New York City

Published on: October 20, 2013

Court Rules on Petition to Sell Estate Property

by Stephen Bilkis

A New York Probate Lawyer pursuant to SCPA Article 19, the executrix, the decedent’s sister, commenced this proceeding for an order allowing her to sell mortgaged real property allegedly belonging to the estate so that she may reimburse herself and another distibutee for various estate administration and other expenses. There was no appearance in opposition on the return date of process. One of the respondents, the former lender and mortgagee of the property, A, however, moves for an order excusing and vacating its default in answering and granting it leave to file late objections. Upon the grant of such leave, A also seeks summary judgment dismissing the petition interposed against it asserting, inter alia, that it is not the real party in interest.

A New York Will Lawyer said that on 22 November 2004, the decedent died leaving a will which was admitted to probate by a decree entered 23 December 2005, specifically devises certain real property in the Bronx to her three children, in equal shares as joint tenants with the right of survivorship. The executrix alleges that sometime after the decedent’s death, but prior to the issuance of letters testamentary, two of the three children recorded a deed to themselves of the real property which previously was held in the decedent’s name alone, and then reconveyed that realty so it was held solely in the name of one daughter, enabling her to borrow against and mortgage the realty. After that, the executrix commenced an action in the Supreme Court, Bronx County with Index No. 20710/2006 seeking, inter alia, to void the deed and cancel the mortgage, and she then commenced this proceeding based upon an executor’s deed she filed with the Bronx Registrar of Deeds and Office of the City Register.

The mortgage states that A is the lender and, for purposes of recording the mortgage, B is the mortgagee of record and is acting as nominee for Lender and Lender’s successors and assigns. The executrix contends, inter alia, that the mortgage is invalid because the daughter who gave it and obtained the loan from A did not have full title to the property. In addition to the three children and A, process was served on a title insurance company and B. Manhattan Probate Lawyers said that after defaulting on the initial return date of process, A served and filed its instant motion seeking to excuse that default and related relief, including summary judgment dismissing the petition against it. In support of its contention that it is not the real party in interest, A annexes various documents to establish that it sold the loan to another entity. A also objects to the sale of the realty on various grounds.

Published on: October 19, 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 Bronx Estate 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.

A New York Will Lawyer 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 18, 2013

Petitioner Files Claim 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 Staten Island 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 17, 2013

Court Discusses Potential Statute of Limitations Issue

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 Nassau County Probate Lawyers 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 16, 2013

Court Decides Validity of an Election under Decent Estate Law

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding to determine the validity of an election under subdivision 7 of section 18 of the Decedent Estate Law.

The court is faced with the issue of whether or not under the circumstances herein, the respondent has lost his right of election by reason of his failure to serve the notice upon the executor personally and by failing to file and record it in the court as expressly required by statute.

A New York Custody Lawyer said on 17 November 1947, the testatrix died a resident of Bronx. She was survived by her husband and eight children, one of whom is an infant. On 20 April 1948, her will was admitted to probate in this court and letters testamentary was issued on the same day to one of her sons.

Published on: October 15, 2013

Court Rules on Case Involving Attorney Client Privledge

by Stephen Bilkis

A New York Probate Lawyer said that in this proceeding, the court is faced with the primary issue of whether or not the respondent may be compelled to produce at her examination before trial petitioner’s own wills and trusts or whether or not the attorney-client privilege or the confidential, ambulatory nature of the will of a living person protects these documents from disclosure.

The court rules that these documents are not protected by the attorney-client privilege. A New York Wills Lawyer said the confidential nature of these documents, however, dictates that disclosure should be compelled only upon a strong showing of necessity. In this case, the court finds that a limited disclosure is appropriate to enable the petitioner to properly prepare for trial.

The petitioner in this case is the decedent’s sister who commenced this proceeding to set aside and declare invalid a lifetime trust created by the decedent and two wills which were executed respectively on the date that the trust was created and the date that the trust was amended. Petitioner moves for the entry of an order directing that the decedent’s other sister, the respondent, to produce her previous and existing wills and/or trusts and any of her wills and/or trusts prepared by Atty. RL or his office. On the other hand, the respondents have cross-moved for a protective order with regard to the requested disclosure and for an order dismissing that branch of the petition seeking to declare the decedent’s wills invalid.

Published on: October 14, 2013

Court Decides if Testamentary Trustee Can File a Bond

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner, the nominated trustee of the trust created in the residuary clause of decedent’s will, requests that an order be entered modifying the probate decree by deleting the direction therein that he file a surety bond in the sum of $227,000.00. The initial question to be answered is whether the court has discretion under the provisions of SCPA 801(1)(c) and 806 to dispense with the requirement that a testamentary trustee file a bond notwithstanding the absence of a direction in the will exempting the trustee from this requirement. Of course, if the court has this discretion, it must be determined whether this is an appropriate case in which to exercise it.

