Bronx

Published on: April 18, 2012

Heir Brings Will Contest Action

by Stephen Bilkis

A woman died and signed a will two days prior to her death. The will state that she left her entire estate to one man. But, she did have another will dated many years prior to her death. It states that she left her assets to her brother and sister, unfortunately they did died already, and it says if they died partial of the assets will be preceded to one of the Catholic Congregation and the remainder to her cousin and his wife.

The man filed a civil case to validate the earlier will, to which the other heirs from another will filed an objection. The eight day trial resulted on a denial to the motion, by which the jury found that the deceased person doesn’t have the legal ability to make a will and it was only done by influence. A New York Probate Lawyer said the man requests a higher court to review the lower court decision and again denied. The heirs of the late will filed a petition to legally validate it. They issued temporary letters and no objection has been filed. And the other man from earlier will seeks leave to file objections to the late will, a stay to pending appeal and an order requiring the temporary administrator to file a bond pending appeal.

Based on records, in order to file objections, the prospective objector must have an interest in the properties that would be adversely affected by the admission of the will to attest. The man argues that he has standing because he has an interest in the properties and would be adversely affected by validation of the late will. And, as an appellant, he has contingent interest in the properties. However, this is not sufficient to file objections. The adverse consequences must be the direct result from the admission of the will to validate. It is clear that the man is not adversely affected by the validation of the late will. A Bronx Probate Lawyer said the only ground on which he can objects to the validation of the will is that there is a valid later will, which is the earlier will. However, the argument has already been determined in the prior trial and been rejected. He also argues that the court should permit him to intervene under its discretion to permit any party with a fair or slightly possible financial interest to intervene.

Published on: April 16, 2012

Court Decides if Signed Waiver and Consent to Probate is Valid

by Stephen Bilkis

A man who died in New York City was survived by two brothers. One lived in Endicott and the youngest in Pennsylvania who drove to Endicott and arrived in the evening to attend his brother’s funeral the following day.

Prior to the funeral, the youngest brother suggested that arrangements be made to read the will soon. Shortly after the funeral a conference was held at the Trust Company. Present were the two brothers, the executive vice-president of the Trust Company; the counsel for the Trust Company; and an associate attorney with his father-in-law.

A New York Probate Lawyer said the testimony concerning what occurred at that conference is completely contradictory. Postponing for the moment a discussion of the completely opposing testimony, it is agreed that both the living brothers each signed a form of Waiver and Consent to Probate. These waivers were retained by the father-in-law of the associate attorney.

Published on: April 14, 2012

Mother files Estate Litigation over Deceased Infant

by Stephen Bilkis

Decedent’s daughter was born at Nassau County hospital. A case was filed against the hospital for medical malpractice by the decedent in behalf of her daughter. The decedent, who retained counsel to represent infant plaintiff, died while the lawsuit was still pending in court. In this Estate Litigation action, Letters of administration were issued to another daughter of decedent. Administrator-daughter substituted plaintiff in the malpractice case on behalf of the decedent’s estate.

A New York Probate Lawyer said a settlement was made for the malpractice suit between the parties. Based on the Infant’s Compromise Order (ICO) the Nassau County hospital shall issue check to defendant’s officer to be deposited in an investment account for the benefit of plaintiff. The check was issued but was never cashed and the investment account was never established. The same was never negotiated nor presented for payment. The check was received by the defendant’s officer but failed to neither open the investment account nor inform any of the parties that the check was missing.

Consequently, the officer hired the services of a locator to find the missing settlement check. The officer and locator entered into an agreement as to compensation fees upon recovery of the lost check. The locator also made an agreement with plaintiff’s grandmother, living in Alabama, for payment of fees when the lost check is found.

Published on: April 13, 2012

Brothers Bring Will Contest Action over Division of Family Business

by Stephen Bilkis

A resident of Nassau County died on 28 December 2010 and was survived by his sister, the petitioner; and two (2) brothers, the respondent and movant herein. The decedent’s last will and testament dated 23 May 2000 was offered for probate (estate litigation or estate administration or will contest) by the petitioner, who was named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix. Preliminary letters testamentary were issued to the petitioner on 13 January 2011. The two (2) brothers of the decedent have filed their objections to the probate of the will.

The arguments presented before the court all boil down to a supermarket known as John’s Farms, which was run by the decedent and one of his brothers (“brother A”). The supermarket is comprised of three separate closely held corporations – (1) Corp. A, which operates the grocery and dry goods business within the decedent’s Farms, owned by the decedent and brother A as equal shareholders; (2) Corp. B, which sells fish and seafood at the decedent’s Farms, and was owned by the decedent and brother A as equal shareholders; and (3) Corp C, which operates a meat market within the decedent’s Farms, owned wholly by decedent.

