Probate & Estate Litigation

Published on: April 13, 2012

Court Hears Will Contest Over Real Property Dispute

by Stephen Bilkis

A decedent died on 26 February 2009 and was survived by his two children. On 3 August 2009, the decedent’s last will and testament dated 9 February 2009 was admitted to probate (estate litigation, estate administration or will contest) and letters testamentary were issued. The will provided, among other things, that the named executor in the will would have the right to live in the decedent’s home for the remainder of his life and directions for the distribution of the remainder either after the named executor’s death or upon his vacating of the premises.

Thereafter, alleged creditors of the decedent’s estate petitioned the court for a summary judgment issued in their favor.

The petitioners based their assertion on a document entitled, “Sales Agreement,” dated April 29, 2006, between the decedent, who is defined in the agreement as “Seller”, and the petitioners, who are defined as “Buyers.” The petitioners alleged that by the terms of the agreement, the decedent granted the petitioners the right of first refusal to purchase the property for $1,600, 000.00 and that in the agreement the decedent acknowledged his receipt of two deposits by check totaling $350,000.00 that the petitioners paid to the decedent for the right of first refusal. A New York Probate Lawyer said the petitioner’s alleged that the decedent’s failure to offer the property to them for sale prior to conveying the property constituted a breach of the agreement by the decedent. The petitioners further claimed that the documentary evidence and the named executor’s deposition testimony conclusively demonstrated that the transfer of the property from the decedent to him was a fraudulent conveyance under New York Debtor and Creditor Law because it rendered decedent and his estate insolvent demonstrating an intent to evade his obligation.

Published on: April 12, 2012

Court Decides Will Contest

by Stephen Bilkis

A man died survived by his spouse. He left a will which then became the subject of a probate (will contest) proceeding. Certain documents were sought to be produced which then became the subject matter of the present case.

Two issues were raised during the estate litigation, to wit:

1. Whether or not the instruments sought were privileged matters between the widow and her attorney; and

Published on: April 11, 2012

Defendant Seeks Order Quieting Title

by Stephen Bilkis

In a pending action transferred from Supreme Court, Nassau County to Surrogate’s Court of Nassau County, defendant sought the order of quieting title in his favour and to direct the Clerk of Court of Nassau County to cancel a notice of its pendency and such other relief the court may deem just.

A New York Probate Lawyer said the defendant is the grandson of the decedent in a pending probate proceeding of Surrogate’s Court of Nassau County. Decedent’s daughter, as preliminary executor, is the legal representative of the estate in the lawsuit.

The decedent and her husband acquired title of a New York property by deed. They were identified as grantees in the deed, thus, presumptively creating a tenancy by the entirety. Upon death of decedent’s husband, the former became the sole owner of the premises under the assumed valid tenancy.

Published on: April 11, 2012

Court Conducts an Accounting Proceeding

by Stephen Bilkis

Before the Nassau County Surrogate Court is the Public Administrator’s motion to dismiss the objections in a contested accounting proceeding.

The woman decedent, a resident and domiciliary of Nassau County, died testate. She was survived by her daughter and three sons.

Decedent executed a last will and testament bequeathing her residuary estate equally among her four children and appointed one of her son as executor. The son-executor filed a petition for probate of the will and for letters testamentary. Decedent’s daughter and executor were each represented by counsel while the other two sons appeared personally in the probate proceeding. The other children of the decedent objected to the appointment of the executor. The beneficiaries entered into a settlement, in open court, for the probate of the will and that they would appoint the Public Administrator as administrator of the estate. The will was admitted for probate and, at the same time, letters of administration were issued to the Public Administrator.

Published on: April 11, 2012

Court Decides Appropriate Fee for Guardian ad Litem

by Stephen Bilkis

A decedent was survived by his wife (a person under disability represented by a guardian ad litem), an adult son (petitioner) and four adult grandchildren and the issue of a predeceased child. Under the decedent’s will, his entire estate was left to the decedent’s lifetime trust, which in turn leaves the entire estate to petitioner, to the exclusion of the surviving spouse and grandchildren.

Subsequently, a stipulation of settlement was entered into by the parties which was then approved by the court for the best interest of all parties concerned. The approved settlement permitted the will’s admission to probate (estate litigation or will contest), effectively guarantees the surviving spouse her elective share, and distributes the net estate after payment of debts, administration expenses, and the elective share, into two parts, one part to be distributed to the petitioner and the other to be divided equally among the grandchildren.

The question now is the amount of appropriate fee for the guardian ad litem.

Published on: April 10, 2012

Court Determines Appropriate Legal Fees for Probate Case

by Stephen Bilkis

In an accounting proceeding, the court is presented with the issue of determining the amount of attorney’s fees and accounting fees to be granted to be charged against the estate of the decedent.

