Probate & Estate Litigation

Published on: March 14, 2012

Brother Files Will Contest Against Sisters

by Stephen Bilkis

A man had a son and two daughters. In 1995, the father and the son had a falling out. In December 1996, the father made a will leaving all of his real and personal properties to his two daughters in equal shares. The son was left out of the will entirely. Five months later, the father was hospitalized where he was diagnosed with senile dementia. He was declared to be mentally incompetent.

On the same day he was diagnosed with senile dementia, he signed a deed transferring to his daughter the ownership of his home in Kingspark, New York. He also executed a general power of attorney giving power to his two daughters. In September, the father died.

Two years after the death of the father, in September 2000, the son petitioned the Surrogate’s Court to be appointed as administrator of his father’s estate. Among his father’s properties, he listed his father’s house in Kingspark, New York.

Published on: March 13, 2012

Court Decides Jurisdiction Issue with Will

by Stephen Bilkis

The Surrogate’s Court of New York admitted a will into probate and issued letters testamentary and letters of trusteeship. On appeal, the Supreme Court reversed the admission of the will into probate and revoked the letters testamentary and letter of trusteeship.

The testator was a resident of the state of Vermont. He however had three bank accounts at a bank in New York. The amounts deposited in the three bank accounts comprise 23 % of the total value of his estate. Three executors were named in the will: one was a resident of Vermont, the other a resident of Florida and the last was a resident of New York. The nominated executor in New York was the one who initiated the probate proceedings in New York.

A New York Probate Lawyer said that it appears that the other executor who was a resident of Vermont had also filed probate proceedings in the Probate Courts of Vermont for the probate of the same will. The Probate Court of Vermont has already taken jurisdiction over the estate of the deceased who was a resident of Vermont because most of the properties of his estate are found in Vermont, with the exception of the three New York Bank accounts. Although, it was also proved that Vermont has not yet admitted the will into probate.

Published on: March 13, 2012

Validity of a Will Questioned

by Stephen Bilkis

A notary public whose duty is to administer oaths regarding the execution of public documents took a piece of ordinary notebook paper and folded it so that it made four pages. On this sheet of folded notebook paper, the notary public wrote in his own handwriting his last will and testament. T

he words “my Will and Testament” were clearly handwritten at the bottom near the signature of the testator. After the line where the testator’s signature appears, the words “witnessed this 21st day of January 1924” appears. After this line, on the left and right side of the bottom of the piece of paper, two signatures appear. At the bottom of the signatures, the addresses of those who signed are handwritten.

Nine years after writing down this document, the notary public deposited it with the Surrogate’s Court on Queens County for safekeeping. A New York Probate Lawyer confirmed that it remained in the safekeeping of the Surrogate’s Court until the notary public died in 1965.

Published on: March 12, 2012

Ex-Wife Contests Deceased Husband’s Will

by Stephen Bilkis

A man and wife were married and had three sons. One of the sons had a disability that required lifetime care. The couple divorced in 1985 and the man was ordered to pay support of $100 weekly. The man failed to pay support and the woman obtained a judgment for $7,000 in support arrears. The couple remarried in 1986 but divorced again in 1988. The man was ordered to pay support of $60 weekly. Again he incurred arrearages. In the second divorce decree, the man and his first wife agreed that the first wife and their disabled son will live in the house rent-free until their death.

The man married another woman with whom he had a daughter. When the man died, he left an estate comprising of an interest in a house co-owned by him and his ex-wife. His ex-wife owned the other half interest in the house. He left his entire estate to his minor child from his second marriage and appointed his second wife as executrix of his estate. His second wife succeeded in having her husband’s will admitted into probate and she was issued letters testamentary as executrix of her husband’s will.

The first wife died before the husband. In her will, she gave her disabled son a life interest in her half of the house. And when her disabled son dies, her half interest in the house will go to her two remaining sons.

Published on: March 12, 2012

Will Contest Involving Several Properties

by Stephen Bilkis

This is a will contest involving several properties. One of the parties is Mrs. A, the wife of the decedent, the others are the two named preliminary executors identified in the will, the guardian ad litem of the minor child of the decedent, and lastly Mrs. B, the other wife of the testator. Both women claiming to be the wife of the decedent contested the status of the other and it was not clear as to what decision was made by the Russian court where the dispute was filed.

A New York Probate Lawyer said the court in this case is faced on one hand by a miscellaneous proceeding and on the other by the issues surrounding the probate of the will of the decedent. In the miscellaneous proceeding, Mrs. A filed a motion to restrain the directors and officers of corporation owned by the decedent from selling the properties of the said corporation and also for the granting of limited letters of administration to her by the court. The executors who were at odds with her also moved for the authority to sell the contested property of the company. In this regard, Mrs. A filed a cross-motion asking for several relief related to the corporation as well as for the distribution of the properties as directed by the will of the decedent. In the application for the settlement of the properties of the decedent in the court, Mrs. A also contested the assignment of the executors. The preliminary executors filed a motion in this regard and moved that the objections of Mrs. A regarding their assignment be dismissed.

Oral arguments were received by the court from both parties for the miscellaneous proceedings and after deliberations, the court lifted the TRO and allowed the executors to sell one of the properties owned by the corporation and to start the process for the sale of a piece of real estate property also owned by the corporation. New York City Probate Lawyers said Mrs. A vehemently objected to the sale of the real estate property and a number of conferences were made to settle the differences between the parties. Though there was a settlement agreed upon between the parties, the same was not properly signed and the preliminary executors later on told the court that the property has a buyer and the same is ready for sale. The court gave the executors the permission to sell the contested property.

