Probate & Estate Litigation

Published on: March 19, 2012

Court Determines Distribution of a Trust and Will Assets

by Stephen Bilkis

In 1935, a trust fund was created by a mother in favour of her son which provides among others that in the event of the death of her son, the trust shall be divided in 6 equal parts and one of which shall be held in trust for her grandson. The trust also stated that should the grandson die, the trustee should distribute the remainder of the funds according to the will of the said grandson or the laws of intestacy should there be no will executed by the latter in favour of his heirs. The trust agreement was entered into between the mother and a trust company in New York which was also the domicile of the mother at that time.

The son who was the original beneficiary, died in 1962 while the grandson died in California in 1965 survived by his widow and a daughter as well as 5 children coming from the first marriage. The grandson had a will and it was admitted to probate in California since it was his domiciliary. The will of the grandson specifically directed that all his remaining trust fund be further divided into two trusts for the benefit of his spouse and daughter with a proviso that the trust for the daughter be terminated 21 years after the last survivor of his wife, his daughter, and the children of his daughter who were living at the time of his death, has died.

A New York Probate Lawyer said the original trustee in New York commenced a proceeding for the final accounting and settlement of the trust intended for the grandson. The executor of the grandson’s estate which was in California instituted a separate proceeding involving the issue of heirship at the Superior Court of California. The executor claimed that the will executed by the grandson should be construed in a manner that the trust should be terminated upon the death of the grandson’s daughter. The New York court from which the final accounting and settlement of the trust was filed, decided to hold further proceedings pending the determination of the California Superior Court of the issues brought to its attention.

Published on: March 19, 2012

Court Determines Jurisdiction Issue regarding a Will

by Stephen Bilkis

The petitioner is the surviving spouse of the deceased who died a resident in the State of Florida. The deceased man’s Last Will and Testament was executed in the State of Florida and admitted for validation by the Circuit Court of the County of Lee, State of Florida. The will specifically devises the deceased man’s interest in the real property in the Town of East Greenbush Rensselaer County, State of New York, to his former wife and the remainder of his property to his two children. The deceased man’s son is the executor nominated in the will and he was appointed by the Florida Circuit Court. The executor, thereafter, petitioned the Court for supplementary probate of the deceased man’s will and it was subsequently admitted for validation.

All of the deceased man’s assets were located in the State of Florida except for the real property located in the Town of East Greenbush. The petitioner has exercised her elective share under the Florida law since the deceased man’s last will made no provisions for the petitioner spouse. The Florida law does not take into account real property not located in Florida so the petitioner filed a right of election against the deceased man’s New York State real property and has commenced the proceeding for the Court to determine the validity of her right of election.

A New York Probate Lawyer said the deceased man’s former wife has appeared in the will contest proceeding by her attorney and has joined with the executor of the deceased man’s property in denying that the petitioner can exercise a right of election against the East Greenbush property.

Published on: March 18, 2012

Court Decides Jurisiction Issue Regarding Estate

by Stephen Bilkis

A decedent, who is a resident of Texas and domiciled at Mexico, has possessions in Cayman Islands.

A New York Probate Lawyer said the decedent, while living in New York in 1988, opened an investment account in London. During his lifetime, he deposited over $1,300,000 through a New York bank and his account was handled by an investment manager of the London investment house. The deceased named his marital son as the beneficiary of said investment account.

In 1989, the decedent made an arrangement with a trust officer of another bank to establish a discretionary off-shore trust account in Cayman Islands using the funds from his investment account in London.

Published on: March 18, 2012

Court Reviews Probate of Divorced Couple

by Stephen Bilkis

A man had separated from his wife and died on November 19, 1983 in Pennsylvania where he was admittedly residing. He was survived by his wife and two adult sons.

On December 5, 1983, a petition for probate of the deceased man’s last will and its supplement was filed by the friend of the deceased and his attorney who were his nominated executors. Jurisdiction of the New York County Surrogate’s court was invoked on the basis that the personal property of the deceased which includes shares of a corporation in America, had come into the county of New York after his death. The beneficiaries under the will namely, the deceased man’s two sons, his father, his brother and two sisters, all consented for validation in New York County.

