking or changing the wills in any way, without the written consent of the other, and they further provided that any attempt to do so would be ineffective as against the claims of the legatees of the mirror wills. The wife survived the decedent, whose will is the subject matter of this appeal. His will provide a portion of his estate would be placed in trust with the income therefrom to the appellant for life, and the remainder to their relatives, who were enumerated in the will. The decedent bequeathed the rest of his estate to the appellant outright.

After the decedent’s death, the appellant wife, alleging that she could not find the decedent’s will, applied for and obtained letters of administration. As the sole distributee, she received the entire net estate. The petitioner (hereinafter the proponent), a co-executor and co-trustee under the will, commenced the instant proceeding against her to revoke the letters of administration that were issued to her, and to admit to probate a conformed copy of the decedent’s will or, alternatively, for specific performance of the aforementioned agreement.

Published on: May 28, 2014

Court Hears Petitioner’s Application for Certificate of Letters of Administration

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application for a certificate of letters of administration, which involves a question as to the status of the county treasurer as administrator, on which question there appears neither direct statutory provision nor decision directly in point.

A Nassau Estate Lawyer said that, on June 23, 1960, the County Treasurer of Nassau County, was appointed administrator of this estate. On January 11, 1962, his term of office as county treasurer expired, and on February 5, 1962, the County treasurer, by his attorneys, requested a certificate of letters of administration in this estate.

A New York Probate Lawyer said that, on February 6, 1962, this court issued a decision in which it held that the present county treasurer, was interested in this matter, and directed that he be brought into this application. Subsequently, on February 9, 1962, the present county treasurer, by his attorney, filed a notice of appearance in which he opposed the issuance of the certificate of letters to the former treasurer and asserted that he, the present treasurer should be appointed successor administrator of this estate, and that he would petition for such appointment if the application of the former treasurer were denied. The application was submitted for determination, and both sides have submitted memoranda of law.

Published on: April 3, 2014

Petitioner Seeks to have Will Codicil Admitted into Probate

by Stephen Bilkis

A New York Probate Lawyer said that, this is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated June 26, 2002, the original of which cannot be located. The petitioner is the nominated alternate executor, the decedent’s daughter. The nominated executor, the decedent’s husband, has filed a renunciation of his right to serve as executor. A waiver and consent has been filed by the decedent’s son, the decedent’s only other distributee, who was expressly disinherited both by the will offered for probate and by the revocable lifetime trust which is the residuary beneficiary under the will.

The issue in this case is whether the last will and testament of the decedent should be admitted for probate.

A New York Will Lawyer said in order to have a copy of the will admitted to probate, petitioner must satisfy the requirements of SCPA 1407 which provides: A lost or destroyed will may be admitted to probate only if: 1. It is established that the will has not been revoked, and 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

Published on: March 28, 2014

Court Decides Disposition of Family Business in Estate Case

by Stephen Bilkis

A New York Probate Lawyer said the decedent died a resident of Nassau County in December 2010, survived by his sister, the petitioner; and by his brothers, respondent and movant herein. The decedent’s last will and testament executed in May 2000 was offered for probate by the petitioner, who is named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix in the propounded instrument. Preliminary letters testamentary issued to the petitioner by order of the court. The objectants have filed objections to probate of the will.

A Nassau County Estate lawyer said that the disputes presently before the court all relate to a supermarket, which was run by the decedent and his brother. The supermarket is comprised of three separate closely held corporations.

A New York Will Lawyer said the other respondents named in the proceedings brought by the sister are: the accountant for decedent, as well as for the brother and the various corporate entities involved in these disputes; and the replacement of the decedent replacement on the board of directors.

Published on: November 3, 2013

Family Contends Mothers Will is Invalid Due to Lack of Capacity

by Stephen Bilkis

A New York Probate Lawyer said a last will was executed approximately one year prior to the owner’s death at the age of 89. Her successors are her three post-deceased children and her two daughters. But, the probate petition was not filed more than twenty years after the woman’s death.

