Probate & Estate Litigation

Published on: March 25, 2012

Court Decides Estate Issues Regarding Same Sex Marriage

by Stephen Bilkis

The deceased man endowed in his will his three surviving brothers, a goddaughter and his same sex partner spouse that he married in Canada. He left the residue of his estate to the respondent, his same-sex partner spouse. The deceased man appointed the respondent spouse as the executor of his will, the said will included a no-contest clause which threatens anyone who challenges the legality of the will shall be eliminated. The respondent, as the executor named in the will, filed a petition for probate in the Surrogate’s Court. The respondent identified himself as the deceased man’s surviving spouse and the sole successor. The respondent served the beneficiaries with notice of validation and the Surrogate’s Court issued a ruling granting validation.

On January 26, 2009, the Surrogate’s Court issued an opinion finding that the respondent was indeed the deceased man’s surviving spouse and sole successor. In regard with such findings, citation of the validation proceeding need not be issued to anyone. The court found that the deceased man’s same-sex marriage to the respondent was valid under the laws of Canada, where it was performed. The said marriage did not fall into either of the two exceptions to the marriage recognition rule, as the marriage was not affirmatively prohibited or proscribed by natural law. Accordingly, the Surrogate’s Court found that the marriage was entitled to recognition.

The appellant alleges that the court was not in jurisdiction to grant the validation proceeding without having been issued with citation being the deceased man’s surviving siblings.

Published on: March 24, 2012

Court Determines Case Filed by Executor

by Stephen Bilkis

This is the probate proceeding of a deceased man’s last will and the objection filed by the counsel of the executor of the estate on the request from the court. The counsel of the executor has objected to a request from the court’s accounting department for the payment of an additional fee of $625.00 upon the executor’s required filing of the inventory of his List of Assets. The additional payment was requested based upon the addition of the real property located in North Carolina of his completed form. The executor of the property excluded that asset from the gross value of the assets as reported on the validation petition when it was initially calculated. The form for the petition required that improved and unimproved real property be listed only if it is located in New York State.

The Uniform Rules for the filing of the inventory of List of Assets shows no basis for excluding non-New York real property from the assessment of the gross properties passing by will, except with respect to a proceeding for ancillary validation. The part of the rules stated that the attorney of record shall provide the court a list of assets compose of the gross property for tax purposes but separately listing the assets that were either owned by the deceased individually including those in which the deceased has partial interest, or were payable or transferrable to the properties of the deceased and those properties held in trust. Also to be listed separately are those properties over which the deceased had the power to designate to a beneficiary, jointly owned property, and all other non validation property of the deceased. The section specifically requires the collection of the additional fee upon the filing of the inventory list, a requirement clearly contemplated by the enabling the law.

In the event such list of assets is not filed, A New York Probate Lawyer said the court may refuse to issue certificates, or may revoke the letters and may refuse to issue new ones until the list has been filed and the fees have been paid as provided. Failure to voluntarily file the list of assets may also constitute grounds for disallowance of commissions or legal fees. In case any additional filing fees are due, they shall be paid to the court at the time of the submission of any of the documents described.

Published on: March 24, 2012

Court Determines Jurisdiction of Will between Florida and NY

by Stephen Bilkis

A woman died in Florida on January 17, 2985. She had assets in Florida and New York. Her will was drafted and executed in New York under the supervision of her New York lawyer who is also the named executor in her will. He is the one who petitioned the Surrogate’s Court of New York for the probate of his client’s will.

The testator bequeathed to her siblings half of the estate and the remaining half was bequeathed to the legal heirs of the testator in accordance with the laws of descent and distribution of New York.

The testator’s lawyer at first wrote to the Surrogate’s Court stating his opinion that the testator has changed her domicile from New York to Florida. Later, he changed his mind and filed this application for probate in the Surrogate’s Court of New York. A New York Probate Lawyer said the heirs at law filed a similar action for probate of the will in Florida. They assert that the testator was domiciled in Florida. The testator’s brother filed the petition and asked that he be named as executor because the testator’s lawyer is ineligible for appointment as executor in Florida as he was not a resident of Florida.

Published on: March 23, 2012

Court Decides Jurisidiction Between Switzerland and U.S.

by Stephen Bilkis

A Swiss national died on July 7, 1941. Prior to his death, he executed a will in New York purportedly to cover his personal properties in this State. The will was executed in 1934. When he died in 1941, the personal properties left by the testator were divided among his widow and three children. The petitioner in this case was not given any share because he was deemed by the testator as having been amply provided for. The estate in New York was divided in such a manner that ½ went to the widow and the other half went to the two children minus the said petitioner. This settlement was finalized in October 25, 1941

Apart from the 1934 will, the testator also executed a hand-written or holographic will which was executed on March 2, 1940. This later will disposed of the properties located in Switzerland, the domicile of the decedent and a decree was issued by the proper court of Switzerland while the New York proceedings was still on-going. A New York Probate Lawyer said he 1940 will did not make any mention of the earlier 1934 will nor was there any express or implied revocation of the same. The later will of 1940 disposed of all properties of the testator without making any reference to the personal properties located in New York because the will was silent on the issue of what securities were to be disposed and where such securities could be located. The only thrust of the 1940 will was to make a disposition of all the properties specifically found in Switzerland and there was no mention about the securities located in the state of New York nor was there any reference to the 1934 will. The said will also stated that all the testator’s securities must be given to the wife and all real properties located in Switzerland be sold and the proceeds must be divided between the widow and the three children which includes the petitioner. Since the estate taxes figured heavily in the picture, there was very little left for the heirs and the surviving spouse to divide. The petitioner in particular received very little amount when all the taxes were factored in the computation of the net estate.

