Probate & Estate Litigation

Published on: October 31, 2022

Surrogate’s Court considered a will construction case where the identify of a beneficiary nonprofit was unclear. In re Estate of Geng, 50 Misc. 3d 475 (N.Y. Sur. Ct. 2015)

by Stephen Bilkis

The purpose of a last will and testament is to allow the testator to leave instructions as to what is to happened to their property once the pass away. It’s important for a will to be will-written as clear. Since when it is time to follow the instructions in the will the testator would have passed the way, they will not be available to clarify their intent. It is important that a will speak for itself.

However, if the language of the will is not clear, the court may have to step in and figure out the intent of the testator. For example if the language is not clear enough to determine beneficiaries or if the text of the will was not logical, the court would have to clarity. In Geng, the language in the will regarding a specific beneficiary was not clear. As a result, the executor asked the court of guidance through a will construction action.

Background

Published on: October 26, 2022

Surrogate’s Court declined to probate a document that did not meet the requirements of a will. In re the Estate of Wolf, 38 Misc. 3d 564 (N.Y. Sur. Ct. 2012)

by Stephen Bilkis

A will, when properly executed, is a legally enforceable document in which the testator gives instructions as to what is to happen to their property after their death. In this will contest case the Surrogate’s Court has was asked to determine whether a document signed by the decedent was in fact a last will and testament that should be probated.

Under New York law, as in all jurisdictions, there are very specific requirements for a will to be valid. It must be signed by the testator in the presence of two witnesses or a the direction of the testator in their presence. NY EPTL § 3-2.21. With some notable exceptions, the will must also be writing. Further, at the time that they executed the will, the testator must have had the mental capacity to sign the will.

If, as in this case, a will was executed in another jurisdiction, must have been executed in a manner consistent with that jurisdiction. In this case, one of the documents submitted was executed in Pennsylvania.

Published on: October 24, 2022

Surrogate’s Court was asked to construct unclear terms in a will. In re the Estate of Steflik, 9 Misc. 3d 354 (N.Y. Sur. Ct. 2005)

by Stephen Bilkis

If a New York will contains language that is vague or subject to multiple interpretations, interested parties can initiate probate litigation to request that the Surrogate’s Court determine how the ambiguous language in the will should be construed. This type of litigation is called a “construction action.” The purpose of will construction is to determine the intent of the testator determined from a sympathetic reading of the will as a whole. The court will avoid looking to extrinsic evident to determine the testator’s intent, but will consider extrinsic evidence submitted by the litigants if necessary.

Background

The decedent owned property at 815 Placek Drive, Johnson City, New York. In her will, she left that property to Michael Steflik. The will also stipulated that if the property at 815 Placek Drive was no longer a part of the estate because she sold it, then she bequeathed 30% of her estate to Michael Steflik. The also left percentages of her estate to several other different people. Augustine Steflik 15% Theresa Steflik 20% Richard, John, Joseph, Debra Steflik and Mary Louise Furlong 7% each.

Published on: October 19, 2022

Surrogate’s Court denied summary judgement where a landlord sought payment of rent arrearages from the executrix of an estate. In re the Estate of Jorden, 8 Misc. 3d 789 (N.Y. Sur. Ct. 2005)

by Stephen Bilkis

In this case, the Surrogate’s Court was asked to determine the applicability of the Loft Law in a case where a landlord sought to recover back rent and where the decedent’s estate sought to recover the value of fixtures added to the premises by the decedent.

Under New York law, a loft is a raw, open space that was originally commercial space and not suitable for purposes. However, it became common for owners to rent the space for residential use. The Loft Law was enacted in the 1980s to encourage landlords to legalize the illegal residential units and bring them within the regulatory system that governs residential rentals. One part of the Loft Law applied to fixtures that residents added to their units in order to make the unit habitable and compliant with the residential unit regulatory system.

Background

Published on: October 17, 2022

Surrogate’s Court dismissed argument that proffered will should be rejected due to execution of later will. Summary judgement. In re the Estate of Wimpfheimer, 8 Misc. 3d 538 (N.Y. Sur. Ct. 2005)

by Stephen Bilkis

Under New York law, there are multiple ways to revoke a will. The testator can execute a document clearly indicating an intention to revoke the will. The testator can intentionally destroy the will by ripping it up, burning it, or another action of destruction. Or, the testator can execute a new will. In the case of In re the Estate of Wimpfheimer, there was an objection to probating a 1992 for a number of reasons, including that the testator executed a new will in 2003.

