Probate & Estate Litigation

Published on: September 29, 2013

Court Hears Case for Will Contest Between Brother and Sister

by Stephen Bilkis

A son of the decedent, who is the objectant in a probate proceeding, petitions for the issuance of limited letters of administration to himself in order to obtain the decedent’s medical records and to commence an SCPA (Surrogate’s Court Procedure Act) discovery proceeding against the decedent’s daughter with regard to real property purportedly transferred by the decedent to her shortly after the decedent executed the instrument propounded in the probate proceeding. A New York Probate Lawyer said the daughter, who is the proponent of the instrument, filed objections only to that branch of the application seeking limited letters to commence the discovery proceeding. She argues that the son is going on a fishing expedition and any claim he might make concerning the realty transfer is barred by the statute of limitations.

The decedent died and was survived by the daughter, the petitioner and another son who post-deceased. A New York Will Lawyer said the executed propounded instrument gives the daughter a one-half interest in real property located in the Bronx, with the other half of that property divided equally between the two sons; however, a few weeks later, the decedent purportedly transferred the same property to the daughter and post-deceased son as joint tenants with rights of survivorship.

A Manhattan Probate Lawyer said limited letters of administration are issued pursuant to SCPA and in those instances where, as here, it is unlikely that the person who is the nominated or appointed fiduciary would pursue a claim either because it is against herself or against another party that the fiduciary would not be inclined to pursue.

Published on: September 28, 2013

Brother Battles Sister Over Father’s Estate

by Stephen Bilkis

A man died at the age of 71 years and his wife, who had been battling cancer, also died the day before his own death. The deceased man’s successors are his children.

A New York Probate Lawyer said at the examination, the ten passbooks, the deceased man’s hospital records, the deceased man’s spouse’s hospital records, and the man’s daughter’s examination in the contested probate proceeding were admitted in evidence. Almost the entire balance in eight of the accounts had been withdrawn shortly prior to the death of the deceased man and the entire balance had been withdrawn from two accounts.

The accounts were payable as to either the deceased man or his spouse or the survivor in trust for the man’s daughter, to either the deceased man or his spouse or the survivor in trust for their granddaughter, to either the deceased man or his spouse or the survivor in trust for the son of the deceased man and to the deceased man or his spouse or the survivor.

Published on: September 27, 2013

Petitoner Brings Will Contest Proceeding

by Stephen Bilkis

Two cases are before the court for resolution.

A New York Probate Lawyer said in the first case, the contestants in a will contest or probate proceeding of the Estate of A appeal from the order of the Surrogate’s Court, Kings County, entered on 9 October 1959 which denied their motion for the entry of an order denying probate to an alleged codicil in accordance with the court’s decision of 13 August 1957 or in the alternative, for summary judgment denying probate to said alleged codicil according to Rules of Civil Practice, rules 113, 114 and directed that the proceeding be placed on the calendar for a day certain.

The court affirms the order with one bill of $10 costs and disbursements, payable out of the estate.

Published on: September 26, 2013

Court Rules on Letters of Testamentary

by Stephen Bilkis

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.

Published on: September 25, 2013

Court Rules on Will Modification

by Stephen Bilkis

A woman died and survived by her two adult children. Her son is married and had two children. Her daughter is the nominated administrator of her last will, as well as the complainant in this matter.

The last will was offered for probate. A New York Probate Lawyer said but, it was not drafted by an attorney nor was its execution supervised by an attorney. The last will appears to be a form on which information was inserted by typing. It is signed by the testator and three attesting witnesses. An acknowledgment of the testator’s signature was also taken by a notary public at the time of the implementation. Consequently, the file offered for validation also contains strike outs, erasures and handwritten interlineations. The alterations were apparently made by the testator.

The originally typed last will direct that the property of the woman will be given in the manner of partition. A New York Will Lawyer said it is stated that her daughter shall receive 50% of all investments & monies, such as bank accts, stocks, bond, etc.

Published on: September 24, 2013

Court Rules on Setting Fees for Legal Counsel of the Executor

by Stephen Bilkis

A New York Family Lawyer said in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by the counsel.

