Probate & Estate Litigation

Published on: May 30, 2022

Court determined that the issue of undue influence was a triable issue of fact. In re Gobes, 2020 N.Y. Slip Op. 7887 (N.Y. App. Div. 2020)

by Stephen Bilkis

In a contested probate case, the court considered whether there was an triable issue of fact with respect to whether the decedent had been subjected to undue influence at the time that he executed his will.

Background

On December 22, 2016, the decedent died after a terminal illness. He left a will dated December16, 20216. He was survived by three children. One of his children is the objectant. The petitioner submitted the for probate and the objectant filed objections. The grounds for the will contest include lack of testamentary capacity and undue influence. The petitioner moved for summary judgment dismissing the objections. The Surrogate’s Court granted the petitioner’s motion dismissing the objections and admitting the will to probate. The objectant appealed.

Published on: May 16, 2022

Surrogates Court properly revoked the letters without hearing. In re Kaufman, 137 A.D.3d 1034 (N.Y. App. Div. 2016

by Stephen Bilkis

In In re Kaufman, the Appellate Division was asked to determine whether the Surrogate’s Court erred in suspending the letters of co-executors without an evidentiary hearing.

When a testator makes a will, it is their last opportunity to let the world know what they want to happen to their property once they pass away. Testators can also choose to nominate an executor who would be responsible for managing their estate.

Wills are legally enforceable documents, and courts have a duty to uphold their terms. Thus, whenever the court is asked to make a ruling that would circumvent the wishes of a testator, they make sure that there is a very good reason to do so supported by clear evidence.

Published on: May 9, 2022

Court suspended co-administrators due to their animosity toward each other. In re Steward, 2021 NY Slip Op 2395 (N.Y. App. Div. 2021)

by Stephen Bilkis

In In re Steward the court considered whether the Surrogate’s Court erred in denying a motion to suspend co-administrators where the co-administrators were unable to get along.

SCPA § 711 describes the circumstances under which a court can revoke letters of administration:

Wasted assets. The court has the authority to suspend an administrator if the administrator has wasted estate assets by mismanaging estate property, making illegal investments, by misapplying estate assets, or by otherwise injuring estate property.

Published on: May 2, 2022

Court issued preliminary letters over objections. In re Scott (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Scott the Surrogate’s Court of Bronx County considered whether to extend preliminary letters testamentary over objections.

The petitioner, the decedent’s step daughter, was nominated in the decedent’s December 21, 2019 will to serve as the executor. The decedent died on January 30, 2020. On July 31, 2020, the court issued an order granting preliminary letters testamentary to the petitioner.

“Letters” are an order issued by the Surrogate’s Court that gives an administrator legal authority to manage the estate of a decedent. Typically they are issued an the beginning of a probate case when the will is admitted to probate. Preliminary letters are temporary letters that typically expire after six months. They are issued to an executor nominated in a will that gives them limited authority when there is some sort of delay in the probate proceedings. In this case, the delay related to an unresolved jurisdictional issue.

Published on: April 25, 2022

Court revoked letters testamentary based on failure to perform fiduciary duties. In re Lewner, 2020 NY Slip Op 34365(U) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

In In re Lewner, the Surrogate’s Court of New York County was asked to revoke the authority of the administrator of an estate on the grounds that he had not been fulfilling his fiduciary responsibilities.

The decedent died on May 19, 2016 leaving an estate with a value of over $8,000,000. The estate had an income of over $3,000,000 from its real estate holdings. Preliminary letters testamentary were issued to respondent on June 10, 2016.

In his petition to revoke the respondent’s preliminary letters, the petitioner alleged that the respondent was unfit to serve as an administrator as demonstrated by numerous instances in which he failed to perform his fiduciary duties. SCPA § 711. As an example, the petitioner described how in the more than four since the decedent’s death, the respondent failed to file estate tax returns, the decedent’s final income tax return, and the fiduciary income tax returns for the estate. As a result, the estate is exposed to significant interest and penalties. In addition, the court’s records showed that the respondent failed to perform his duties as administrator including filing an inventory as required by 22 NYCRR § 207.20.

Published on: March 21, 2022

Court denies petition for summary judgement approving compromise petition allocating the entire settlement to wrongful death where there was evidence of conscious pain and suffering. Matter of Qyra 2014 NY Slip Op 24187

by Stephen Bilkis

In the Matter of Qyra, the Surrogate’s Court considered an issue related to the allocation of the money award in a wrongful death lawsuit. On February 25, 2010, while walking in Central Park, Elmaz Qyra was struck by a tree branch and died. The administrator (personal representative) of his estate filed a lawsuit to recover damages and was awarded a $3,000,000 settlement. The administrator petitioned the Surrogate’s Court to issue a decree allocating the entire settlement to wrongful death. The objectant argued that a portion should be allocated to personal injury.