All of the parties agree that the deceased woman suffered a stroke previously which resulted in her partial paralysis, and she required the assistance of an aide for the rest of her life. A New York Will Lawyer said all of the testimony also indicates that after her stroke, the woman’s children assisted her in her daily affairs and she enjoyed close relationships with all of them as well as with her grandchildren. Until her death, she resided on the top floor of her two-family house, and her first son lived in the downstairs apartment where he remained until his death. Sources revealed that the deceased woman’s first son was a paraplegic after being shot.

At the trial, the attorney/draftsman testified that he had been an attorney for 52 years. During those years, the attorney drafted and supervised the completion of over 1,000 last wills.

Published on: October 31, 2013

Court Settles Real Property Dispute

by Stephen Bilkis

A New York Probate Lawyer said that, plaintiff asserts that summary judgment should be granted in his favor. He was married to his wife in January of 1995. On January 30, 1995, property was purchased at 2426 St. Raymond Avenue in Bronx County and title was held by defendant his wife and, her husband. Plaintiff asserts that his wife passed away on December 16, 2000 and since plaintiff and his wife held the property as tenants by the entirety, upon the death of his wife, her interest transferred to plaintiff as a matter of law.

A New York Will Lawyer said that, defendants oppose the motion by plaintiff and assert that plaintiff’s deceased wife, in her Last Will and Testament, bequeathed her half share of the property equally to her husband, the plaintiff, and defendant. Moreover, her will provided that defendant must approve, in writing, any decision to sell said property. Therefore, defendants contend that plaintiff is entitled to a 3/8 share of the value of the property as is defendant. In addition, defendant provided all of the money for the down payment on the property including closing costs in the sum of $27,000 and she paid for all renovations made to the property in the approximate sum of $7,000. Defendants assert that if the property is partitioned and sold, she should receive credit for those payments. Defendants further contend that there is a probate proceeding pending in

A New York Wills Lawyer said that, Surrogate Court in Bronx County as to the same issues raised in plaintiff’s cause of action herein and Surrogate Court is the proper forum in which to determine this matter. Therefore, defendants assert that the instant matter should be dismissed in the interest of judicial economy.

Published on: October 25, 2013

Court Decides if Bequest to Decendent’s Friend is Valid

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested proceeding to probate a will dated December 2, 1991, the issue presented is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses. The third attesting witness does not receive any disposition or appointment under the will.

The issue in this case is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses.

A New York Will Lawyer said the court in deciding the case said that, EPTL 3-3.2(a)(1) provides that an attesting witness to a will to whom a beneficial disposition is made is a competent witness who can be compelled to testify with respect to the execution of such will but that the disposition to the attesting witness is void “unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.” The purpose of the statute is to preserve the maker’s testamentary scheme to at least some extent by making all attesting witnesses competent while preserving the integrity of the process of will executions by removing the possibility that attesting witnesses who receive a disposition under the will might give false testimony in support of the will to protect their legacies.

Published on: October 22, 2013

Plaintiff Moves for Summary Judgment Regarding Property Dispute

by Stephen Bilkis

A Bronx Estate Litigation Lawyer said that, plaintiff asserts that summary judgment should be granted in his favor. He was married to his wife in January of 1995. New York Probate Lawyer said that on January 30, 1995, property was purchased at 2426 St. Raymond Avenue in Bronx County and title was held by defendant his wife and, her husband. Plaintiff asserts that his wife passed away on December 16, 2000 and since plaintiff and his wife held the property as tenants by the entirety, upon the death of his wife, her interest transferred to plaintiff as a matter of law.

