Probate & Estate Litigation

Published on: February 25, 2014

Court Decides Case Regarding Rhode Island’s Non-claim Statute

by Stephen Bilkis

A New York Probate Lawyer said that, plaintiff was a patient of the decedent doctor, a general dentist. He died on September 12, 2005. Although he lived in New York at the time of his death, a probate estate was commenced in Rhode Island where he possessed property and where, over a decade earlier, he had executed his will. On December 8, 2005, the decedent’s brother (who happens to be an attorney), was appointed as Executor of the Estate of the decedent (“the Executor”) In late December 2005, he sent plaintiff care of her attorney, a “Notice of Commencement of Probate,” which set forth information regarding the decedent’s Rhode Island probate estate.

A New York Will Lawyer said that, plaintiff commenced this dental-malpractice action against the Executor in June 2006. In her Verified Complaint, she alleges that the decedent committed malpractice while rendering dental treatment between September 11, 2004, and February 15, 2005. The Executor’s Verified Answer (dated August 24, 2006), includes the affirmative defenses of failure to “timely file a claim against decedent’s estate” pursuant to Rhode Island General Laws §§ 33-11-4, 5, 9 and “insufficient service of process.”

A Nassau County Probate Lawyer said that, pursuant to CPLR 3211, defendant Executor of the Estate of the decedent moves to dismiss this dental malpractice action commenced by plaintiff, arguing that plaintiff failed to comply with Rhode Island’s non-claim statute and failed to properly serve him. Plaintiff opposes the motion and, as a precautionary matter, cross-moves for an extension of time to properly serve the Summons and Verified Complaint.

Published on: February 24, 2014

Court Decides Validity of German Will

by Stephen Bilkis

In this proceeding the petitioner requests probate of a will executed in 1955 while the decedent was domiciled in New York County. A New York Probate Lawyer said that the petitioner is an appointed executor of a will which bequeaths the residuary estate to a New York charity. Decedent journeyed to Bavaria, West Germany in 1965 and executed a holographic will while still there in 1967; that will provides that it revokes all prior wills. She died, still in Germany, having neither home nor presence in New York from after departure in 1965 until her death in 1968.

A New York Will Lawyer said that Respondent cross-petitioner is the sole legatee under the later will, which was established in court proceedings in West Germany in 1972. Respondent cross-petitioner moved for summary judgment dismissing the petition and denying probate to the prior 1955 will. Respondent further petitions for ancillary letters c.t.a. on the basis of the 1967 will.

A Staten Island Probate Lawyer said that the court finds that judicial decrees, not administrative certificates, were rendered by courts of record in Germany in the establishment of the 1967 holographic will of the decedent. Furthermore, the ‘Certificate of Inheritance’ issued by the District Court in Germany constitutes a final decree and not merely an interlocutory determination. In addition a finding of German domicile was essential to the establishment of the 1967 will in Germany. On the basis of the recognized rules of comity, this court gives full recognition to the establishment of the 1967 will of the decedent in the German courts.

Published on: February 14, 2014

Court Rules on Accounting Proceeding

by Stephen Bilkis

A New York Probate Lawyer said this is an accounting proceeding in which the court is asked to determine whether assets of the estate located in New York should be distributed directly to legatees or whether they should be transmitted to the California administrator for distribution there. A New York Estate Lawyer said that, the deceased until three years prior to his death had been a New York resident. He had prepared a will here naming the Chase Manhattan Bank executor. He then moved to California, purchased real estate, established his residence and executed three codicils to the will. The codicils disposed of his California realty, enlarged the legacy of a niece, a California resident, dropped one of the named executors but retained the Chase Manhattan Bank. Most of the estate is here in New York.

A New York Estate Will Lawyer said that, after decedent’s death, the executor petitioned for the probate of the will and codicils in this jurisdiction. A contest ensued which was subsequently settled and the objections were withdrawn. Letters testamentary were then issued to the Chase Manhattan Bank. Shortly thereafter, the decedent’s niece, a legatee, applied to the Los Angeles Probate Court for letters of administration. That court granted letters to the Public Administrator of Los Angeles.

A Nassau Probate Lawyer said that, although the letters issued to the Chase Manhattan Bank were in form letters of original probate, it would appear that in reality the deceased being a resident of California the domiciliary administration is there and the administration here is therefore in its nature ancillary. The Public Administrator of Los Angeles as administrator c.t.a. has objected to the proposal of the executor to distribute the assets in its possession to the legatees directly rather than to remit them to the domiciliary representative in California for distribution by him.

Published on: January 4, 2014

Court Dicusses Trust with PourOver Will for Infant

by Stephen Bilkis

New York Probate Lawyers said that, the report of the guardian ad litem for infant remainder men of the residuary trusts makes certain recommendations, some of which are in reality objections to the account.

