Long Island

Published on: April 23, 2012

Court Decides if Decedent was Under Undue Influence at Will Signing

by Stephen Bilkis

The petitioners in this case have filed a motion for summary judgment which will dismiss the public administrator’s objections. The petitioners are also seeking the admission of the testator’s will for probate.

Before the death of the testator, he had been living in a facility for the elderly for many years. One of the two petitioners in this case is the current administrator of the elderly home. The other petitioner held the position of director of the same place. As co-executors of the will, the entire estate of the decedent will go to them.

Upon learning of the will, the petitioners have filed for probate but the public administrator prevents the action. The public administrator is obliged under the law to become one of the parties in litigation. The objections were raised because during that time, the decedent allegedly did not have the ability to draft a testament. The public administrator also made allegations that the contested will was only written because of the undue influence of the petitioners.

Published on: April 19, 2012

Court Decides Jurisidiction for US Citizen with Properties in South America

by Stephen Bilkis

A rich man died leaving several properties in Central America and two States in the U.S. Almost two and one-half years later, a petition was filed in the court of a U.S. State by the Country of the deceased man for the order which is alleged to have been destroyed after the man’s death. That petition contains the further allegation that the man was, at the time of his death, a resident of the Country from Central America. The petition was amended in which the petitioner set forth transactions and proceedings with U.S. State Tax Commission wherein the petitioner was advised of the Commission’s disagreement that the man had been a resident of the U.S. State. The petition was thereupon amended to read that the man, at the time of his death, was either a resident of the U.S. State or a resident of the Country from Central America.

The petition against the U.S. State was to dismiss their petition for the probate of the will on the grounds that the involved U.S. State court has no jurisdiction to entertain the proceeding and if it has jurisdiction, that it should decline, in its discretion, to exercise it. The Petitioner Country requests a hearing on the matter of the deceased person’s residence and the location of his property.

A New York Probate Lawyer said that tax Law requires that in every proceeding for original letters appointed by in the estate of a non-resident deceased person, the State Tax Commission must be cited as a necessary party. The section contains other provisions to protect the State’s interest with respect to the collection of any tax that might be payable. The petition herein having been amended so as to leave open the question of the man’s residence, the State Tax Commission is taking no active part in the process of the proceeding. It is obvious, therefore, that the amendment of the petition represents not so much a change of mind on petitioner’s part but rather an effort to avoid at this time unnecessary legal action.

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 12, 2012

Court Decides Will Contest

by Stephen Bilkis

A man died survived by his spouse. He left a will which then became the subject of a probate (will contest) proceeding. Certain documents were sought to be produced which then became the subject matter of the present case.

Two issues were raised during the estate litigation, to wit:

1. Whether or not the instruments sought were privileged matters between the widow and her attorney; and

Published on: April 8, 2012

Petitioner Seeks Order Vacating Settlement Agreement

by Stephen Bilkis

In this probate proceeding, petitioner filed a motion seeking an order of vacating a settlement agreement and a renunciation and disclaimer of its purported execution to render said stipulation effective.

Decedent was survived by his spouse, herein petitioner, and two children of decedent from prior marriage as respondents to the probate proceeding in Nassau County Surrogate Court.

A New York Probate Lawyer said the petitioner filed a petition for probate of decedent’s will in Nassau County Surrogate Court and preliminary letters testamentary was issued in her favor. Decedent’s son was represented counsel and negotiations for settlement proceeded between parties to the case. The dialogues resulted in a stipulation of settlement. Settlement stipulated that a certain asset plan of the decedent be divided equally among the spouse and two children of the decedent in trust. The will provided that residuary estate be allocated as follows: 65% to the spouse, 25% to the daughter, and 10% to the decedent’s sister.

Published on: April 7, 2012

Man Dies with 11 Children, Only 1 Named in Will

by Stephen Bilkis

In January 13, 2007, the father died survived by 11 children: three from the first marriage, four from the second marriage and four alleged non-marital children. The purported will was offered for probate benefits only one child from the first marriage, Angela Manning, who inherits the entire estate and named executrix.

Allegedly, in June 24, 1996, the deceded executed his will. In that he underwent a DNA tests in 2005 and 2006 which revealed that he is the biological father of the claimants who were born long before the execution of the decedent’s will. They claim that the only the non-marital children known or acknowledged after the execution of the will shall be presumed to be inadvertently disinherited as an after born child with whom the same right shall be extended.

Normally, a child is entitled to after born rights if born after execution of the will. There is no exception to this rule other than for a child adopted after the execution of a will, though born previously.