When someone dies as a result of negligence, the personal representative of the decedent’s estate can bring a lawsuit to recover losses suffered by the decedent as well as losses suffered by the decedent’s family. If the lawsuit is successful and money is awarded, the Surrogate’s Court must determine how to allocate the money- to personal injury, to wrongful death, or a combination of both. The manner of allocation determines to whom the money is distributed.

Sums that are allocated to personal injury compensate the injured party—the decedent—for the conscious pain and suffering they suffered because of the negligence. Since the money awarded for personal injury belongs to the decedent, it is considered probate property and is added to their probate estate. Sums that are allocated to wrongful death compensate the decedent’s next of kin for the losses they suffered because of the negligence. That money is distributed directly to the next of kin. It is never a part of the decedent’s estate.

Published on: March 7, 2022

Written agreement between spouses was enforceable and did not abate upon death, even though divorce was not finalized. Will of Dindiyal, 2009 NY Slip Op 32215 (N.Y. Surr. Ct. 2009)

by Stephen Bilkis

In a case where there is an objection to the issuance of letters, the court considered whether an agreement between two spouses who were in the middle of a divorce abated upon the death of one of the spouses.

Background

The decedent and Asha were married. However, at the time of the decedent’s death, he and Asha were in the middle of a divorce. The divorce was never finalized. As part of the divorce process, the couple entered into a written agreement. The terms of the agreement included that

Published on: February 28, 2022

Court refused to hold evidentiary hearing on fitness of administrator. Abram v. Abram, 2020 NY Slip Op 3195 (N.Y. App. Div. 2020)

by Stephen Bilkis

In Abram v. Abram the court was asked to consider whether the Surrogate’s Court of New York County erred in denying an evidentiary hearing on the fitness of an administrator of a decedent’s estate.

Judges have broad discretion in determined whether an administrator or executor is qualified. Typically courts will not disqualify someone unless there is a significant reason to believe that the estate is at risk.

It is not unusual for those who challenge the fitness of an administrator to do so simply because they want to serve as administrator or because they do not like the administrator for personal reasons that have nothing to do with their fitness to serve as administrator.

Published on: January 3, 2022

Inquest judge denies claim filed against a decedent’s spouse where there was no evidence that she had been appointed personal representative. Rotwein v. Murray, 950 N.Y.S.2d 610 (N.Y. Dist. Ct. 2012)

by Stephen Bilkis

In Rotwein v. Murray, the District Court reviewed a case related to claim filed against an estate of a decedent for the payment of medical bills. Under EPTL, creditors have the right to file claims against the personal representative of an estate to seek payment of debt. EPTL § 11–3.1

Background

The decedent was a patient of the plaintiff who was a podiatrist. The decedent left an outstanding debt to the plaintiff of $12, 470.45. The plaintiff unsuccessfully demanded payment form the decedent’s widow. He then filed a claim against the decedent’s widow in her capacity as executor of the decedent’s estate. In the that lawsuit, the claim was for a lesser amount- $5,000. Although the defendant did not respond to the plaintiff’s attempt at service, the court determined that she had sufficient notice of the proceeding. However, because the defendant failed to appear, the court determined that an inquest was the appropriate way to proceed. An inquest is a hearing for the purpose of determining the amount of damages due on a claim.

Published on: November 15, 2021

Creditor objected to allocation of wrongful death award. In re Estate of Domingo Torres, Sr. (2002)

by Stephen Bilkis

While the case of In re Estate of Domingo Torres, Sr. turns on the narrow issue of whether to grant the New York City Department of Social Services (DSS) more time to file objections to the account filed by the personal representative, here we will look at why the DSS wants the Surrogate’s Court to hear its objections.

At the time that Torres passed away, he owed the DSS $87.903.76. As part of the estate administration process, New York law requires that the personal representative pay debts owed by the decedent out of estate assets before assets are distributed to the decedent’s beneficiaries or heirs. However, debts can only be paid to the extent there are funds in the estate to do.

As required, the DSS filed a claim against the decedent’s estate for $87.903.76. Even though it appeared as if the claim was valid and timely filed, it was denied simply because the estate did not have the money to pay it. However, the personal representative filed a lawsuit against the party responsible for Torres’ death and recovered $300,000. From that money, the DSS expected to be able to recover the money it was owed.