Probate & Estate Litigation

Published on: August 5, 2012

Delay in Filing Documents Leads to Monetary Loss for Estate

by Stephen Bilkis

This is an appeal case being heard in the Second Department Appellate Division of the Supreme Court. The plaintiffs in the case are James P. Johnson III, et al. The defendant in the case is Murray Berger. The case also has Neil R. Gerst et al., as third party defendants, plaintiffs-appellants. Kenneth Murphy et al., are the third party defendants and respondents. The defendants, third-party plaintiffs-appellants are represented by Chesney, Murphy & Moran, Westbury. The third party defendant-respondent Kenneth Murphy is represented by Gabor & Gabor with Hope Senzer Gabor for counsel. The third party defendants-respondents Gary Darche is represented by both Koopersmith, Feigenbaum & Potruch and DiMascio, Meisner & Koopersmith.

Action

The defendant’s third party plaintiffs are seeking an appeal from an order made by the Queens County Supreme Court involving a case of legal malpractice. A New York Probate Lawyer said the original order granted the motions for summary judgment for the dismissal of the case in favor of the third party defendants. The order dismissed all of the third party complaints that were asserted against each of them.

Published on: August 4, 2012

Court Orders Preliminary Letters Testamentary

by Stephen Bilkis

This is a probate proceeding for the will of the deceased Stuart L. Ain. The case is being heard in the Surrogates Court of the city of New York located in Nassau County. The case is being overheard by Judge John B. Riordan.

Probate Proceeding

Stuart Ain, the decedent passed away on the 28th of October in 2006. He left a will that was dated the 27th of April, 2007. Victor Levin and William J. O’Brien were named as the executors of the will. William J. O’Brien renounced his appointment as executor. Michael and Jody, the decedents two adult children are the sole survivors.

Published on: August 3, 2012

Plaintiff Filed Objection to Probate of Will

by Stephen Bilkis

Suffolk Probate 13

The plaintiff in this case is Rachel Kuncman. The defendants in the case are Steven A. Sherman, American Portfolios Financial Services, Inc., the Abraham Salomon and Tobi Weinstein estates both individually ans as the executrix of the Abraham Salomon estate. The case is being heard in the Nassau County Supreme Court. The judge overseeing the case is Stephen A. Bucaria.

Case History

Published on: August 2, 2012

Respondent Claims Petitioner Lacks Standing

by Stephen Bilkis

A 19 years old woman was at the hotel located at Staten Island, New York. The said hotel is approximately one half mile from the woman’s residence where she resided with her mother. While at the hotel, the woman made her way to the roof of the hotel where she plunged to her death. Consequently, the woman’s mother’s attorney, who has an office in Staten Island, New York, filed for limited letters testamentary in order to bring an action for a potential wrongful death action.

A New York Probate Lawyer said the complainant mother apparently changed attorneys to one who has offices in Brooklyn and commenced the legal action by filing a summons and complaint with the Kings County clerk’s office. The summons stated that the venue was based on the mother’s residence at Brooklyn however the mother’s verified complaint stated that she was a resident of the County of Richmond. The verified complaint contains allegations of fact in support for a single cause of action for damages due to wrongful death and the woman’s conscious pain and suffering up until her death.

The hotel served an answer to the revised verified complaint that includes thirteen affirmative defenses. A Brooklyn Probate Lawyer said the third affirmative defense states that the mother’s complaint filed in Kings County are at improper venue, and that the place of trial of the action should be changed to a proper venue, a Richmond County. Submitted along with the opponents’ answer was a demand to change venue. When the mother did not respond to the demand to change venue to a proper county, the hotel filed the underlying notice of motion to change venue with the Richmond County clerk’s office.

Published on: August 1, 2012

Daughter Contests Father’s Will

by Stephen Bilkis

In a proceeding, a daughter of a deceased man filed a motion for a decision without trial and objected the petition for probate of her father’s will. The petition was brought by the sister of deceased man and the nominated estate administrator under the last will and testament.

