Long Island

Published on: November 4, 2013

Family Alleges Undue Influence in Execution of Mother’s Will

by Stephen Bilkis

In this estate in which there is a contested probate proceeding pending, the decedent was the defendant in a County Supreme Court action, commenced by his sister and two other parties who are the objectants in the probate proceeding (the movants). New York Probate Lawyers said the complaint in the Supreme Court action alleges that the decedent exerted undue influence on his sister to obtain a deed to her one-half interest in real property and converted funds held with the sister in a joint bank account. The movants now seek an order transferring the Supreme Court action to this Court and consolidating that action with the probate proceeding. The proponent in the probate proceeding, who is the respondent in this application, opposes the motion.

Although a party may seek the court’s consent to receive for trial any action pending before the Supreme Court which affects or relates to the administration of a decedent’s estate, only the Supreme Court can order the transfer of a proceeding pending before that court. A New York Will Lawyer said that consequently, the branch of the motion seeking an order directing transfer of the Supreme Court action must be made to the Supreme Court in the first instance.

Nevertheless, the gravamen of the Supreme Court causes of action clearly affect or relate to the administration of the decedent’s estate, and this Court has jurisdiction over all actions and proceedings relating to the affairs of the decedents, probate of wills, estate administration and actions and proceedings arising there under or pertaining thereto. Long Island Probate Lawyers said as the pending Supreme Court action appears to fall squarely within this Court’s jurisdictional imperative, if the Supreme Court in the exercise of its discretion deems that a transfer is warranted, then the Court consents to receive for trial the action pending in the Supreme Court which affects or relates to the administration of the decedent’s estate. Regardless of whether the Supreme Court directs that the action be transferred, the movants may seek the appointment of a temporary administrator in the event that the proponent does not seek preliminary letters.

Published on: October 26, 2013

Executor Moves to Preclude Decent’s Grandchildren from Will

by Stephen Bilkis

In this probate proceeding the proponent, the decedent’s son who is the nominated executor and sole beneficiary under the propounded instrument moves to preclude the objectant, the guardian of the property of one of the decedent’s grandchildren who is an infant, from offering any evidence or testimony in this proceeding on the grounds that the objectant’s bill of particulars was untimely served (81 days after the demand instead of 30 days) and 15 days after all disclosure was to be completed, and that the responses therein are not in conformity with the specificity requirement set forth in Uniform Rules for the Surrogate’s Court.

A New York Probate Lawyer said the decedent died at the age of 73. The decedent’s only distributees are the petitioner, the infant grandson for whom a guardian ad litem (court appointed) was appointed and another grandson who consents to the probate of the propounded instrument. Although the guardian ad litem for the infant filed a report indicating that he found no basis to object to the admission of the will to probate, the infant’s father disagrees. After some delay caused in part by the necessity of obtaining guardianship of the infant’s property, the father eventually filed objections on the infant’s behalf.

A conference was held with the court in which the guardian ad litem participated and indicated that he would favor settlement of the issues raised. A New York Wills Lawyer said as no settlement was reached, the court rendered a decision relieving the guardian ad litem of his representation of the infant unless he was needed for any subsequent settlement discussions, inasmuch as the infant was represented by counsel retained by the guardian of his property who would vigorously prosecute the objections.

Published on: October 24, 2013

Court Determines if Bequest to Decedents Friend is Void

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 Wills 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 21, 2013

Two Sons File for Accounting Proceeding

by Stephen Bilkis

This is an accounting proceeding wherein objections were filed by one of the two sons of the decedent who have equal shares in the residuary estate.

A New York Probate Lawyer said the issues presented before the court arise from a situation where an attorney-draftsman and his partner petitioned in the probate or will contest proceeding to be appointed co-executors, no objections to their serving in that capacity were filed in the probate proceeding and they continued to serve as co-executors without objection until the final accounting, at which time objections are raised to their request for two full executors’ commissions as well as attorneys’ fees. The objections to executors’ commissions and legal fees raise significant questions which no reported case has fully answered. The result hinges on the applicability of the precedents of Matter of Weinstock, Matter of Laflin and Matter of Harris to the facts of this case.

On 19 February 1985, the decedent died in his early nineties. He executed on 14 June 1983. A, a lawyer who had represented the decedent, was nominated as the primary executor. A New York Will Lawyer said the attorneys who are the accountants in this proceeding were named alternate co-executors. The will was admitted to probate on the waivers and consents of both of decedent’s sons. The primary executor renounced and both of the alternates, who are the sole partners of their law firm, qualified as co-executors of the estate. These attorneys have served as co-executors from the inception of the estate and have performed all of the legal services in the probate, tax and accounting proceedings.

