Articles Posted in Nassau

This is an application for an order relieving the petitioner of her default in filing her notice to take an elective share as decedent’s surviving spouse within the time provided and extending her time to file the notice of election. The question presented is whether the provision in EPTL 5-1.1-A (d)(1) that “an election under this section must be made in no event later than two years after the date of decedent’s death” precludes the granting of this uncontested application which was not filed until almost three years after decedent’s death.

A Bronx County Probate lawyer said that the decedent’s distributees are the petitioner, who is his second wife, and two adult children, issue of his first marriage. The decedent’s will was admitted to probate in November 2002 and letters testamentary issued to decedent’s brother. Under the circumstances that existed on the date of decedent’s death, his estate is bequeathed in equal shares to his two children. The petitioner, a resident of Mexico, concedes that she was served with a citation in the probate proceeding by mail in July 2002. She did not file the instant application until January, 2003.

A New York Probate Lawyer said the petitioner’s primary reasons for her delay in seeking to file the notice of election are that counsel for the executor allegedly had informed her that the entire estate consisted of joint accounts that were not testamentary substitutes because the decedent had created them prior to their marriage and that she did not receive the probate citation until more than two years after the date of decedent’s death. Although it took the petitioner a considerable period of time, she eventually obtained jurisdiction over the executor and the two beneficiaries of the estate, and they have interposed no opposition to the relief requested.

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Two cases were brought before the court for resolution.

In the first case:

A New York Probate Lawyer said that on 24 July 2006, the Supreme Court of New York County rendered judgment granting the defendant’s motion for summary judgment only to the extent of precluding plaintiff from asserting any claims for legal fees incurred in the prosecution of the action, and denied the defendant’s application to dismiss plaintiff’s claims for consequential damages based on the alleged breach of duty. The defendant appealed.

The Facts of the Case:

On 18 October 2007, a decedent died and is survived by his daughter-one and his granddaughters, A and B, the children of predeceased daughter-two, as his sole distributes. The decedent’s wife had predeceased him in September 2003. After the death of the decedent, the petitioner instituted an SCPA 2103 discovery proceeding. A New York Probate Lawyer said the petitioner is granddaughter B, who resides in Florida and to whom limited letters of administration (for estate administration purposes in an estate litigation) issued for the sole purpose of prosecuting the discovery proceeding and the respondent is daughter-one, who resides in Selden, Suffolk County. The property, subject of the proceeding, is a parcel of real property in Massapequa Park, Nassau County, and three bank accounts. Apparently, the real property was conveyed by the decedent to the respondent by deed dated 26 August 2004 and recorded 7 September 2004. The deed purported to convey all of the decedent’s right, title and interest in the property, except that it reserved a life estate in the decedent. At the time of decedent’s death, the bank accounts were held either jointly between decedent and respondent or solely by respondent.

In the SCPA 2103 proceeding, petitioner alleges that respondent was in a confidential relationship with the decedent and used that relationship to exert undue influence upon the decedent to convey the real property and change the title and/or beneficiary designations on the subject accounts. In opposition, respondent denies petitioner’s allegations and contends that all the transactions reflect the exercise of the decedent’s own free will. The respondent now moves for a summary judgment and for an order dismissing the petition and canceling a notice of pendency filed against the decedent’s former residence.

The Facts of the Case:

On 8 January 2006, the decedent died with a will dated 31 December 1993. On 26 April 2007, the decedent’s will was admitted for probate (will contest proceeding) by the court and a decree was thereafter issued, and letters testamentary also issued to the decedent’s wife as executor of the estate of her husband, the decedent (for estate administration as may be determined in estate litigation). At the time of the decedent’s death, he owns a surveying business. On 12 December 2007, an Asset Purchase Agreement was entered into between the decedent’s wife and “A” where “A” agreed to purchase the decedent’s business and all of the assets used in connection with the business. The purchase price was $375,000.00. On 14 December 2007, “A” executed a promissory note in the sum of $200,000.00. The note was guaranteed by a Land Surveyor company, “X”. The terms of the promissory note provide that “A” will pay the sum of $200,000.00, together with interest thereon at the rate of 5% per annum, in sixty consecutive monthly payments of principal and interest, each of which, except the last, was required to be in the sum of $3,774.25, the first payment to be made before 14 January 2008. Thereafter, on 14 December 2007, a bill of sale was executed by the decedent’s wife in favor of “A” where she was represented in the sale and in post-closing disputes concerning the sale by lawyer-two. However, no payment was ever made. Thus, on 25 January 2008, by written notice, the wife exercised her option to declare the unpaid principal balance of the promissory note to become immediately due, plus interest. The wife hired lawyer-one, and lawyer-two to act as co-counsel.

In opposition, respondent “A” alleges that the wife breached their agreement by failing to provide adequate documentation to allow him to collect on the accounts receivable; that the wife fraudulently misrepresented the value of the accounts receivable, either by intentionally keeping the necessary documentation from him or by misrepresenting that said documentation ever existed; that the wife fraudulently misrepresented that “A” would be receiving as part of the sale business assets such as cars, documents and files and other significant assets of the business; that, as a result, “A” has refused to make payment on the note. Moreover, “A” argues that lawyer-two should be disqualified from serving as the wife’s co-counsel on the grounds of the advocate-witness rule because he is a material and necessary witness; because he served as the wife’s attorney throughout the negotiation and sale of the business; that lawyer-two has intimate knowledge regarding the assets of the business and what was promised to “A” as part of the sale; that lawyer-two will be deposed and questioned as to the existence of the accounts receivable and his role in furnishing the necessary documents to allow “A” to collect on those accounts; that lawyer-two is a material and necessary witness because he was involved in negotiations, meetings and drafting of documents in connection with the sale. Furthermore, “A” also asks for leave of court to amend his answer to add two affirmative defenses, one alleging mutual mistake concerning the disputed invoices and the value of the accounts receivable and one alleging unilateral mistake by “A” caused by fraudulent conduct on the part of the wife, since the wife’s counsel has declined to stipulate to allow the amendment; that the amendment does not create any prejudice or cause any surprise to the wife; that these defenses arise out of the same set of facts previously set forth in the petition; and that the case is still in the early stages of discovery where no depositions have yet taken place, and the wife will still have the opportunity to seek discovery on these new defenses.

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