Suffolk County

Published on: July 15, 2012

Court Decides if Letters Testamentary Should be Issued

by Stephen Bilkis

A man who had three children by a first marriage married a woman who had five children of her own. When she married her husband, her husband sold the house he owned and moved into the house of his second wife.

Sometime in Aprill 22, 2009, the man died a month after he executed a will. In this will, he named his daughter by his first marriage and her husband as the executors of his will. The couple was the ones who presented the will for probate. And they also asked the probate court to issue letters testamentary in their favor in accordance with the provisions of the will of their father.

The second wife of the testator objected to the probate of the will on the ground that her husband has had two major strokes and numerous mini strokes all throughout his confinement in a nursing home just prior to his death. He was diagnosed to be suffering from dementia and so he could not have known or understood the contents of the will he purportedly executed.

Published on: July 12, 2012

Court Discusses Attorney Client Privlege

by Stephen Bilkis

A man and his wife consulted a lawyer to plan the disposition of their estates on the event of their demise. The man and his wife both executed individual wills based on the advice and opinion of the lawyer they both consulted.

When the man died, his will was submitted for probate. His wife was named as executor of his will. The other heirs named in the will were the man’s children. During the probate proceedings, the children of the man asked that the executrix, the wife of the testator, be compelled to submit copies of the notes and letters sent by the lawyer of the testator to the testator where he summarized the wishes of the testator regarding the disposition of his estate.

A New York Probate Lawyer said the children of the testator claim that the attorney’s notes and his letters to the testator will yield information regarding his true wishes as he communicated it to his lawyer; it will also inform the court regarding the state of mind of the testator and may show whether the testator had the necessary testamentary capacity.

Published on: July 5, 2012

Petioner for Estate Claims Lawyer Misappropriated Funds

by Stephen Bilkis

Sometime in 1985, the respondent was retained by a woman to probate the Last Will and Testament of her deceased mother. The respondent accepted the retainer with full knowledge that the Will would have to be probated in the Court (for estate administration or will contest; estate litigation) in which he was employed. Thereafter, the respondent failed to apply to the Chief Administrator of the Courts for permission to engage in the private practice of law with respect to the subject estate, as follows:

In May of 1985, the respondent acting as the attorney for the estate, filed a probate petition and other relevant papers in the Surrogate’s Court, Kings County, but, in doing so, concealed the fact that he was the attorney for the estate.

On 6 June 1985, the subject Will was admitted to probate and an administratrix was appointed. The respondent was paid the sum of $1,200 for his legal services.

Published on: July 2, 2012

Court Holds Executrix was Negligent

by Stephen Bilkis

Two men were business partners. In 1925, one partner filed a suit to compel his business partner to account for the properties of the partnership in his keeping. The partner who sued contended that his business partner diverted the profits of their business.

While the suit for accounting was pending, the business partner died who was sued died. He left a will which was probated. An executrix was appointed in the will and approved by the probate court. A couple stood as sureties for the fiduciary bond of the executrix.

Soon, the surety also died and he also left a will which was admitted into probate. In 1932 the surety’s estate was settled.

Published on: June 25, 2012

Court Discusses Whether a No-Contest Clause Only Applies to Heirs

by Stephen Bilkis

A woman executed a will two weeks before she died in September 1992. She left an estate worth $2,000,000. Her will was offered for probate by the executors. During the proceedings, it was discovered that the woman filed with the Surrogate’s Court a prior will dated July 1992. The provisions of the 1992 did not provide for cash gifts to the attorney who drafted the will or to his wife who testified as to the due execution of the will, unlike the September 1992 will.

The charitable foundation contends that if the September 1992 will is found to have not been duly executed or if fraud or undue influence were brought to bear on the testator in the September 1992 will so as to also make bequests to the lawyer and his wife in her will, the residual estate which will be put in trust for the foundation would have been bigger.

The charitable foundation wishes to object to the probate of the September 1992 will but the will also contains a provision that if any of the beneficiaries of the will shall object to the probate of the will, the legacy made for them shall be revoked. A New York Probate Lawyer said this kind of provision is called an “in terrorem” or non-contest clause. It is meant to put the fear of disinheritance in the heart of those who were named beneficiaries in the will so that the estate will not be reduced by having to spend on legal costs.

Published on: June 23, 2012

Decedent’s Son Sues for Specific Performance

by Stephen Bilkis

A man and his male domestic life partner were co-owners of a cooperative apartment in Brooklyn, New York. They also co-owned a house in Southold, New York.