The last will and testament of the deceased man was offered for validation. In his will, the man directed that his entire estate be distributed to his sister. The document reflects that the attesting witnesses were the draftsperson of the will and the draftsperson’s legal assistant. The daughter however filed multiple objections to the will, focusing primarily on an alleged lack of due implementation. The daughter’s counsel examined the two attesting witnesses.

The motion requesting the decision without trial upon objections for the validation of the will and dismissal of the proceeding was followed a lengthy delay in which a settlement was reached concerning payment of the deceased person’s non-probate death benefits, however no settlement was reached in connection with the distribution of the deceased person’s property. In the daughter’s affidavit, she alleges that her aunt cannot appropriately demonstrate due implementation of the proposed last will and testament. In support for the statement, the daughter presents that the one witness cannot recall the will signing ceremony, that the self-proving affidavit was improperly notarized, that the her father failed to initial each page of his will and the proponent’s counsel did not produce her for examination.

Published on: August 1, 2012

An Estate Administrator Seeks to Bar Property Transfer

by Stephen Bilkis

A deceased wife, who owned a property at Brooklyn, has taken sole title as an occupant by the entirety following the death of her husband. The day after the death of the wife, a woman performed a deed whereby she allegedly conveyed, as the estate administrator and titled the property to herself as recipient. The woman performed a mortgage on the property in favor of a financial institution to secure a loan in the amount of $250,000.00. Consequently, the woman again performed a mortgage on the property in favor of a mortgage company to secure a loan in the amount of $340,000.00. According to the settlement, the mortgage transaction proceeds totaling $251,237.66 were used to pay off the prior financial institution’s mortgage. A New York Probate Lawyer said the approval of the financial institution’s mortgage was then recorded.

The complainant, a mortgage company, issued an approval of its $340,000.00 mortgage, apparently in error. The approval of the complainant’s mortgage was then recorded. Afterwards, the complainant filed a notice of pendency on the property and initiated the instant action to vacate the approval of mortgage and to restore its mortgage lien to its priority position.

Consequently, another woman claiming to be the administrator the estate (estate administration) moved for an order to cancel the notice of pendency, permanently barring as a lien and discharging of record to a certain mortgage on the property. The woman commenced an action against the first administrator to vacate and discharge of record the deed allegedly conveying title to the first administrator. In her complaint, she alleged that she was the sister and next of kin of the deceased wife and her interest in the property accrued upon the death of her sister. In addition, no will of the deceased wife has been probated in Kings County or elsewhere. She alleged that the first administrator had no power to convey the property of her deceased sister’s assets and the deed should therefore be nullified and discharged of record.

Published on: July 30, 2012

Guardian ad Litem Contends Court Lacks Jurisdiction

by Stephen Bilkis

In this proceeding for leave to compromise an action for wrongful death and conscious pain and suffering, the decedent was survived by his wife and two children all of whom presently reside in Ecuador. A New York Probate Lawyer said the decedent died as a result of injuries he sustained in a construction accident in Bronx, New York. The Court issued limited letters to petitioner, Juan Chavez, decedent’s uncle, to commence this action. Thereafter the action was commenced. The Supreme Court, Bronx County, approved the compromise of the action for $790,000.00, allowed attorney disbursements of $5,897.70 and attorneys’ fees of $261,367.43. This estate proceeding was commenced to fix the allocation of the recovery, reimburse the funeral creditors and fix the distribution of the balance among the distributees who suffered a pecuniary loss.

A Kings Estate Administration Lawyer said that, the petitioner served a citation in this matter by international certified mail, return receipt requested, upon decedent’s widow, Blanca Germania Guzman Marquez. Petitioner also served Blanca Germania Guzman Marquez with the citation on that date as the mother of decedent’s infant daughters, Blanca Raquel Pesantez Guzman and Carla Leonor Pesantez Guzman. Another citation was served that date on the infant, Blanca Raquel Pesantez Guzman since she was over 14 years old on that date. Service was complete on the date of the mailing thereof. No one appeared on that date. By court order, a guardian ad litem was appointed for Blanca Raquel Pesantez Guzman (hereinafter “Raquel”) and Carla Leonor Pesantez Guzman (hereinafter “Carla”). Thereafter, the guardian ad litem filed his report.

