Queens

Published on: March 6, 2014

Court Decides Case Regarding Lost Will

by Stephen Bilkis

A New York Probate Lawyer said a deceased man was survived by his wife and three adult children. Afterward, his last will was offered to probate. The man’s 2003 last will bequeathed his personal property, shares of stocks and real property to his wife. A trust is also established for the benefit of his wife, and upon her death, the property was to be held in trust for their three children until they reached the age of thirty.

A New York Will Lawyer said the article sixth of the man’s 2003 last will provides that the man’s interest for various companies and real property is to be held in trust for the benefit of his wife, but subject to the option of his son to purchase the same.

Afterward, the last will was admitted to probate and the letters testamentary was issued to the estate administrator.

Published on: March 5, 2014

Court Discusses Revocation of a Waiver

by Stephen Bilkis

On 22 April 2009, EB, a resident of Nassau County died purportedly leaving a will dated 20 March 2009. He was survived by his wife from a second marriage, JB, and by five children.

A New York Probate Lawyer said that under the purported will, one-third (1/3) of the residuary estate is to be placed in a supplemental needs trust for the decedent’s wife; the remainder of the residuary estate is to be divided into seven equal shares with one share for each of the EB’s children (other than P) and the decedent’s three step-children; and, it nominates KH, EB’s daughter, and PH, KH’s husband, as executors.

Consequently, the purported will was offered for probate by the nominated executors. On 12 May 2009, a waiver and consent was signed by JB. On 16 June 2009, it was filed with the court. P, one of EB’s children, is under a disability. Thus, a guardian ad litem was appointed for her.

Published on: December 28, 2013

Petitioner Raises Issue of Undue Influence

by Stephen Bilkis

In this Will Contest action, the objectants move for reargument of the Court’s decision. Petitioners cross move for summary judgment dismissing the objections.

A New York Probate Lawyer said that decedent died in July 1992. Petitioners, as nominated co-executors, seek to admit to probate an instrument executed sometime in June 1981 and two codicils. The sole residuary beneficiary began acting as accountant and financial advisor for decedent and her husband in 1970.

The issue to be resolved before the Court is whether this fact, without more, raises an inference of undue influence.

Published on: November 17, 2013

Court Discusses Will Valid Will Construction

by Stephen Bilkis

Decedent died in March 1990 at the age of 91 years. Her distributees are three nieces and one nephew. A New York Probate Lawyer said the propounded instrument is a two-page typewritten document containing a modest bequest to one of decedent’s nieces and bequeathing the residue of this estate, alleged to have a value in excess of $1,000,000.00, to decedent’s nephew. Decedent’s nieces filed objections to probate raising issues with regard to due execution, testamentary capacity, and fraud and undue influence in addition to the issue of revocation presented in the pending application.

A New York Will Lawyer said that proponents are the attorney-draftsman of the propounded instrument and his law partner in whose offices the instrument was executed on January 1980. The instrument was retained by proponents until it was filed for safekeeping in the Surrogate’s Court, Westchester County, on February 1980. The original of the propounded will was delivered to this court in connection with the probate proceeding.

It is alleged that decedent, accompanied by one of the objectants and her husband, had an appointment with an attorney during which she expressed her intention to revoke the will. She apparently did not know that the original will had been filed for safekeeping or have any other idea as to its location but she had brought a photocopy of the executed original. Prior to the appointment, decedent had written the word “Void” at the top of the first page of the photocopy. During the meeting with counsel, decedent wrote the word “Cancelled” across the first page of the photocopy under which notation she wrote the date and her initials. Decedent then cut her signature out of the second page of the photocopy. Queens Probate Lawyers said the latter two acts were performed in the presence of decedent’s niece, her husband, and two attorneys. Counsel subsequently retained possession of the altered photocopy and prepared a file memorandum which memorialized the transaction. Apparently decedent never executed a later will. Conservators of her property were subsequently appointed by the Supreme Court, Bronx County.

Published on: November 12, 2013

Court Determines Pages are Missing from a Will

by Stephen Bilkis

In this proceeding, probate is sought of a testamentary instrument executed sometime in December 1982. A New York Probate Lawyer said the proponent is the nominated executor and one of decedent’s sons. Decedent died on the same month. She was survived by four adult children.

According to a Bronx County Probate lawyer, the propounded instrument bequeaths decedent’s entire estate to three of her children. The instrument consists of four typewritten pages which are numbered “1,” “2,” “3,” and “5”. Page “4” is missing.