Background

The decedent, Ruth Wimpfheimer, died on February 12, 2003 leaving a probate estate valued at $6,000,000. The only distributees were her daughter and the objectant. The will also establishes a trust that benefits the proponent as well as the decedent’s seven grandchildren. The residuary estate goes to the proponent. The will explicitly limits the amount that the objectant was entitled to the decedent has provided for the objectant’s children during her lifetime and because the objectant would receive future benefits from practicing law in the firm that the decedent’s husband founded.

Published on: August 1, 2022

In a turnover proceeding, the Appellate Division upheld the determination that the funds were the property of the estate and not gifts. In re Kelligrew, 63 A.D.3d 1064 (N.Y. App. Div. 2009)

by Stephen Bilkis

During estate administration, a major responsibility of a personal representative is to identify, secure, and inventory estate assets. In some instances, a turnover proceeding is required to ensure that all assets that are part of the estate are accounted for. A turnover proceeding is a legal proceeding that occurs during which the representative of an estate requests that property of the estate in the possession of third parties is returned to the estate. SCPA § 2103.

In Kelligrew, the court considered whether nearly $200,000 in funds transferred to via check drawn on the decedent’s account were assets of the decedent’s estate or a gift.

Background

Published on: July 25, 2022

In a turnover proceeding, the court found that the petitioner largely did not meet their burden. Matter of Mahoney, 2021 N.Y. Slip Op. 32702 (N.Y. Sup. Ct. 2021)

by Stephen Bilkis

In the process of estate administration, when there is a disagreement about who has title to property or there has been a theft of assets, the executor of an estate can initiate a turnover proceeding to get more information and to recover property that belongs to the estate. SCPA § 2103

Background

Decedent died on July 13, 2017. She left a will and was survived by six adult children as well as her long-time companion, the petitioner William Koughn. The decedent and Koughn split their time between homes in Florida and in New York. However, in February 2017, the decedent’s children forced her to move from Florida to New York and initiated a guardianship proceeding. Shortly before her death, one of the decedent’s sons, George Mahoney, was appointed as her guardian.

Published on: July 25, 2022

Father was not barred from sharing in intestate estate of his daughter because his negligence caused her death. In re Wigfall, 20 Misc. 3d 648 (N.Y. Misc. 2008)

by Stephen Bilkis

Under New York law, when a child dies, typically their parents are their next of kin and are entitled to share in their intestate estate. However, a parent can be disqualified from inheriting from the child’s estate under two conditions: if the parent abandoned the child before their 21^st birthday or if the parent failed to provide financially for the child before their 21^st birthday. EPTL § 4-1.4. In addition, there is a long-standing rule in New York that a person is not permitted to profit by their own wrongdoing.

Because children generally do not have significant estates. However, if the child’s death is due to an accident, they child may have been awarded a significant settlement from a personal injury claim for their conscious pain and suffering. In addition, the child’s next of kin may be entitled to share in a settlement for wrongful death.

Background

Published on: June 27, 2022

Misconduct must be shown to remove an estate administrator. In re Matter of Estate of Corey, 65 Misc.3d 524 (N.Y. Surr. Ct. 2019)

by Stephen Bilkis

Once an administrator has been appointed, SCPA § 711 provides that they can be removed or suspend under specific circumstances. In In re Matter of Estate of Corey, the Surrogate’s Court was to remove an administrator because he allegedly exceeded the scope of his fiduciary duties and responsibilities.

Background

The decedent died on July 8, 2018 at the age of 92. She was survived by three children and two grandchildren. She was intestate and left an estate valued at about $30,000,000. All of the beneficiaries were eligible to serve as administrator. However, they all agreed that attorney Markello should be appointed administrator. Because Markello was not a beneficiary of the decedent’s estate, all of the beneficiaries had to approve his appointment. Letters of administration were issued to Markello on August 8, 2018.

Published on: June 6, 2022

Court upheld dismissal of unfounded allegations of lack of due execution. Blasi v. Blasi (In re Martinico), 177 A.D.3d 882 (N.Y. App. Div. 2019)

by Stephen Bilkis

In this case, the Appellate Division, Second Department, considered whether the Surrogate’s Court of Kings County erred in dismissing the objectant’s objections and admitting the decedent’s will to probate.

Background

The decedent died on May 20, 2014 leaving a will dated March 28, 22014. The petitioner filed a petition for probate on July 22, 2014. Several people filed objectants claiming lack of due execution, lack of testamentary capacity, undue influence, and fraud. The Surrogate’s Court dismissed the objections and admitted the will to probate. An objectant appealed.