A Kings Estate Administration Lawyer said that, in the guardian ad litem’s report he points out that Raquel turned eighteen after he was appointed but before finalization of his report. The guardian ad litem reports that he has examined the file in this matter and concludes that the court lacks jurisdiction over Raquel presumably because of her eighteenth birthday and the fact that she is no longer under a disability. The guardian ad litem reports that he communicated this fact to petitioner’s attorney and suggested that he send a waiver and consent to Ecuador for Raquel’s signature and filed it with the Court. The guardian ad litem made his recommendations with respect to the compromise subject to jurisdiction. No waiver and consent to the relief requested was ever filed by Raquel.

Published on: July 29, 2012

Court Says Testator has Right to Choose Who Settles Their Estate

by Stephen Bilkis

In a probate proceeding, a New York Probate Lawyer said that the petitioner, Joanne Zaccaria, appeals from so much of a decree of the Surrogate’s Court, Kings County, denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of Paula M. Venezia, and granted those branches of the motion of the objectant, Edward Hayes Pennington III, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

The issue in this case is whether the Surrogate Court in this probate proceeding erred in denying petitioner’s cross motion for the issuance of preliminary letters testamentary on the estate of the testator, and granted that branch of the motion of the objectant, Edward Hayes Pennington III, to issue letters of administration to him.

The Court reversed the decision insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Surrogate’s Court, Kings County, for an evidentiary hearing in accordance herewith, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

Published on: July 28, 2012

Court Decides Executor Commission

by Stephen Bilkis

In a probate proceeding case, the decedent died on July 3, 2003, leaving a will dated November 22, 1971. The petitioner-executor was an attorney admitted to practice in this state and drafted the will offered for probate. Thereafter he maintained limited contact with the decedent. A New York Probate Lawyer said that, petitioner has submitted an affidavit in which he states that about 1995 he retired from practice and in early 1996 moved to Virginia but then moved back to Owego, New York, in September 1998. Throughout this period he retained his license to practice law until it lapsed at the end of 2000. Since petitioner is no longer licensed to practice he has retained separate counsel to represent him in his capacity as executor.

Thereafter, SCPA 2307 was enacted effective August 2, 1995 the said statute is applicable to the estates of decedents dying after January 1, 1996. It provides that an attorney-draftsman of a will in which he is named as executor can receive full commissions only if the written disclosure of dual fees required by the statute was executed by the testator. In this case there is no written disclosure from the testator. Alternatively, the statute permits full commissions with respect to wills executed prior to January 1, 1996, if the attorney-executor establishes to the satisfaction of the court reasonable grounds to excuse the absence of a written acknowledgment. A Kings Probate Lawyer said that, in his affidavit submitted herein, petitioner argues that after he retired from practice in 1995, “I was unable to remain knowledgeable of current changes to New York State law, including changes to the Surrogate’s Court Procedure Act.” Petitioner’s affidavit does not indicate any attempt to make the required disclosure. Nevertheless, petitioner was licensed to practice as an attorney, both in 1971 when the will was drawn and in 1995 when the law changed.

The issues in this case are whether petitioner-executor is entitled to his full commission, notwithstanding the failure of the testator to make written disclosure of dual fees as required by the statute; and whether the fact that petitioner had retired from the practice of law and has hired separate counsel to represent him as executor of the estate are reasonable grounds to excuse the absence of the written acknowledgement.

Published on: July 27, 2012

Court Decides Sales Tax Question

by Stephen Bilkis

The Facts:

On 20 December 1979, the Audit Division of the State Tax Commission issued a Notice of Determination and Demand for Payment of Sales and Use Taxes Due for the period 1 June 1976 through 31 August 1979. Petitioner filed a petition for revision of that determination and for refund of sales and use taxes under Articles 28 and 29 of the Tax Law.

A New York Probate Lawyer said on 21 November 1985, a hearing was held. On 28 May 1986, a decision was made which modified the Determination but left an amount due of $83,884.58. On 28 May 1986, the Commission notified petitioner of the Decision and advised that petitioner had now exhausted his right of review at the administrative level.