Probate & Estate Litigation

Published on: March 5, 2012

Court Decides Will Contest Case

by Stephen Bilkis

The testator before his death had written a will. He freely gave all his estate to his living heirs except for his erring daughter. Upon his death, his living wife who then was suffering from a disease brought the will and testament to an estate administration court. Her cousin and an estate attorney represented decedent’s wife. The court appointed her guardians who have appeared for her in the probate proceedings. Estate lawyers and wife’s cousin filed a respectful consideration of election as executor to be named on her behalf.

Upon learning that a notice of election was filed for her mother’s favor, the erring daughter filed to the estate litigation courts her objections. She particularly stated that the document was malicious because testator did not give her any property. The document also mentioned of her evil past actions, the reason of testator’s disinheriting her. While testator was in existence, said daughter sold some properties owned by the family. She forged her parent’s signatures, and used falsified power of attorney. She also converted some of her father’s estate to her name. Testator and his wife acted steadily and filed criminal actions against the erring daughter that resulted in her plea of guilty to a class A demeanor.

A New York Probate Lawyer said that though she filed objections to the estate administration courts, she never appeared and proved her sworn statement true. She presented her dissentient before the trial held out of estate administration court without any judge present. Nor did the erring daughter produce any document to prove the court that as testator’s daughter she was entitled to the estate. It was found out that her fundamental intention was to delay the probate proceedings. She filed a manifestation to the probate court that she was suffering from a psychological condition that prevented her from appearing in court.

Published on: March 4, 2012

Court Discusses No Contest Clauses in Wills

by Stephen Bilkis

A will executor petitioned in Court to probate the will and the recovery of property alleged asset of the estate. The examinations of the attorney-draftsman, the nominated executor and the attesting witnesses have been completed. Respondents are children of the deceased and grandchildren from a predeceased son.

In support of the motion which seeks a stay of this proceeding pending a construction of the will offered for validation, the petitioners allege that the no-contest clause violates public policy. An issue as to whether a provision of the last will and testament violates public policy must be resolved by construction of the will to determine the person who made the will’s intent and the effect of the provisions on the persons to be influenced. However, the court has no authority to define a will before its admission to validation. That branch of the motion is denied.

The respondents also seek an order permitting the deposition of the nominated successor executor and the attorney-draftsman of a prior will. In opposition, the petitioner argues that respondents are attempting to avoid the no-contest clause by obtaining a court order directing discovery.

Published on: March 4, 2012

Court Hears Complex Estate Litigation Matter

by Stephen Bilkis

Surrogate’s Court, entered and admitted the document to probate as the last will and testament of testator.

The decedent, a physician, married his first wife who died before probate of the will.

Testator’s daughters from his first wife petition the court for probate the will testators have written in their favor.

Published on: March 3, 2012

Court Hears Case Regarding Family Dispute Over Will

by Stephen Bilkis

The appeal concerns a family dispute over the last Will and testament of the mother. The court is asked to determine whether various actions undertaken by the respondent sons in relation to the validation of the Will violated the apprehensive clause contained in the ninth paragraph of the Will. Based on the intent of the mother who made the Will, the respondents’ actions violated the apprehensive clause and therefore the respondents have forfeited their right to take under the Will. Indeed, the apprehensive clause at issue was included in the subject Will in response to deteriorating family relations, and was both in anticipation of, and a forceful attempt to prevent, the very type of conduct at issue, conduct by the respondents that would delay the validation of the will, place the Will in jeopardy and harass the petitioner.

A New York Probate Lawyer said that the mother died in 1994. Under her last will and testament, the petitioner daughter, was named as the executor of the Will and was given the bulk of the real property and personal effects, and one-half of the remaining estate. The respondents are the sons and were each given one quarter of the remaining property. The children were not always treated unequally under the Wills, of which there were several. For example, in a Will dated September 22, 1986, the children were to take essentially in equal shares. A change started to occur in the late 1980’s, after the husband died. The period saw a marked deterioration in the relationships between the siblings, and between the mother and her sons, while the bond between the mother and her daughter strengthened. These changing relationships were evidenced by, among other things a letter sent to the mother her son. In the letter, her son accused her of engaging in an elaborate scheme to isolate and alienate her from her sons. The son demanded that the mother revoke her then-latest will (which was very favorable to the daughter); reinstate a prior Will which divided the property essentially equally among the children, and stop aiding the daughter financially unless she could prove need. If his demands were met, the son promised to keep the matter within the family. However, if his demands were not met, he threatened to take immediate legal action to nullify his mother’s then-latest Will as a product of fraud and undue influence and obtain the appointment of a conservator for the mother. He also intended to publicize the matter, an act loathsome to the mother’s sense of privacy. In an undated note in the mother’s handwriting, the mother wrote that her other son had stated that the property would be in court so long that the daughter would never see any of the money. Finally, in a Will dated May 25, 1990, the mother noted that the more favorable treatment of the daughter under the Will was based on the loving care and attention she had shown both her mother and her late husband during his long illness as contrasted with the less than exemplary behavior of her sons. Further, the mother expressly stated that the Will was the product of long and careful thought and her deeply held feelings toward her children and was not in any way the product of any undue influence by her daughter.