The petitioner, one of the sons of the testator, went to the Court and asked for the issuance of ancillary letters testamentary and to ask the court to vacate an earlier decree excluding him from the partition of the personal properties in New York which was the subject of the 1934 will. He also argued that under Swiss laws, the effect of a succeeding will is to revoke all prior wills executed by the testator and that therefore the probate of the 1934 will was not in order because of the existence of a later will which was executed in 1940. Bronx Probate Lawyers said he claimed that if the 1940 will is to be given effect, he would not have ended up with practically nothing because though there were almost no securities left in Switzerland at the time of the death of his father, there were on the other hand enough securities that can be divided coming from the personal properties located in New York. To all of these arguments, the executor countered that the petitioner is already barred by means of estoppels from pursuing and contradicting the decree because sufficient time has already elapsed between the finality of the estate administration and consequent liquidation and the filing of the proceedings made by the petitioner.

Published on: March 23, 2012

Court Determines Jurisdiction of Conflicting Wills

by Stephen Bilkis

An American citizen who was domiciled in Austria made two wills in 1962 and in 1964. The 1964 will was brought before the Surrogate’s Court in New York for probate by the testator’s lawyer who was also his executor. In this will, the testator revoked all prior wills and he directed that the remainder of his estate after the payment of debts and funeral expenses be shared by his ex-wife and his close personal friend.

The two daughters of the testator filed their objections to the probate proceedings in New York. They claim that because the testator was a resident and domiciliary of Austria, the courts in Austria have jurisdiction over his estate. It was also claimed by them that the Austrian Court has already begun hearing the probate proceedings of the 1962 will of their deceased father which the daughters instituted.

The 1962 will provided that the testator’s estate consisting of 145 common shares in an American telephone and telegraph company be distributed to his ex-wife after deducting the payment of debts and funeral expenses. And, if his ex-wife was dead, then the shares of stock will be divided equally between his two daughters.

Published on: March 22, 2012

Court Determines Jurisdiction Question with French Will and Trust

by Stephen Bilkis

An American citizen who was a successful business man in New York got married to a French woman and thereafter bought a home in France where he lived together with his wife and daughter. Every now and then, he comes back to New York to look after some concerns about the business that he sold particularly because the said payment has not been fully paid. Whenever he was in New York, he would stay from time to time in a Flushing apartment which was especially provided to him by the corporation that he previously owned before selling it to his business partner.

It was also in New York that he executed a will in 1970 covering his estate and stated that the said will must be probated in the courts of New York when the proper time comes. Embodied in the will are provisions ceding to his wife all his personal properties and personal effects as well as a weekly allowance. The will also provided for an allowance to his brother which would come from the residuary trust. The daughter of the testator was also provided in the will and she was supposed to receive the income from a trust fund up to the time that she reaches the age of 35. He named as executor his long-time business partner for whom he sold his entire business interest in New York.

A New York Probate Lawyer said a few weeks before the death of the testator in 1972, he also executed before a French notary public, a deed of donation. Said deed of donation is in the form of inter vivos donation which will take effect upon the death of the donor. In the said Deed of Donation, he is leaving the entire estate administration and ownership to this wife subject to the condition that if there be children of the donor at the time of his death, then the wife as donee shall determine the right amount to be given to said children subject to the rules of the applicable law when that time comes.

Published on: March 21, 2012

Court Rules of Power of Surrogate

by Stephen Bilkis

A man appointed his wife and his daughter as executors of his estate. The bank was designated as the successor executor. In a supplement to his will, he removed his wife as executor and named his daughter as the sole executor and appointed the bank as the successor executor. Following the man’s death, a hearing was ultimately conducted in the Surrogate’s Court to determine whether the daughter’s initial letters of administration should be revoked and whether she was ineligible to be a permanent executor and trustee under her father’s will. The Surrogate decided that the daughter’s removal was justifiable and the court affirmed on the ground that the record supported a finding of inexcusable delay and the intentional refusal to obey the court’s direction. The court also affirmed the appointment of the bank as permanent executor and trustee. In the meantime, the wife who also died and her will were offered for probate in Westchester County.

The Surrogate court issued preliminary letters of administration to the bank being the nominated executor and trustee. Queens Probate Lawyers said the daughter intervened objections to the validation of the will. The law firm which had provided attorneys for the wife during her lifetime regarding the validation proceeding in her husband’s will was retained by the bank as its counsel in both properties.