Decedent is a resident of Nassau County who left a will that was admitted for probate by the Surrogate’s Court of Nassau County. Letters testamentary was issued to decedent’s daughter. The decedent was survived by his seven children. The will stipulated that equal shares of the residuary estate shall be divided among the surviving children of the decedent.

The accounting proceeding is the first and final settlement of account made by the executor covering a period of four years. The summary statement submitted by the accounting party showed the amount of $955,030.92. Some of the children of decedent filed objections regarding the accounting statement. A New York Probate Lawyer said in a settlement agreement entered into by the parties, the executor reduced her commissions for payments to the objectants. The agreement also stipulated that certain estate’s tangible properties will be given to the latter.

Published on: April 10, 2012

Court Decides Payment of Legal Fees for Administration of an Estate

by Stephen Bilkis

A resident of Uniondale, on 26 December 1998, died. The decedent left a will dated 15 June 1979 which bequeathed her entire residuary estate to her nephew, who post-deceased the decedent. The Public Administrator was appointed temporary administrator of the estate on 14 April 2005. Decedent’s will was admitted to probate (estate litigation or will contest) on 11 May 2010 and letters of administration were issued, thereafter, to the Public Administrator. The account of the Public Administrator was initially filed on 6 July 2010.

A New York Probate Lawyer said the subject matter presented before the court is the first and final account of the Public Administrator for the estate of the decedent and the approval of the payment of fees to the attorney for the Public Administrator in connection with the administration of the estate (estate administration).

The Public Administrator sought the approval of the accounting, approval of the commissions, the fixing of fees for the services of the attorney and accountant, authorization to distribute the net estate to the court appointed administrator of the estate and the release of the administrator from the surety bond.

Published on: April 9, 2012

Court Questions Appointment of Guardian ad Litem

by Stephen Bilkis

This case is not about estate litigation but about the petition of a guardian in Vermont County for ancillary committee designation covering the properties of his ward in New York County. The Guardian ad Litem in New York questioned the appointment of the petitioner as guardian of the old woman who was declared an incompetent due to old age and sickness and who is also a known resident of New York with substantial assets and properties therein. The guardian ad litem in particular questioned the proceedings conducted by the Court of Vermont County. He also poised an issue whether the New York court should assume jurisdiction and whether a resident committee should be assigned to act on behalf of the old woman with regards to her properties in New York. The question was also raised about the propriety of the petitioner particularly on how he became the guardian of the old woman.

A New York Probate Lawyer said that before the petitioner was assigned by the Vermont court as a guardian, he first acted under a general power of attorney for the old woman. This involved paying her dues and managing her finances that included signing checks for the old woman who is already suffering from mental illness. The Vermont County appointed the petitioner as guardian under the application made by the niece of the old woman and it started when the court required the appearance of the old woman to a probate hearing. Since the old woman is already bed-ridden and could no longer move around much less travel, the niece who is residing in Canada decided to apply to the court that the petitioner be appointed as guardian-adult which application was granted by the court of Vermont County. Upon appointment as guardian or committee, the petitioner then applied to a New York Court as ancillary committee covering all the properties of the old woman in New York.

In deciding the issues raised by the guardian ad litem, the court answered the same point by point. On the issue of whether the Court of Vermont County has jurisdiction over the person of the old woman who is a known resident of New York the court said that the findings of the Vermont court is not binding and this also applies to the appointment of a guardian. The Supreme Court of New York however also said that the proceeding in Vermont is not invalid totally and that there is reason to agree based on the findings of the Vermont court as testified by witnesses during the proceedings in that court, that the old woman is indeed no longer capable of managing her affairs due to old age and mental sickness.

Published on: April 9, 2012

Court Determines if it has Subject Matter Jurisdiction

by Stephen Bilkis

On 28 December 1993, the decedent died. On 28 January1994, The decedent’s Last Will and Testament was admitted to probate (no will contest) and letters testamentary were issued.

The issue here (estate litigation) is whether or not an order consenting to a transfer to the Nassau County court of an action currently pending in Supreme Court, New York County is proper.

The respondent has argued that the Nassau County court lacks subject matter jurisdiction of the dispute and that it is not the proper venue for the case.

Published on: April 8, 2012

Petitioner Alleges Fraud, Undue Influence

by Stephen Bilkis

A man executed a will in October 28, 1970. In this will, ninety per cent of his estate is left to charities and the remaining ten per cent is left to his sister. In this will also a bank and trust company was named as executor of the will.

After the testator died, the sister filed the petition for probate of the October 28, 1970 will. But the sister also produced a purported codicil executed by the testator dated November 20, 1970. In this codicil, the testator allegedly revoked the nomination of the bank and trust company as executor and instead nominated his sister as executrix.

Two charitable organizations who were distributees of the decedent in the October 28, 1970 will filed objections to the probate of the will and the codicil. The charitable organizations also filed a motion for leave of court to examine the witnesses of both the will and the codicil, the sister, the bank and trust company and the attorney who drafted the will and the codicil.