Westchester County Probate Lawyers said that in June 1993 the mother met with a new lawyer to discuss the drafting of a new Will, the subject Will. The mother stated that her continuing desire was to leave the bulk of her property to her daughter, but that she feared that her sons would try to cause trouble for her daughter. Accordingly, the subject Will included the apprehensive clause stating that if any beneficiary under the Will in any manner, directly or indirectly, contests the Will or any of its provisions, any share or interest in the property given to the contesting beneficiary, or to such beneficiary’s issue, under the Will is revoked and shall be disposed of by adding such share or interest proportionately to the shares of the remaining beneficiaries who have not so contested the Will.

Published on: March 3, 2012

Court Addresses Executor Fee Dispute

by Stephen Bilkis

A man from New York City executed a Will and its appendices and named a German Catholic Church his principal beneficiary in his last will and testament. The Will was challenged by the executors of a prior will executed in 1972. The appellant firm that represented the deceased man appealed an order from the Court that denied the appellant firm’s motion to dismiss the answer of the executor respondents of a prior Will. The executors of the prior Will were a bank and its legal firm. After an extensive litigation, the parties entered into a broad settlement agreement, pursuant to which the church received $3,000,000 together with a half-interest in a trust comprising the residuary property. The terms were incorporated into a decree.

The dispute arises out of the appellant firm’s application to fix its fee for legal services rendered to the preliminary executors of the Will. The executors of the prior will opposed the award of any fees on the grounds that the appellant firm knowingly presented an invalid Will and consequently committed other alleged wrongdoing. The appellant firm sought to dismiss the answer, asserting theories of inconsistency, bringing out matters already resolved and affirmative defense. The appellant firm further relied on the pronouncement in the court’s decree, to the effect that it appeared to the court that legitimate issues have been raised as to which of the Wills should be admitted for probate and that the compromise is made in good faith in the context of a legitimate will contest. The pronouncement is fair to the deceased in light of the circumstances and avoids any further litigation and unnecessary expense.

The court rejected the appellant firm’s arguments, reasoning that the question of bad faith on the part of the counsel, asserted in the answer, had not been litigated in the course of the proceedings and the quoted preamble did not constitute a finding of fact and that issues bearing on the award of fees were expressly reserved in both the settlement agreement and the decree until the instant application.

Published on: March 2, 2012

Court Decides on Jurisdictional Issues with Decedent Will

by Stephen Bilkis

A New York resident executed a will in 1950 leaving one-third of his residuary property outright to a daughter of a previous marriage and the remainder in trust for his second wife. She was to receive the income for life and was given a power of appointment over the principal of the trust undistributed at her death. The will is silent with respect to the disposition of the principal trust in the event that she fails to exercise the power. However, it is clear that a default would result in the trust being distributed to the issue of the daughter of the first marriage. The surviving spouse moved to Ohio and executed a will in Ohio in which she exercised her power of appointment over the trust assets in favor of her son by a previous marriage and his wife. The son was also a resident of Ohio at the time.

A New York Probate Lawyer said that the daughter of the deceased died in 1970 leaving her surviving four children. The surviving spouse died in Ohio and her 1981 will was filed for validation in that state. Ohio employs a modified common form of will validation, in which only a limited number of people must be notified that a will has been filed. This class does not include those who would be adversely affected by the exercise of a power of appointment included in the Ohio will. Therefore, no notice was sent to the grandchildren of the deceased who would take in default of the exercise of the power. The will was admitted for validation in Ohio. Ohio statutes provide for a four-month period, after a will is admitted for validation, for an interested party to contest the validity of the will. If not contested within this time limitation, the validation shall be forever binding. Such period has long expired and the will was not contested.

Upon the application of the trustee to settle its account in the proceeding, notice was given to the grandchildren. The petition prays that the court direct the principal of the trust be distributed to the son of the surviving spouse and his wife, in accordance with the will of his mother.

