Probate & Estate Litigation

Published on: April 3, 2012

Court Decides Jurisdiction Between French and NY Wills

by Stephen Bilkis

This case started in 1951 when one of the heirs of the decedent applied for ancillary letters of administration concerning holographic will that was said to be executed in France. In his petition, it was alleged that the decedent was a resident of France who died in the same country and left properties within the jurisdiction of the New York court. The petitioner also alleged that the will was made according to French law and that the same was recognized and established accordingly under the laws of that country. This claim of the applicant for estate administration of the decedent became an issue particularly with regards to the claim of domiciliary. The question was put forward by the New York state Tax Commission and by another party who in the end filed a motion to stop the proceedings of the court. This latter party had an interest in the case because according to him, the decedent owed him money for the legal services he rendered and which amount he wanted to recover from the property of the decedent. It is worth noting that this same party is the executor named by the decedent in a will and a codicil allegedly executed by the decedent in New York. Thus, it appears the decedent executed two wills and a codicil while he was living.

A New York Probate Lawyer said that while the question of the real domicile of the decedent was still pending, the executor pushed through with the estate litigation of the will and a codicil executed by the decedent. The executor named in the will declared that the decedent was a resident of New York at the time of his death. The proponent of both the will and the codicil, who is also the executor designated in the will, argued that he was obligated to apply for the settlement of the properties of the decedent because he truly believed that the decedent was a domiciliary of New York and that if the decedent indeed transferred his domiciliary to France, that he has no sufficient information with regards to that and adding further that he was not given the opportunity to establish the veracity of the later will which was probated under French law.

The proponent with his lawyer went to France and there gathered information regarding the domicile of the decedent and also talked to witnesses relating to the will that was executed there. It was in France that the proponent was able to claim the money that he wanted to get from the probate proceeding in New York. When he returned to New York, he moved that the probate proceeding be discontinued claiming among others that based on his findings, there is very little chance of them succeeding in proving the New York residency of the decedent and as such, there is no more reason for the proceeding to push through. NY York Probate Lawyer said the proponent also asked the court that the services of his lawyers be paid including the one that he contracted in France.

Published on: April 3, 2012

Court Decides Will Contest Issue

by Stephen Bilkis

A father of three children died on December 26, 1960 in New York County. In January of the following year, a petition for the probate of two presented wills was filed in New York County Court. The petition was filed by the special guardian for the children alleged that the deceased father resided at Park Avenue, New York City and that his legal heirs were his three children.

A New York Probate Lawyer said the petition stated that the deceased father and his former wife had been married and divorced. The special guardian did not believe that the former wife was an heir of the deceased. The will presented claimed to be the deceased father’s will, bestowed the former wife with $50,000. Supplement to the presented will nominated the former wife as guardian of the infant son of the deceased. The former wife carried out a paper including an appearance in the trial, a waiver of the service of citation and a specific consent that the presented will be admitted for validation. The attorneys representing the former wife filed an authorized notice of appearance on her behalf as the appointed guardian of the infant son of the deceased. The special guardian representing the infant filed his report recommending validation. Since there was no objection to the validation of the will was filed, the proof was taken in respect of implementing the presented will, the capacity to execute a will of the deceased and his freedom from control. Thereafter, a ruling was made admitting the presented will for validation and granting letters of administration and letters of trusteeship.

On June 1961, the former wife filed a petition individually and as general guardian of the infant son, asking that the validation ruling be opened, cleared out and set aside. The stated basis is that the deceased father was not a resident of New York County but was a resident of Suffolk County. The petition in the revocation trial admits that all the facts upon which the former wife’s accusations of residence are based within her knowledge at the time she appeared in the validation trial and consented for validation. She alleges that she did not notice that the trial was in New York County. Staten Island Probate Lawyers he failure to notice occurred when a copy of the citation was served to her, when she later executed a waiver and consent to the validation and when she executed an affidavit and acknowledged an authorization for her attorneys to appear for her as the appointed guardian. The attorneys then appearing do not represent the former wife on the application. The administrators of the will made an appeal to dismiss the petition.

Published on: April 3, 2012

Court Discusses Fraud Allegations

by Stephen Bilkis

Queens Probate 19

New York Probate Lawyers said this is a case being heard in the Second Department, Appellate Division of the Supreme Court of the state of New York. The action before the court is to recover the possession of real property. The defendant is appealing an order made in the Supreme Court of Queens County that granted the plaintiffs motion for summary judgment that dismissed the defendant’s counterclaims to impose a construct trust for the subject property and the proceeds of a bank account.

Case Background

Published on: April 2, 2012

Court Decides Legal Fees from Will Proceeding

by Stephen Bilkis

A rich man died in 1958 leaving a will and a codicil. The distributees of the properties and assets named in the instruments were his wife, two daughters as distributes and two other persons as executors. The letters testamentary were issued to the executors after the will was presented to probate by the assigned parties. Based on the will, the decedent gave the surviving spouse personal properties and also gave to individuals and charities named in the will. The daughters also received a large amount of money from their father. Legacies were also given to 13 individuals and the remainder of the wealth was placed in trust with the income from such investment directed to be paid to the widow during her entire lifetime. The will also directed that upon the death of the surviving spouse, the principal of the trust investment be paid to the two daughters who where earlier declared as trustees when the said trust was created.