The two (2) brothers of the decedent were ordered by the court to deliver and turn over to the petitioner the computer taken from the decedent’s home on the date of his death. While certain computer components were eventually turned over to the petitioner, the computer components turned over to the petitioner were not part of the home computer taken from the decedent’s home. A New York Probate Lawyers said that it appeared that the wrong computer had been turned over to the petitioner. Apparently, brother A had several computers used in the business which made it difficult to differentiate and offered to reimburse the estate for the value of the decedent’s computer equipment that was not delivered to the petitioner or her counsel in lieu of turning it over. The court has denied the same stating that the offer to pay the value of the computer is essentially pointless because of the fact that the reason the petitioner sought the decedent’s home computer was to obtain any relevant business records of the decedent thereon. Hence, the petitioner sought to clone all of the computers at the decedent’s Farms.

Published on: April 11, 2012

Court Decides Appropriate Fee for Guardian ad Litem

by Stephen Bilkis

A decedent was survived by his wife (a person under disability represented by a guardian ad litem), an adult son (petitioner) and four adult grandchildren and the issue of a predeceased child. Under the decedent’s will, his entire estate was left to the decedent’s lifetime trust, which in turn leaves the entire estate to petitioner, to the exclusion of the surviving spouse and grandchildren.

Subsequently, a stipulation of settlement was entered into by the parties which was then approved by the court for the best interest of all parties concerned. The approved settlement permitted the will’s admission to probate (estate litigation or will contest), 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.

The question now is the amount of appropriate fee for the guardian ad litem.

Published on: April 8, 2012

Petitioner Alleges Fraud, Undue Influence

by Stephen Bilkis

A man executed a will in October 28, 1970. In this will, ninety per cent of his estate is left to charities and the remaining ten per cent is left to his sister. In this will also a bank and trust company was named as executor of the will.

After the testator died, the sister filed the petition for probate of the October 28, 1970 will. But the sister also produced a purported codicil executed by the testator dated November 20, 1970. In this codicil, the testator allegedly revoked the nomination of the bank and trust company as executor and instead nominated his sister as executrix.

Two charitable organizations who were distributees of the decedent in the October 28, 1970 will filed objections to the probate of the will and the codicil. The charitable organizations also filed a motion for leave of court to examine the witnesses of both the will and the codicil, the sister, the bank and trust company and the attorney who drafted the will and the codicil.

Published on: March 26, 2012

Court Listens to Jurisdictional Challenge of Will

by Stephen Bilkis

An appeal on the ruling on the last will and testament of a deceased woman was filed in the Surrogates’ Court of Eric County. In the first appeal, the respondents appeal from a ruling admitting the last will and testament of the deceased who is a resident of Vermont to original validation and granting letters of administration and letters of trusteeship to the petitioner. In the second appeal, the respondents appeal from an order that dismissed their challenge to matter of jurisdiction of the Surrogate’s Court to the validation of the deceased woman’s will. In the third appeal, the respondents appeal from an order that denied their motion for leave to renew the jurisdictional challenge that was dismissed by the order in the second appeal. The order in the third appeal superseded the order in the second appeal therefore the second appeal must be dismissed. In the third appeal the Surrogate erred in denying the respondents’ motion for leave to renew and upon renewal, should have declined to exercise jurisdiction over the property of a nonresident and granted the respondents’ motion to dismiss the petition. The findings and order of the Vermont Probate Court accepting original jurisdiction over the property constitute new or additional facts that were unavailable at the time of the original challenge and that would change the prior determination.

Turning to the merits of the ruling in the first appeal and the order in the third appeal, it is firmly established in New York that jurisdiction over the property of a nonresident should not be transferred from the resident of the person who made the will unless it is required by some vital rule of law. Further, the Surrogate’s Court may exercise jurisdiction over a nonresident deceased person’s property when the deceased leaves the property in the state. A New York Probate Lawyer said that in determining whether to accept an application for original validation of a will of a nonresident which has not yet been admitted for validation in the deceased person’s residence, a court should examine the nature of New York’s contacts with the deceased and her property, including the location of the assets, the residence of the nominated executor and beneficiaries, the expense of proving the will in the residence of the deceased, the deceased person’s request, if any, for New York validation and the good faith of the proponents. The court should also consider what weight should be given to the fact that the residence of the deceased has already assumed jurisdiction over the property.

The petitioner contends that the Surrogate properly exercised jurisdiction over the property of the deceased based on the exercise in her will of certain limited powers of appointment over two trusts established by her predeceased husband for her benefit. Bronx Probate Lawyers said the property includes a trusts owned property situated in New York and ownership of three bank accounts allegedly located in New York. Contrary to the petitioner’s contention, the assets of the trusts were never the deceased woman’s property and thus are not for validation assets located in New York sufficient to grant jurisdiction in New York over the deceased woman’s property. It is well established that the property in a trust remains the property of the benefactor until it absolutely entrusted in some person or corporation and that a beneficiary with a power to appoint by will is a mere representative of the benefactor. Thus, when the deceased exercised the powers of appointment gave her by the terms of the trusts in favor of other trusts established in her will, she was not disposing of her own assets but, by authority bestowed upon her by her husband, she was disposing of property which never lost its identity as part of the trusts’ property.

