Westchester County

Published on: November 23, 2015

Petitioner, a Charity, Seeks to Modify Decedent’s Will

by Stephen Bilkis

In this miscellaneous proceeding, the petitioner, Catholic Child Care Society of the Diocese of Brooklyn (hereinafter Catholic Child Care Society) seeks to modify the decedent’s will to designate St. John’s Residence for Boys as a beneficiary of a testamentary trust (hereinafter Dowdall Testamentary Trust) established under the decedent’s will in lieu of Catholic Child Care Society pursuant to EPTL 8-1.1.

The decedent E.M. Dowdall died on April 13, 1968. Her will was admitted to probate in this court on January 16, 1969. Article Fourth of the will sets forth various charitable beneficiaries which include The Carmelite Sisters of the Aged and Infirmed, The Catholic Foreign Missionary Society of America (Maryknoll Fathers), The Nursing Sisters of the Sick Poor, The Monastery of Our Lady of Mt. Carmel, and The Confraternity of the Precious Blood. Each of these organizations receives a specific bequest of $5,000.

Article Fifth of the will for which relief under EPTL 8-1.1 is sought bequeaths the entire residuary estate to a trust for the benefit of Catholic Child Care Society. Article Fifth further provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. The Dowdall Testamentary Trust has a remaining principal of approximately $90,000.

Published on: May 12, 2015

Court interprets Will Document

by Stephen Bilkis

A New York Probate Lawyer said that the records reflect that these two cases involves matters of probate which was resolved by the court accordingly. In the first probate proceeding, Paragraph ‘Fifth’ of testatrix’ will reads: ‘Enclosed in the same envelope with this Will are two sealed envelopes addressed to my four sons jointly. These letters contain information as to my wishes for the disposition of certain items of personal property. It do not bind my Executors by these wishes but ask they give consideration to them.’ One of the letter referred to, dated and simply signed ‘Mamma’, is a moving personal expression of her deep love and affecting for and abiding faith in her four sons. It makes no mention of her property. The other letter, undated and unsigned, suggests distribution of certain items of personal property. Petitioner presents both letters for the Court’s consideration as possibly incorporated in the will by reference.

As stated in the will, testatrix’ letters to her sons, her nominated executors of the estate, were not to bind them. Consideration for her wishes was all she asked. Her unattested memoranda of desire and expectation are intimately personal in their nature and are couched in terms of love and suggestion, but not of command. Neither her short and concise will nor the letters themselves evidence any intention to bring into the former the mass of detail contained in the latter which, if introduced, would change nothing and would not legally affect the administration or distribution of her estate. Accordingly, the first alternative prayer for relief, granting probate to the attested instrument together with the letters referred to in paragraph ‘Fifth’ thereof, is denied; the second alternative prayer for relief, admitting to probate only the attested instrument, is granted. Settle decree on notice.

A New York Estate Lawyer said that in the second contested probate proceeding, the executor appeals from an order of the Surrogate’s Court, dated February 8, 1988, which denied his motion to set aside a stipulation of settlement and which granted the objectant’s cross motion for leave to enter a money judgment in the principal sum of $20,000.

Published on: October 23, 2014

Court Looks at Motion to Vacate

by Stephen Bilkis

A New York Probate Laywer said on 17 June 2007, seven months after executing her will, the decedent, AB, died. Her husband predeceased her in 2001, and she never had any children, biological or adopted. The decedent was survived by six distributees: NK, GKH, and EKS (children of the decedent’s predeceased brother, HK; and, DK, BK, and KK (the children of decedent’s predeceased nephew, RK, and who apparently spell their surname differently, with a double last letter). The six distributees reside in Australia.

The proponent and executor, G, had been employed by the decedent as a full-time caregiver who lived in the decedent’s home.

A New York Estate Lawyer said that on 21 September 2007, G filed a petition for probate, stating that the decedent left no distributees, surviving or deceased. Under Paragraph 6(a) of the petition, the “name and relationship” of all persons with a “legacy, devise or other interest, or nature of fiduciary status” is asked. In G’s original probate petition, she stated that she was the decedent’s live-in companion and the beneficiary of the decedent’s entire estate, as well as the designated executor. The only other individual named by G as a person interested in the decedent’s estate is G’s sister, RG, a resident of Ukraine, who is listed as the successor beneficiary of the decedent’s entire estate and the nominated successor executor. The petition reflects 23 Alexander Drive in Oyster Bay, which had been the decedent’s home, as G’s address. In response to question 8(a), which asks whether “any beneficiary under the propounded will, listed in Paragraph 6 or 7 above, had a confidential relationship to the decedent,” G indicated that she, “petitioner,” had a confidential relationship with the decedent.