A woman died as resident of Massapequa, New York. She was survived by her son, the petitioner and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate and letters testamentary were issued to the petitioner. A codicil is a document that amends, rather than replaces, a previously executed will. The decedent’s will provides that the residuary estate be divided equally between the two children but the daughter, if unmarried, will be given a two year right to occupy the decedent woman’s Massapequa home provided she pay real estate taxes. The decedent’s daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

A New York Will Lawyer said as with any request for a fee, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate regardless of a retainer agreement. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate Court is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

Published on: September 24, 2013

Court Discusses the Surrogate’s Court Protection Act

by Stephen Bilkis

A New York Probate Lawyer said the decedent woman died leaving a will dated April 5, 1999 (the 1999 will) and two prior wills dated June 5, 1998 (the 1998 will) and November 26, 1997, all of which were filed with the court. All three wills nominate the decedent’s sister and the decedent’s nephew as co-executors.

The 1999 will provide that the decedent woman’s residuary estate shall be distributed 50% to her sister and 50% to her nephew and his wife. A New York Will Lawyer said that th 1998 will, however, provides that 50% of the residuary estate will be distributed to her sister, 25% to her sister’s son and his wife, and 25% to her nephew and his wife. All of the wills contain an in terrorem clause and dispense with the filing of a bond. An in terrorem clause is a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off or given only a dollar, instead of getting the full gift provided in the will.

Manhattan Probate Lawyers said the petition filed with the court, the decedent’s nephew offered the 1999 will for probate. The decedent’s sister, although named in the 1999 will as a co-executor has failed to join in the petition. Thereafter, by petition filed with the court, the sister applied for preliminary letters testamentary based upon her nomination as co-executor under the 1998 will. In her prayer for relief, the sister asked that preliminary letters issue solely to her alleging that the nephew has made no attempt to have a preliminary appointment made in the matter. By petition, the decedent’s nephew petitioned for preliminary letters testamentary based upon his nomination as co-executor under the 1999 will. The nephew requests that preliminary letters issue solely to him since the decedent’s sister may object to admission of the 1999 will to probate because her son would receive a portion of the residuary estate under the 1998 will.

Published on: September 23, 2013

The issue in this case is whether the surrogate court erred in directing a guardian ad litem to commence a proceeding on his ward’s behalf.

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested probate proceeding, the petitioner, the decedent’s surviving spouse who is the nominated executor, the sole residuary beneficiary and the trustee of the Article SIXTH trust under the offered instrument. Upon motion of petitioner, this matter was transferred to this court by order of the Surrogate’s Court, New York County dated June 26, 2006. The decedent died on March 17, 2006 survived by his wife and his two adult daughters by his prior marriage. One daughter is an incapacitated person who has been deaf, blind and mentally retarded since birth.

A New York Will Lawyer said that, under the propounded instrument the decedent provided for a $500,000 trust for his incapacitated daughter, remainder to her sister or her issue. The will also provides a specific bequest of $1,000,000 to his daughter. According to the application for preliminary letters testamentary, the size of decedent’s gross estate is approximately $52,000,000. The daughter has appeared by counsel in this proceeding and indicated she has no objection to the will.

A Nassau Will Contest Lawyer said that, the guardian ad litem for the incapacitated daughter appointed by this court has filed his report. The guardian ad litem concludes that jurisdiction has been obtained over his ward. The guardian ad litem further concludes that after his investigation of the circumstances of the drafting and execution of the will, that there are no grounds for objecting to the instrument for failure of due execution, no evidence of mental disability or lack of testamentary capacity of this decedent nor any indication of the exercise of undue influence by anyone. Thus, he concludes no basis exists to deny probate to the propounded instrument. However, the guardian ad litem does report to the court concerning a property settlement agreement dated January 20, 1952 between the decedent and his former spouse. The agreement was incorporated into an interlocutory judgment of divorce entered March 3, 1952 in the Los Angeles County Superior Court of the State of California. In pertinent part the agreement provides in paragraph 17 thereof: “17. Husband agrees that he will by testamentary disposition leave not less than one-half of his net estate, after payment of debts and taxes, to his daughters in equal proportions.”

