Queens

Published on: March 23, 2012

Court Determines Jurisdiction of Conflicting Wills

by Stephen Bilkis

An American citizen who was domiciled in Austria made two wills in 1962 and in 1964. The 1964 will was brought before the Surrogate’s Court in New York for probate by the testator’s lawyer who was also his executor. In this will, the testator revoked all prior wills and he directed that the remainder of his estate after the payment of debts and funeral expenses be shared by his ex-wife and his close personal friend.

The two daughters of the testator filed their objections to the probate proceedings in New York. They claim that because the testator was a resident and domiciliary of Austria, the courts in Austria have jurisdiction over his estate. It was also claimed by them that the Austrian Court has already begun hearing the probate proceedings of the 1962 will of their deceased father which the daughters instituted.

The 1962 will provided that the testator’s estate consisting of 145 common shares in an American telephone and telegraph company be distributed to his ex-wife after deducting the payment of debts and funeral expenses. And, if his ex-wife was dead, then the shares of stock will be divided equally between his two daughters.

Published on: March 21, 2012

Court Rules of Power of Surrogate

by Stephen Bilkis

A man appointed his wife and his daughter as executors of his estate. The bank was designated as the successor executor. In a supplement to his will, he removed his wife as executor and named his daughter as the sole executor and appointed the bank as the successor executor. Following the man’s death, a hearing was ultimately conducted in the Surrogate’s Court to determine whether the daughter’s initial letters of administration should be revoked and whether she was ineligible to be a permanent executor and trustee under her father’s will. The Surrogate decided that the daughter’s removal was justifiable and the court affirmed on the ground that the record supported a finding of inexcusable delay and the intentional refusal to obey the court’s direction. The court also affirmed the appointment of the bank as permanent executor and trustee. In the meantime, the wife who also died and her will were offered for probate in Westchester County.

The Surrogate court issued preliminary letters of administration to the bank being the nominated executor and trustee. Queens Probate Lawyers said the daughter intervened objections to the validation of the will. The law firm which had provided attorneys for the wife during her lifetime regarding the validation proceeding in her husband’s will was retained by the bank as its counsel in both properties.

By order to show cause, the bank applied for a ruling admitting the husband’s Will and its supplement, the letters of administration and trusteeship to validate. The daughter opposed the bank’s application and in a cross-motion, the daughter sought extensive relief which includes the disqualification of the bank from its appointment as executor of his father’s will and the prohibition of the subject law firm from acting as counsel to the bank and participating in the proceedings other than serving as witnesses. The bank objected to the daughter’s cross-motion, but the Surrogate, despite granting preliminary letters of administration to the bank, ruled that a hearing should be held in relation to the eligibility of the bank to be made as permanent executor and trustee. The Surrogate court also ruled that a hearing should be held to determine whether the law firm in question should be disqualified as the bank’s attorneys in the validation proceeding. However, a New York Probate Lawyer said it was an abuse of discretion for the Surrogate to require a hearing under the circumstances herein. The Surrogate directed, and the court affirmed, that the bank will be designated as permanent executor and trustee. The bank promptly complied with the directives of the Surrogate’s Court Procedure Act who dealt with the qualification of the executor. In addition, a proposed ruling and counter-ruling, and even the suggested the counter-ruling offered by the daughter which named the bank as the recipient of the letters of administration and trusteeship were submitted to the Surrogate’s Court. Indeed, the daughter failed to throw in any objection until the bank applied by means of the order to show cause for the issuance of the letters after the Surrogate had not acted on the ruling or counter-ruling. Yet, Manhattan Probate Lawyers said her papers do not allege any facts imposing that the bank be declared ineligible.

Published on: March 16, 2012

Court Decides Will Jurisdiction Issue

by Stephen Bilkis

The testator died in November 15, 1955. After almost two and a half years , a Petition for Probate of Will dated November 12, 1955, which was allegedly destroyed after the death of the former, was filed on April 23, 1958. The petition alleged that the testator is a resident of the City of Belize, British Honduras, Central America. Thereafter, a supplemental petition was lodged setting forth the transactions and proceedings with the New York State Tax Commission which informed the petitioner that the testator had been a resident of New York County. Thus, the amended petition provided that the testator was either a resident of the County of New York, State of New York or City of Belize, British Honduras, Central America.

A New York Probate Lawyer said Section 249-t of the Tax Law of this City provides for the protection of State’s interest with respect to tax receivable, thus, the State Tax Commission, shall be, in all original proceedings for letters testamentary in the estate of a non-resident decedent, shall be impleaded as a necessary party. However, it did not take an active part. Conflicting allegations arises as the other party contende that the testator is a domicile of British Honduras whereas the Attorney General of the State of New York and a special guardian of infant (an heir) contended New York as his domicile.

However, this Court has jurisdiction over the matter whether the decedent was domiciled here or being a non resident he died without the State leaving personal property within this county.