Published on: October 19, 2013

Court Decides if Respondent was Able to Distribute Money via a Power of Attorney

by Stephen Bilkis

A New York Probate Lawyer said that, in this SCPA 2103 proceeding, the respondent moved to vacate her default and for other relief. The branch of the motion seeking to vacate the respondent’s default is now academic as a result of the court’s decision and order dated February 1, 2008. In that decision and order, the petitioner’s application to strike the respondent’s pleadings and to enter a default judgment in the sum of $173,000 was denied, provided that the respondent both paid the sum of $400 to cover the cost and fees for her failure to appear at a deposition and, thereafter, appeared to be deposed as directed.

A Bronx Estate Lawyer said that, in her affidavit in support of the motion, the respondent’s request for “other relief” is: (1) dismissal of the petition on the ground “that no asset of the estate” was ever removed by her; (2) dismissal of the petition on the ground that the “Stipulation of Settlement” filed in the probate proceeding was intended to cover “all matters and claims,” including any claim that the respondent removed estate assets; and (3) the imposition of sanctions on the petitioner’s attorney for knowingly filing a “frivolous” petition. In the alternative, the respondent requests that the proceeding be scheduled for a hearing.

A New York Will Lawyer said the issue in this case is whether the respondent was authorized to distribute monies from the decedent’s bank account to herself pursuant to a power of attorney.

Published on: October 14, 2013

Court Decides if Testamentary Trustee Can File a Bond

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner, the nominated trustee of the trust created in the residuary clause of decedent’s will, requests that an order be entered modifying the probate decree by deleting the direction therein that he file a surety bond in the sum of $227,000.00. The initial question to be answered is whether the court has discretion under the provisions of SCPA 801(1)(c) and 806 to dispense with the requirement that a testamentary trustee file a bond notwithstanding the absence of a direction in the will exempting the trustee from this requirement. Of course, if the court has this discretion, it must be determined whether this is an appropriate case in which to exercise it.

A New York Will Lawyer said that, with the exception of a contingency not pertinent to this application, decedent’s son is to receive one-third of the net income from the residuary trust until he attains the age of 58, at which time he shall receive all of the principal and accrued interest. The principal shall be paid to the son’s issue in the event that he dies prior to attaining the age of 58. Petitioner is nominated as the executor in one paragraph and as the trustee in the following paragraph. The first of these paragraphs also nominates an alternate executrix and specifically directs that neither the executor nor the alternate shall be required to file any bond. The next paragraph fails to name an alternate trustee and is silent on the subject of whether the trustee must file a bond.

A Long Island Probate Lawyers said that, petitioner alleges that he is the chief financial officer of a corporation, that his children considered decedent “as a grandfather rather than a friend” and that decedent “would have dispensed with the requirement of a bond had he known the cost” because he had “the utmost faith” in petitioner’s “abilities to administer the trust”. Inasmuch as petitioner also alleges that the annual cost of the bond is “in excess of $700.” and that the cost over the potential lifetime of the trust would be “over $10,000”,it appears that the son will be 58 in approximately 14 years. In any event, the son has filed an affidavit in support of the application. He states that he has two infant children, that he is going through an acrimonious divorce, and that he has serious financial problems. He concludes that the cost of the bond “is wholly unnecessary and a waste of money”.

Published on: October 13, 2013

Court Decides if Petitioners Constitutional Rights Have Been Violated

by Stephen Bilkis

A New York Probate Lawyer said that, this is an appeal under 28 U.S.C. § 1257 (2) from a judgment of the Supreme Court of Arizona affirming the dismissal of a petition for a writ of habeas corpus. The petition sought the release of appellants’ 15-year-old son, who had been committed as a juvenile delinquent to the State Industrial School by the Juvenile Court of Gila County, Arizona. The Supreme Court of Arizona affirmed dismissal of the writ against various arguments which included an attack upon the constitutionality of the Arizona Juvenile Code because of its alleged denial of procedural due process rights to juveniles charged with being ‘delinquents. The court agreed that the constitutional guarantee of due process of law is applicable in such proceedings. It held that Arizona’s Juvenile Code is to be read as ‘impliedly’ implementing the ‘due process concept.’ It then proceeded to identify and describe ‘the particular elements which constitute due process in a juvenile hearing.’ It concluded that the proceedings ending in commitment of the 15-year-old son did not offend those requirements.