The propounded instrument was hastily prepared for a hospitalized testatrix. A New York Will Lawyer said the instrument was delivered to proponent to be taken to decedent for execution since the attorney-draftsman was not able to be present to supervise the execution ceremony. The absence of page “4” was discovered prior to decedent’s death, but at a time when she had deteriorated to a point where it was deemed that she should not be burdened with the execution of a corrected instrument. A copy of the missing page has been submitted to the court. This page contains a recitation of the general powers of the executor which had commenced on the preceding page and a direction with respect to the distribution of principal or income for the benefit of any legatee under a legal disability. The conclusion of this latter provision is set forth on page “5” of the instrument, upon which decedent’s signature and those of the attesting witnesses appear. Page “4” has no dispositive provisions, does not nominate any fiduciary, nor does it recite any granting or limitation of fiduciary authority which is not otherwise covered by statute. From the papers and the requests made of the probate clerk, it appears to be petitioner’s position that he wishes the will admitted inclusive of the missing page “4”. The two questions posed are, whether proponent’s request to admit page “4” to probate can be granted and if it isn’t, whether the absence of this page from the instrument fatally impugns the admissibility of the entire instrument.

Published on: November 4, 2013

Family Alleges Undue Influence in Execution of Mother’s Will

by Stephen Bilkis

In this estate in which there is a contested probate proceeding pending, the decedent was the defendant in a County Supreme Court action, commenced by his sister and two other parties who are the objectants in the probate proceeding (the movants). New York Probate Lawyers said the complaint in the Supreme Court action alleges that the decedent exerted undue influence on his sister to obtain a deed to her one-half interest in real property and converted funds held with the sister in a joint bank account. The movants now seek an order transferring the Supreme Court action to this Court and consolidating that action with the probate proceeding. The proponent in the probate proceeding, who is the respondent in this application, opposes the motion.

Although a party may seek the court’s consent to receive for trial any action pending before the Supreme Court which affects or relates to the administration of a decedent’s estate, only the Supreme Court can order the transfer of a proceeding pending before that court. A New York Will Lawyer said that consequently, the branch of the motion seeking an order directing transfer of the Supreme Court action must be made to the Supreme Court in the first instance.

Nevertheless, the gravamen of the Supreme Court causes of action clearly affect or relate to the administration of the decedent’s estate, and this Court has jurisdiction over all actions and proceedings relating to the affairs of the decedents, probate of wills, estate administration and actions and proceedings arising there under or pertaining thereto. Long Island Probate Lawyers said as the pending Supreme Court action appears to fall squarely within this Court’s jurisdictional imperative, if the Supreme Court in the exercise of its discretion deems that a transfer is warranted, then the Court consents to receive for trial the action pending in the Supreme Court which affects or relates to the administration of the decedent’s estate. Regardless of whether the Supreme Court directs that the action be transferred, the movants may seek the appointment of a temporary administrator in the event that the proponent does not seek preliminary letters.

Published on: October 29, 2013

Petitioner Claims Grandmother’s Will Invalid Due to Lack of Capacity

by Stephen Bilkis

A New York Probate Lawyer said the last will was executed approximately one year prior to the owner’s death at the age of 89. Her successors are her three post-deceased children and her two daughters. But, the probate petition was not filed more than twenty years after the woman’s death.

All of the parties agree that the deceased woman suffered a stroke previously which resulted in her partial paralysis, and she required the assistance of an aide for the rest of her life. All of the testimony also indicates that after her stroke, the woman’s children assisted her in her daily affairs and she enjoyed close relationships with all of them as well as with her grandchildren. A New York Will Lawyer said until her death, she resided on the top floor of her two-family house, and her first son lived in the downstairs apartment where he remained until his death. Sources revealed that the deceased woman’s first son was a paraplegic after being shot.

At the trial, the attorney/draftsman testified that he had been an attorney for 52 years. During those years, the attorney drafted and supervised the completion of over 1,000 last wills.

Published on: October 22, 2013

Court Decides Ownership of Real Property in Will Contest Proceeding

by Stephen Bilkis

A New York Probate Lawyer said this is a Supreme Court partition action commenced by the decedent’s surviving spouse, during the pendency of a probate or will contest proceeding in this court seeking, inter alia, a declaration that the decedent’s interest in certain real property passed to him by operation of law at her death was dismissed by the Supreme Court on the grounds that the real property at issue was devised in the decedent’s propounded will in a different manner and that the dismissal was without prejudice as this court was the appropriate forum to determine the respective ownership claims to the realty. It is apparent that the disputed interest in realty is the only potential asset of the testamentary estate, so if the spouse is successful, there is no practical reason to proceed to probate the propounded instrument.

A New York Will Lawyer said pursuant to CPLR 3212, the spouse now moves for summary judgment seeking a declaration that the decedent’s interest in premises 2426 St. Raymond Avenue, Bronx, New York, passed to him by operation of law pursuant to a deed dated January 30, 1995. The deed lists the grantees as A, B C and D. C is the decedent’s sister. In the propounded will the decedent purports to devise her half share and interest in the real property located and known as 2426 St. Raymond Avenue to the decedent’s sister and the decedent’s spouse, D, in equal shares. The co-tenants of the realty, C and D, and the nominated executor oppose the application. They contend that the decedent’s interest in the premises is held as a tenant in common and passes under the will. Consequently, they assert that one-eighth of the property passes under the will to the decedent’s sister and one-eighth to the decedent’s spouse.

