Queens Probate 18
This is an uncontested administratix’s accounting proceeding taking place in the Surrogate’s Court of Suffolk County. A New York Probate Lawyer said a stipulation has been submitted to the court for approval into the provisions of an intermediate accounting decree.
Case Background
The petitioner has filed for an order to show cause before the court. The petitioner seeks an order under Rule 137 of the Rules of Civil Practice to direct respondent to appear and testify pursuant to a Commission issued out of the Probate Court of the Commonwealth of Massachusetts, Middlesex County. Under such action pending in the sister state, petitioner seeks to obtain from the defendant-wife, the custody of their minor child. A New York Probate Lawyer said to bolster his case so that child custody (father’s rights) is granted in his favor, the movant contends it is necessary to prove that his wife is not mentally fit to care for their infant child.
The respondent who is a psychologist opposes the petition and contends that the granting of such an order would compel him to violate a statutory prohibition regulating his conduct by forcing him to disclose privileged matters between him and a person alleged to be his patient.
From the papers submitted, the court notes that respondent, after having been served with the subpoena, did appear pursuant thereto before the designated commissioner on 7 July 1962; that he answered the first three interrogatories as to his name, address and profession; that as to the balance of the queries, he declined to answer on the ground that such disclosure would reveal confidential relations and communications between himself, as a psychologist, and a client, and as such, is privileged under Section 7611 of the Education Law. The law on privileged communications, under the said Education Law, provides that: “The confidential relations and communications between a psychologist registered under the provisions of this act and his client are placed on the same basis as those provided by law between an attorney and his client, and nothing in this article shall be construed to require any such privileged communications to be disclosed.”
A 19 years old woman was at the hotel located at Staten Island, New York. The said hotel is approximately one half mile from the woman’s residence where she resided with her mother. While at the hotel, the woman made her way to the roof of the hotel where she plunged to her death. Consequently, the woman’s mother’s attorney, who has an office in Staten Island, New York, filed for limited letters testamentary in order to bring an action for a potential wrongful death action.
A New York Probate Lawyer said the complainant mother apparently changed attorneys to one who has offices in Brooklyn and commenced the legal action by filing a summons and complaint with the Kings County clerk’s office. The summons stated that the venue was based on the mother’s residence at Brooklyn however the mother’s verified complaint stated that she was a resident of the County of Richmond. The verified complaint contains allegations of fact in support for a single cause of action for damages due to wrongful death and the woman’s conscious pain and suffering up until her death.
The hotel served an answer to the revised verified complaint that includes thirteen affirmative defenses. A Brooklyn Probate Lawyer said the third affirmative defense states that the mother’s complaint filed in Kings County are at improper venue, and that the place of trial of the action should be changed to a proper venue, a Richmond County. Submitted along with the opponents’ answer was a demand to change venue. When the mother did not respond to the demand to change venue to a proper county, the hotel filed the underlying notice of motion to change venue with the Richmond County clerk’s office.
In a probate proceeding case, the decedent died on July 3, 2003, leaving a will dated November 22, 1971. The petitioner-executor was an attorney admitted to practice in this state and drafted the will offered for probate. Thereafter he maintained limited contact with the decedent. A New York Probate Lawyer said that, petitioner has submitted an affidavit in which he states that about 1995 he retired from practice and in early 1996 moved to Virginia but then moved back to Owego, New York, in September 1998. Throughout this period he retained his license to practice law until it lapsed at the end of 2000. Since petitioner is no longer licensed to practice he has retained separate counsel to represent him in his capacity as executor.
Thereafter, SCPA 2307 was enacted effective August 2, 1995 the said statute is applicable to the estates of decedents dying after January 1, 1996. It provides that an attorney-draftsman of a will in which he is named as executor can receive full commissions only if the written disclosure of dual fees required by the statute was executed by the testator. In this case there is no written disclosure from the testator. Alternatively, the statute permits full commissions with respect to wills executed prior to January 1, 1996, if the attorney-executor establishes to the satisfaction of the court reasonable grounds to excuse the absence of a written acknowledgment. A Kings Probate Lawyer said that, in his affidavit submitted herein, petitioner argues that after he retired from practice in 1995, “I was unable to remain knowledgeable of current changes to New York State law, including changes to the Surrogate’s Court Procedure Act.” Petitioner’s affidavit does not indicate any attempt to make the required disclosure. Nevertheless, petitioner was licensed to practice as an attorney, both in 1971 when the will was drawn and in 1995 when the law changed.
The issues in this case are whether petitioner-executor is entitled to his full commission, notwithstanding the failure of the testator to make written disclosure of dual fees as required by the statute; and whether the fact that petitioner had retired from the practice of law and has hired separate counsel to represent him as executor of the estate are reasonable grounds to excuse the absence of the written acknowledgement.
The Facts:
On 11 March 2011, a decedent died testate at the age of 91. She was survived by one child. Under her will dated 18 November 2010, decedent gave her personal property to her child, $6,000 to Children International, $10,000 to another individual, the proceeds of an insurance policy to a trust created for the benefit of her two grandchildren, her child’s children, and disposed of her residuary estate in three shares, as follows: one share to the trust for the grandchildren; and the other two shares to a supplemental needs trust for the benefit of her child. A lawyer (“the Lawyer”) is the nominated executor and trustee.
