Westchester County

Published on: April 15, 2012

Court Decides of the Dept. of Social Services can Make a Claim on Estate

by Stephen Bilkis

In a probate proceeding, the issue presented in court by the executrix is the validity of the full amount claim against the estate by the Nassau County Department of Social Services (DSS) granted by the probate court only up to the amount that would prejudice a specific bequest in favour of a legatee in decedent’s will.

The decedent and his wife have to children, one of whom is severely mentally disabled. Decedent made a declaration to the refusal of making his resources available to the medical expenses of his mentally disabled child. Decedent also executed a power of attorney, in behalf said child, appointing the Nassau County DSS of the child’s right to seek support from him. A New York Probate Lawyer said the decedent’s wife, who had an Alzheimer’s disease, was placed in a nursing home and received Medicaid benefits making the decedent a “community spouse.”

Upon death of the decedent, his will was submitted for probate. The will provided that the residuary estate is given to the surviving wife in a special needs trust and that, upon her death, the remainder of the trust shall be distributed in specific bequests among the contingent legatees. A Westchester County Probate Lawyer said a bequest was given to the disabled child in a special need trust for his benefit. A guardian ad litem was appointed, in behalf the surviving wife, who was ordered to exercise the wife’s right of election against decedent’s estate. Prior to the exercise of such right, the surviving spouse died.

Published on: April 14, 2012

Will Contest Action Filed regarding Lawyer’s Will

by Stephen Bilkis

On 10 May 1977, a decedent who is an attorney died. On 27 June 1977, letters of administration (estate administration) were issued to the Public Administrator, County of Nassau. He received the keys to the decedent’s residence from a Nassau County police detective on 11 May 1977 and made a thorough search of the residence. The public administrator found a sealed envelope, among other things, bearing the words “Copy of Deed to Lutheran Cemetery,” “Copy of Last Will and Testament” (carbon copy) bearing the decedent’s signature. On the back of the envelope, written across the flap was the decedent’s signature.

The objectants, three (3) of the cousins named in the instrument and five other individuals whose status was contested by the proponent in the instant case, conceded that the document was written in the decedent’s handwriting. No evidence was offered to prove that the document was a carbon copy although the proponent herself alleged that it was a carbon and not a ribbon copy. The back of the last page was blank except for the following handwritten words: “Copy of Last Will and Testament” and “Original in Safe Deposit Box in Jam. Savings Bank.”

The instrument provided for the disposition of real property and bequeathed $300.00 to each of the decedent’s eight cousins and the residuary estate to two of the cousins. It appointed the two cousins as executors of the estate.

Published on: April 11, 2012

Defendant Seeks Order Quieting Title

by Stephen Bilkis

In a pending action transferred from Supreme Court, Nassau County to Surrogate’s Court of Nassau County, defendant sought the order of quieting title in his favour and to direct the Clerk of Court of Nassau County to cancel a notice of its pendency and such other relief the court may deem just.

A New York Probate Lawyer said the defendant is the grandson of the decedent in a pending probate proceeding of Surrogate’s Court of Nassau County. Decedent’s daughter, as preliminary executor, is the legal representative of the estate in the lawsuit.

The decedent and her husband acquired title of a New York property by deed. They were identified as grantees in the deed, thus, presumptively creating a tenancy by the entirety. Upon death of decedent’s husband, the former became the sole owner of the premises under the assumed valid tenancy.

Published on: April 10, 2012

Court Determines Appropriate Legal Fees for Probate Case

by Stephen Bilkis

In an accounting proceeding, the court is presented with the issue of determining the amount of attorney’s fees and accounting fees to be granted to be charged against the estate of the decedent.

Decedent is a resident of Nassau County who left a will that was admitted for probate by the Surrogate’s Court of Nassau County. Letters testamentary was issued to decedent’s daughter. The decedent was survived by his seven children. The will stipulated that equal shares of the residuary estate shall be divided among the surviving children of the decedent.

The accounting proceeding is the first and final settlement of account made by the executor covering a period of four years. The summary statement submitted by the accounting party showed the amount of $955,030.92. Some of the children of decedent filed objections regarding the accounting statement. A New York Probate Lawyer said in a settlement agreement entered into by the parties, the executor reduced her commissions for payments to the objectants. The agreement also stipulated that certain estate’s tangible properties will be given to the latter.

