Articles Posted in Nassau

A New York Probate Lawyer said that in this proceeding, the court is faced with the primary issue of whether or not the respondent may be compelled to produce at her examination before trial petitioner’s own wills and trusts or whether or not the attorney-client privilege or the confidential, ambulatory nature of the will of a living person protects these documents from disclosure.

The court rules that these documents are not protected by the attorney-client privilege. A New York Wills Lawyer said the confidential nature of these documents, however, dictates that disclosure should be compelled only upon a strong showing of necessity. In this case, the court finds that a limited disclosure is appropriate to enable the petitioner to properly prepare for trial.

The petitioner in this case is the decedent’s sister who commenced this proceeding to set aside and declare invalid a lifetime trust created by the decedent and two wills which were executed respectively on the date that the trust was created and the date that the trust was amended. Petitioner moves for the entry of an order directing that the decedent’s other sister, the respondent, to produce her previous and existing wills and/or trusts and any of her wills and/or trusts prepared by Atty. RL or his office. On the other hand, the respondents have cross-moved for a protective order with regard to the requested disclosure and for an order dismissing that branch of the petition seeking to declare the decedent’s wills invalid.

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A New York Probate Lawyer said that, in this uncontested probate proceeding, the primary issue is whether the “within one thirty day period” for the completion of the will ceremony prescribed by EPTL 3-2.1(a)(4) commences on the date of the signature or the date of the first acknowledgment where the testator has signed the will prior to any acknowledgment of his signature. Although this appears to be a case of first impression, a literal reading of the statute coupled with its legislative history clearly indicates that the period does not commence until the first acknowledgment.

A Bronx Will Contest Lawyer said that, the propounded instrument is dated May 5, 1987. Decedent died on August 1, 1987. Two of the attesting witnesses executed their depositions in the Probate Department of the court. Each of them indicated that the other witnesses were not present when deponent signed the will as a witness and neither witness could pinpoint the date on which he or she had signed the will. One of the witnesses stated, “I do not know when I signed the will but I believe it may have been in July.” Their depositions raised serious questions not only as to whether more than thirty days had elapsed between the date that decedent had signed the will and the date that her signature was acknowledged to the second witness but also as to whether more than thirty days had elapsed between the acknowledgment of decedent’s signature to the first and second witness. Inasmuch as probate of a will may not be allowed unless the court is satisfied as to the validity of its execution (SCPA 1408), the matter was referred to the Principal Law Assistant to take testimony.

A New York Will Lawyer said that, two attesting witnesses and proponent testified. Proponent stated that, at the request of the decedent, on March 31, 1987 he delivered from a law firm to the decedent the will together with instructions for its execution. On the Saturday before Memorial Day, decedent returned the executed will. One of the attesting witnesses was positive that she was the first witness to whom decedent’s signature was acknowledged. This occurred, in May, 1987, most likely a weekday, perhaps on a Wednesday. The other witness who testified had to be subpoenaed. Although he had previously indicated that he did not “believe” that he had witnessed the will before July, 1987, he now testified that “I have no recollection when I signed the will, but if they are stating that they saw my signature in early May on that will it very well is possible that I signed it” then.

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A New York Probate Lawyer said that, in this motion for summary judgment, the nominated executor under the propounded instrument dated January 14, 1949 seeks a judgment admitting the will to probate. The New York Province for the Society of Jesus (the Jesuits) is the sole beneficiary under the propounded instrument and the President of the Society is the nominated executor.

A New York Will Lawyer said that, the decedent died on December 28, 1986 at the age of 72. He was survived by two brothers, one of whom filed objections to probate. The objectant alleged that the instrument was not executed in accordance with the required statutory formalities, that it was a product of fraud and undue influence and that decedent executed it by mistake without having read it. The objectant subsequently died and his daughter, in her capacity as the executrix of his estate, was substituted as a party in his place. Movant contends that the objections fail to raise any legitimate factual issue as to the validity of the instrument.

A Nassau County Probate Lawyers said that the movant notes that a Jesuit is free to dispose of his property to whomever he wishes prior to taking his final vows. However, in conjunction with taking his final vows, which include a pledge to be completely dependent upon the Society, a Jesuit is required to execute a will leaving his entire estate to the Society. He is also required to execute other documents in which he represents that he does not believe that he presently owns any property and that, if he is mistaken in this belief, he shall give it to the Society. He also agrees to renounce any property that he might thereafter be entitled to receive by inheritance and that he will give to the Society any property thereafter acquired by gift or legacy other than by inheritance. Decedent entered the Society on February 1, 1932 and took his perpetual vows in 1934. It was not until January 1949, that he executed the propounded instrument, the other required documents and took his final vows.