No provision was made for deceased man’s wife in the will. A New York Probate Lawyer said she was cited and filed an answer to petition with jury demand. Among her allegations, the wife contends that the New York County Court lacks jurisdiction over the estate because the subject jurisdictional assets and the shares of the corporation were fraudulently brought into the county. Subsequently, despite her contention that the court lacks jurisdiction, she moved for the issuance of temporary letters to any person other than the nominated executors under the will. The proponent’s cross-moved for the issuance of preliminary letters.

Published on: March 17, 2012

Court Decides Will Jurisdiction Issue

by Stephen Bilkis

This case involves the settlement of the estate of a French born individual who acquired American citizenship at the age of 51 and died at the age of 79 in his domicile which was in Switzerland. He was survived by his wife a French national, and an acknowledged illegitimate son also a French citizen. The decedent left a will leaving all of his properties to his widow and leaving nothing to the said acknowledged illegitimate son. At the time of his death, the testator left properties in Switzerland, New York and France. The widow filed with a proceeding with the New York Surrogate court in order to claim the properties left by the testator and presenting the will for determination in the said court. The court admitted the will of the testator and took cognizance of the case and later on made a decree settling the estate administration by ordering that the properties net of any encumbrances and other obligations be released to the widow.

The acknowledged illegitimate son assailed the decision of the Surrogate Court of New York and filed an appeal for the revocation of the decrees made by the said court first when it assumed jurisdiction and second when it distributed the properties to the widow to the detriment of the share that the petitioner-son was supposed to be entitled if the case was tried in the court of Switzerland. The petitioner further alleged that since the decedent was a resident of Switzerland and he had considerable personal properties in the said country and only limited personalty in New York, then the court that has jurisdiction and the laws to be applied should be according to the Swiss law as envisioned in the 1850 Treaty between the United States and Switzerland that envisioned such a scenario happening with their citizens.

A New York Probate Lawyer said the petitioner then is of the opinion that the Surrogate Court of New York had no jurisdiction to try the issues involving this particular case. The petitioner also argued that there were personal properties in Switzerland that was brought by the widow to New York just so that it can be covered by the laws of New York which is according to him highly irregular and should also be struck down as a violation of the law.

Published on: March 17, 2012

Court Determines Formula for Calculating Endowments in a Will

by Stephen Bilkis

In paragraph third of a will, a deceased woman made twenty-seven gifts to individuals and charitable institutions thereto. Each of the endowments was described as consisting of a fixed percentage of her property. The parties are in dispute as to whether the language of gift requires that the legacies be measured in terms of a percentage of the gross or of the net property and, if the latter, as to the formula for determination of its dimensions. The court construes the direction of the woman as requiring division of the property upon its net rather than upon its gross value.

A New York Probate Lawyer said that it is conceded that as a general rule, in the absence of some provision to the contrary, debts and administration expenses are deducted in computing the value of a property when a fraction thereof has been bestowed.

There is nothing to be found anywhere in the will to suggest that the deceased woman entertained any notion of making her endowments in terms of percentages of the gross property and as a consequence, the court cannot concur in the proposition that such was her intention.

Published on: March 16, 2012

Court Decides Will Jurisdiction Issue

by Stephen Bilkis

The testator died in November 15, 1955. After almost two and a half years , a Petition for Probate of Will dated November 12, 1955, which was allegedly destroyed after the death of the former, was filed on April 23, 1958. The petition alleged that the testator is a resident of the City of Belize, British Honduras, Central America. Thereafter, a supplemental petition was lodged setting forth the transactions and proceedings with the New York State Tax Commission which informed the petitioner that the testator had been a resident of New York County. Thus, the amended petition provided that the testator was either a resident of the County of New York, State of New York or City of Belize, British Honduras, Central America.

A New York Probate Lawyer said Section 249-t of the Tax Law of this City provides for the protection of State’s interest with respect to tax receivable, thus, the State Tax Commission, shall be, in all original proceedings for letters testamentary in the estate of a non-resident decedent, shall be impleaded as a necessary party. However, it did not take an active part. Conflicting allegations arises as the other party contende that the testator is a domicile of British Honduras whereas the Attorney General of the State of New York and a special guardian of infant (an heir) contended New York as his domicile.

However, this Court has jurisdiction over the matter whether the decedent was domiciled here or being a non resident he died without the State leaving personal property within this county.