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 9, 2012

Authenticity of Will Questioned

by Stephen Bilkis

A postal worker had written and signed his will and testament. Two competent witnesses attested the document. He named his niece by marriage the only heir of his estate. The will was brought to an estate litigation court for probate.

One of his relatives by blood objected the will on reasons that the will was done without comprehending what the meaning of his words in the will was. In denoting his niece by mother, he was without any distinction of the exact piece of possession to be transferred to her.

The Estate Administration courts nominated his wife’s niece as the person who will receive his properties subject of the will.

Published on: March 8, 2012

Court Decides Trust Income Issue

by Stephen Bilkis

An uncle who lived in Connecticut died in March 1936 and in his will which was probated in Connecticut he created a trust for his nephew who lived in New York. The uncle deposited a certain amount of money with a bank. From this trust account, the bank will pay one-third of the income or interest earned by the trust fund to the nephew until he died.

The uncle’s will provided that the trust agreement between his estate and the trustee bank gives the trustee bank the right to pay itself a commission each time it makes a payment of income to the nephew.

The trustee bank made several payments of interest income from the trust fund to the nephew over the years. But several times, it had made payments of income without reserving a small amount corresponding to its commissions.

Published on: March 5, 2012

Petitioner Claims Will was not Duly Executed

by Stephen Bilkis

Decedent died, survived by four children. Testator had written, signed and attested his will and named his sister as the executor of the will. Only the daughter objected the probate proceeding. In his will, decedent directed his sister to distribute his entire estate. The document reflected that the attesting witnesses were the draftsperson for the will and who represented the decedent in his divorce proceeding. The court also extended her office as executor.

The estate litigation courts received a motion for summary judgment designating decedent’s sister as executor in the letter testamentary. The only daughter of decedent objected. She opposed the extended office of decedent’s sister. For the reasons set forth by law, the motion was denied, and summary judgment was granted to decedent’s sister on the issue of due execution.

Daughter filed multiple objections to the will, focusing primarily on an alleged lack of due execution which were testified by two attesting witnesses for her favor.

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: February 28, 2012

Court Rules on Complex Wills Case

by Stephen Bilkis

A son of a deceased man who filed an objection in a probate proceeding and the petitioner in an administration proceeding that was consolidated with the proceeding, has now noticed for settlement a decree dismissing the validation petition. He has also moved to have his application for letters of administration restored to the calendar. The deceased man’s daughter, the proponent in the validation petition, opposes her brother’s applications and, in effect, seeks to vacate her prior default in her brother’s motion to dismiss her petition.

When the father died, he was survived by three children. A New York Probate Lawyer said that the validation petition was filed provides for an equal distribution of the estate between the two children other than the son who made the objection. It appears from allegations made in the pending applications that the other son, the beneficiary of 50% of the properties under the will, died on April 2, 2006 and that he was not married and did not have any children.

The son who made the objection made several applications in the validation proceeding for relief based upon the proponent’s failure to provide requested discovery. The court’s last determination on the issue directed the production of certain documents by the proponent. Queens Probate Lawyers said that after the deadline passed without production of the additional documents, the son moved to dismiss the validation petition and the proponent’s counsel moved to withdraw from representing her, alleging that she had failed to keep appointments necessary to comply with the court’s directions. In the absence of any opposition, counsel’s application was granted and an order was entered, which not only relieved counsel from representing the proponent, but also provided that all proceedings were stayed for 30 days and that the son’s application to dismiss the validation petition shall be submitted without opposition at the expiration of the thirty (30) day period unless papers in opposition had been filed or an application had been made for an extension of time within the period of the stay. In the absence of any opposition or a request by the proponent for an extension of time to oppose the application to dismiss the validation petition, the court rendered a decision, granting the application on the grounds that the proponent had failed to produce documents pursuant to the direction of the court and had failed to diligently prosecute the proceeding.

Published on: February 25, 2012

Court Decides Interesting Jurisdictional Will Issue

by Stephen Bilkis

In 1924, a woman died a resident of New York County leaving a will which was validated in New York County. In her will, she created a trust, the income of which was to go to her brother for life, the remainder to his next of kin, subject, however, to a power in him to make a different disposition by a general power of appointment in his will.

Her brother, the designated life beneficiary and heir of the power, was an American-born citizen who resided in Germany with his German wife and three German children for many years preceding his death there. In the fall of 1939, allegedly because he ‘was worried about the possibility that the German Government would confiscate the trust, he executed a will in which he exercised his power of appointment in favor of the petitioner. The will was executed in the German language and was formally valid under the law of Germany. At the suggestion of his son, the will was delivered for safekeeping into the hands of a notary in Berlin where it was placed in an office safe.

A New York Probate Lawyer said that in 1943, four years after the brother executed the will; the New York trustee of the Foster trust was served by the Alien Property Custodian with Vesting Order which vested in the United States Government the entire interest of the brother and his next of kin in the trust. Shortly thereafter, more than two years before he died, the building in Berlin in which his will was being stored was burned to the ground in a bombing raid and the will was destroyed.