Westchester County

Published on: July 15, 2012

Court Decides if Surrogates Court Abused its DIscretion

by Stephen Bilkis

The Facts:

The Respondent found among the decedent’s effects a purported will signed by the decedent but with the signatures of the witnesses torn off and missing. The respondent claims that the attorney whose name appears on the back of the will does not remember the alleged will or attending on the execution of any will by the decedent. Had the decedent died intestate, her sole heir would be her sister, a Finnish citizen who resides in Finland and who intends to file a will contest.

Under the will, the appellant was named as the executor and sole beneficiary in the will. When the appellant learned about the will, his attorney visited the respondent’s office and requested that the will be filed forthwith as required by law.

Published on: July 14, 2012

Jurisdiction Issue Decided

by Stephen Bilkis

A testator was born and raised in Brooklyn, New York but after he got married, he lived with his wife in Florida. Later, the testator and his wife resided in Phoenix, Arizona. While they resided in Phoenix, Arizona, the testator’s wife died. It was around April 2004 that he executor his will in Arizona.

The testator first executed a trust in favor of his grandson. In his will, he left his entire estate to the trust he created. He named his grandson the sole beneficiary of his trust.

A year after he created the trust and executed his will the testator called his sister asking her to come and get him from Phoenix, Arizona because he wanted to go back and live in Brooklyn with her. At that time the testator was ninety-five years old and he had heart disease. He told his sister that he wanted to change his will. So before he boarded the airplane bound for Brooklyn, New York, he and his sister went by the office of a lawyer where he changed the beneficiary of his 2004 will and trust. He gave his sister the principal of the trust, he gave his granddaughter 3/8 of the trust and his grandson 1/8 of the trust. He also named his sister as his health care proxy. After signing the documents in the Arizona lawyer’s office, he insisted on boarding the airplane to New York immediately.

Published on: July 4, 2012

Court Discusses Pour-Over Wills

by Stephen Bilkis

On 24 January 2006, a resident of Nassau County died. Prior to his death, on 24 October 2003, he had created a Revocable Trust. At that time, he 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.

Thereafter, the guardian ad litem, who was appointed to represent the interests of the decedent’s daughter, examined the circumstances surrounding the execution of both the trust and the will. A New York Probate Lawyer said in her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

A probate proceeding followed and also submitted for decision is the issue of the source of payment for fees awarded to a guardian ad litem.

Published on: July 3, 2012

Court Decides Question of Domicile of Testator

by Stephen Bilkis

A woman who lived for thirty years with her niece in New York executed a will sometime on February 5, 1955. In will, she distributed her estate to her son who was a resident of Wayne County and her niece who was a resident of New York County. The woman just before her death stayed with her son at his home in Wayne County.

He filed a petition for probate in Wayne County. The niece who was a legatee in the will filed an objection to the probate of the will. Her objection centers on whether or not the Surrogate’s Court of Wayne County has jurisdiction over the probate petition seeing as the domicile of the testator, her aunt was New York.

Before deciding on the issue of whether or not the Surrogate’s Court of Wayne County has jurisdiction over this probate proceeding, the Court decided on the question of whether or not the niece who filed the objection is an interested party who alone can filed objections to a probate proceeding.

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: 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.

Published on: April 24, 2012

Court Decides Jurisdiction between French and American Wills

by Stephen Bilkis

A son from California filed for an order dismissing the pending proceeding to probate his mother’s New York Will that raises an interesting question of jurisdiction. The son argues the jurisdiction of the court to prove the validity of the Will of a non-residence which requests New York to prove valid and invokes New York law on the ground that her French legal residency has assumed jurisdiction over her estate. The motion is opposed by the Petitioners in the proceeding, the co-executors named in the Will, who are presently serving as preliminary executors.

The New York Probate Lawyer said the mother who made the Will was born a French citizen in 1899, and she became a naturalized United States citizen. She was a New York resident for about thirty years. For approximately seven years she was employed in the law offices in New York City. During this period she worked as secretary to one of that firm’s senior partners. A lawyer-client relationship with that firm also commenced during that time. The French Ordinary Residence Card issued indicates that the mother who made the Will stated that she returned to France on October 24, 1971.

The New York Will which is the subject of the jurisdictional attack was drafted by the firm in New York she worked for. It was allegedly executed by the deceased in the firm’s Paris office in 1972, and there is no challenge on the matter. Both the petitioners and the son refer to the 1972 document as the New York Will. Both sides seemingly agree that this Will, whether admitted to be proven valid in New York or established in accordance with French law, governs at most the property of the deceased mother which was physically located in New York when she died, and that it does not affect property actually located in France, which passes under the French Will.

Published on: April 20, 2012

Petitioner Files Will Contest Due to Competency of Testator

by Stephen Bilkis

Relative to the petition for probate, the guardian ad litem for the decedent crafted and negotiated the stipulation of settlement of estate was filed before the court for review. The factual circumstances of the case rooted from the time the decedent, a resident of New Hyde Park, Nassau County died on February 15, 2009 leaving a last willl and testament dated June 28, 2007. She was survived by 19 distributees including siblings and the children of four predeceased siblings.

The will leaves all the property in three equal shares, i.e. two to the decedents sisters and the third to the decedent’s niece without mention of the other surviving sister who suffers from Alzheimer’s Disease in whose favor the court appointed a guardian ad litem. Consequent thereto, the 15 distributees filed no objection to the will and preliminary letters issued to petitioner on May 19, 2009.

The will was contested as its execution which was not supervised by an attorney was made through a telephone call from the decedent’s niece herein mentioned and to which issues were raised concerning the competency of the testator at the time of the execution.

Published on: April 17, 2012

Court Decides if an Executor has the Right to Request a Discovery Proceeding Regarding Property

by Stephen Bilkis

The issues being raised in this estate case have two aspects. One issue talks about the objection of probate on the last will and testament of the deceased. Another issue raised on the case was whether the main executor of the will had the right to request for discovery proceeding concerning the property owned by another party.

Before the writer of the will and testament passed away, he drafted an instrument which states that all his property should go to his niece. The niece named on the will becomes in effect the executor of the will.

A New York Probate Lawyer said a few months after the drafting of the first instrument, the decedent had allegedly turned over a deed of one of his real properties to another party other than his niece by marriage. However on the same day, the decedent drafted an instrument and identified it as his last will and testament. According to that instrument, it would revoke or reverse all wills drafted prior to the recent one. This includes the first draft that named his niece the sole executor of his estate.