Published on: March 16, 2012

Probate of Will Presents Jurisdiction Issue

by Stephen Bilkis

This is a case involving the estate of a decedent who was a national of British Honduras and left properties located in New York and other countries. The decedent left no legitimate heirs and part of the properties he left involved certificates of stocks from 50 corporations and other banks as well as brokerage accounts all found in New York. An action was filed in the Court of New York for the escheat of the said stock certificates and other accounts since there were no legitimate heirs available to lay claim to the said properties. British Honduras, through its representatives also laid claim on the said certificates and other accounts in the name of the State arguing that since the latter died with no heirs, that the State of British Honduras can therefore claim said properties as by law they already belong to the State.

The facts state that the decedent executed a will way back in 1918. This will was admitted to probate by the Supreme Court of British Honduras. Later on, a second will surfaced in 1955 and an action was brought to have the 1918 will revoked because of the existence of a later will. Suffolk County Probate Lawyers said petitions were filed to declare the 1918 will as destroyed or revoked which was timely opposed by the concerned parties. Delays were incurred due to the legal battle and before the Court of British Honduras can finally decide the issue, the Surrogate Court of New York assumed jurisdiction to have the 1955 will probated and appointed to that effect a special guardian for possible infant legatees who are still possibly living in British Honduras.

The government of British Honduras protested the jurisdiction assumed by the Surrogate Court of New York and filed a case in intervention arguing that since the case is still pending in their country, the New York Court has no right to assume jurisdiction. A New York Probate Lawyer said they argued further that since there was effectively only one estate of the decedent and this pertains to all kinds of properties wherever they may be found, and arguing further that the decedent is a citizen of their country, that all other probate or estate administration must originate from the country where the decedent is domiciled and all other proceedings later filled must be treated as only ancillary to the proceedings of the court that first took cognizance of the case.

Published on: March 15, 2012

Supreme Court Decides 5 Will Contest Cases

by Stephen Bilkis

This is a decision of the Supreme Court deciding jointly five cases where despite the existence of will that can be admitted into probate, the parties who could be beneficiaries under these wills decided to ask instead for letters of administration. The surrogate courts, in its discretion, thinking it wiser to distribute the estate in accordance with the rules of intestacy, denied the probate of the will and issued letters of administration to the beneficiaries of the estate who applied for the letters of administration.

Letters of administration are requested for when a deceased person left no valid will. It is issued only in cases of intestacy or when a will requested to be admitted into probate is found to be invalid. In each of these cases, there is a will but the requests for letters of administration were granted just the same.

The Court has ruled that in these five cases, the Surrogate Courts did not abuse their discretion. A New York Probate Lawyer said that in all of these cases, none of the beneficiaries, legatees or distributees were willing to proceed to probate seeing as the estates to be disposed of under the probated will were all small. Probate proceedings will so diminish the value of the estates that there will be nothing to distribute after probate. So the Court upheld the Surrogate Courts’ decision to issue letters of administration.

Published on: March 15, 2012

Brother Left Out of Will Files Will Contest Action

by Stephen Bilkis

On December 1, 1988, a resident of Fulton County, 82 years of age (referred to as the “decedent”), died in Spartansburg, South Carolina. He was survived by a brother who is the only distribute. At exactly two weeks before the decedent’s death, he executed a last Will and Testament (referred to as “the will”) on November 17, 1988. The will excluded the brother but included two strangers, whom they are not related to by blood, who reside in South Carolina. The will was attested to before three witnesses, all of whom reside in South Carolina. Subsequently, by reason of the brother’s exclusion as an heir, the brother then objected to the probate of the will or made a will contest and demanded an examination of the attesting witnesses (a probate is the legal process of administering the estate or estate administration of a deceased person by resolving all claims and distributing the deceased person’s property under the valid will – source: Wikipedia). Thus, estate litigation ensued.

Now, where should the examination be held and who must bear the expense of such examination?

The proponent (supporter of the will) claims that once the decedent’s will is presented to the court with an affidavit of the attesting witnesses authorized by SCPA with the requirements having been met, the burden of compelling the production of the attesting witnesses is upon the party seeking to depose such attesting witnesses. A New York Probate Lawyer said the proponent refers the court to Powers, Supplementary Practice Commentaries, that ” * * * the duty of compelling the attendance of a witness [is imposed] upon the party seeking the examination”, and it refused to direct the proponent to produce the witnesses for examination.