A New York Estate Administration Lawyer said that, a trust which the decedent had created provided for a pour-over to the decedent’s estate. The decedent died on June 8, 1968. Letters were issued to three executors, two of whom were also trustees under the deed of trust. Understandably, some time was required for the trustees to prepare their account and transfer property to the executors. The shares of stock and some bonds were transferred on March 28, 1969; United States bonds, on May 15, 1969 and most of the other bonds, on September 30, 1968. The guardian points out that the trustees computed their paying commissions on values as of the dates of transfer to the executors, but the executors herein computed their receiving commissions on valuations as of the date of the decedent’s death, which were more than two hundred thousand dollars greater than the values on the dates the funds were received.

The issue in this case is whether objections on the account of the estate should be granted.

Published on: January 3, 2014

Creditor Requests for Ancillary Letters of Administration

by Stephen Bilkis

A New York Probate Lawyer said that, a person claiming to be a creditor of the decedent applies for the issuance to him of ancillary letters of administration. It is conceded that the decedent was domiciled in Ohio, and that letters of administration were issued by a competent tribunal of that State to another person. The petition alleges that the decedent left personal property in New York consisting of ‘Royalty contracts of United Music Corporation.’ The Ohio administrator submitted an answer on September 18, 1962, alleging that there are no assets of the decedent within the State of New York. He does admit the contract between the decedent and United Music Corporation, ‘a publisher in the County of New York’, but he makes the somewhat ambiguous allegation that ‘no revenue or income’ was at that moment due the estate except ‘some writers’ royalties.’ He also asserts that there is no need for ancillary administration because, in his status as domiciliary administrator, he has been collecting the royalties due under that contract, and has experienced no difficulty in the prompt collection of them. He denied knowledge or information as to the validity of the petitioner’s claim, and he requested that if ancillary letters are to be issued, they be issued to him. The Public Administrator asserted that his right to letters were superior to that of the petitioner and requested the issuance of letters to him. During the proceeding the petitioner conceded the superior right of the Public Administrator to letters. The matter was placed upon the calendar for hearing of the contested issue as to the existence of any asset in New York County.

A New York Will Lawyer said that, after the matter was placed upon the hearing calendar, the Ohio administrator attempted to avoid meeting that issue by going through a form of sale of all the decedent’s rights under the contract. In October, 1962 he applied to the Ohio court for permission to sell all of the decedent’s interest in the musical composition ‘Huckle Buck’, which is the composition published by United Music Corporation, and he obtained judicial permission to sell it ‘at the best price obtainable’. No mention was made in that application of the proceedings in this court or of the petitioner’s claim. On October 31, 1962, the Ohio administrator signed an instrument which purports to transfer to a third person all of the decedent’s interest in the composition, the copyright thereto, and any extension and renewal. The consideration recited in that instrument is $2,500 and payment of that sum to the Ohio administrator was proven.

A Nassau County Probate Lawyer said that, an officer of the United Music Corporation was called as a witness by petitioner. It appears that the decedent had assigned to that corporation all of his interest in the composition, and the corporation agreed to pay specified royalties. Royalties were regularly paid during the decedent’s lifetime, and up to the end of June 1961. In August, 1961, the sum of $2,137.68 was paid to the estate, presumably for the period ending June 30th. The witness testified that royalties were being held by the corporation and that for the period July 1, 1961 to December 31, 1962, the accrued royalties amounted to $2,729.73. There was a lack of agreement among counsel as to how long the copyright still has to run, and definitive proof on that question was not submitted. It appears, however, that the copyright is still in existence. We do not have proof of the precise amount of accrued royalties on October 31, 1962. That figure was always obtainable by the administrator from United Music. The only figure near that date is the $2,729.73 accrued on December 31st, just two months later. Thus it is clear that in this hasty sale, the Ohio administrator sold for $2,500 the estate’s interest in accrued royalties of an approximately equal sum and also all of the estate’s future interests in the musical composition, the royalties, the copyright and any extension or renewals. If the sale is a bona fide sale, it was an incredible bargain for the purchaser, who not only bought nearly two thousand eight hundred dollars at a discount but all rights to future royalties.

Published on: December 29, 2013

Husband Files Objection to Wive’s Donation to Chartities

by Stephen Bilkis

In this Estate Litigation action, the will of the testatrix bequeathed her husband a general legacy of $2,500 and named him as income beneficiary of a trust of one-half of the residuary estate. The remaindermen of this trust are charities as also are the legatees of the remaining one-half of the residuary estate. The husband filed objections to the probate of the will and challenged the bequests to charities as violative of Decedent Estate Law, § 17.

A New York Probate Lawyer said that negotiations between the husband and the charities resulted in an agreement by the terms of which the husband withdrew his objections to probate, consented to the admission of the will to probate and renounced and released any and all rights granted to him by Decedent Estate Law, § 17. Five charitable organizations agreed, in the same instrument of settlement, that immediately upon the issuance of letters testamentary the executrix would pay to the husband the sum of $26,000. The agreement stated that ‘except as in this stipulation and agreement provided, all of the provisions of aforesaid Will shall remain in full force and effect’.

