New York City

Published on: December 16, 2012

Co-Executors File Motion for Eviction in Estate Litigation

by Stephen Bilkis

The Facts of the Case:

On 30 December 2006, the decedent died a resident of Nassau County leaving a last will and testament dated 13 July 2006. On 19 March 2007, the will was admitted to probate and letters issued to A and B as co-executors and co-trustees. After making some specific bequests, the decedent left her residuary estate to her four daughters, A, B, C, and D, in equal shares; and placed C’s share in a Supplemental Needs Trust under her name created pursuant to Article Fourth of the will. Under the will, the trustees were given discretion in distributing income and principal to C; that at C’s death, the remainder of the trust, if any, will pass to C’s son, CC; and D is the named successor fiduciary. The estate contains approximately $125,000.00 in personal property and three homes, which are valued in the aggregate at $1,285,000.00.

Thereafter, five miscellaneous proceedings were filed with the court in connection with the estate administration and that of the trust. On 10 December 2008, some of the issues raised were resolved in a stipulation of partial settlement entered into by all the interested parties, viz: that A and B, as co-trustees of the supplemental needs trust, would enter into a contract for the purchase of property-two which C and CC agreed to use as their long-term primary residence; that C and CC, who were residing in decedent’s real property, property-one, would vacate that property and move to property-two; and that the fiduciaries are obliged to put property-one up for sale within 90 days after respondents move out. Pursuant to the agreement, the co-executors purchased property-two and made it available to respondents as of 16 March 2009.

Published on: December 13, 2012

Petitioner Claims Undue Influence in Estate Litigation Case

by Stephen Bilkis

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. 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. A New York Probate Lawyer said 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.

Published on: December 5, 2012

Court Determines Motion for Summary Judgment is Premature

by Stephen Bilkis

This matter is being heard in the Second Department, Appellate Division of the Supreme Court of the State of New York. This is a contested probate proceeding involving the deceased. The appellant, is appealing an order that was made by the Surrogates Court of Westchester County. The order was dated the 24th of July, 2009 and denied his motion for summary judgment as premature. A New York Probate Lawyer said the order dismissed his objections to admit the will for probate. He was also imposed with costs and sanctions.

Court Discussion

When a summary judgment is denied the party is entitled to further discovery when it is apparent that there may be facts to support the opposing party’s position, but they cannot be stated at that particular point in time.

Published on: December 3, 2012

Court Decides Contested Probate Proceeding

by Stephen Bilkis

Queens Probate 25

This is a case being heard in the Appellate Division of the Supreme Court of the State of New York, Second Department. The case involves a contested probate proceeding. The proponent is appealing an order that was made in the Surrogate’s Court of Westchester County. The order is dated the 24th of July, 2009 and denied the proponent a motion for summary judgment on the ground that it was premature. The order was made without prejudice with the opportunity to renewed.

Case Discussion and Decision

Published on: December 2, 2012

Petitioner Contends Undue Influence

by Stephen Bilkis

Queens Probate 26

This is a probate proceeding being held in the Second Department, Appellate Division of the Supreme Court of the State of New York. In this case the residuary legatee, who was named in a will dated December of 1955, offered it for probate as the last will and testament of the decedent. The legatee is appealing a decree that was made in the Surrogate’s Court of Queens County. The decree denied probate for the will on the ground of lack of testamentary capacity and undue influence.

Case Discussion

Published on: December 1, 2012

Court Decides Whether Opening a Bank Account Constitutes a Settlement

by Stephen Bilkis

This is a case of appeal regarding probate. The case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. The appellant is appealing a decree that was made in the Surrogate’s Court of Queens County. The decree admitted a will to probate and allowed the opening of a savings account by the testator in trust for his son that was born after the will was executed and constituted a settlement within the meaning of section 26 of the Decedent Estate Law. The appellant also states that the after born son is barred from taking an intestate share of the estate.

Case Discussion

A New York Probate Lawyer said when reviewing the case it is this court’s opinion that the Surrogate did not have the authority to determine the rights of the after born infant under section 26 of the Decedent Estate Law. The question of whether opening a bank account constituted a settlement within the meaning of section 26 should not have been decided without notice and without an opportunity for the interested parties to be heard.

Published on: November 29, 2012

Court Explains Powers of an Executor

by Stephen Bilkis

The case is being heard in the Special Term of the Supreme Court located in Queens County part 1.

Motions

A New York Probate Lawyer said there are several motions made in regard to this matter. The plaintiff is seeking that separate defense be struck out and the counterclaim against the plaintiff be dismissed on the ground that the court does not have jurisdiction over the counterclaim, the defendant does not have the legal capacity to sue, there is another action pending over the same cause, and the counterclaim does not state facts that are sufficient for a cause of action.

Published on: November 26, 2012

Court Makes Ruling When Original Will Missing

by Stephen Bilkis

This is a matter dealing with a last will and testament. The case is being heard in the Surrogate’s Court of Queens County. The decedent passed away on the 17th of March, 1956. The decedent was survived by four adult children. A copy of a will was found among her affects and is alleged to be written by the decedent on the 26th of July, 1938.

The will that was found left the amount of $200 to a priest for the masses to be performed for her and her deceased husband. The rest of the estate was to be divided between the four children.

Probate Proceeding

Published on: November 24, 2012

Court Looks at Proper Jurisdiction for Estate Administration Issue

by Stephen Bilkis

The case is being heard in the Surrogates Court of New York County. The motion before the court is made on behalf of the widow and minor child of the testator to dismiss the petition for probate in the interest of justice on the ground that a French forum would be convenient and a New York probate would be inconvenient.

In the petition for probate it is stated that the assets of the estate are between $200,000 and $300,000. However, during oral argument for the estate the estate is said to be worth between one and two million dollars.

Case Discussion

Published on: November 24, 2012

Public Administrator Files Petition for the Temporary Letters of Administration

by Stephen Bilkis

This case is being heard in the Second Department, Appellate Division of the Supreme Court of the State of New York.

The petitioner and appellant in the case is appealing an order made by the Surrogates Court of Queens County. This order was dated the 17th of April, 2008 and granted a petition and ordered temporary letters of administration for the estate of the decedent to the Public Administrator of Queens County.

Case Background