New York City

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.

Published on: October 29, 2013

Petitioner Claims Grandmother’s Will Invalid Due to Lack of Capacity

by Stephen Bilkis

A New York Probate Lawyer said the last will was executed approximately one year prior to the owner’s death at the age of 89. Her successors are her three post-deceased children and her two daughters. But, the probate petition was not filed more than twenty years after the woman’s death.

All of the parties agree that the deceased woman suffered a stroke previously which resulted in her partial paralysis, and she required the assistance of an aide for the rest of her life. All of the testimony also indicates that after her stroke, the woman’s children assisted her in her daily affairs and she enjoyed close relationships with all of them as well as with her grandchildren. A New York Will Lawyer said until her death, she resided on the top floor of her two-family house, and her first son lived in the downstairs apartment where he remained until his death. Sources revealed that the deceased woman’s first son was a paraplegic after being shot.

At the trial, the attorney/draftsman testified that he had been an attorney for 52 years. During those years, the attorney drafted and supervised the completion of over 1,000 last wills.

Published on: October 28, 2013

Court Decides if Respondent was Able to Distribute Money via a Power of Attorney

by Stephen Bilkis

A New York Probate Lawyer said that, in this SCPA 2103 proceeding, the respondent moved to vacate her default and for other relief. The branch of the motion seeking to vacate the respondent’s default is now academic as a result of the court’s decision and order dated February 1, 2008. In that decision and order, the petitioner’s application to strike the respondent’s pleadings and to enter a default judgment in the sum of $173,000 was denied, provided that the respondent both paid the sum of $400 to cover the cost and fees for her failure to appear at a deposition and, thereafter, appeared to be deposed as directed.

A New York Will Lawyer said that, in her affidavit in support of the motion, the respondent’s request for “other relief” is: (1) dismissal of the petition on the ground “that no asset of the estate” was ever removed by her; (2) dismissal of the petition on the ground that the “Stipulation of Settlement” filed in the probate proceeding was intended to cover “all matters and claims,” including any claim that the respondent removed estate assets; and (3) the imposition of sanctions on the petitioner’s attorney for knowingly filing a “frivolous” petition. In the alternative, the respondent requests that the proceeding be scheduled for a hearing.

Nassau County Probate Lawyers said the issue in this case is whether the respondent was authorized to distribute monies from the decedent’s bank account to herself pursuant to a power of attorney.

Published on: October 26, 2013

Executor Moves to Preclude Decent’s Grandchildren from Will

by Stephen Bilkis

In this probate proceeding the proponent, the decedent’s son who is the nominated executor and sole beneficiary under the propounded instrument moves to preclude the objectant, the guardian of the property of one of the decedent’s grandchildren who is an infant, from offering any evidence or testimony in this proceeding on the grounds that the objectant’s bill of particulars was untimely served (81 days after the demand instead of 30 days) and 15 days after all disclosure was to be completed, and that the responses therein are not in conformity with the specificity requirement set forth in Uniform Rules for the Surrogate’s Court.

A New York Probate Lawyer said the decedent died at the age of 73. The decedent’s only distributees are the petitioner, the infant grandson for whom a guardian ad litem (court appointed) was appointed and another grandson who consents to the probate of the propounded instrument. Although the guardian ad litem for the infant filed a report indicating that he found no basis to object to the admission of the will to probate, the infant’s father disagrees. After some delay caused in part by the necessity of obtaining guardianship of the infant’s property, the father eventually filed objections on the infant’s behalf.

A conference was held with the court in which the guardian ad litem participated and indicated that he would favor settlement of the issues raised. A New York Wills Lawyer said as no settlement was reached, the court rendered a decision relieving the guardian ad litem of his representation of the infant unless he was needed for any subsequent settlement discussions, inasmuch as the infant was represented by counsel retained by the guardian of his property who would vigorously prosecute the objections.

Published on: October 25, 2013

Court Decides if Bequest to Decendent’s Friend is Valid

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested proceeding to probate a will dated December 2, 1991, the issue presented is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses. The third attesting witness does not receive any disposition or appointment under the will.

The issue in this case is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses.

A New York Will Lawyer said the court in deciding the case said that, EPTL 3-3.2(a)(1) provides that an attesting witness to a will to whom a beneficial disposition is made is a competent witness who can be compelled to testify with respect to the execution of such will but that the disposition to the attesting witness is void “unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.” The purpose of the statute is to preserve the maker’s testamentary scheme to at least some extent by making all attesting witnesses competent while preserving the integrity of the process of will executions by removing the possibility that attesting witnesses who receive a disposition under the will might give false testimony in support of the will to protect their legacies.

Published on: October 24, 2013

Court Determines if Bequest to Decedents Friend is Void

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested proceeding to probate a will dated December 2, 1991, the issue presented is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses. The third attesting witness does not receive any disposition or appointment under the will.

The issue in this case is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses.

A New York Wills Lawyer said the court in deciding the case said that, EPTL 3-3.2(a)(1) provides that an attesting witness to a will to whom a beneficial disposition is made is a competent witness who can be compelled to testify with respect to the execution of such will but that the disposition to the attesting witness is void “unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.” The purpose of the statute is to preserve the maker’s testamentary scheme to at least some extent by making all attesting witnesses competent while preserving the integrity of the process of will executions by removing the possibility that attesting witnesses who receive a disposition under the will might give false testimony in support of the will to protect their legacies.