Upon the death of the decedent, the executors hired a law firm to represent them in the Surrogate court of St. Lawrence County for the estate administration of the decedent.

A few months after, another law firm was retained and both firms worked on the proceedings and the tasks involved in settling the estate of the decedent. Since the decedent was a rich man and had many properties as well as investment exposures in many different corporations, the work entailed among others settling accounts and other transactions needed to facilitate the entire Surrogate court’s proceedings.

Published on: April 2, 2012

Court Decides Fees for Guardians

by Stephen Bilkis

The trial discussed concerns the legal settlement of the final account of two persons and the fixation of legal fees. The two persons were the appointed guardians of the properties of the deceased incompetent man. While the administrator of the properties also filed objections and has argued for a surcharge against one of the appointed guardians and for a direction that the other appointed guardian accounts for the money supposedly belonging to the properties that he received both prior and subsequent to his appointment. A New York Probate Lawyer said the opposing motion was granted for the extent that the appointed guardian must file a detail of his acts.

It started when the sister of the incompetent man was appointed as the guardian of her brother and as well as guardian of his properties by the order of the New York Court. She was also appointed guardian as a result of the additional proceedings in the Superior Court of New Jersey, where the incompetent man possess properties. Through a court order, she was permitted to move the incompetent man and certain of his assets to California, where she resided with her husband. Years later, the sister of the incompetent man died in California. At that time, the incompetent man was also in California, as were certain assets of his estate, which were in part transferred from his properties in New York and New Jersey. Afterwards, the husband of the sister of the deceased was appointed as his guardian as well as of his properties by the order of the superior court of California, Los Angeles County.

The husband of the sister filed a petition claiming that the deceased brother-in-law was a resident of Los Angeles County and was then a patient at one of the sanitarium. A Staten Island Probate Lawyer said he also stated that his wife had been the guardian of the incompetent man by appointments in the Courts of New York and New Jersey, and that at the time of her death, as such guardian, she had in her control her personal property. It appears that the husband believes that the deceased was a resident of California, and petitioned for his appointment under the California Probate Code. Under the said section, notice is required to be given only to the relatives of the incompetent man within the second degree and residing in California. However, it is agreed that the incompetent man was not a resident of California at such time, and the law is clear that a guardian may not change the residence of the incompetent man. The protesting party concludes that the order of the California Court appointing the husband as guardian was void and further stress that all of the husband’s acts under the order are void.

Published on: April 1, 2012

Court Rules on Fees to be Paid to the Guardian ad Litem

by Stephen Bilkis

The decedent, a resident of Nassau County died on January 24, 2006 who on October 24, 2003 created the Revocable Trust U/A during which he executed his will now offered for probate. The instruments were drater by the long time attorney who supervised the execution of both documents. Bulk of the assets were transferred to the trust while he was alive, thus, the will is attributed as “catch all” document. The probates estate is counted at $10,000.00 while the trust holds asets is close to $1,000,000.00.

The guardian ad litem for the decedents daughter claims for his services in the amount of $2,828.00, he rendering 7.2 hours which shall be taken out of the estate. The statute governing the compensation of guardian ad litem provides tht fee is payable in the following consideration:

1. the estate

Published on: April 1, 2012

Court Decides Jurisdiction Issue of French Will

by Stephen Bilkis

This case started in 1951 when one of the heirs of the decedent applied for ancillary letters of administration concerning holographic will that was said to be executed in France. In his petition, it was alleged that the decedent was a resident of France who died in the same country and left properties within the jurisdiction of the New York court. The petitioner also alleged that the will was made according to French law and that the same was recognized and established accordingly under the laws of that country. This claim of the applicant for estate administration of the decedent became an issue particularly with regards to the claim of domiciliary. The question was put forward by the New York state Tax Commission and by another party who in the end filed a motion to stop the proceedings of the court. This latter party had an interest in the case because according to him, the decedent owed him money for the legal services he rendered and which amount he wanted to recover from the property of the decedent. It is worth noting that this same party is the executor named by the decedent in a will and a codicil allegedly executed by the decedent in New York. Thus, it appears the decedent executed two wills and a codicil while he was living.

While the question of the real domicile of the decedent was still pending, the executor pushed through with the estate litigation of the will and a codicil executed by the decedent. The executor named in the will declared that the decedent was a resident of New York at the time of his death. According to a New York Probate Lawyer, the proponent of both the will and the codicil, who is also the executor designated in the will, argued that he was obligated to apply for the settlement of the properties of the decedent because he truly believed that the decedent was a domiciliary of New York and that if the decedent indeed transferred his domiciliary to France, that he has no sufficient information with regards to that and adding further that he was not given the opportunity to establish the veracity of the later will which was probated under French law.