On 16 December 2000, the decedent died. She was survived by her spouse, B, as her sole distributee. A Staten Island Probate Lawyer said the amended probate or will contest petition lists the realty as the only testamentary asset. It appears that unless the decedent’s interest under the deed was a one-quarter tenant in common interest, the decedent left nothing that passes under the will.

Published on: October 14, 2013

Court Decides if Testamentary Trustee Can File a Bond

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner, the nominated trustee of the trust created in the residuary clause of decedent’s will, requests that an order be entered modifying the probate decree by deleting the direction therein that he file a surety bond in the sum of $227,000.00. The initial question to be answered is whether the court has discretion under the provisions of SCPA 801(1)(c) and 806 to dispense with the requirement that a testamentary trustee file a bond notwithstanding the absence of a direction in the will exempting the trustee from this requirement. Of course, if the court has this discretion, it must be determined whether this is an appropriate case in which to exercise it.

A New York Will Lawyer said that, with the exception of a contingency not pertinent to this application, decedent’s son is to receive one-third of the net income from the residuary trust until he attains the age of 58, at which time he shall receive all of the principal and accrued interest. The principal shall be paid to the son’s issue in the event that he dies prior to attaining the age of 58. Petitioner is nominated as the executor in one paragraph and as the trustee in the following paragraph. The first of these paragraphs also nominates an alternate executrix and specifically directs that neither the executor nor the alternate shall be required to file any bond. The next paragraph fails to name an alternate trustee and is silent on the subject of whether the trustee must file a bond.

A Long Island Probate Lawyers said that, petitioner alleges that he is the chief financial officer of a corporation, that his children considered decedent “as a grandfather rather than a friend” and that decedent “would have dispensed with the requirement of a bond had he known the cost” because he had “the utmost faith” in petitioner’s “abilities to administer the trust”. Inasmuch as petitioner also alleges that the annual cost of the bond is “in excess of $700.” and that the cost over the potential lifetime of the trust would be “over $10,000”,it appears that the son will be 58 in approximately 14 years. In any event, the son has filed an affidavit in support of the application. He states that he has two infant children, that he is going through an acrimonious divorce, and that he has serious financial problems. He concludes that the cost of the bond “is wholly unnecessary and a waste of money”.

Published on: October 13, 2013

Court Decides if Petitioners Constitutional Rights Have Been Violated

by Stephen Bilkis

A New York Probate Lawyer said that, this is an appeal under 28 U.S.C. § 1257 (2) from a judgment of the Supreme Court of Arizona affirming the dismissal of a petition for a writ of habeas corpus. The petition sought the release of appellants’ 15-year-old son, who had been committed as a juvenile delinquent to the State Industrial School by the Juvenile Court of Gila County, Arizona. The Supreme Court of Arizona affirmed dismissal of the writ against various arguments which included an attack upon the constitutionality of the Arizona Juvenile Code because of its alleged denial of procedural due process rights to juveniles charged with being ‘delinquents. The court agreed that the constitutional guarantee of due process of law is applicable in such proceedings. It held that Arizona’s Juvenile Code is to be read as ‘impliedly’ implementing the ‘due process concept.’ It then proceeded to identify and describe ‘the particular elements which constitute due process in a juvenile hearing.’ It concluded that the proceedings ending in commitment of the 15-year-old son did not offend those requirements.

A New York Will Lawyer said that, on Monday, June 8, 1964, at about 10 a.m., the 15-year-old son and his friend were taken into custody by the Sheriff of Gila County. The 15-year-old son was then still subject to a six months’ probation order which had been entered on February 25, 1964, as a result of his having been in the company of another boy who had stolen a wallet from a lady’s purse. The police action on June 8 was taken as the result of a verbal complaint by a neighbor of the boys, about a telephone call made to her in which the caller or callers made lewd or indecent remarks. It will suffice for purposes of this opinion to say that the remarks or questions put to her were of the irritatingly offensive, adolescent, sex variety.

A Long Island Probate Lawyer said that, at the time the 15-year-old son was picked up, his mother and father were both at work. No notice that he was being taken into custody was left at the home. No other steps were taken to advise them that their son had, in effect, been arrested. He was taken to the Children’s Detention Home. When his mother arrived home at about 6 o’clock, he was not there. His older brother was sent to look for him at the trailer home of his friend’s family. He apparently learned then that he was in custody. He so informed his mother. The two of them went to the Detention Home. The deputy probation officer, who was also superintendent of the Detention Home, told the mother was there’ and said that a hearing would be held in Juvenile Court at 3 o’clock the following day, June 9.