Published on: March 11, 2012

Court Rules on Will Contest Between Close Friends

by Stephen Bilkis

This is a will contest involving not relatives but unrelated parties. The case stemmed from the will submitted for probate. The will that was executed by the decedent gave a very substantial amount to an alleged very close friend. Prior to this, several wills were also executed by the decedent and each time, the share of that special friend grew bigger in the will. The decedent came from a wealthy family and inherited a lot of money and businesses together with his two brothers. The business that they inherited was managed by his brother while the decedent did not want to venture in business and just enjoyed the share that he has in the family business managed by his brother. The other brother of the decedent was an invalid and therefore could not join in the management of the business and also relied on the other brother for the management of the affairs of the said business.

While alive, the decedent found a person who became his very close friend and confidant. They lived together, toured together, lived a lavish lifestyle together all at the expense of the decedent. Several business ventures were started at the behest of the special friend using the money of the decedent but none of the said business made money. During the course of the lifetime of the decedent when they were together, the special friend controlled the affairs of the decedent and made decisions apparently with the permission of the decedent.

A New York Probate Lawyer said the special friend during this time tried to be close to the family of the decedent with the brother in particular who manages the business but to no avail. He was not able to earn the good graces of the brothers of the decedent and this disappointed him as evidenced by letters that he made to the decedent and presented to the court during the proceedings.

Published on: March 11, 2012

Court Decides Will Contest Between Siblings

by Stephen Bilkis

A 91 year old man died in a nursing home in Westchester County on December 10, 2003. He was survived by his three children: a daughter and two sons. His will provided that his real property in Suffolk County be devised to his daughter; he bequeathed the amount of $50,000 to his youngest son and lastly he bequeathed his residuary estate and personal properties to all his children in equal shares. He also provided that his bank accounts which were held jointly by the 91 year old man and his children shall form part of the estate assets and shall not pass to his surviving co-depositor.

The will was executed before the testator’s long-time lawyer and his office assistant. Both the lawyer and his office assistant were attesting witnesses to the will.

In 2004, the eldest son objected to the probate of his father’s will on the ground that the will was procured by his sister with fraud and undue influence on their father. He also testified that the letters testamentary issued to his sister be revoked as she had caused around $300,000 to be withdrawn from their father’s account and transferred to her own personal account.

Published on: March 11, 2012

Court Determines if Bequest to Lawyer is Allowable

by Stephen Bilkis

An old bachelor in New York died. In his will, he named eleven cousins of his as his distributees. As he had no children of his own, he bequeathed his entire estate to his tax lawyer. The tax lawyer was a resident of New York but he had relocated to the state of Georgia.

Prior to leaving New York, he had been doing the taxes for the old bachelor and they had cultivated a friendship. This friendship lasted for forty years. Even when the tax lawyer was already living in Georgia, he still did the taxes for the New York bachelor and kept in touch with him.

The tax lawyer testified that his friend and client called him up in Georgia to inform him that he was leaving his entire estate to him. The tax lawyer then advised his friend to find a lawyer who will draft the will for him. The old New York bachelor found a lawyer in New York who drafted the will for him. This lawyer has also died. A New York Probate Lawyer reported that the tax lawyer testified that he did not recommend the lawyer to his friend and that he did not personally know the lawyer who drafted the will nor has he had professional dealings with the lawyer who drafted his friend’s will.

Published on: March 10, 2012

Court Rules on Will involving Same Sex Marriage

by Stephen Bilkis

A man married his same-sex partner in Canada in June 2008. He then executed a last will and testament two months later on August 12, 2008. In that will, he made three bequests to his three brothers and he also made a bequest to his goddaughter. He left the residue of his estate to his same-sex partner. He named his same-sex spouse as the executor of his estate.

In December 2008, the testator died. His same-sex spouse, who was also named executor of his will filed the petition for probate of his deceased spouse’s will. He served the three brothers and the goddaughter with notice of probate. In his petition, he claimed that he is the surviving spouse of the testator and the sole distribute.

Three days after filing the petition for probate, the Surrogate’s Court of New York granted the petition for probate without issuing citations.

Published on: March 10, 2012

Court Decides Jurisdiction Issue in Will Contest

by Stephen Bilkis

A citizen of the United States had been residing in Mexico City. She had substantial properties in New York and in Mexico. In May 1965, she executed a will in New York disposing of all her properties wherever they may be found. She also provided that it is her intention that her will be probated in New York and that he estate by conducted under the jurisdiction of the State of New York. The residuary estate was bequeathed share and share alike to two friends in Brooklyn and in Texas. The will also stated that all taxes and penalties which the executor shall be required to pay should be paid out of her residuary estate without apportionment.

Eight months after the testator executed her New York will she executed a notarial will in Mexico in January 1966. And then in August 1966, she executed a second notarial will in Mexico.

The first will in Mexico provided for general legacies expressed in Mexican pesos and then she instituted as her sole heirs, three residents of Mexico City who all get one-third share in her estate after deducting the legacies. The second will in Mexico was a codicil. It revoked one general legacy. A New York Probate Lawyer said the naming of the three sole heirs was changed: only one was sole heir, the rest were heirs in equal parts. Both Mexican wills were silent about the New York properties and both were silent about the liability of the properties in Mexico to answer for estate taxes in the US.