Published on: April 7, 2012

Man Dies with 11 Children, Only 1 Named in Will

by Stephen Bilkis

In January 13, 2007, the father died survived by 11 children: three from the first marriage, four from the second marriage and four alleged non-marital children. The purported will was offered for probate benefits only one child from the first marriage, Angela Manning, who inherits the entire estate and named executrix.

Allegedly, in June 24, 1996, the deceded executed his will. In that he underwent a DNA tests in 2005 and 2006 which revealed that he is the biological father of the claimants who were born long before the execution of the decedent’s will. They claim that the only the non-marital children known or acknowledged after the execution of the will shall be presumed to be inadvertently disinherited as an after born child with whom the same right shall be extended.

Normally, a child is entitled to after born rights if born after execution of the will. There is no exception to this rule other than for a child adopted after the execution of a will, though born previously.

Published on: April 6, 2012

Court Decides Jurisdiction of a Will Contest

by Stephen Bilkis

This is an appeal filed in the Supreme Court by a party who objected to the probate of the will of a decedent in the Surrogate Court of New York.

The facts of the case state that the decedent was a resident of New York. Sometime in his life, he became a resident of Austria and it was also in the said country that he eventually died. The will of the decedent was submitted for determination in Austria and two years after, the said will was again presented to a Surrogate Court of New York County. A New York Probate Lawyer said that as per reading of the last will and testament, it established the fact that the decedent was a resident of New York and at the same time named a legatee to receive half of the estate. The legatee assigned in the will is also a resident of New York. The properties covered in the will also referred to the properties owned by the decedent and located in the State of New York

The hearing in the court of New York was objected to because of the question regarding the domicile of the decedent. It is alleged that the decedent was a domiciliary of Austria at the time of his death and therefore the court of Austria has jurisdiction in the estate administration of the decedent. Another issue was that the court of Austria has already taken cognizance of the will and in the process of adjudicating on the same. The appellant in effect said that since the Austrian court is already in the process of determining the matters involving the will contest surrounding the will of the decedent, the Surrogate Court of New York must no longer assume jurisdiction because another court which has the proper jurisdiction has already assumed power over the case.

Published on: April 2, 2012

Court Decides Legal Fees from Will Proceeding

by Stephen Bilkis

A rich man died in 1958 leaving a will and a codicil. The distributees of the properties and assets named in the instruments were his wife, two daughters as distributes and two other persons as executors. The letters testamentary were issued to the executors after the will was presented to probate by the assigned parties. Based on the will, the decedent gave the surviving spouse personal properties and also gave to individuals and charities named in the will. The daughters also received a large amount of money from their father. Legacies were also given to 13 individuals and the remainder of the wealth was placed in trust with the income from such investment directed to be paid to the widow during her entire lifetime. The will also directed that upon the death of the surviving spouse, the principal of the trust investment be paid to the two daughters who where earlier declared as trustees when the said trust was created.

Upon the death of the decedent, the executors hired a law firm to represent them in the Surrogate court of St. Lawrence County for the estate administration of the decedent.

A few months after, another law firm was retained and both firms worked on the proceedings and the tasks involved in settling the estate of the decedent. Since the decedent was a rich man and had many properties as well as investment exposures in many different corporations, the work entailed among others settling accounts and other transactions needed to facilitate the entire Surrogate court’s proceedings.

Published on: March 31, 2012

Court Hears Case to Validate a Will

by Stephen Bilkis

The last will is accepted for probate but the co-administrator requests a decision to dismiss the objections pertaining to the account of the first daughter of the deceased. The second daughter of the deceased and her co-administrator join in their appeals of while the first daughter opposes the motions. The separate motion submitted by the first daughter seek for partial decision without proceedings on her claim to enforce the terms of the deceased of a prior mutual reciprocal will and an agreement not to revoke it. The co-administrator as well as the second daughter opposes the motion.

The mutual reciprocal will was completed by the deceased and his wife. The couple agreed to leave each other’s one-half of their net estates in trust with the remainder of the trust to be passed on another trust in equal shares to their two daughters. A New York Probate Lawyer said their residuary properties are left in trust with equal shares to their two daughters until the daughters reached the age of thirty-five. On the same date, the couple also completed a separate agreement not to revoke their mutual reciprocal wills without the consent of each other. The agreement further states that it will result to the benefit of their heirs.