Published on: October 23, 2013

Will is Challenged for Lack of Due Execution

by Stephen Bilkis

A New York Probate Lawyer said this is a contested probate proceeding wherein the objectants, the decedent’s two grandchildren and sole distributees, move pursuant to CPLR 3212 for summary judgment denying probate to the propounded instrument dated 28 March 2007 based on lack of due execution. The proponent, the decedent’s niece who is the nominated executrix and sole beneficiary under the instrument, opposes the motion.

On 11 April 2007, the decedent died at a nursing home at the age of 87. She left a four-page, typewritten instrument that was witnessed at Kings Harbor Multicare Center, where the decedent was a patient, by two witnesses, contains an attestation clause, was prepared by an attorney who supervised its execution, and has a self-proving affidavit attached. It appears that the sole asset of the estate is real property where one of the objectants currently resides.

A New York Will Lawyer said the motion for summary judgment is based on only one of the three grounds interposed in the objections, namely, that the instrument was not duly executed, in that the decedent did not declare it to be her last will and testament in the presence of witnesses and that the witnesses were not aware that they were in fact witnessing the decedent’s will.

Published on: October 22, 2013

Court Decides Ownership of Real Property in Will Contest Proceeding

by Stephen Bilkis

A New York Probate Lawyer said this is a Supreme Court partition action commenced by the decedent’s surviving spouse, during the pendency of a probate or will contest proceeding in this court seeking, inter alia, a declaration that the decedent’s interest in certain real property passed to him by operation of law at her death was dismissed by the Supreme Court on the grounds that the real property at issue was devised in the decedent’s propounded will in a different manner and that the dismissal was without prejudice as this court was the appropriate forum to determine the respective ownership claims to the realty. It is apparent that the disputed interest in realty is the only potential asset of the testamentary estate, so if the spouse is successful, there is no practical reason to proceed to probate the propounded instrument.

A New York Will Lawyer said pursuant to CPLR 3212, the spouse now moves for summary judgment seeking a declaration that the decedent’s interest in premises 2426 St. Raymond Avenue, Bronx, New York, passed to him by operation of law pursuant to a deed dated January 30, 1995. The deed lists the grantees as A, B C and D. C is the decedent’s sister. In the propounded will the decedent purports to devise her half share and interest in the real property located and known as 2426 St. Raymond Avenue to the decedent’s sister and the decedent’s spouse, D, in equal shares. The co-tenants of the realty, C and D, and the nominated executor oppose the application. They contend that the decedent’s interest in the premises is held as a tenant in common and passes under the will. Consequently, they assert that one-eighth of the property passes under the will to the decedent’s sister and one-eighth to the decedent’s spouse.

On 16 December 2000, the decedent died. She was survived by her spouse, B, as her sole distributee. A Staten Island Probate Lawyer said the amended probate or will contest petition lists the realty as the only testamentary asset. It appears that unless the decedent’s interest under the deed was a one-quarter tenant in common interest, the decedent left nothing that passes under the will.

Published on: October 22, 2013

Plaintiff Moves for Summary Judgment Regarding Property Dispute

by Stephen Bilkis

A Bronx Estate Litigation Lawyer said that, plaintiff asserts that summary judgment should be granted in his favor. He was married to his wife in January of 1995. New York Probate Lawyer said that on January 30, 1995, property was purchased at 2426 St. Raymond Avenue in Bronx County and title was held by defendant his wife and, her husband. Plaintiff asserts that his wife passed away on December 16, 2000 and since plaintiff and his wife held the property as tenants by the entirety, upon the death of his wife, her interest transferred to plaintiff as a matter of law.

A New York Will Lawyer said that, defendants oppose the motion by plaintiff and assert that plaintiff’s deceased wife, in her Last Will and Testament, bequeathed her half share of the property equally to her husband, the plaintiff, and defendant. Moreover, her will provided that defendant must approve, in writing, any decision to sell said property. Therefore, defendants contend that plaintiff is entitled to a 3/8 share of the value of the property as is defendant. In addition, defendant provided all of the money for the down payment on the property including closing costs in the sum of $27,000 and she paid for all renovations made to the property in the approximate sum of $7,000. Defendants assert that if the property is partitioned and sold, she should receive credit for those payments. Defendants further contend that there is a probate proceeding pending in

A Bronx Probate Lawyer said that, Surrogate Court in Bronx County as to the same issues raised in plaintiff’s cause of action herein and Surrogate Court is the proper forum in which to determine this matter. Therefore, defendants assert that the instant matter should be dismissed in the interest of judicial economy.

Published on: October 21, 2013

Two Sons File for Accounting Proceeding

by Stephen Bilkis

This is an accounting proceeding wherein objections were filed by one of the two sons of the decedent who have equal shares in the residuary estate.

A New York Probate Lawyer said the issues presented before the court arise from a situation where an attorney-draftsman and his partner petitioned in the probate or will contest proceeding to be appointed co-executors, no objections to their serving in that capacity were filed in the probate proceeding and they continued to serve as co-executors without objection until the final accounting, at which time objections are raised to their request for two full executors’ commissions as well as attorneys’ fees. The objections to executors’ commissions and legal fees raise significant questions which no reported case has fully answered. The result hinges on the applicability of the precedents of Matter of Weinstock, Matter of Laflin and Matter of Harris to the facts of this case.

On 19 February 1985, the decedent died in his early nineties. He executed on 14 June 1983. A, a lawyer who had represented the decedent, was nominated as the primary executor. A New York Will Lawyer said the attorneys who are the accountants in this proceeding were named alternate co-executors. The will was admitted to probate on the waivers and consents of both of decedent’s sons. The primary executor renounced and both of the alternates, who are the sole partners of their law firm, qualified as co-executors of the estate. These attorneys have served as co-executors from the inception of the estate and have performed all of the legal services in the probate, tax and accounting proceedings.