Long Island

Published on: February 27, 2012

Petitioner Contends Negligence of Guardian

by Stephen Bilkis

A guardian for an old man is accused of gross negligence, malpractice, inaction, unlawful and breach of authority relationship regarding his conduct and/or lack thereof in exercising a certain right of election on the old man’s behalf against the last will and testament of his deceased son.

The claim for compensatory and disciplinary damages results, allegedly, from the defendant’s failure as guardian of the father to have taken steps necessary to have enabled his ward to exercise his personal right of election against an excessive testamentary gift for educational purposes. While this probate proceeding concerned the will of the son who died, the facts herein involved concern the estates of three deceased because, as will appear more fully below, soon after the son died, the mother died and shortly thereafter, the father died.

A New York Probate Lawyer said that under the son’s will, the father, at the time of the son’s death, then over 90 years of age, was one of the son’s two beneficiaries, the other being the mother. The petition for validation of the son’s will was later amended to describe the father as being then a person under disability because he was incapable of managing his own affairs and a request made, in view thereof, for the appointment of a guardian to protect the father’s interests in his son’s estate. By order the then Surrogate appointed the defendant as guardian for the father in the validation proceeding of the son’s will. Parenthetically, the defendant was a long-time friend of the family. In the proceeding, the mother was separately represented by independent counsel.

Published on: February 24, 2012

Court Rules on Complex Will Contest Matter

by Stephen Bilkis

In 1958, a woman from Salamanca, New York died and left her surviving two sons and daughter, all of full age, and several grandchildren. A document purporting to be the last will and testament of the deceased, with a petition for validation was duly filed with the court. The will submitted for validation was drafted by an attorney of Salamanca, New York, a man with many years of experience as a practicing attorney and was witnessed by the attorney and a young woman employed by the drafter of the will. In the proceeding, the petitioner seeks permission of the court to withdraw his waiver of citation consenting to the validation of the will of the deceased.

The petition for probate of will was verified by one of the two sons of the deceased, and accompanying the petition was the waiver and consent of the son which consents that the paper writing bearing date 1955 purporting to be the last will and testament of the deceased to be admitted to validation.

A New York Probate Lawyer said the citation was duly issued, addressed to the surviving daughter of the deceased, and proof of due service upon the said daughter and proof of mailing notice of validation to the other heirs was filed. The petition was verified; the waiver of citation was signed and verified the same date which also is the date of death of the deceased. The citation was returnable before the court at the court room in the forenoon of that day, but at the request of the proponent, the matter was adjourned and re-adjourned from time to time until the subscribing witnesses were examined.

Published on: February 23, 2012

probate

by Stephen Bilkis

According to reports from a surrogate’s court, a decedent was survived by his wife, and two children from a previous marriage. In his last will and testament, he had chosen his wife to act as estate administrator. Upon his death, the will was submitted to probate court. The court named the wife as the estate administrator in the letter of testamentary.

Long Island Probate Lawyers said that before the decedent’s death and months after the wife was accorded as estate administrator, she exercised her functions. It was asserted to be true that she made several transactions which resulted to lessen the funds of the contested estate. The wife have made repeated fund transfers from an alleged joint account to her own account; paid her personal bills and expenses thru multiple on-line transfers from decedent’s personal accounts in a certain bank; and checks payable to her decedent’s husband were signed, endorsed and deposited to her account.

A New York Probate Lawyer said that the decedent’s children, with the help of their probate lawyers filed a case contesting the earlier decision of the court in naming the wife as the appointed executor. They reasoned out that she was unfit to carry out the terms of the contested will by virtue of dishonesty, by not providing their needs, by shallow understanding of good will and by thoughtlessly or carelessly expending of their funds. They asked the court to appoint decedent’s son as the executor instead of the wife. They submitted to the court a written document of the decedent’s therapist. The therapist testified under oath and sustained the allegations of the decedent’s children. The estate litigation lawyers further make clear that the case under litigation was not a subject for time consuming dispute. Children’s funds were at stake. The wife was guilty of a series of acts-any one of which, the court has the authority to give an order to remove the wife as executor in an earliest time.

Published on: February 17, 2012

probate

by Stephen Bilkis

The appellants of a probate case have filed for an objection against the original ruling of probate by the court. The court did not accept the objections of the appellants.

According to the objections of the appellants, they asserted that the surrogate court should have used its authority to decide on the matter of estate’s original probate due to the fact that another court already had previous jurisdiction over it. The appellants further argue that the original order for probate had already been settled in a foreign country. Such foreign proceeding was concluded by the court as possibly replicated in the city.

The decedent’s will was executed in the city in which the decedent, also known as the testator, has lived. That will and testament revokes all the previous wills that have been written by the testator. The will contains instructions on the funeral expenses and debt payments. The remaining assets after the previous expenses are deducted shall be awarded to the former wife of the testator and another party. The male respondent of this court proceeding was identified as the executor of the will.