Published on: September 2, 2014

Court Determines Fees for Guardian ad Litem

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will “pours over” into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

On 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the “F Revocable Trust U/A dated 24 October 2003.” At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent’s long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent’s assets were transferred to the trust while he was alive. As a result, the will was designed to be a “catch all” so that any stray assets left in the decedent’s estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

Published on: August 27, 2014

Court Decides if Attorney Fees Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A Nassau Estate Litigation Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

A New York Will Lawyer said the issue in this case is whether the attorney’s fee should be granted by the court.

Published on: January 4, 2014

Court Dicusses Trust with PourOver Will for Infant

by Stephen Bilkis

New York Probate Lawyers said that, the report of the guardian ad litem for infant remainder men of the residuary trusts makes certain recommendations, some of which are in reality objections to the account.

A New York Estate Administration Lawyer said that, a trust which the decedent had created provided for a pour-over to the decedent’s estate. The decedent died on June 8, 1968. Letters were issued to three executors, two of whom were also trustees under the deed of trust. Understandably, some time was required for the trustees to prepare their account and transfer property to the executors. The shares of stock and some bonds were transferred on March 28, 1969; United States bonds, on May 15, 1969 and most of the other bonds, on September 30, 1968. The guardian points out that the trustees computed their paying commissions on values as of the dates of transfer to the executors, but the executors herein computed their receiving commissions on valuations as of the date of the decedent’s death, which were more than two hundred thousand dollars greater than the values on the dates the funds were received.

The issue in this case is whether objections on the account of the estate should be granted.

Published on: November 15, 2013

Court Discusses Will Contest Proceeding

by Stephen Bilkis

In this Will Contest probate proceeding, the nominated co-executors, the decedent’s nephew, and an attorney who had worked with the decedent, move for summary judgment dismissing the objections of the decedent’s niece, and admitting the propounded instrument to probate.

A New York Probate Lawyer said the decedent, a renowned real estate attorney, executed the propounded instrument in the hospital in September 2003, the date that he was discharged from the hospital with terminal colon cancer. He was readmitted to the hospital and died on the same month at 78 years of age. The decedent’s distributees are his brother and his niece. The niece, the sole objectant, alleges that the decedent lacked testamentary capacity and that the will was the product of undue influence and fraud.

The propounded instrument contains the following pre-residuary bequests: the decedent’s personal property to his brother and his spouse; his cooperative apartment in the Bronx and its contents to her niece; the sum of $100,000 from the a Credit amount to be shared by the five children of the co-executor; and the balance of the tax exempt amount to be shared equally by his brother, brother’s wife and their son and the latter’s three children. The residuary estate is bequeathed to a charitable trust. The propounded instrument specifically states that no provision has been made for the decedent’s niece, or for his sister-in-law, who are the daughter and the surviving spouse, respectively, of the decedent’s predeceased brother, because they “have been adequately provided for from other sources.” The estate is valued at $1,800,000 in the probate petition.

Published on: November 14, 2013

Petitioner Claims Lack of Testimentary Capacity in Will Dispute

by Stephen Bilkis

In this probate proceeding, a New York Probate Lawyer said the proponent woman, wife of the decedent’s predeceased cousin and the nominated executrix under the propounded instrument moves for summary judgment. Specifically, she seeks dismissal of the decedent’s spouse’s objections to probate; admission of the will to probate; dismissal of the objectant’s petition for letters of administration; and costs and attorney’s fees against either or both the objectant and her counsel.