A New York Will Lawyer said that, on Monday, June 8, 1964, at about 10 a.m., the 15-year-old son and his friend were taken into custody by the Sheriff of Gila County. The 15-year-old son was then still subject to a six months’ probation order which had been entered on February 25, 1964, as a result of his having been in the company of another boy who had stolen a wallet from a lady’s purse. The police action on June 8 was taken as the result of a verbal complaint by a neighbor of the boys, about a telephone call made to her in which the caller or callers made lewd or indecent remarks. It will suffice for purposes of this opinion to say that the remarks or questions put to her were of the irritatingly offensive, adolescent, sex variety.

A Long Island Probate Lawyer said that, at the time the 15-year-old son was picked up, his mother and father were both at work. No notice that he was being taken into custody was left at the home. No other steps were taken to advise them that their son had, in effect, been arrested. He was taken to the Children’s Detention Home. When his mother arrived home at about 6 o’clock, he was not there. His older brother was sent to look for him at the trailer home of his friend’s family. He apparently learned then that he was in custody. He so informed his mother. The two of them went to the Detention Home. The deputy probation officer, who was also superintendent of the Detention Home, told the mother was there’ and said that a hearing would be held in Juvenile Court at 3 o’clock the following day, June 9.

Published on: October 3, 2013

Petitioner Alleges Legal Malpractice

by Stephen Bilkis

A New York Probate Lawyer said that, in this SCPA 2103 discovery proceeding, respondents, the two principals in a law firm, move under CPLR 3211 to dismiss the petition seeking damages against them for their alleged legal malpractice. The discovery petition alleges that decedent and her post-deceased husband had told movants that they had agreed not to revoke their wills and that the essentially reciprocal wills movants drafted for them, which were executed on May 25, 1983, failed to include the language required to make this agreement enforceable.

A Bronx Estate Lawyer said that, the decedent died on October 22, 1992 and her will executed on May 25, 1983 was admitted to probate. Inasmuch as one of the movants became the successor executor of decedent’s estate, replacing post-deceased husband after he died, one of decedent’s nephews (hereinafter, the “administrator”), a residuary legatee named in the will, petitioned for and received limited and restricted letters of administration pursuant to SCPA 702(9) so that he might commence this discovery proceeding against movants. Although several reasons have been advanced by movants for the dismissal of the petition, the primary ground is that the lack of privity between any legatee under decedent’s will and the movants precludes the legatees from recovering damages based upon movants’ alleged malpractice in rendering legal services to decedent in the drafting of her will.

A New York Probate Lawyer said that, under the 1983 wills drafted for decedent and the post-deceased husband, after the death of the second spouse, almost 100% of both spouses’ estates would have passed 50% to decedent’s five nieces and nephews and 50% to the post-deceased husband’s four children from a prior marriage. The discovery petition alleges that, after decedent’s death, movants drafted a new will for the post-deceased husband which he executed on February 8, 1993. Under this will, one of the movants was nominated as the executor, the first $1,600,000.00 of the estate was bequeathed to the post-deceased husband’s children and only 20% of the residuary estate was bequeathed to four of decedent’s nieces and nephews. The post-deceased husband died on May 27, 1993 and his will executed on February 8, 1993 has been admitted to probate. It appears that decedent’s estate administration has an approximate value of $425,000.00 and that post-deceased husband’s estate has an approximate value of at least $2,000,000.00.

Published on: September 27, 2013

Petitoner Brings Will Contest Proceeding

by Stephen Bilkis

Two cases are before the court for resolution.

A New York Probate Lawyer said in the first case, the contestants in a will contest or probate proceeding of the Estate of A appeal from the order of the Surrogate’s Court, Kings County, entered on 9 October 1959 which denied their motion for the entry of an order denying probate to an alleged codicil in accordance with the court’s decision of 13 August 1957 or in the alternative, for summary judgment denying probate to said alleged codicil according to Rules of Civil Practice, rules 113, 114 and directed that the proceeding be placed on the calendar for a day certain.

The court affirms the order with one bill of $10 costs and disbursements, payable out of the estate.

Published on: September 8, 2013

Petitioner Moves for Summary Judgment in Will Contest Proceeding

by Stephen Bilkis

This is a probate proceeding wherein petitioner, A, moves for summary judgment pursuant to CPLR 3212 dismissing the objections to probate of the respondent, B, and admitting into probate the last will and testament of the decedent dated 7 April 1997 and a codicil dated 2 August 2006.

The court grants the motion in its entirety.

A New York Probate Lawyer said the decedent, C, died on 31 October 2010. C was survived by her husband, A, the petitioner, and by her two sons: B, the respondent, and D.