The proponent with his lawyer went to France and there gathered information regarding the domicile of the decedent and also talked to witnesses relating to the will that was executed there. Nassau County Probate Lawyers said it was in France that the proponent was able to claim the money that he wanted to get from the probate proceeding in New York. When he returned to New York, he moved that the probate proceeding be discontinued claiming among others that based on his findings, there is very little chance of them succeeding in proving the New York residency of the decedent and as such, there is no more reason for the proceeding to push through. The proponent also asked the court that the services of his lawyers be paid including the one that he contracted in France.

Published on: March 31, 2012

Court Hears Case to Validate a Will

by Stephen Bilkis

The last will is accepted for probate but the co-administrator requests a decision to dismiss the objections pertaining to the account of the first daughter of the deceased. The second daughter of the deceased and her co-administrator join in their appeals of while the first daughter opposes the motions. The separate motion submitted by the first daughter seek for partial decision without proceedings on her claim to enforce the terms of the deceased of a prior mutual reciprocal will and an agreement not to revoke it. The co-administrator as well as the second daughter opposes the motion.

The mutual reciprocal will was completed by the deceased and his wife. The couple agreed to leave each other’s one-half of their net estates in trust with the remainder of the trust to be passed on another trust in equal shares to their two daughters. A New York Probate Lawyer said their residuary properties are left in trust with equal shares to their two daughters until the daughters reached the age of thirty-five. On the same date, the couple also completed a separate agreement not to revoke their mutual reciprocal wills without the consent of each other. The agreement further states that it will result to the benefit of their heirs.

The parties agree that there are no factual issues to be determined and that the issue of law to be determined is whether the mutual reciprocal wills and the agreement are valid and enforceable to support the first daughter’s claim as a creditor for a one-half share of their father’s properties. Westchester County Probate Lawyer said that consequently, no trial is needed.

Published on: March 31, 2012

Court Determines Will Contest Issue

by Stephen Bilkis

An alleged will was found by the accused among the deceased person’s possessions. The document was signed by the deceased but the signatures of the witnesses are torn off and missing. The accused states that the attorney whose name appears at the back of the will does not remember having such document as the alleged will or attending on the execution of any will by the deceased. The complainant was named as the executor and sole beneficiary in the will. If the deceased is found to die without a valid will, her sole heir would be her sister, a Finnish citizen who resides in Finland and who intends to file a will contest. Records show that the probate will not be granted and the deceased died without leaving a valid will. Although it is possible that an investigation may reveal and proof may present that the will was validly executed and was not broken and torn by the deceased.

When the complainant learned about the will, his lawyer visited the accused person’s office and requested that the will be filed immediately as required by law. Since the complainant was anxious to file a petition for the validation of the said will, instead of merely filing the will, the accused filed the will on the same day that he filed a petition for the issuance of a ruling to show the reason why the will should not be admitted for validation. A New York Probate Lawyer said they also filed a petition for a ruling to admit the will for validation and directing the issuance of letters of administration to the executor who may qualify or to determine that the act of tearing caused the instrument to be revoked. If the court found that the will was revoked then as an alternative, the complainant request for the issuance of letters of administration to the accused. The accused takes the position that the will is not valid and validation will be denied. Together with the filing of the petition, the accused made a motion that temporary letters of administration be issued to him.

The complainant opposed the motion of the accused for the appointment of the temporary administrator and moved for an order to dismiss the petition to verify the will. He also requested for a further order to authorize him to petition the court to verify the said will. The accused person’s motion was granted and the complainant’s motion was denied. The order denying the complainant’s motion provides that the motion to dismiss the petition for the validation of the will or the alternative issuance of letters of administration to the accused is denied in all respects.

Published on: March 30, 2012

Courts Discuss Bond Provisin in Estate Documents

by Stephen Bilkis

On 4 February 2007, a resident of Nassau County died leaving a will dated 20 September 2006. She was survived by her two (2) children, a grandchild and two (2) minor grandchildren. Such will has been offered for probate by the nominated executor (decedent’s husband).

The will created a trust to be funded with the “exemption amount.” The trust shall terminate upon the death of the decedent’s husband who has a limited testamentary power of appointment over the trust principal. If or to the extent that the decedent’s husband failed to exercise the limited power of appointment, the remaining trust principal is payable to the decedent’s husband 1993 Insurance Trust. The residuary estate is then payable to the decedent’s husband. The decedent’s husband and the children are named under the will as trustee and successor trustees, respectively. Also, “no bond or other security shall be required of any Executor for the faithful performance of such person’s fiduciary duties in any capacity.” Thereafter, the attorney-draftsman submitted an affidavit and averred that he inadvertently used the word “Executor” instead of “fiduciary.” Apparently, the decedent’s prior will dated 2 April 1993, which contained one trust, dispensed with a bond in the case of any “fiduciary.”

In the instant case (estate litigation or estate administration) there is no will contest. However, the court is asked to dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will.