The decedent died at 72 years of age survived by his spouse and daughter as his only distributees. Under the propounded instrument, which contains an attestation clause and a self-proving affidavit, the objectant is the beneficiary of the marital abode, a cooperative apartment, and the balance of the estate is bequeathed to the daughter. A New York Will Lawyer said the objectant filed standard objections to probate, alleging lack of due execution, lack of testamentary capacity, fraud and undue influence. Her opposition to this motion is limited to her own affidavit. The attorney drafter states that he represented the decedent in 1990 in a divorce proceeding in which the decedent’s prior wife was the other party. In 1999 the decedent communicated with the attorney about changing his will. The decedent gave the attorney a copy of his March 18, 1997 will which apparently had been prepared by the father of the attorney who is now representing the objectant. On this copy, the decedent had crossed out the words “friend and companion” to describe the objectant and replaced them with the word “wife”, and changed her last name to reflect that it was the same as his own. He also crossed out the limitations on the objectant’s use of the cooperative apartment in which the couple resided. His daughter was the sole residuary beneficiary under this instrument and the decedent did not indicate that he wanted to change this clause. The attorney then prepared a draft of the will, increasing the objectant’s legacy to an outright interest in the cooperative apartment, and mailed it to the decedent.

A Westchester County Probate Lawyer said the decedent came to the attorney’s office on October 18, 1999, where he reviewed the will with the attorney before he executed it in the presence of the two attesting witnesses, who were employees of the law firm, and the attorney who supervised its execution. The attorney retained the original will and mailed a copy to the decedent. The attorney and the attesting witnesses all state that the will was executed in accordance with the statutory requirements. They also note that the decedent was alert and rational and that his appearance and speech were normal. The proponent avers that the decedent had discussed his testamentary plan with her and that the propounded instrument carries out his plan.

Published on: November 1, 2013

Petitioner Files Motion to Compel Production of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner, pro se, in his status as attorney-in-fact for his mother, has instituted a proceeding seeking to compel the production of a will. Petitioner personally has no status in the estate of decedent. Decedent died on May 5, 1984. Based upon a probate petition filed on July 2, 1984, an instrument dated March 27, 1982 was duly admitted to probate by the entry of a decree dated July 13, 1984. Petitioner’s principal is decedent’s sister. She was not his distributee inasmuch as the decedent was survived by two grandchildren. Under the instrument already admitted to probate, the grandchildren are the primary beneficiaries. Decedent’s sister receives a $1,000 legacy. There are several other legacies, including bequests to infants and charitable organizations.

A New York Will Lawyer said that, petitioner alleges that there is a testamentary instrument prior in date to the will admitted to probate under which petitioner believes his principal receives a greater legacy and that such prior instrument is in the possession of the co-executor who is the respondent in the instant proceeding.

A Westchester County Probate Lawyer said that, as a consequence of the greater legacy to his mother in the prior instrument, petitioner intends to institute a further proceeding seeking to vacate the probate decree entered July 13, 1984 and in the event such application be granted, to file objections on behalf of his principal to the probate of the instrument which formed the basis for that decree.

Published on: October 30, 2013

Court Hears Claim of Undue Influence in Execution of Will

by Stephen Bilkis

A New York Probate Lawyer said that, defendants move pursuant to CPLR 3211(a)(5) to dismiss plaintiff’s complaint contending that plaintiff’s claims are barred by the applicable statute of limitations and pursuant to CPLR 3211 (a)(7) dismissing plaintiff’s causes of action on the ground that said causes fail to state a cause of action.

Plaintiff, the sister of defendant, brings this action to recover the value of property described as 797 Southern Boulevard, located in Bronx County, and to impose a constructive trust to prevent defendants from transferring this property. A New York Will Lawyer said that, the complaint, which parenthetically was not, verified by the plaintiff, charges plaintiff’s sister with influencing their mother to transfer the property in Bronx County to her which according to the plaintiff was to be held in trust for the beneficiaries of their mother’s estate. Obviously unless plaintiff’s undue influence claim is sustained, the court need not pass upon the cause of action for a constructive trust. Moreover, this action initiated here in Bronx County in essence, challenges the testamentary capacity of the decedent, plaintiff’s mother who transferred the Southern Boulevard property by deed to plaintiff’s sister. Plaintiff fails to set forth information regarding whether any of the Wills executed by the decedent were admitted to probate nor does Counsel for plaintiff provide this court with such information.

A Bronx Probate Lawyer said that, as previously noted plaintiff’s complaint is not verified by plaintiff and in response to defendants’ motion to dismiss, plaintiff submits a short affidavit which makes conclusory assertions that adds little to the complaint. Manifestly, plaintiff’s counsel’s affirmation and his verification of the allegations set forth in the complaint are without probative value.