The parties agree that there are no factual issues to be determined and that the issue of law to be determined is whether the mutual reciprocal wills and the agreement are valid and enforceable to support the first daughter’s claim as a creditor for a one-half share of their father’s properties. Westchester County Probate Lawyer said that consequently, no trial is needed.

Published on: March 28, 2012

Court Rules on Will Jurisdiction Issue

by Stephen Bilkis

An American citizen domiciled in France died leaving behind bank accounts in New York worth less than $1,000.00, real properties worth a few hundred thousand dollars in France and almost a million dollars worth of money and personal property in Switzerland. At the time of his death he was married to a French national and they had one minor child. Prior to his death in 1972, the decedent executed a will sometime in 1970 in New York and this same will was presented for probate by two persons who were not main parties to the case. The New York will stated that half of the entire estate of the decedent must go to the wife and the other half should be held in trust in favour of the minor child. The will specifically directed that the same should be probated in New York.

It was also learned that aside from the will executed in New York, the decedent also executed a deed of donation which will specifically take effect upon his death. This deed of donation was executed in 1972, or 25 days before the death of the testator/Donor and in front of a notary public in France. The deed directed that all the estate of the testator be disposed and transferred in favour of the surviving spouse with a proviso that the minor child’s legitime be protected under French law. The deed of donation then is contrary to what the 1970 New York will provides.

Upon the death of the decedent, a proceeding was instituted in the court of New York for the disposition of the properties of the decedent according to the will executed in New York and at the same time a litigation is also pending and awaiting trial in France disputing the validity of the deed of donation. A New York Probate Lawyer said the proponents of the New York proceedings argued that the New York will should be given preference and that New York law should be applied in distributing the properties of the decedent. They also brought to the attention of the court that there was a pre-nuptial agreement between the spouses limiting the share of the wife to $10,000.00 in case of the husband’s death and that there was agreement between them that the laws of New York should be applied in the distribution of his estate.

Published on: March 27, 2012

Court Discusses Will Contest between Son and Stepmother

by Stephen Bilkis

In legal action arising out of a dispute between the individual plaintiff from New York and his stepmother from Florida with regard to the ownership of corporate stock in a New York corporation, the plaintiffs appeal from an order of the Supreme Court, New York County, and a judgment which granted four motion of the defendants to dismiss the action on the grounds of inconvenient forum. The stock in question had been owned by the father of the plaintiff from New York and the husband of the stepmother from Florida. The couple together had owned and managed the corporation for many years. In a will, the husband bestowed to his wife the corporate stock that had been bestowed to the son in a prior will. It was the offering of the August 1980 will for probate in a Florida court. Objections on the Florida validation had been interposed by the son on the grounds that his father had been incompetent and the subject of undue influence by his stepmother that led to the commencement of the lawsuit in January 1983. Although phrased alternatively, and in some respects inconsistently, the six causes of action set forth in the complaint all rest on the essential claim that at the time the father retired from the corporation, he had entered into an agreement with the son with regard to the disposition of his stock in exchange for the son’s promise alleged to have been fulfilled.

The said agreement states that the son would receive stipends for the rest of his life. Summarized briefly, the complaint alleges that the father had promised to sell and deliver his shares to the corporation and in fact did so, and that the corporation should be declared the lawful owner. That if it be found that the father had not delivered his shares in accordance with his agreement the plaintiffs are entitled to specific performance. That alternatively, the father had promised to bestow the shares to his son in a will, which he would not alter until his death, and he in fact made such a will, the revocation of which in the 1980 will constituted a breach of the agreement. That if at the validation proceedings the will is rejected and the father is deemed to have died without a valid will or under a will not containing endowment of the stock to the son, the plaintiffs are entitled to specific performance. That if declaratory or specific performance relief is not granted, damages should be awarded to the son from the stepmother in the amount that had been paid by the father under the stipend agreement because of her alleged tortious interference with the agreement between the father and his son.

Lastly, that the stepmother and several of the other individual defendants, joined together to cause the father to breach his agreement, activities in furtherance of this plan occurring both in New York and Florida, and that the plaintiffs are entitled to damages in the amount of the stipend payments that had been made to the father.