A New York Will Lawyer said that, with the exception of a contingency not pertinent to this application, decedent’s son is to receive one-third of the net income from the residuary trust until he attains the age of 58, at which time he shall receive all of the principal and accrued interest. The principal shall be paid to the son’s issue in the event that he dies prior to attaining the age of 58. Petitioner is nominated as the executor in one paragraph and as the trustee in the following paragraph. The first of these paragraphs also nominates an alternate executrix and specifically directs that neither the executor nor the alternate shall be required to file any bond. The next paragraph fails to name an alternate trustee and is silent on the subject of whether the trustee must file a bond.

A Long Island Probate Lawyers said that, petitioner alleges that he is the chief financial officer of a corporation, that his children considered decedent “as a grandfather rather than a friend” and that decedent “would have dispensed with the requirement of a bond had he known the cost” because he had “the utmost faith” in petitioner’s “abilities to administer the trust”. Inasmuch as petitioner also alleges that the annual cost of the bond is “in excess of $700.” and that the cost over the potential lifetime of the trust would be “over $10,000”,it appears that the son will be 58 in approximately 14 years. In any event, the son has filed an affidavit in support of the application. He states that he has two infant children, that he is going through an acrimonious divorce, and that he has serious financial problems. He concludes that the cost of the bond “is wholly unnecessary and a waste of money”.

Published on: October 12, 2013

Court Discusses the Rule of Perpetuities

by Stephen Bilkis

A New York Probate Lawyer said that a woman died on March 1, 1968 and her will dated October 8, 1958 was admitted to probate on March 20, 1968. On August 29, 1968, the appellee filed his petition for construction and revocation wherein he renounced any disposition and bequest made to him under said will and wherein he petitioned that paragraph FIFTH of the will be revoked and declared invalid. On September 18, 1968, the appellant as respondent filed his answer to said petition;

On December 19, 1968, the appellant filed his amendment to said answer which amendment embraced a revocable designation by a man of those relatives and corporations which were to take the principal of the trust at its termination. A New York Will Lawyer said this designation was executed on September 3, 1968.

On October 22, 1969, the distinguished probate judge entered his order adjudicating paragraph FIFTH to be null and void as violating the rule against perpetuities. The said order also held that the power of appointment given to the man could not be exercised until the death of the brother and that man’s attempt to do so was void. The trial court found it unnecessary to decide the question of whether the power was impossible of performance because of ill-defined, vague and ambiguous classes of recipients described therein. This latter question formed the basis of the appellee’s petition; the rule against perpetuities not being raised therein.

Published on: October 11, 2013

Court Discusses Validity of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, petitioner-appellee, instituted a proceeding in the county judge’s court, seeking construction of the will of the deceased as to her rights under that instrument. She asserted her status as surviving pretermitted spouse of the deceased and alleged that she was entitled to distribution of the estate as if the deceased had died intestate, or distribution as his sole surviving heir-at-law. A Bronx Probate Lawyer said that, the probate court, after hearing, entered the order appealed from, adjudging that the petitioner, as the surviving pretermitted spouse, was the sole distributee of the estate and that she should receive that portion of it which she would have received had her husband died intestate.

A Bronx Estate Administration Lawyer said that, the Will in question, dated February 9, 1955, was admitted to probate November 18, 1959, and petitioner was appointed as Administratrix Cum Testamento Annexo on January 29, 1960. At the hearing, she was the only witness to appear before the court. The estate was valued at approximately $114,000.00. There were no lineal descendants, the only blood relative of deceased being a sister.

A New York Will Lawyer said that, the testator, in the will, directed that he be interred near the remains ‘of my beloved wife, with terms of endearment being employed elsewhere in the will in reference to her. One of the bequests in the will gave: ‘(d) the sum of Thirty Thousand ($30,000.00) Dollars to the petitioner, now residing at 2610 Grand Avenue, Bronx, New York.’ The person bequeathed was one and the same person as the petitioner. Other bequests in the will ranged from $2,000.00 to $25,000.00 left to various friends of testator, to his sister, and to nine different charitable institutions.

Published on: October 10, 2013

Court Discusses Insurance Claim for Real Property

by Stephen Bilkis

Respondent Estate Company is the owner of commercial rental property located at 33 West 19th Street in Manhattan. Respondent had a commercial property insurance policy with appellant Insurance Company which included “Builders’ Risk Coverage,” covering damage to its property while undergoing renovation. A New York Probate Lawyer said that during the policy period, the roof of its building was opened in order to perform construction work. Inclement weather caused rain to enter the building through the roof opening, resulting in extensive damage to the property.

A New York Estate Lawyer said that, shortly after the occurrence, respondent claimed it promptly notified appellant of the loss. According to the respondent, however, appellant failed to investigate or adjust the claim until several weeks later. A New York Estate Litigation Lawyer said that, Appellant then denied the claim three months after that, stating that respondent’s loss was the result of repeated water infiltration over time and wear and tear rather than from a risk covered under the builders risk policy provision.

A New York Will Lawyer said that, respondent commenced this action against appellant, alleging that it breached the insurance contract by failing to properly investigate the loss and denying the loss as not covered under the policy. Respondent sought both direct and consequential damages that it claimed stemmed from appellant’s breach.