Probate & Estate Litigation

Published on: June 30, 2013

Probate Court Reverses Summary Judgment

by Stephen Bilkis

The order of the Appellate Term of the Supreme Court which reversed a judgment of the New York County Civil Court in tenant’s favor was unanimously reversed, on the law and the facts, without costs, and the landlord’s petition is dismissed.

A New York Probate Lawyer said the evidence presented to the trial court amply supported its conclusion that the respondent’s relationship with the now deceased tenant of record was that of a nontraditional family member, as defined in Rent Stabilization Code wherein any other person residing with the tenant or permanent tenant in the housing accommodation as a primary or principal residence, respectively, who can prove emotional and financial commitment, and interdependence between such person and the tenant or permanent tenant. Although no single factor shall be solely determinative, evidence which is to be considered in determining whether such emotional and financial commitment and interdependence existed may include, without limitation, such factors as longevity of the relationship or sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life. Another factor is intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits. Engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities are yet another factor to be considered. Another factor is formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits.

A Queens Probate Lawyer said the court will also consider when the person residing with the tenant is holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions or if the person is regularly performing family functions, such as caring for each other or each other’s extended family members, and/or relying upon each other for daily family services; or if the person residing with the tenant is engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship. In no event would evidence of a sexual relationship between such persons be required or considered.

Published on: June 29, 2013

Court Determines How Residuary Bequest Shall Be Made

by Stephen Bilkis

Two probate proceedings were brought before the court for resolution.

A New York Probate Lawyer said in the first case, the Court was required to determine the manner in which payment of the residuary bequest shall be made. As provided for under the will’s eleventh article, the residuary estate was bequeathed to a resident of Poland to be hers absolutely and forever. A provision followed to the effect that she would go to New York City to receive payment.

Here, the language requiring that the payment be made in New York City must be construed as a precatory provision in no manner affecting the absolute nature of the bequest made. As per written request, the executor may make payment of the said legacy by the appropriate transfer of the funds to the said legatee after 10 July 1962 when she shall have attained her majority, in the manner set forth by the Court in the case entitled Matter of Tybus’ Will.

Published on: June 26, 2013

Court Decides Suit Regarding Family Trust

by Stephen Bilkis

The document sued upon is a Family Trust.

On 19 May 1999, a Family Trust, a revocable inter vivos trust, was created. It is a 29-page document with nine articles. A, the settlor, is the mother of plaintiff and defendant. A, and her husband, B, are the co-trustees.

A New York Probate Lawyer said that according to the Family Trust, its purpose is to hold property, which was attached to and made part of the agreement, together with such monies, securities and other assets as the trustee may thereafter at any time hold or acquire (said monies, securities and other assets, referred to collectively as the “Trust Estate”) for the purposes of providing income to the settlor during her lifetime, paying her funeral expenses, estate taxes, probate fees, legal and accounting fees related to her estate, satisfying any cash bequests, all inheritance taxes, funding a marital share deduction, providing income for the benefit of her husband or their children during her husband’s lifetime and upon his death, paying the balance of the Trust Estate to their children, per stirpes. Further, the Family Trust agreement provided that if A died, the balance of the Trust Estate would be distributed to her husband if he survived her, and that upon his death, or the settlor’s death if her spouse predeceased her, the trustee would pay the balance of the Trust Estate to the settlor’s children, per stirpes.

Published on: June 4, 2013

Executor of Will Sued

by Stephen Bilkis

In a probate proceeding, the petitioner woman appeals from an order of the Surrogate’s Court dated October 16, 2007, as, after a hearing, granted those branches of the motion of the opponent man, which were to disqualify the petitioner from serving as executor for the estate of a woman and to reinstate letters of administration previously issued to the opponent man.

A New York Probate Lawyer said the court ordered that the order is reversed with costs, that branch of the motion of the opponent man, which was to disqualify the petitioner woman is granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion is otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the opponent man is denied, and the matter is remitted to the Surrogate’s Court for further proceedings.

The right of a testator or the person who made the will to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded. However, the Surrogate Court may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper estate administration, and future cooperation is unlikely.

Published on: June 3, 2013

Court Decides Property Dispute Among Family Members

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. 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.

Published on: June 1, 2013

Court Decides Reasonable Attorneys Fees for Estate Administration

by Stephen Bilkis

The Facts of the Case:

On 22 February 2004, a resident of Hicksville died with a will dated 6 November 2002, months after a guardian was appointed on her behalf under Mental Health Law Article 81. The decedent left all of her property, other than a $15,000.00 bequest to a corporation, to “A”, to the exclusion of her family members. The will named “X” as executor and after he offered the will for probate it was revealed that he had a felony record, making him ineligible to serve as a fiduciary. Thus, on 2 May 2005, “X” renounced his appointment. A New York Probate Lawyer said the nominated successor to the named executor had previously renounced her appointment as well.

On 4 May 2005, “A” petitioned the court for letters of administration, for estate administration (estate litigation). However, “A” also had a felony record and was ineligible to serve. Therefore, on 9 June 2005, the court appointed the Public Administrator of Nassau County as temporary administrator. The decedent’s distributees appeared and filed objections to the probate of the will, and notices of appearance were filed on behalf of “A”, the New York State Attorney General and the aforementioned corporation. On 22 November 2005, all of the interested parties entered into a stipulation of settlement. On 1 February 2006, the will, as reformed and restated by the settlement agreement, was admitted to probate, and full letters of administration, were issued to the Public Administrator. Under the terms of the stipulation, articles second and fifth of decedent’s will were reformed so that three of the decedent’s distributes will share in 2/3 of the decedent’s real property and her residuary estate; the remaining 1/3 will pass to “A”; that the decedent’s real property will pass to these parties in kind, so as not to be subject to a commission, and that the property would be sold and the proceeds held in an attorney’s escrow account; and that before any distributions are made to the interested parties from the escrow account, the sales proceeds will be used to pay the bequest to the aforesaid corporations, the commission of the Public Administrator, and all debts, fees and estate administration expenses of the estate.