In his last will and testament, the man named his domestic life partner as his executor. He also left to him his share in the proprietary lease of the Brooklyn apartment and shares of stock. The man also gave cash gifts to his nephews amounting to $10,000 each.

The domestic life partner presented his the will for probate. The sons of the testator appeared during the probate proceedings but signed waivers signifying that they were waiving all objections they may have in the will. The will was admitted into probate in 2001 and letters testamentary were given to the testator’s domestic life partner.

Published on: June 19, 2012

Family Member Seeks to Invalidate Trust

by Stephen Bilkis

In situations of estate probate, there are often times when a person is appointed by the court to review the circumstances surrounding a will and to determine if the law has been followed in the distribution of the assets set forth in the document. This person is called the guardian ad litem. The guardian ad litem is an experienced attorney who’s responsibility is to prepare a detailed report where he lists his findings and based upon his findings, recommends the necessary action that should be taken to protect the interests of the person who has filed the complaint.

In the situation at hand, the decedent passed on May 9, 2007. There were four distributes named in the estate documentation. Two daughters were named, one son, and one granddaughter who is the child of a son who had passed prior to the death of the decedent. New York Probate Lawyer said one of the daughters filed a complaint with the probate court that the will naming only one of the son’s as the sole inheritor for the living trust of the decedent should be ruled invalid.

The reasons that were set forth to invalidate the living trust was that one of the daughters states that prior to the decedent’s death, the lone surviving son placed undue influence on the decedent up to and including fraud against the decedent while he was physically ill and depressed. The guardian ad litem in this case determined that the daughter might possibly have a case and determined that it was only proper for him to continue to represent the daughter in the future hearings in reference to the closing of the decedents affairs.

Published on: June 15, 2012

Family Questions Mental Capacity of Decedent

by Stephen Bilkis

On this contested probate proceeding, the guardian for the infant beneficiaries seeks for authorization to retain a medical expert to be paid from the assets’ proceeds.

It was initiated when a man died at the age of 88 and he was survived with seven children and two grandchildren. Afterwards, a man was appointed as the guardian for infant grandchildren of the deceased. Separate objections have been filed by the deceased children and the guardian on behalf of his charges. Based on records, the gross estate is estimated between $26 million and $35 million, consisting primarily of silver holdings, a yacht, farmland and real properties in New York and Connecticut.

Consequently, the proposed will was completed three weeks before the man died from lung cancer. It is offered for validation by the attorney-drafter. Under the proposed will, the deceased made pre-residuary inheritance of specific property, his interest in a corporation to some of his children, devised real property to one child, made monetary reward to his caretakers and disposed of his residuary estate to one of the charitable foundation he established in 1974.

Published on: June 1, 2012

Court Discusses Issuing Preliminary Letters Testementary

by Stephen Bilkis

The Facts:

On 14 December 2005, a decedent died leaving a will dated 13 September 2005 (the “2005 Will”) and a prior will dated 24 January 2003 (the “2003 Will”). The 2003 Will nominates the decedent’s daughter-one as executor and the decedent’s daughter-two as successor executor. The 2005 Will also nominates daughter-one as executor. The decedent was also survived by her other daughter, daughter-three.

Under the 2003 Will, all shares that the decedent had in any companies or corporations is bequeathed to the decedent’s two grandchildren equally and the decedent’s bank accounts to her daughters, daughter-one and daughter-three, equally. The 2003 Will further provides for bequests of tangible personal property. The 2003 Will gives the decedent’s cooperative apartment in equal shares to the two grandchildren. The remainder of the estate is bequeathed in one-third (1/3) shares to each of the decedent’s three daughters.

Published on: May 4, 2012

Court Determines if Loan is in Default

by Stephen Bilkis

The plaintiff and appellant of this case is Gray Wolf Corporation. Gray Wolf Corporation is being represented by Warren B. Rosenbaum from Woods, Oviatt and Gilman, LLP. The defendant and respondent et al of the case is Gleason Estates Associates, LP. Gleason Estates Associates LP is being represented by Gregory J. Mascitti from Leclair Ryan. The case is being heard in the Appellate Division of the Supreme Court of the State of New York in the fourth judicial department. The judges who are hearing the case are Martoche, JJ, Lindley, Smith, and Scudder, P.J.

About the Case

A New York Probate Lawyer said this case was started by the plaintiff as a foreclosure action and then moved to a summary judgment based on the complaint. The defendant of the case made a cross move for a summary judgment to dismiss the case altogether.