Probate & Estate Litigation

Published on: July 27, 2020

Court concluded that no undue influence existed. Kotsones v. Kreopolides, 185 A.D.3d 1473 (N.Y. App. Div. 2020)

by Stephen Bilkis

The proponents of the will are children of the decedent. When they sought to have the decedent’s will admitted to probate, an objection was filed on the grounds that the will had been procured by the proponent’s exerting undue influence over the decedent.

Undue influence exists when someone uses their position of trust with respect to a testator to illegally influence the testator to create a will they would not have otherwise made. Oftentimes undue influence occurs when the testator is vulnerable due to failing physical health or mental decline. In almost every case, the person who exerts the undue influence is a position of trust with respect to the testator such as being their caregiver or financial advisor. In fact, in Kotsones, the court cites Blase v. Blase, 148 A.D.3d 1777 (2017) by noting that it has been established that “where there was a confidential or fiduciary relationship between the beneficiary and the decedent, [a]n inference of undue influence arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction.”

The court noted that for a relationship to be confidential, there must be inequality in the relationship as well as a controlling influence. In other words, for there to be a confidential relationship that would allow for inference of undue influence, the circumstances must be such that the parties are not able to deal on terms of equality.

Published on: April 20, 2020

Supreme Court Considered Whether a Wife’s Claim for Support Survives Her Death- Dean v. Dean, 2020 NY Slip Op 20042 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

In this case the Supreme Court considered whether a wife’s claim for spousal support survives her death and can be continued by her estate. It is not unusual for a divorce proceeding to stretch out over a number of years as the parties are not able to agree on various issues. However, in this case the couple never was able to reach a settlement and receive a judgment of divorce. Instead, the marriage ended with the death of the wife while the divorce was still pending.

The history of this unusual case is that the couple was in the middle of a divorce proceeding that was initiated 6 years ago when the court converted the pending divorce action to a proceeding for spousal support under Article 4 of the Family Court Act. While that proceeding was pending, the wife, who had been living in a nursing home after suffering a debilitating health crisis, died. The wife’s estate, through her executor, now seeks to continue the spousal support proceeding against the husband, thus converting the case to an estate litigation matter. The husband objects arguing that the wife’s claim for spousal support abated when the divorce proceeding ended.

The law of abatement is that for most actions abatement occurs upon the death of one of the parties if the issue involved in the case is personal in nature or involves the personal status of a party. A marriage and divorce are certainly personal matters. The marriage terminates upon the death of a party and the divorce action abates because there is no longer a marriage to dissolve. Because matters of spousal support are ancillary to a divorce action, they also abate upon the abatement of the divorce action. Thus, if this spousal support action was ancillary to the couple’s divorce, the husband would be correct in that the action would have abated. That is not the case here

Published on: April 13, 2020

Claim Against Estate Barred Due to Statute of Limitations- In re Hollis, 2020 NY Slip Op 860 (N.Y. App. Div. 2020)

by Stephen Bilkis

In this case the Appellant Division considered whether a claim against an estate was time barred.

The decedent, J. Hollis, died in October 2015. She was survived by six children. The decedent’s will had a specific provision related what should be done if any of her children owed her money at the time of her death. The provision provided that any money owed was to be deducted from that child’s inheritance.

Hollis, one of the decedent’s children, died three months later, in January 2016. His wife, B. Hollis was appointed the administrator of his estate. The executor of the estate of J. Hollis filed a claim against the estate of P. Hollis for $147,265.35, representing loans J. Hollis made to P. Hollis from 2005 to 2011, as one of the duties of an executor is collecting debts owed to the estate. From the opinion it is not clear whether P. Hollis had received a distribution from his mother’s estate. However, B. Hollis filed a motion for summary judgment disallowing so much of Peter’s claim as represented money purportedly borrowed by the decedent between April 2005 and January 2008 on the ground that recovery was barred by the six-year statute of limitations. Part of the estate administration process is to pay debts owed by the estate and settle claims against the estate.

Published on: April 6, 2020

Non-Marital Child Does Not Have Standing to Object to Probate- In re Prob. Proceeding of Mengoni, 2020 NY Slip Op 30728(U) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

In a contested probate case, the court considered whether an objectant had standing to participate in the probate proceeding based on a claim of being the child of the decedent.

Th decedent died in February of 2018, leaving a substantial estate. A petition to probate a purported will of decedent dated January 11, 2017 was filed by the decedent’s attorney and the drafter of the will. The will named him as the executor. The petitioner, A. Mengoni, among others, was named as an interested party as she was identified as an alleged daughter of decedent. The instant litigation was commenced when A. Mengoni filed objections to the will. The proponent of the will, decedent’s attorney and nominated executor, filed a motion to strike A. Mengoni ‘s appearance and dismiss her objections.

