Probate & Estate Litigation

Published on: November 14, 2013

Petitioner Claims Lack of Testimentary Capacity in Will Dispute

by Stephen Bilkis

In this probate proceeding, a New York Probate Lawyer said the proponent woman, wife of the decedent’s predeceased cousin and the nominated executrix under the propounded instrument moves for summary judgment. Specifically, she seeks dismissal of the decedent’s spouse’s objections to probate; admission of the will to probate; dismissal of the objectant’s petition for letters of administration; and costs and attorney’s fees against either or both the objectant and her counsel.

The decedent died at 72 years of age survived by his spouse and daughter as his only distributees. Under the propounded instrument, which contains an attestation clause and a self-proving affidavit, the objectant is the beneficiary of the marital abode, a cooperative apartment, and the balance of the estate is bequeathed to the daughter. A New York Will Lawyer said the objectant filed standard objections to probate, alleging lack of due execution, lack of testamentary capacity, fraud and undue influence. Her opposition to this motion is limited to her own affidavit. The attorney drafter states that he represented the decedent in 1990 in a divorce proceeding in which the decedent’s prior wife was the other party. In 1999 the decedent communicated with the attorney about changing his will. The decedent gave the attorney a copy of his March 18, 1997 will which apparently had been prepared by the father of the attorney who is now representing the objectant. On this copy, the decedent had crossed out the words “friend and companion” to describe the objectant and replaced them with the word “wife”, and changed her last name to reflect that it was the same as his own. He also crossed out the limitations on the objectant’s use of the cooperative apartment in which the couple resided. His daughter was the sole residuary beneficiary under this instrument and the decedent did not indicate that he wanted to change this clause. The attorney then prepared a draft of the will, increasing the objectant’s legacy to an outright interest in the cooperative apartment, and mailed it to the decedent.

A Westchester County Probate Lawyer said the decedent came to the attorney’s office on October 18, 1999, where he reviewed the will with the attorney before he executed it in the presence of the two attesting witnesses, who were employees of the law firm, and the attorney who supervised its execution. The attorney retained the original will and mailed a copy to the decedent. The attorney and the attesting witnesses all state that the will was executed in accordance with the statutory requirements. They also note that the decedent was alert and rational and that his appearance and speech were normal. The proponent avers that the decedent had discussed his testamentary plan with her and that the propounded instrument carries out his plan.

Published on: November 13, 2013

Court Decides Will Dispute Regarding Real Property

by Stephen Bilkis

The decedent died in November 2005. A New York Probate Lawyer said its distributees are the spouse, the claimant and two other children. Preliminary letters testamentary issued to the claimant, by order entered and letters testamentary issued to him. In the probate petition, the claimant listed estate assets consisting of personal property of $100,000 and Bronx realty valued at $500,000. The decedent’s will devises the Bronx realty outright to the spouse, and divides the residuary estate 61% to the spouse, 7% to each of his three children and 3% to each of six grandchildren.

A Bronx County Probate attorney said that the documents and the claimant’s deposition testimony reveal that, following the decedent’s divorce from the claimant’s mother, the claimant became a tenant in common in the Bronx realty with the decedent, by purchasing his mother’s 50% interest therein for $40,000. Thereafter, the day the will was executed, the claimant conveyed his 50% interest in the realty to the decedent for $50,000, which the claimant admittedly received. The deed recites that the conveyance was in consideration of $50,000 and any other valuable consideration “paid” by the decedent.

A New York Will Lawyer said in the petition filed, the claimant commenced this proceeding alleging the following: (1) the claimant was unable to exercise good judgment at the time he transferred his interest in the property to the decedent as the claimant was then suffering from a bipolar disease; (2) the decedent took advantage of his poor judgment by acquiring his interest, which was worth hundreds of thousands of dollars, for “inadequate” consideration of only $50,000; and, (3) the decedent failed to honor his promise to pay the claimant an additional $250,000 at an unspecified later date. The claimant seeks either the $250,000 claimed, or a reconveyance of his interest in the realty for $50,000.

Published on: November 12, 2013

Court Determines Pages are Missing from a Will

by Stephen Bilkis

In this proceeding, probate is sought of a testamentary instrument executed sometime in December 1982. A New York Probate Lawyer said the proponent is the nominated executor and one of decedent’s sons. Decedent died on the same month. She was survived by four adult children.

According to a Bronx County Probate lawyer, the propounded instrument bequeaths decedent’s entire estate to three of her children. The instrument consists of four typewritten pages which are numbered “1,” “2,” “3,” and “5”. Page “4” is missing.