Published on: March 1, 2012

Court Decides Case with Multiple Wills

by Stephen Bilkis

A deceased man from Niagara County made five wills all of which have some beneficiaries who are different from Will to Will. The wills are dated March 2, 1993, July 15, 1992, April 24, 1992, March 15, 1989 and September 24, 1987. Two of these Wills have currently been offered for probate. The first Will offered for validation was the third most recently dated Will of April 24, 1992. A decree granting temporary letters of administration was issued on July 28, 1995, appointing the Niagara County Treasurer and Public Administrator, as Temporary Administrator of the state. The Public Administrator was charged with gathering, preserving and protecting the assets and to pay the deceased man’s debts and obligations to prevent the estate from being wasted. Thereafter, on October 25, 1995, the Public Administrator offered the third most recent Will dated April 24, 1992, for validation. The Public Administrator was required to notify everyone named in the two more recent wills as well as the deceased man’s heirs and those listed in the April 24, 1992 will. The return date for the citation on the petition was December 21, 1995. Thereafter, the deceased man’s most recent will dated March 2, 1993, was offered for validation on November 29, 1995. In addition, objections to the validation of the will dated April 24, 1992, were filed on December 6th, 1995. The validation petition filed November 29, 1995, was technically defective and was revised and re-filed on January 8, 1996. A citation has not yet been issued for the said petition given the intervening proceedings. None of the other three wills on file with the court have been offered for validation, nor have any other wills not on file with the Court been offered for validation.

A New York Probate Lawyer said that in a proceeding for the validation of a Will, process must be issued to any person designated as beneficiary, executor, trustee or guardian in any other Will of the same person who made the will filed in the Surrogate’s Court of the County in which the proposed Will is filed, whose rights or interests are adversely affected by the instrument offered for validation.

The attorneys representing the various parties to the properties have suggested that the application of the section is capable of several different results, each of which would require the service of process on different parties given the five Wills of the deceased which are on file with the Court. The narrowest suggested application would require service only upon those interested parties in the Will being offered for validation and the next most recent Will. The broadest suggested application would require service of process upon all interested parties in all five Wills on file with the Court. Based upon the facts set forth above, the Court believes that neither proposed application of the section is correct.

Published on: March 1, 2012

Court Decides Estate Litigation Case

by Stephen Bilkis

On 28 October 2006, the decedent died leaving a will dated 27 April 2006. The will nominates two (2) executors. Thereafter, one of the executors renounced his appointment. The decedent was survived by his two adult children.

Under the will, the entire residuary estate is left to the decedent’s companion and the decedent’s children are disinherited. One of the named executors (petitioner) now petitions for preliminary letters testamentary.

The primordial issue (in the estate litigation) is whether or not the petition for preliminary letters should be granted.

Published on: February 29, 2012

Court Decides Lengthy Will Contest Proceeding

by Stephen Bilkis

In 1970, a doctor executed a will prepared by his attorney. The original will was retained in the attorney’s files and the doctor was given a conformed copy. The attorney died in 1972 and the doctor died in 1979, at which time the original will could not be located in the attorney’s files. The proceeding to admit the lost will for validation was commenced by the will proponent. The law provides that a lost or destroyed will may be admitted for validation only if it is established that the will has not been revoked; or execution of the will is proved in the manner required for the validation of an existing will, and all of the provisions of the will are clearly and distinctly proved by each of at least 2 credible witnesses or by 1 witness and a copy or draft of the will proved to be true and complete.

At trial, the proponent submitted evidence that the doctor did not revoke the original will since it was lost while in the possession of the attorney-draftsman. The appellant submitted evidence tending to show that the doctor had revoked the will by tearing it into pieces. Two of the witnesses who attested to the original will testified with respect to due execution but neither could remember any of the substantive provisions of the will.

A New York Probate Lawyer said that regarding the third requirement of the law, the legal secretary who typed the original will testified that she recognized her initials on the first page of the conformed copy of the will that was received into evidence. She also recognized that the type was the same used by her IBM typewriter. She recalled that the original will contained many provisions and that many bequests were made to foreigners. She further testified, however, that she never read the will after she typed it and could not remember any of the provisions of the original will. No other witness testified as to the contents of the original will.

Published on: February 29, 2012

Validity of a Will Questioned

by Stephen Bilkis

A woman died in a nursing home and her will was validated in the court. The legal representative, whom she appointed, filed a petition containing an accusation of the jurisdictional fact that the woman died in her residency. It named, among others, the hospital as a beneficiary in the sum of $1,000. Waivers and consents on probate were filed, which included the waiver of a person who was designated in the petition as the sole heir of the woman.

Application has been made to the court to vacate the validation, on the ground that the woman was returned to her permanent residency at the time of her death and that the surrogate’s court did not have jurisdiction over the estate of the woman. Objections had been filed, after validation of the will, which were submitted, signed and verified by the attorney of the hospital.

A New York Probate Lawyer a formal order to defend was obtained and served to the legal representative and, to defend to the court why the decree of validation, should not be vacated. A cross-application was served by the legal representative to the hospital and its attorneys as counsel to dismiss the objections and the motion to vacate validation.