Following decedent’s death, the lawyer filed a probate petition as a start of estate administration. The surviving child of the decedent is a person under a disability, having suffered severe strokes in September, 2010. Because the child’s interest is greater in intestacy, a guardian ad litem (“the GAL”) was appointed for her in this proceeding. Preliminary letters testamentary have issued to the lawyer.
On this proceeding, the beneficiaries of a woman asked for an order to suspend the verdict of the court with regards the admission to probate to the woman’s will. A New York Probate Lawyer said they also asked to vacate the letters testamentary issued to the woman’s caregiver. They also requested to grant them the opportunity to examine the attesting witnesses to the will, directing that objections be filed within a reasonable amount of time after the completion of the examination of witnesses and staying the administrator of the will from disbursing the estate proceeds. The abovementioned motion’s is opposed by the woman’s caregiver.
The aforesaid woman died seven months after the execution of her will. Her husband predeceased her and she never had any children, biological or adopted. Apparently, the woman was survived by her six beneficiaries who reside in Australia. The woman’s caregiver originally filed a petition for the validation of the woman’s will and asserts that the woman had no successors. On the probate petition of the caregiver, she states that she was the woman’s live-in companion, the beneficiary of woman’s entire estate, as well as the designated administrator. Further, the only other individual named by the caregiver as a person interested with the woman’s assets is her sister, a resident of Ukraine. The caregiver’s sister was listed as the successor beneficiary of the woman’s entire assets and the nominated successor as the administrator. Additionally, the petition reveals the woman’s address as the caregiver’s address.
On the basis of the information provided by the caregiver, an initial letter was issued however the court directed the caregiver to submit a family tree. The caregiver consequently submitted an affidavit stating that she wasn’t aware of any person capable of giving a family tree. The caregiver further advised the court that the woman spoke occasionally with someone and was also visited by another man but she didn’t know whether the two persons were related to the woman. Consequently, the counsel for various members of the woman’s family advised the court by letter that the woman had performed a will in which members of the woman’s family and the family of her late husband was named as the beneficiaries and co-administrators. A copy of the will was provided to the court, but counsel advised the court that the original signed document had not been located. The counsel then stated that the family members intended to prove that the given will was obtained by the caregiver by means of fraud and undue influence. Moreover, they alleged that the woman was not of sound mind or memory, not capable of making a will and that the will was not properly completed. Afterwards, the copy of the letter was sent to the caregiver’s counsel. Brooklyn Probate Lawyers said the letter also accused the caregiver of committing perjury when she made sworn statements in her petition that the woman left no heirs. As a result, the counsel of the woman’s family demanded that the petition for probate be modified to reflect the woman’s beneficiaries.
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 facts:
A mother (hereinafter The Mother) lived with her son (hereinafter The Son). The son was devoted to his mother. A New York Probate Lawyer said she was unable to handle her own affairs, thus, he supervised her medical care. He managed her financial affairs and made sure that she paid her bills timely.
On 25 August 2000, the son died. He was then 64 and his mother was almost 96. The son executed a will dated 23 May 1996. In his will, he left his residuary estate in trust for the benefit of his mother. He named two persons, the petitioners (petitioner-one and petitioner-two), as executors of his will and trustees of the residuary trust. Under the terms of the trust, the trustees were to pay the net income to the mother, quarter-annually. In addition, the trustees were authorized to invade principal for the benefit of the mother; and upon the death of the mother, the trust terminates and that from the principal then remaining, certain amounts would be given to the petitioners and to other individuals.
A man died on October 28, 2006 leaving a will dated April 27, 2006. The man’s last will nominates an attorney and a friend as executors. He was survived by his two adult children. The man’s friend renounced his appointment.
The will provides that the man’s entire residuary estate shall be distributed to his woman companion. The will specifically disinherits the man’s children. The attorney assigned as executor has petitioned for preliminary letters testamentary.
By order to show cause, the man’s daughter seeks an order denying the issuance of preliminary letters testamentary to the attorney; disqualifying the attorney from serving as executor of the estate; removing the assigned attorney executor as the attorney for the estate; compelling the attorney to comply with discovery demands previously served; compelling the attorney to produce and file with the court an alleged 2004 will of the man; appointing a guardian ad litem to represent the interests of the deceased man’s two infant grandchildren named as beneficiaries in the prior will; appointing the daughter as executor since she was alleged named as executor in the 2004 will; staying the issuance of preliminary letters to the attorney in pending a hearing on the order to show cause; and adjourning the law examinations. The decision addresses only the issue of whether preliminary letters should issue to the attorney.
The Facts:
A decedent was survived by his wife, an adult son who is the petitioner herein, and four adult grandchildren. A New York Probate Lawyer said the decedent’s wife is a person under disability and her interests are being represented by a guardian ad litem appointed for that purpose by the court. Although SCPA 1404 examinations were demanded by the respondents, the examinations were never conducted, the parties having promptly entered into settlement negotiations.
The propounded instrument bequeaths the entire estate to the decedent’s lifetime trust, which in turn leaves the entire estate to petitioner, to the exclusion of the surviving spouse and grandchildren. The parties have entered into a stipulation of settlement, subject to the court’s approval, which permits the will’s admission to probate, effectively guarantees the surviving spouse her elective share, and distributes the net estate after payment of debts, administration expenses, and the elective share, into two parts, one part to be distributed to the petitioner and the other to be divided equally among the grandchildren.
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