The propounded instrument was hastily prepared for a hospitalized testatrix. A New York Will Lawyer said the instrument was delivered to proponent to be taken to decedent for execution since the attorney-draftsman was not able to be present to supervise the execution ceremony. The absence of page “4” was discovered prior to decedent’s death, but at a time when she had deteriorated to a point where it was deemed that she should not be burdened with the execution of a corrected instrument. A copy of the missing page has been submitted to the court. This page contains a recitation of the general powers of the executor which had commenced on the preceding page and a direction with respect to the distribution of principal or income for the benefit of any legatee under a legal disability. The conclusion of this latter provision is set forth on page “5” of the instrument, upon which decedent’s signature and those of the attesting witnesses appear. Page “4” has no dispositive provisions, does not nominate any fiduciary, nor does it recite any granting or limitation of fiduciary authority which is not otherwise covered by statute. From the papers and the requests made of the probate clerk, it appears to be petitioner’s position that he wishes the will admitted inclusive of the missing page “4”. The two questions posed are, whether proponent’s request to admit page “4” to probate can be granted and if it isn’t, whether the absence of this page from the instrument fatally impugns the admissibility of the entire instrument.

Published on: November 11, 2013

Plaintiffs Seek to Set Aside Deed

by Stephen Bilkis

The plaintiffs seek to set aside a deed executed by the decedent’s sister, in October 2000, transferring to the decedent her 50% interest in real property in the Bronx. The complaint, alleges, inter alia, that decedent, as a result of undue influence exerted upon her by the decedent’s sister, conveyed to her 50% interest in the Bronx realty. A New York Probate Lawyer said the complaint also contains a cause of action alleging that the decedent converted funds held in a joint bank account with decedent. The plaintiffs in the action are decedent and a niece and nephew of the decedent who allege that they own the remaining 50% interest in the realty.

A Bronx County Estate Litigation attorney said that in February 2005, the plaintiffs attempted to serve the decedent by substituted service while he was a patient at a hospital, by delivering the summons and complaint to a person who allegedly agreed to accept service on the decedent’s behalf, and mailing a copy to the decedent at that facility on the following day. The decedent died at the hospital, leaving five distributees including decedent and the other two plaintiffs.

A New York Will Lawyer said the non-relative, is the sole beneficiary under a testamentary instrument purportedly executed by the decedent. That instrument is the subject of a will contest and, upon a motion by the plaintiffs in the transferred action, the court consented to receive the transferred action for trial and, because the action could not proceed until a fiduciary was appointed in the decedent’s estate, the court invited the plaintiffs to “seek the appointment of a temporary administrator in the event that the proponent does not seek preliminary letters.

Published on: November 4, 2013

Family Alleges Undue Influence in Execution of Mother’s Will

by Stephen Bilkis

In this estate in which there is a contested probate proceeding pending, the decedent was the defendant in a County Supreme Court action, commenced by his sister and two other parties who are the objectants in the probate proceeding (the movants). New York Probate Lawyers said the complaint in the Supreme Court action alleges that the decedent exerted undue influence on his sister to obtain a deed to her one-half interest in real property and converted funds held with the sister in a joint bank account. The movants now seek an order transferring the Supreme Court action to this Court and consolidating that action with the probate proceeding. The proponent in the probate proceeding, who is the respondent in this application, opposes the motion.

Although a party may seek the court’s consent to receive for trial any action pending before the Supreme Court which affects or relates to the administration of a decedent’s estate, only the Supreme Court can order the transfer of a proceeding pending before that court. A New York Will Lawyer said that consequently, the branch of the motion seeking an order directing transfer of the Supreme Court action must be made to the Supreme Court in the first instance.

Nevertheless, the gravamen of the Supreme Court causes of action clearly affect or relate to the administration of the decedent’s estate, and this Court has jurisdiction over all actions and proceedings relating to the affairs of the decedents, probate of wills, estate administration and actions and proceedings arising there under or pertaining thereto. Long Island Probate Lawyers said as the pending Supreme Court action appears to fall squarely within this Court’s jurisdictional imperative, if the Supreme Court in the exercise of its discretion deems that a transfer is warranted, then the Court consents to receive for trial the action pending in the Supreme Court which affects or relates to the administration of the decedent’s estate. Regardless of whether the Supreme Court directs that the action be transferred, the movants may seek the appointment of a temporary administrator in the event that the proponent does not seek preliminary letters.

Published on: November 3, 2013

Family Contends Mothers Will is Invalid Due to Lack of Capacity

by Stephen Bilkis

A New York Probate Lawyer said a last will was executed approximately one year prior to the owner’s death at the age of 89. Her successors are her three post-deceased children and her two daughters. But, the probate petition was not filed more than twenty years after the woman’s death.

All of the parties agree that the deceased woman suffered a stroke previously which resulted in her partial paralysis, and she required the assistance of an aide for the rest of her life. A New York Will Lawyer said all of the testimony also indicates that after her stroke, the woman’s children assisted her in her daily affairs and she enjoyed close relationships with all of them as well as with her grandchildren. Until her death, she resided on the top floor of her two-family house, and her first son lived in the downstairs apartment where he remained until his death. Sources revealed that the deceased woman’s first son was a paraplegic after being shot.

At the trial, the attorney/draftsman testified that he had been an attorney for 52 years. During those years, the attorney drafted and supervised the completion of over 1,000 last wills.

Published on: November 2, 2013

Court Decides if Bequest to Decendent’s Friend is Valid

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested proceeding to probate a will dated December 2, 1991, the issue presented is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses. The third attesting witness does not receive any disposition or appointment under the will.