Published on: February 16, 2012

Court Rules on Will Contest Case

by Stephen Bilkis

The brother of the deceased contested to the validation proceeding requesting to dismiss the objections and accept the proposed evidence to probate. The will offered for proceeding claims that the estate shall be equally shared by the deceased person’s mother and brother, assigned as the executor. If either individual die before him, the surviving individual will be the beneficiary. Subsequently, his mother is already dead and he still has a wife.

The wife opposed the argument of her brother-in-law and brings in another argument to its proposed evidence. She state that the evidence offered to validate the will was not duly performed as required by the law. At the time her husband acknowledge the will, if such was in fact made, he did not declare to at least two of the attesting witnesses that the said paper offered for validation was his last will and testament. He did not request that said witnesses to be witnesses and if he signed the will, he did not do so in the presence of the said witnesses nor did he acknowledge to each of them that said subscription appearing on such paper had been made by him. In addition, her husband did know, understand or was aware of the content; meaning and/or consequences of the paper writing presented to him for implementation, if he does implemented the same.

A New York Probate Lawyer explained that in support of the motion to accept the will to validate, the brother submits his own affidavit, the testimony of a witness to the will, the affidavit of the witness and the affirmation of counsel. The wife also submits her own affidavit, the affirmation of counsel, the same testimony of the witness, a draft of the last will and testament and the affirmation of counsel.

Published on: February 14, 2012

Court Rules on Case with Multiple Wills

by Stephen Bilkis

The issues being raised in this estate case have two aspects. One issue talks about the objection of probate on the last will and testament of the deceased. Another issue raised on the case was whether the main executor of the will had the right to request for discovery proceeding concerning the property owned by another party.

Before the writer of the will and testament passed away, he drafted an instrument which states that all his property should go to his niece. The niece named on the will becomes in effect the executor of the will.

A few months after the drafting of the first instrument, the decedent had allegedly turned over a deed of one of his real properties to another party other than his niece by marriage. However on the same day, the decedent drafted an instrument and identified it as his last will and testament. According to that instrument, it would revoke or reverse all wills drafted prior to the recent one. This includes the first draft that named his niece the sole executor of his estate.

Published on: February 11, 2012

In a work-related accident, the decedent suffered permanent substantial disability

by Stephen Bilkis

In a work-related accident, the decedent suffered permanent substantial disability in October 1973. An employer’s workers’ compensation insurance carrier was instructed to pay disability benefits to him. The defendant had pre-existing diabetes so the carrier applied and was give reimbursement from the Special Disability Fund pursuant to Workers’ Compensation Law. When the decedent died on January 7, 1982, his widow filed to claim death benefits because she alleged that the injury sustained in October 1973 was an underlying factor in her husband’s death. New York Probate Lawyers said that in compliance with the Workers’ Compensation Law the carrier converted the claim and applied for reimbursement from the Fund. There was a hearing with before an Administrative Law Judge and the application of the wife for death benefits was granted. The carrier did not ask for a review of the Workers’ Compensation Board about the connection of the injury to the death.

There was a later hearing for the carrier’s application for reimbursement from the Fund. The fund asked the Administrative Law Judge not to make a ruling until they could get a review from the Workers’ Compensation Board if the wife’s claim was compensable. The request was denied and the request of the carrier for settlement was granted. The fund appealed to the Board stating the wife would have not been awarded benefits because the death was not related to the injury sustained in October 1973. The Board’s decision was that the fund lacked standing to raise the issue.

When the case was already with the Appellate Court, the court said they agreed with the Board that reversing the decision will allow the Fund to reopen the primary issues related to the compensability of an injured or deceased employee’s claim. The Fund’s stand is the causal relationship between the death and the work-related accident. The legal idea of the Workers’ Compensation Law is to hire employers to hire permanently handicapped people. This is because of the reimbursement they are offered if they compensation to a work-related accident. The court said the representative of the fund only has standing in the proceedings when the employer claims for such compensations are being heard not when there is a claim from the employer. The conspiracy of an employee and employer is averted with the employer not being able to get reimbursement for the first two years of benefits, commented Westchester County Probate Lawyers.

Published on: February 8, 2012

Court Rules on a Will Contest Matter

by Stephen Bilkis

Chardbourne and Parke, LLP represented the people who are involved in a Will left by Renate Hoffman, deceased. The Will was executed by Hoffman in 1988 and named the German National Church as primary beneficiary of his estate. According to reports, this 1988 Will was strongly objected and challenged by Robert Warshaw and Chase Manhattan Bank, N.A. who were the primary executors of a prior Will of Hoffman which was executed in 1972. This became a long and extensive trial in which the two parties, Chardbourne and Park as well as Warshaw and Chase Manhattan entered in to an agreement in which the German Catholic Church received a considerable sum of $3 million dollars. In addition to this hefty settlement, the church will also receive a half-interest in a trust from the proceeds of the remainder of the estate.