Published on: May 30, 2013

Petitioners Seek to Revoke Probate Petition

by Stephen Bilkis

The Facts of the Case:

On 26 October 2000, a decedent died with a Last Will and Testament dated 23 March 1995. Under the will, the decedent left her estate to her two sisters, A and B, or the survivor; named A as executor and B as successor. A predeceased the decedent without issue, thus, the entire estate passed to B.

Sometime in 2005, B petitioned for the appointment of a guardian of her property. The court, finding that B had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, X, a niece, and Y, Esq., as guardians of B’s property. Consequently, in May of 2007, the judge authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. The affidavit of X stated that she located the copy among the decedent’s important papers after her death; that while the decedent must have had the original will, her house had been sold and the purchaser threw away all of her papers. The affirmation of Y also stated that after the decedent’s death, her home was taken over by a former handyman of B, who threw away all of the decedent’s papers. Allegedly, the instrument was prepared by an attorney, who supervised its execution and was a subscribing witness, and has filed an affirmation of due execution.

Published on: May 28, 2013

Court Decides Appropriate Legal Fees in Estate Litigation Case

by Stephen Bilkis

The Facts of the Case:

On 2 October 2005, a resident of Sands Point died with a will dated 6 June 1996. He is survived by his wife, his children, A, B and C, and his granddaughter, X, the infant daughter of a predeceased son, D. On 21 September 2006, the will was submitted for probate (will contest proceeding) and letters testamentary issued to the decedent’s wife, the decedent’s daughter, A, and the decedent’s brother. On 23 April 2008, A and the decedent’s brother filed their account, which was subsequently amended and supplemented. Thereafter,a New York Probate Lawyer said a guardian ad litem was appointed by the court to represent the interests of X. The administration and the account reflect ongoing discord between the wife and the decedent’s other fiduciaries, A and the brother, dominated by conflict over the computation of the wife’s elective share. Ultimately, the parties executed a stipulation, receipt, release and refunding agreement which resolves all of the disputed issues other than the legal fee paid from estate assets to an attorney, who provided legal services to A and the brother at the onset of the administration but whom they later replaced. The stipulation provides that for purposes of calculating the wife’s elective share, the gross estate is valued at $2,115,942.00; that the expenses paid to date, plus the amount reimbursable to the wife for administration expenses which she incurred, total $438,817.00. The parties agreed that the fees of their current attorneys and that of the guardian ad litem be fixed by the court.

The Issues of the Case:

Published on: January 25, 2013

Probate Court Discusses Hold Over Proceedings

by Stephen Bilkis

In a court proceeding, a complainant filed a motion to stay pending the determination of an appeal from an order of the civil court. Upon the papers filed in support of the motion and the papers filed in opposition, the court consequently ordered that the motion is granted on condition that the appeal will be completed. New York Probate Lawyers said the complainant however was directed to pay the opponent any and all arrears in rent and/or use and occupancy at the rate previously payable as rent within 10 days from the date of the decision. They also need to continue to pay the opponent’s use and occupancy at a like rate as it becomes due. The court further ordered that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or the opponent may move to vacate the stay on three day’s notice.

In another case, another appeal was also filed from an order of the civil court. The order, insofar as appealed from, denied the branch of the tenants’ motion in seeking an award of attorney’s fees.

The landlord initiated the holdover proceeding after terminating the tenancy based upon the tenants’ failure to cease using the basement portion of the apartment as a living room. Based on records, the said usage had resulted in the issuance of a violation by the department of buildings. Thereafter, the parties entered into a condition, contained in which was an agreement that tenants had cured the breach to landlord’s satisfaction by moving their furniture and personal items, and the matter was marked off the calendar so that the department of buildings could re-inspect the basement.

Published on: January 24, 2013

Petitioner Questions Validity of Will

by Stephen Bilkis

In a will contest probate proceeding, the appellant woman appeals from a decree of the Surrogate’s Court which as granted the motion of the petitioner, Public Administrator of Kings County, for summary judgment dismissing her objections to admit the deceased person’s will dated September 30, 1977, admitted the will to for validation and determined that the will was validly executed. The court ordered that the decree is affirmed insofar as appealed from, with costs payable personally by the appellant.

The last will and testament purporting to be the will of the deceased man was executed on September 30, 1977, under the supervision of an attorney. New York Probate Lawyers said the will contains a confirmation clause and was subscribed by witnesses whose signatures were notarized. The will devised certain real property located in Brooklyn to one of the deceased man’s three daughters. The man died on November 30, 1977, and his will was filed with the Surrogate’s Court, Kings County, in April 1978. The man died without a valid will in 2000, and the Public Administrator of Kings County was appointed to oversee her estate.

In May 2003, a photocopied document was submitted to the Probate Department of the Surrogate’s Court, Kings County, purporting to be the will of the deceased man. The 2003 instrument provided that the real property was to be divided equally among the deceased man’s three daughters.