By order to show cause, the bank applied for a ruling admitting the husband’s Will and its supplement, the letters of administration and trusteeship to validate. The daughter opposed the bank’s application and in a cross-motion, the daughter sought extensive relief which includes the disqualification of the bank from its appointment as executor of his father’s will and the prohibition of the subject law firm from acting as counsel to the bank and participating in the proceedings other than serving as witnesses. The bank objected to the daughter’s cross-motion, but the Surrogate, despite granting preliminary letters of administration to the bank, ruled that a hearing should be held in relation to the eligibility of the bank to be made as permanent executor and trustee. The Surrogate court also ruled that a hearing should be held to determine whether the law firm in question should be disqualified as the bank’s attorneys in the validation proceeding. However, a New York Probate Lawyer said it was an abuse of discretion for the Surrogate to require a hearing under the circumstances herein. The Surrogate directed, and the court affirmed, that the bank will be designated as permanent executor and trustee. The bank promptly complied with the directives of the Surrogate’s Court Procedure Act who dealt with the qualification of the executor. In addition, a proposed ruling and counter-ruling, and even the suggested the counter-ruling offered by the daughter which named the bank as the recipient of the letters of administration and trusteeship were submitted to the Surrogate’s Court. Indeed, the daughter failed to throw in any objection until the bank applied by means of the order to show cause for the issuance of the letters after the Surrogate had not acted on the ruling or counter-ruling. Yet, Manhattan Probate Lawyers said her papers do not allege any facts imposing that the bank be declared ineligible.

Published on: March 21, 2012

Court Hears Validation Proceeding for Deceased Priest’s Will

by Stephen Bilkis

A validation proceeding for the will of a deceased priest have two questions presented for determination. The matters to be determined are the right of the respondent to attack the jurisdiction of the Court and the finding of the residence of the deceased at the time of his death.

The Petition for Probate was filed together with an original will of the deceased. Two days prior to the filing, an order to search the safe deposit box of the deceased in a savings bank in New York was signed by the Monroe County Surrogate based upon a petition stating that the deceased had died a resident of the Rochester City New York. The safe deposit box was searched and a will identical to the one filed in Ontario County Court was found it was filed in the Surrogate’s Office of Monroe County Court by an officer of the said bank.

A New York Lawyer said that on the return day of the Citation, a Notice of Retainer and Appearance was filed by an attorney acting for the respondent who is a sister of the deceased. He advised the Court of the existence of what seemed to be a duplicate original will on file in the Monroe County Surrogate’s Office. The matter was adjourned until December 3, 1962, during which period of time the Court personally went to the Monroe County Surrogate’s Office and examined the application for the opening of the safe deposit box and the will which had been filed there as a result of such search. On December 3, 1962, a short hearing was held in the matter. The Court advised the respective attorneys that it had examined the file in Monroe County Surrogate’s Court. The attorney for the respondent requested an adjournment for two weeks with the understanding that he would file an answer with the Court and a copy with opposing counsel by December 10th and that the issues be raised by the answer and should be tried on December 17, 1962. On December 10th, respondent’s attorney filed an answer.

Published on: March 20, 2012

Court Decides Jurisdiction Issue Regarding Will and Trust

by Stephen Bilkis

A man who was born and raised in Brooklyn died and survived by two grandchildren. For many years, the deceased and his wife lived in Florida where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona where his grandson lived. They were living in Phoenix when the deceased man’s wife died. The deceased remained in Phoenix until he moved to New York in late September 2005.

While living in Phoenix, the deceased executed a will, which left his estate to the trustee. On the same day, he executed a trust agreement creating a revocable lifetime trust. Under the terms of the trust, the property passes to the grandson upon his grandfather’s death.

In 2005, the deceased called his sister and told her he wanted to return to Brooklyn to live with her. The sister and her daughter visited the deceased on September 27, 2005. At that time, the deceased was 95 years old and suffering from cardiac problems. The deceased asked his sister to take him back to Brooklyn to live with her.

Published on: March 20, 2012

Court Discussed Enforceability of Swiss Estate Documents

by Stephen Bilkis

An American citizen was domiciled in Switzerland. He died on January 2, 1964. He executed a will in New York on November 6, 1961. In this will, he bequeathed his entire residuary estate to his second wife and directed that his will be submitted for probate in New York and for the laws of New York to govern his estate.

The testator’s first wife appeared as the guardian of his two children and objected in the probate proceedings. She claims that the testator’s property must be disposed of under Swiss law as this is provided for by a treaty between the United States and Switzerland. She claims that under the treaty of 1850, her ex-husband’s personal property must be distributed under Swiss law even if they are found in New York. Under Swiss law, her children will be entitled to shares in the estate as forced heirs.

A New York Probate Lawyer said the Surrogate did not rule on the objection of the first wife but it issued a decree admitting the will into probate and it ordered the executor not to pay or satisfy any distributive share without orders of the Surrogate.