New York law requires that in order to participate in a probate proceeding, you must have standing to do so. Generally, only those who are named in a will as beneficiaries and the intestate heirs of a decedent have standing. Also, anyone who was a beneficiary of a prior will and would be adversely affected if the propounded will is probated would also have standing according to Surr. Ct. Proc. Act. Section 1410. In this case, A. Mengoni is basing her standing on being the child of the decedent, making her an intestate heir.

Published on: March 30, 2020

Motion for Standing as a Person Adversely Affected by Probating a Will- In re Prob. Proceeding for the Estate of Wilke, 2019 NY Slip Op 51220(U) (N.Y. Surr. Ct. 2019)

by Stephen Bilkis

In this case the Surrogate’s Court, Albany County, considered whether an individual had standing to object to probating a will based on having been named as a beneficiary in a prior will pursuant to pursuant to Surr. Ct. Proc. Act § 1410.

Before a person can become a party to a proceeding to probate a will the person must have legal standing. “Standing” means that the person has an interest in the outcome of the probate proceeding. Typically, those who have standing are limited to anyone who is mentioned in the will as a beneficiary or those who are intestate heirs of the decedent.

In this case the petitioner, R. Smith, who is not a beneficiary of the will submitted for probate and who is not an intestate heir of the decedent, is a beneficiary of a prior will. Smith intends to the object to the probate of the will already submitted, but first the Surrogate’s Court must consider Smith’s motion for standing as a person adversely affected by the admission into probate of the will.

Published on: February 17, 2020

Latham Standard Must Be Applied in Determining Eligibility To Serve as Fiduciary Under SCPA § 707, In the Matter of Walsh, 2007 NY Slip Op 51353(U) (N.Y. Sup. Ct. 7/10/2007)

by Stephen Bilkis

In this case the Surrogate’s Court considered whether the actions of a person who petitioned the court for letters of administration amounted to dishonesty, making him ineligible under Surrogate’s Court Procedure Act § 707.

An executor or estate administrator is the person who is responsible for managing an estate after the death of the testator. The person is referred to as an executor if he (or she) was named in the decedent’s will. In doing so the testator is merely nominating the person. The nominated person must still petition the Surrogate’s Court to receive “letters testamentary.” Letters testamentary is a legal document granting the authority to manage the estate and ultimately distribute its assets. If someone other than the person named in the will wants to be manage the estate and become the estate administrator, then he must petition the court for “letters of administration.” Without letters, whether the person was named executor in the will or not, he has no authority over the decedent’s estate. The court will only grant letters to petitioners who are eligible.

In Walsh, a brother and sister engaged in probation litigation related to the estate of their father. While the father nominated the sister to serve as the executor of his estate, the son petitioned the Surrogate’s Court for letters of administration. The dispute between the siblings centered on two main issues: whether the brother was dishonest about having possession of the father’s 2000 will and whether the daughter was in possession of property owned by the father’s estate.

Published on: February 10, 2020

Father, a Convicted Felon, Not Eligible to Serve as Administrator of the Estate of Minor Child, Passalacqua v. State (N.Y. Ct. Cl. 2012)

by Stephen Bilkis

One of the roles of the administrator of the estate is to bring claims on behalf of the estate. In this case, the administrator filed a wrongful death claim on behalf of the estate of his deceased minor daughter. The defendant responded by challenging the administrator’s eligibility to serve as estate administrator.

In New York there are rules related to who can serve as the administrator of an estate. These rules apply whether the person was nominated in a decedent’s will to serve as the executor or the person petitions the courts to serve as the administrator of an intestate estate. According to Surrogate’s Court Procedure Act § 707, anyone is eligible to receive letters unless he or she is ineligible. Among those who are ineligible are felons.

In Passalacqua v. State, the claimant father of the decedent alleges that the decedent died due to the negligence of the defendant. The claim alleges that the decedent, his 12-year old daughter, was attacked and killed by a parolee who was under the defendant’s supervision and that the defendant was “negligent, wanton, reckless and careless” in that he failed to provide reasonable and proper supervision of the parolee.