This is a probate proceeding which has been pending since January 15, 1973. The decedent died and was survived by a husband who was alleged to be incapacitated and who was named as her executor and sole beneficiary in her will.

A New York Probate Lawyer said in connection with the right to letters testamentary, the court rendered a decision directing the issuance of letters testamentary to the petitioner, who was one of the two substituted co-executors, directing him to file an accounting complying with Rule of the court.

Subsequently there were numerous letters from the various parties interested in this estate but nothing was done either by the petitioner or his then attorney to comply with the decision of the court.

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A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated March 19, 2003 to probate. The objectant is the son of the decedent. The propounded instrument nominates the proponent as executor. The decedent, died on August 8, 2006, at the age of 88, survived by two children. Decedent and his wife of 42 years were divorced on January 8, 2004. The will offered for probate bequeaths substantially all of decedent’s assets to Perry to the exclusion of Nils. The decedent had as many as six wills, all but one of which (March 31, 2001) excluded Nils from decedent’s estate.

A New York Wills Lawyer said that, in 1954, the decedent founded a company in the business of the distribution of airplane parts and accessories. Decedent was the sole shareholder. Both the decedent’s children were employed by the company. In 1995, the first son’s employment was terminated and thereafter, he and decedent were estranged. On April 12, 2002, pursuant to a stock purchase agreement, the decedent sold his stock in the company to his son who executed a note for $9,600, 000, representing the purchase price of 80% of decedent’s shares. The remaining 20% of the stock was gifted by decedent to his son. Prior to the stock sale, decedent transferred substantial assets to his wife.

A Nassau Estate Litigation Lawyer, the objectant has interposed the following objections to the propounded instrument: lack of testamentary capacity, lack of due execution, fraud, and undue influence. In support of the motion to admit the will to probate, the proponent submits his own affidavit, the deposition testimony of witnesses to the will, the affidavits of employees of the company, the company’s accountant, the wife’s attorney an associate in proponent’s law firm. Various documentary evidence was also submitted.

The decedent died on February 7, 1946. Shortly thereafter the executrix filed with the court a petition for the probate of the decedent’s will, together with her oath and designation. Jurisdiction of all necessary parties was obtained and the proceeding was marked for decree on July 10, 1946, subject to the affidavits of subscribing witnesses. Letters testamentary were not issued at that time.

The County Attorney of advised the then petitioner (and now executrix) by letter of the existence of the, the Board of Public Welfare of Nassau County filed a notice of claim with the court. This notice was not served on the then petitioner. Nothing further was done by the petitioner to complete the proceeding until February 1965 when the matter was reactivated and the will eventually admitted to probate and letters were issued.

A New York Probate Lawyer said the petitioner herein has requested a determination that the aforementioned claim of the Board of Public Welfare of Nassau County be held invalid and unenforceable against the estate and the executrix on the grounds that the claim is barred by the six-year Statute of Limitations provided by the old section 48 of the Civil Practice Act. The section 104 of the Social Welfare Law does not authorize recovery of amounts paid by welfare boards for any period prior to ten years before decedent’s death, and thus at least that part of the claim in the amount of $2,130.57 representing payments made prior to 1938 is not recoverable. The estate was insolvent at the date of the decedent’s death because the amount of her funeral and administration expenses exceeded the value of her personal property, and the amount of mortgage liens and unpaid interest thereon exceeded the value of her real property.

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Two cases before two (2) courts involve the same or similar issues, that is, the jurisdictions of both courts in ruling upon the probate proceedings filed before it.

First Case:

A New York Probate Lawyer said that on 26 April 1954, the decedent was committed to a State Hospital. Thereafter or on 12 August 1954, a Supreme Court in Kings County issued an order finding decedent to be an incompetent person. This order recited that decedent was then a resident of Kings County, and appointed “A”, a resident of Huntington, Suffolk County, as committee of the person and property of the incompetent. On 29 March 1955, the decedent died while a patient in the State Hospital. Consequently, “A”, who continues to reside in Huntington, was named executrix in the will of the decedent. Following the death, a probate proceeding was then instituted with “A” as the petitioner in Suffolk County. Respondent, appearing specially, challenges the jurisdiction of the Court on the ground that decedent, at the time of his death, was a resident of Kings County.