The issue in this case is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses.

A New York Wills Lawyer said the court in deciding the case said that, EPTL 3-3.2(a)(1) provides that an attesting witness to a will to whom a beneficial disposition is made is a competent witness who can be compelled to testify with respect to the execution of such will but that the disposition to the attesting witness is void “unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.” The purpose of the statute is to preserve the maker’s testamentary scheme to at least some extent by making all attesting witnesses competent while preserving the integrity of the process of will executions by removing the possibility that attesting witnesses who receive a disposition under the will might give false testimony in support of the will to protect their legacies.

Published on: November 1, 2013

Petitioner Files Motion to Compel Production of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner, pro se, in his status as attorney-in-fact for his mother, has instituted a proceeding seeking to compel the production of a will. Petitioner personally has no status in the estate of decedent. Decedent died on May 5, 1984. Based upon a probate petition filed on July 2, 1984, an instrument dated March 27, 1982 was duly admitted to probate by the entry of a decree dated July 13, 1984. Petitioner’s principal is decedent’s sister. She was not his distributee inasmuch as the decedent was survived by two grandchildren. Under the instrument already admitted to probate, the grandchildren are the primary beneficiaries. Decedent’s sister receives a $1,000 legacy. There are several other legacies, including bequests to infants and charitable organizations.

A New York Will Lawyer said that, petitioner alleges that there is a testamentary instrument prior in date to the will admitted to probate under which petitioner believes his principal receives a greater legacy and that such prior instrument is in the possession of the co-executor who is the respondent in the instant proceeding.

A Westchester County Probate Lawyer said that, as a consequence of the greater legacy to his mother in the prior instrument, petitioner intends to institute a further proceeding seeking to vacate the probate decree entered July 13, 1984 and in the event such application be granted, to file objections on behalf of his principal to the probate of the instrument which formed the basis for that decree.

Published on: October 31, 2013

Court Settles Real Property Dispute

by Stephen Bilkis

A New York Probate Lawyer said that, plaintiff asserts that summary judgment should be granted in his favor. He was married to his wife in January of 1995. On January 30, 1995, property was purchased at 2426 St. Raymond Avenue in Bronx County and title was held by defendant his wife and, her husband. Plaintiff asserts that his wife passed away on December 16, 2000 and since plaintiff and his wife held the property as tenants by the entirety, upon the death of his wife, her interest transferred to plaintiff as a matter of law.

A New York Will Lawyer said that, defendants oppose the motion by plaintiff and assert that plaintiff’s deceased wife, in her Last Will and Testament, bequeathed her half share of the property equally to her husband, the plaintiff, and defendant. Moreover, her will provided that defendant must approve, in writing, any decision to sell said property. Therefore, defendants contend that plaintiff is entitled to a 3/8 share of the value of the property as is defendant. In addition, defendant provided all of the money for the down payment on the property including closing costs in the sum of $27,000 and she paid for all renovations made to the property in the approximate sum of $7,000. Defendants assert that if the property is partitioned and sold, she should receive credit for those payments. Defendants further contend that there is a probate proceeding pending in

A New York Wills Lawyer said that, Surrogate Court in Bronx County as to the same issues raised in plaintiff’s cause of action herein and Surrogate Court is the proper forum in which to determine this matter. Therefore, defendants assert that the instant matter should be dismissed in the interest of judicial economy.

Published on: October 30, 2013

Court Hears Claim of Undue Influence in Execution of Will

by Stephen Bilkis

A New York Probate Lawyer said that, defendants move pursuant to CPLR 3211(a)(5) to dismiss plaintiff’s complaint contending that plaintiff’s claims are barred by the applicable statute of limitations and pursuant to CPLR 3211 (a)(7) dismissing plaintiff’s causes of action on the ground that said causes fail to state a cause of action.

Plaintiff, the sister of defendant, brings this action to recover the value of property described as 797 Southern Boulevard, located in Bronx County, and to impose a constructive trust to prevent defendants from transferring this property. A New York Will Lawyer said that, the complaint, which parenthetically was not, verified by the plaintiff, charges plaintiff’s sister with influencing their mother to transfer the property in Bronx County to her which according to the plaintiff was to be held in trust for the beneficiaries of their mother’s estate. Obviously unless plaintiff’s undue influence claim is sustained, the court need not pass upon the cause of action for a constructive trust. Moreover, this action initiated here in Bronx County in essence, challenges the testamentary capacity of the decedent, plaintiff’s mother who transferred the Southern Boulevard property by deed to plaintiff’s sister. Plaintiff fails to set forth information regarding whether any of the Wills executed by the decedent were admitted to probate nor does Counsel for plaintiff provide this court with such information.

A Bronx Probate Lawyer said that, as previously noted plaintiff’s complaint is not verified by plaintiff and in response to defendants’ motion to dismiss, plaintiff submits a short affidavit which makes conclusory assertions that adds little to the complaint. Manifestly, plaintiff’s counsel’s affirmation and his verification of the allegations set forth in the complaint are without probative value.