Published on: February 10, 2020

In a Will Contest Case the Surrogate’s Court Denied Proponent’s Motion for Summary Judgement on Issues of Mental Capacity and Duress, In re Will of Djavaheri-Saatchi, 2018 NY Slip Op 32754(U) (N.Y. Surr. Ct. 2018)

by Stephen Bilkis

Will contests are by nature acrimonious. While some are based on legitimate concerns supported by actual or circumstantial evidence, others are based on long-standing family disputes. However, just because there is family discord does not mean that the objections to a will are not valid. Regardless of the impetus for filing a will contest, the Surrogate’s Court will not allow a full hearing on objections to a will unless there is a legitimate basis as well as evidence. The grounds for a will contest include improper execution, mental incapacity, undue influence, duress, and fraud.

In the Will of Djavaheri-Saatchi, while the objectant provides 5 legal grounds for challenging the will, another reason for the will contest may lie in family history. The proponent of the will, the daughter of the decedent, provided evidence that the decedent had decided to disinherit the objectant several years prior to the execution of the will at issue. Apparently, the reason was due to the actions by the objectant’s mother. The decedent was upset with the objectant’s mother because he believed that she stole property from him. Also, the decedent disinherited the objectant because she would be entitled to property in Iran. Instead, he decided to leave his entire estate to the proponent of the will.

Of course, being disinherited is not a legal ground for a will contest. The objectant made specific allegations of actions that point to the will not being a true representation of the decedent’s wishes. The objectant argued that the will was not properly executed, that the decedent lacked the mental capacity required to execute a will, that there was undue influence, that the decedent was under duress, and that fraud was involved. Underlying all of her arguments is an allegation that the proponent manipulated the decedent into disinheriting the objectant and leaving his estate to herself. The proponent responded to the objections by filing a motion for summary judgement, arguing that the objectant failed to raise a triable issue of fact with regard to the execution of the will, the testator’s mental capacity, or the existence of undue influence, duress, or fraud. Thus, as a matter of law, the proponent should prevail.

Published on: February 3, 2020

Decades Old Sexual Abuse Allegations Not Sufficient to Disqualify Executor, Matter of Kalikow, 2008 NY Slip Op 33353(U) (N.Y. Surr. Ct. 12/16/2008)

by Stephen Bilkis

In a will, the testator names the person or persons who he (or she) wants to serve as the executor of his estate. The executor has a great deal of responsibility, as he will be responsible for managing the decedent’s assets, paying estate bills, and distributing them to his beneficiaries. Upon the testator’s death, the person named in the will must petition the Surrogate’s Court to be formally appointed executor. At that point, the person will receive letters testamentary. While the court will give great deference to the judgement of the testator as to who is to serve as executor, the person named in the will is only a nominee. The person must meet New York’s eligibility requirements in order for the court to issue him letters.

Under New York law, a person who is “dishonest” is not eligible to serve as a fiduciary. This means that even if a person was nominated as an executor, if there is evidence that the person is dishonest, the Surrogate’s Court will deny his (or her) petition for letters testamentary and will prohibit him from managing the administration of the decedent’s estate. If the letters have already been issued, the court will revoke them.

In Matter of Kalikow, the decedent named co-executors. Preliminary letters were issued. However, beneficiaries under the will objected to the appointment of one of the co-executors. They alleged that pursuant to Surrogate’s Court Procedure Act § 707, he was not eligible on the grounds of “dishonesty, improvidence, [and] want of understanding.” The court admitted the will to probate but did not issue letters testamentary.

Published on: February 3, 2020

Court Considers Whether to Probate a Will that was Handwritten in Italian, In re Prob. Proceeding, 2019 NY Slip Op 52107(U) (N.Y. Surr. Ct. 2019)

by Stephen Bilkis

New York has strict rules about how a will must be drafted and executed in order for it to be valid. There are also rules related to when a New York Surrogate’s Court will admit a foreign will to probate. The purpose of these technical rules is to ensure that a will is authentic and that it truly represents the last wishes of the testator. In this case the Surrogate’s Court had to consider whether a will that was written in Italian, executed in Italy, and hand-scribed by a notary should be admitted to probate.

Foreign wills, whether executed in another country or another state, will be admitted to probate in New York as long as it meets New York’s requirements. For a will to be valid in New York, it must be writing, signed at the end by the testator, and witnessed and signed by two people.

In this case the will was written by a notary at the request of the testator. The preamble to the will written by the notary states that the testator declared that the document was written by the notary to be the testator’s last will and testament and that there were witnesses present. The document was signed at the end by the testator, two witnesses, and the notary. The notary also stamped the document next to his signature. However, the will did not have an attestation clause. An attestation clause is a statement at the end of the will where the witnesses certify that they saw the testator sign the will and declare that it is his or her last will and testament. Failure to include an attestation clause make a will contest more likely.