A New York Will Lawyer said that, defendants oppose the motion by plaintiff and assert that plaintiff’s deceased wife, in her Last Will and Testament, bequeathed her half share of the property equally to her husband, the plaintiff, and defendant. Moreover, her will provided that defendant must approve, in writing, any decision to sell said property. Therefore, defendants contend that plaintiff is entitled to a 3/8 share of the value of the property as is defendant. In addition, defendant provided all of the money for the down payment on the property including closing costs in the sum of $27,000 and she paid for all renovations made to the property in the approximate sum of $7,000. Defendants assert that if the property is partitioned and sold, she should receive credit for those payments. Defendants further contend that there is a probate proceeding pending in

A Bronx Probate Lawyer said that, Surrogate Court in Bronx County as to the same issues raised in plaintiff’s cause of action herein and Surrogate Court is the proper forum in which to determine this matter. Therefore, defendants assert that the instant matter should be dismissed in the interest of judicial economy.

Published on: October 20, 2013

Court Rules on Petition to Sell Estate Property

by Stephen Bilkis

A New York Probate Lawyer pursuant to SCPA Article 19, the executrix, the decedent’s sister, commenced this proceeding for an order allowing her to sell mortgaged real property allegedly belonging to the estate so that she may reimburse herself and another distibutee for various estate administration and other expenses. There was no appearance in opposition on the return date of process. One of the respondents, the former lender and mortgagee of the property, A, however, moves for an order excusing and vacating its default in answering and granting it leave to file late objections. Upon the grant of such leave, A also seeks summary judgment dismissing the petition interposed against it asserting, inter alia, that it is not the real party in interest.

A New York Will Lawyer said that on 22 November 2004, the decedent died leaving a will which was admitted to probate by a decree entered 23 December 2005, specifically devises certain real property in the Bronx to her three children, in equal shares as joint tenants with the right of survivorship. The executrix alleges that sometime after the decedent’s death, but prior to the issuance of letters testamentary, two of the three children recorded a deed to themselves of the real property which previously was held in the decedent’s name alone, and then reconveyed that realty so it was held solely in the name of one daughter, enabling her to borrow against and mortgage the realty. After that, the executrix commenced an action in the Supreme Court, Bronx County with Index No. 20710/2006 seeking, inter alia, to void the deed and cancel the mortgage, and she then commenced this proceeding based upon an executor’s deed she filed with the Bronx Registrar of Deeds and Office of the City Register.

The mortgage states that A is the lender and, for purposes of recording the mortgage, B is the mortgagee of record and is acting as nominee for Lender and Lender’s successors and assigns. The executrix contends, inter alia, that the mortgage is invalid because the daughter who gave it and obtained the loan from A did not have full title to the property. In addition to the three children and A, process was served on a title insurance company and B. Manhattan Probate Lawyers said that after defaulting on the initial return date of process, A served and filed its instant motion seeking to excuse that default and related relief, including summary judgment dismissing the petition against it. In support of its contention that it is not the real party in interest, A annexes various documents to establish that it sold the loan to another entity. A also objects to the sale of the realty on various grounds.

Published on: October 12, 2013

Court Discusses the Rule of Perpetuities

by Stephen Bilkis

A New York Probate Lawyer said that a woman died on March 1, 1968 and her will dated October 8, 1958 was admitted to probate on March 20, 1968. On August 29, 1968, the appellee filed his petition for construction and revocation wherein he renounced any disposition and bequest made to him under said will and wherein he petitioned that paragraph FIFTH of the will be revoked and declared invalid. On September 18, 1968, the appellant as respondent filed his answer to said petition;

On December 19, 1968, the appellant filed his amendment to said answer which amendment embraced a revocable designation by a man of those relatives and corporations which were to take the principal of the trust at its termination. A New York Will Lawyer said this designation was executed on September 3, 1968.

On October 22, 1969, the distinguished probate judge entered his order adjudicating paragraph FIFTH to be null and void as violating the rule against perpetuities. The said order also held that the power of appointment given to the man could not be exercised until the death of the brother and that man’s attempt to do so was void. The trial court found it unnecessary to decide the question of whether the power was impossible of performance because of ill-defined, vague and ambiguous classes of recipients described therein. This latter question formed the basis of the appellee’s petition; the rule against perpetuities not being raised therein.