Published on: April 7, 2012

Can a Witness to a Will Signing Also be a Beneficiary?

by Stephen Bilkis

A New York attorney applied for letters of administration upon the request of the executor of a will. The said executor is also the beneficiary and a nephew of the decedent who was a New York resident at the time of her demise. Upon closer observation of the will, it was noticed that the beneficiary also stood as witness to the execution of the same as shown in the document. Under New York law, a witness cannot be a beneficiary at the same time and this is to avoid among others undue influence from coming into the picture in the execution of the will. This is the only question poised that must be determined by the court in this preliminary estate administration proceeding.

The facts of the case showed that the decedent was a resident of New York. She visited her nephews in Canada and there executed a will in front of 2 witnesses that included the designated executor-beneficiary. In the will, the decedent specifically designated her nephew as the sole beneficiary of her estate relating to personal property and also assigned him as the executor of the same. A New York Probate Lawyer said when the time for presentation of the will came, jurisdiction was acquired by the court over the persons of the 2 other nephews of the decedent but they decided not to participate in the proceedings. A consent and waiver from the other brother was obtained and as such there was no will contest that can hamper the proceedings from commencing under normal circumstances save for the perceived defect in the document as regards the formalities required by the law when it comes to the valid execution of a will.

The petitioner in this regard presented proof of the applicable laws in Canada. He argued that since the instrument was executed in the said country, then the formalities required in executing a will is controlled by the law of the place where it was executed. He argued further that since the will is valid where it was executed, then it must also be treated as valid in New York such that the formalities required by New York law in the execution of a last will and testament should not apply in this particular case. Long Island Probate Lawyers said that the nephew assigned as sole beneficiary-executor can also be a witness at the same time in the said instrument is not irregular under Canadian Law even if the same is not permitted in New York should not be an issue as the place where the instrument was made and deemed to have complied with the requirements must always be given weight.

Published on: April 5, 2012

Petitioner Brings Will Contest Action

by Stephen Bilkis

A man executed a will in January 23, 1962. In this will the man made bequests of jewelry and personal property; devises of real property; and a trust to his widow. The value of the gifts and benefits he gave to her in the will amounted to $7,500,000.00.

He also made a bequest to his four daughters in the form of a trust amounting to $1,700,000. The four daughters were to share the trust.

He also made a bequest for each of his five sons in the form of individual trusts amounting to $1,450,000.00 each.

Published on: April 5, 2012

Court Determines if it has Proper Jurisdiction for Probate

by Stephen Bilkis

In this case, the only issue that has to be determined by the court is whether or not it has jurisdiction to entertain the probate of the decedent’s last will and testament.

The facts of the case state that the decedent was a resident of New York when he executed his last will and testament. The said will was executed in New York on March 24, 1974 and the executor assigned is also from New York. A few months after the will was executed and during the same year, the testator was removed from his residence in New York by his niece because he needed personal care and attention due to old age and sickness. From New York the decedent was then transferred to the place of residence of the niece which is in Pennsylvania. The following year, the niece was able to get an appointment as guardian of the decedent from a court in Pennsylvania based on the fact that the decedent then is already incompetent. The guardian later removed all the personal properties in New York leaving only the house owned by the decedent as the only estate left in New York.

A New York Probate Lawyer said that upon the death of the decedent, the named executor in the will sent to the guardian the copy of the will executed by the decedent. The lawyer of the guardian wrote back and stated in the letter that the guardian had already applied for letters of administration and that his client treats the said will as invalid. The court of Pennsylvania later on also issued the letters of administration applied for by the guardian. This started the will contest between the parties.

Published on: March 30, 2012

Court Determines Who Letters Testimentary Should Be Issued To

by Stephen Bilkis

On 14 December 2005, the decedent died leaving a will dated 13 September 2005 (the “2005 Will”) and a prior will dated 24 January 2003 (the “2003 Will”). She was survived by three (3) daughters. Under the 2003 will, two (2) of the decedent’s daughters are named as executor and successor executor. Under the 2005 will, one of the daughters named in the 2003 will is again named as executor.

To whom shall the letters testamentary be issued?

The rules state that the issuance of preliminary letters testamentary was to provide a form of letters to the named executor which would allow for the immediate administration of the estate (estate administration or estate litigation) when there may be a delay in probate (will contest). The purpose was to honor the testator’s preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest. Although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator’s will. A person not named as an executor has no standing to seek preliminary letters. Moreover, where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters is mandatory “upon due qualification”. If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.