The executrix now is accounting and has computed the amount of the husband’s trust in compliance with the provisions of the will and has deducted the $26,000 payment to the husband from the share of the residuary estate which, under the will, is payable to charities. IA New York Will Lawyer said certain of the latter have objected to this allocation of the settlement figure and they assert that the payment to the husband under the settlement agreement should have been deducted, in the manner of an administration expense, from the full residuary estate prior to the computation of the amount of the residuary trust.

Published on: December 28, 2013

Petitioner Raises Issue of Undue Influence

by Stephen Bilkis

In this Will Contest action, the objectants move for reargument of the Court’s decision. Petitioners cross move for summary judgment dismissing the objections.

A New York Probate Lawyer said that decedent died in July 1992. Petitioners, as nominated co-executors, seek to admit to probate an instrument executed sometime in June 1981 and two codicils. The sole residuary beneficiary began acting as accountant and financial advisor for decedent and her husband in 1970.

The issue to be resolved before the Court is whether this fact, without more, raises an inference of undue influence.

Published on: December 24, 2013

Petitioner Seeks to Amend Charitable Trust

by Stephen Bilkis

A New York Probate Lawyer said that, the testatrix died on April 7, 1970. Her will, dated January 30, 1967, was admitted to probate on June 9, 1970 and letters testamentary issued on June 24, 1970. In Paragraph SIXTH thereof she created a perpetual charitable trust to be known as ‘THE MEMORIAL FUND’, hereinafter referred to as the Trust. The beneficiary was the husband of the testatrix and died on February 6, 1961.

A New York Will Lawyer said that, the executors apply for a decree directing that testatrix’ will be deemed to be amended, or, in the alternative, construed to contain certain provisions which will comply with the changes made by Title I, Section 101(a) of the Tax Reform Act of 1969 which added Section 508(e) to the Internal Revenue Code of 1954. It became effective on December 31, 1969. Petitioners allege that the Trust will initially receive funds from three sources, i.e.: (a) an undetermined sum from this estate; (b) approximately $550,000 from the trustees of an Inter vivos trust created by this decedent by agreement dated October 9, 1967; and (c) $200,000 from the trustees of the decedent’s estate by virtue of the power of appointment in his will which was executed by this decedent in favor of the Trust.

The issue in this case is whether the petition to amend the testatrix should be granted.

Published on: November 18, 2013

Petitioner Files Motion to Compel Production of a Will

by Stephen Bilkis

The proponent, A, in this probate proceeding is a devisee and nominated co-executor under the propounded instrument dated 16 February 1994. A moves for summary judgment admitting the will to probate, dismissing the joint objections filed by B, the decedent’s cousin, who is the beneficiary of a larger bequest under an earlier testamentary instrument, and C, the decedent’s brother and distributee; and dismissing the brother’s petition for letters of administration.

A New York Probate Lawyer said the objectants oppose the motion and cross move to dismiss the proponent’s application for letters testamentary and for the appointment of either or both of them as the fiduciary of the estate. They allege that the 1994 instrument is invalid due to lack of due execution, lack of testamentary capacity, forgery, undue influence and fraud. They further assert that the petitioner’s prior felony convictions render him ineligible to be appointed a fiduciary of the estate.

On 23 October 2003, the decedent, a widow, died at the age of 77.

Published on: November 17, 2013

Court Discusses Will Valid Will Construction

by Stephen Bilkis

Decedent died in March 1990 at the age of 91 years. Her distributees are three nieces and one nephew. A New York Probate Lawyer said the propounded instrument is a two-page typewritten document containing a modest bequest to one of decedent’s nieces and bequeathing the residue of this estate, alleged to have a value in excess of $1,000,000.00, to decedent’s nephew. Decedent’s nieces filed objections to probate raising issues with regard to due execution, testamentary capacity, and fraud and undue influence in addition to the issue of revocation presented in the pending application.

A New York Will Lawyer said that proponents are the attorney-draftsman of the propounded instrument and his law partner in whose offices the instrument was executed on January 1980. The instrument was retained by proponents until it was filed for safekeeping in the Surrogate’s Court, Westchester County, on February 1980. The original of the propounded will was delivered to this court in connection with the probate proceeding.

It is alleged that decedent, accompanied by one of the objectants and her husband, had an appointment with an attorney during which she expressed her intention to revoke the will. She apparently did not know that the original will had been filed for safekeeping or have any other idea as to its location but she had brought a photocopy of the executed original. Prior to the appointment, decedent had written the word “Void” at the top of the first page of the photocopy. During the meeting with counsel, decedent wrote the word “Cancelled” across the first page of the photocopy under which notation she wrote the date and her initials. Decedent then cut her signature out of the second page of the photocopy. Queens Probate Lawyers said the latter two acts were performed in the presence of decedent’s niece, her husband, and two attorneys. Counsel subsequently retained possession of the altered photocopy and prepared a file memorandum which memorialized the transaction. Apparently decedent never executed a later will. Conservators of her property were subsequently appointed by the Supreme Court, Bronx County.