Published on: March 25, 2012

Court Stays Estate Proceedings until Criminal Case is Resolved

by Stephen Bilkis

Three probate proceedings in the estate of the deceased woman moves for an order for a partial stay or a protective order directing that the surviving son’s obligations to respond to all discovery demands that have been served on him temporarily be stayed until related criminal charges pending against him are resolved. The Library and the Museum, two charitable beneficiaries under the wills of the deceased woman oppose the motion. The District Attorney moves for an order granting him the right to intervene in the proceedings and upon intervention, granting a stay of all proceedings pending the resolution of the criminal charges pending against the surviving son. The motion is opposed by the surviving son, the Library and the Museum. The Attorney General of the State moves for an order granting a stay of all proceedings or in the alternative, a stay of all discoveries except document discovery and setting a date for a conference.

A woman was survived by her only child. Three sets of paper writing claiming to be wills of the deceased woman were filed in court. The first paper writing is a will dated January 30, 2002, along with a first, second and third supplement. The second paper writing is a will dated February 2, 2001 with a sole supplement. The third paper is a will dated January 8, 1997, also with a sole supplement.

A New York Probate Lawyer said the trust bank filed a petition for the validation of the 1997 will. The surviving child of the deceased filed a petition for the validation of the 2002 will and the first two supplements only. He also filed a petition for the validation of the 1997 will.

Published on: March 23, 2012

Court Decides Jurisidiction Between Switzerland and U.S.

by Stephen Bilkis

A Swiss national died on July 7, 1941. Prior to his death, he executed a will in New York purportedly to cover his personal properties in this State. The will was executed in 1934. When he died in 1941, the personal properties left by the testator were divided among his widow and three children. The petitioner in this case was not given any share because he was deemed by the testator as having been amply provided for. The estate in New York was divided in such a manner that ½ went to the widow and the other half went to the two children minus the said petitioner. This settlement was finalized in October 25, 1941

Apart from the 1934 will, the testator also executed a hand-written or holographic will which was executed on March 2, 1940. This later will disposed of the properties located in Switzerland, the domicile of the decedent and a decree was issued by the proper court of Switzerland while the New York proceedings was still on-going. A New York Probate Lawyer said he 1940 will did not make any mention of the earlier 1934 will nor was there any express or implied revocation of the same. The later will of 1940 disposed of all properties of the testator without making any reference to the personal properties located in New York because the will was silent on the issue of what securities were to be disposed and where such securities could be located. The only thrust of the 1940 will was to make a disposition of all the properties specifically found in Switzerland and there was no mention about the securities located in the state of New York nor was there any reference to the 1934 will. The said will also stated that all the testator’s securities must be given to the wife and all real properties located in Switzerland be sold and the proceeds must be divided between the widow and the three children which includes the petitioner. Since the estate taxes figured heavily in the picture, there was very little left for the heirs and the surviving spouse to divide. The petitioner in particular received very little amount when all the taxes were factored in the computation of the net estate.

The petitioner, one of the sons of the testator, went to the Court and asked for the issuance of ancillary letters testamentary and to ask the court to vacate an earlier decree excluding him from the partition of the personal properties in New York which was the subject of the 1934 will. He also argued that under Swiss laws, the effect of a succeeding will is to revoke all prior wills executed by the testator and that therefore the probate of the 1934 will was not in order because of the existence of a later will which was executed in 1940. Bronx Probate Lawyers said he claimed that if the 1940 will is to be given effect, he would not have ended up with practically nothing because though there were almost no securities left in Switzerland at the time of the death of his father, there were on the other hand enough securities that can be divided coming from the personal properties located in New York. To all of these arguments, the executor countered that the petitioner is already barred by means of estoppels from pursuing and contradicting the decree because sufficient time has already elapsed between the finality of the estate administration and consequent liquidation and the filing of the proceedings made by the petitioner.

Published on: March 21, 2012

Court Hears Validation Proceeding for Deceased Priest’s Will

by Stephen Bilkis

A validation proceeding for the will of a deceased priest have two questions presented for determination. The matters to be determined are the right of the respondent to attack the jurisdiction of the Court and the finding of the residence of the deceased at the time of his death.

The Petition for Probate was filed together with an original will of the deceased. Two days prior to the filing, an order to search the safe deposit box of the deceased in a savings bank in New York was signed by the Monroe County Surrogate based upon a petition stating that the deceased had died a resident of the Rochester City New York. The safe deposit box was searched and a will identical to the one filed in Ontario County Court was found it was filed in the Surrogate’s Office of Monroe County Court by an officer of the said bank.

A New York Lawyer said that on the return day of the Citation, a Notice of Retainer and Appearance was filed by an attorney acting for the respondent who is a sister of the deceased. He advised the Court of the existence of what seemed to be a duplicate original will on file in the Monroe County Surrogate’s Office. The matter was adjourned until December 3, 1962, during which period of time the Court personally went to the Monroe County Surrogate’s Office and examined the application for the opening of the safe deposit box and the will which had been filed there as a result of such search. On December 3, 1962, a short hearing was held in the matter. The Court advised the respective attorneys that it had examined the file in Monroe County Surrogate’s Court. The attorney for the respondent requested an adjournment for two weeks with the understanding that he would file an answer with the Court and a copy with opposing counsel by December 10th and that the issues be raised by the answer and should be tried on December 17, 1962. On December 10th, respondent’s attorney filed an answer.