According to further report given to New York Probate Lawyers, Chardbourne and Parke filed a case against Warshaw and Chase Manhattan Bank because of unpaid legal fees when the former performed its legal duties during the German Catholic Church settlement. Unfortunately their case did not progress in court. The court ruled in favour of the defendants, Warshaw and Chase Manhattan. In 2001 however, Chardbourne and Parke filed for an appeal of the previous decision by the court. Warshaw and Chase Manhattan argued that the 1988 Will was not the correct one to be administered and that Chardbourne has acted knowingly on their own. It was also noted by Warshaw and Manhattan that there was further wrong doing on the part of Chardbourne and Parke, LPP.

The trial continued on and arguments were presented regarding the 1988 Will’s validity which was also again brought up. This is due to the fact that Warshaw and Chase Manhattan Bank refused to grant Chardbourne and Parke the legal or attorney’s fees. Warshaw and Chase’s argument was that the 1988 Will was only illegal but that Chardbourne and Park was already aware of this but still continued on with its execution. But based on reports, when Warshaw and Chase Manhattan Bank entered into an agreement and settlement with Chardbourne and Parke, LLP the latter already impliedly recognized the validity of the Will and the contract agreement both parties entered into. Still according to the court, Warshaw and Chase Manhattan allowed a considerable amount of money be given to the primary beneficiary of the 1988 Will which was the German Catholic Church with a half interest on trust as part of the estate. This was considered by the court as more than enough evidence that both parties agreed on the validity of the Will in question. The court also noted that there is no legal cause to deny Chardbourne and Parke, LLP the legal fees for their services rendered.

Published on: February 8, 2012

Court Rules on a Will Contest Matter

by Stephen Bilkis

August 13, 1970, Julia Eckhart died leaving two children, Charlotte Eckart and Frank Darmody. In her will that was dated August 4, 1966, she left each of them the sum of $50 and the rest to Watch Tower Bible and Tract Society of Pennsylvania. The will was admitted to probate and daughter, Ms. Eckart and Mr. Darmody submitted intent to contest the will. This is because of the size of the estate distributed by the will. New York Probate Lawyers say that in the Estates, Power and Trusts Law, gifts to a charitable institution should not be more than half of the estate if contested by a descendant or parent. The law further states that the person can only contest if they are to receive a monetary benefit if the contest is successful as the beneficiary of the will.

Being the children of the deceased is not questionable. What needs to be decided on is if they have the right because they will receive a pecuniary benefit. The executor’s point of view was that the children did not have the right as the will expressed that Mrs. Eckhart, the deceased, did not want to give her children more than the $50, she provided for each of them. He relied on the case of Joseph Cairo as an example. The Cairo case, a Staten Island Probate Lawyer states, had the specific words that said that the deceased did not wish to give the grandson, Joseph Cairo, anything from the estate. The grandson was not going to benefit from a successful contest.

In this matter, the deceased placed her relatives in different levels as her children got $50 inheritance while the others did not. There was nothing that specifically or expressly stated she wished they do not receive anything more than the $50, she had appropriated in her will. The $50 in this case is insignificant. It does not show the intent of the testatrix if she wished to take away inheritance from her children. The law takes out intention with its provision. It keeps only what is stated in the will.

Published on: February 5, 2012

Court Rules on a Motion in Limine

by Stephen Bilkis

MBIA Insurance Corporation (MBIA) filed a motion in limine for the court to allow MBIA to use statistical sampling to be able to present evidence for fraud and breach of contract and also to prove damages against Countrywide Home Loans, Inc., Countrywide Securities Corp. and Countrywide Financial Corp. (collectively Countrywide). A motion in limine is a request for a judge to rule if evidence may or may not be introduced in a trial. This can be done before or during a trial. Countrywide opposed this motion. A New York Probate Lawyer said that this is usually done to make sure that a jury will not see a possibly damaging evidence.

On September 27, 2010, a hearing was held to examine the evidence. MBIA presented an expert witness in the person of statistician Charles D. Cowan, Ph.D. Dr. Cowan gave testimony as to his proposed method of sampling the fifteen residential mortgage-backed securitizations (RMBS), which is the issue. The court requested that the different groups submit additional arguments on October 13, 2010. The requested that these opinions be delivered by letter.

One of the motions of the defendant is that the petition was premature. A Long Island Probate Lawyers mentioned that the court in this case did not set time limits with the motions in limine. Although MBIA presented this very early in the trial, it is legal and timely. The defendants, Countrywide, as well contends that legal and factual issues prevent the decision regarding MBIAs appeal. Countrywide says that there are disputed issues that must be settled first before the use of sampling. They stated that with the granting of the motion of MBIA, the court would improperly resolve legal questions that have not yet been fully discussed by the parties in court.