Published on: September 22, 2013

Court Decides Guardian Ad Litem Fee

by Stephen Bilkis

A New York Probate Lawyer said that, this is a proceeding by the trustee and as executor of the estate of deceased and as trustee, of the “Second Share” Trust under Article NINTH of the Last Will and Testament of the deceased to settle their account as trustees of the “Second Share” trust under Article NINTH of the will. The account covers the period March 31, 1986 through December 31, 2008. The trustees also filed a supplemental account covering the period January 1, 2009 through September 30, 2010. This is the trustees’ first and final account. The summary statement shows principal charges to the accounting party of $25,950, 272.00. A guardian ad litem was appointed to represent the interests of the minor grandchildren of the deceased.

A New York Will Lawyer said that, the decedent, died on September 28, 1985, a resident of Nassau County, leaving a will dated September 13, 1984, which was admitted to probate by decree of this court dated November 12, 1985. In Article NINTH of her will, the decedent directed that her residuary estate be divided into two equal shares, and she directed that the second such share be held in trust for the primary benefit of her son, and his issue. Pursuant to the terms of the trust, during her son’s lifetime, the trustees had the discretion to pay the net income to any one or more of her son and his issue. The trustees also had the discretion to distribute to the same class of persons such amount from principal as they deemed “wise and proper to provide for comfort, support, maintenance, education or general welfare.” The will provides that the trust shall terminate upon her son’s death. In addition, the decedent will give the deceased son a limited testamentary power of appointment over the remainder of the trust which he may exercise in favor of any of his lawful issue or lawful issue of the decedent.

A Nassau Probate Lawyer said that, in Article FOURTEENTH of her will, the decedent named the parties as trustees of the trust for the deceased son and authorized each to name his or her successor. One party renounced his nomination to act as trustee. Letters of trusteeship issued to the other remaining two parties on November 12, 1985. On July 23, 1986, this court issued letters of successor trusteeship to the trustees to act as his successor and resigned effective upon appointment.

Published on: September 21, 2013

Court Discusses Validity of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application brought on by the administrator through an order to show cause to restrain certain corporations in which this estate owns shares from transferring such stock on the authority of a person to whom letters testamentary have been issued by another court. Before the court made its decision of August 12 1968, a hearing was held on the question of the decedent’s domicile. This was after an earlier hearing showed that proceedings purportedly brought by the proponent in this court based upon a copy of process served by her attorney to probate the alleged will of the decedent were abandoned. Instead of filing it here, the will was sent to St. Croix, Virgin Islands, by the attorney for the proponent.

A New York Will Lawyer said that, as pointed out in the earlier decision, the proponent’s attorney participated in the hearing in this court on her behalf on the issue of domicile; he cross-examined the witnesses and himself testified for his said client on that issue. However, only a copy of the will was exhibited here and it appears that proponent at some time, either pending determination of the proceedings in this court, or later, did file the will in the Virgin Islands Territorial District Court at St. Croix where it has since allegedly been admitted to probate. This court has not been given any copy of the papers and proceedings conducted there but it does appear that the St. Croix proceedings were pro forma and without a hearing or on notice or process (except possibly publication) served upon the decedent’s grandson. It also appears that the St. Croix proceedings were probably instituted by proponent in violation of this court’s injunction as set forth in the aforementioned decision and subsequent order thereon, copies of which were duly served upon her attorney.

A Westchester County Probate Lawyer said that, after the prior hearings and after the order was entered on the decision of August 12, 1968, the proponent filed a notice of appeal in this court on September 18, 1968, appealing that decision and order to the Appellate Division of the New York Supreme Court. This appeal has not been perfected. She was then given an opportunity on due notice and on due process served upon her, issued out of this court, to prove the validity of the will in her possession or to show cause why the estate should not be administered under the jurisdiction of this court by the grandson as administrator. Upon her default and failure to come forward, this court had no alternative but to conclude that such proof was not available and it accordingly appointed the grandson as administrator.