New York City

Published on: October 9, 2013

Court Discusses Kinship Hearing

by Stephen Bilkis

This is a motion after a kinship hearing, holding that the entire distributable estate of a deceased woman should be deposited with one person. The complainant seeks to leave to present additional testimony.

A New York Probate Lawyer said the request for the alternative relief of reopening the hearing appears to present a case of first impression under the attorney-client privilege. The complainant contends that it is permissible for an attorney to testify about history statements made by the deceased woman to him when she consulted him for the purpose of preparing a last will. It is conceded that the consultation did not result in any last will being completed. Subsequently, an objection to the aforesaid offered testimony was sustained at the trial. The complainant’s position is that since the attorney is a disinterested witness, who is willing to testify about matters which will not reveal information of a confidential nature, the attorney-client privilege should not be utilized to seal his lips.

A New York Will Lawyer said sources revealed that the attorney-client privilege is the oldest of the privileges currently recognized.

Published on: October 5, 2013

Court Decides Validity of Will Instrument

by Stephen Bilkis

A New York Probate Lawyer said a man died with assets having a value of slightly less than $1,000,000, divided approximately equally between testamentary and non-testamentary assets. The proposed last will contains pre-residuary legacies to each of the man’s two nieces, his only successors, and to a friend.

The residuary estate is given in equal shares to two men, and their shares pass to their respective issue in the event they predeceased the deceased man.

Based on records, the main difference between the proposed last will and the deceased man’s penultimate will is that under the penultimate will, man B shared the residuary estate with man’s A’s mother and as the mother predeceased the deceased man and that last will did not contain an alternate disposition to her issue, man B would have been the sole beneficiary of the residuary estate under the penultimate will.

Published on: October 4, 2013

Court Discusses Putnam Rule in Will Contest

by Stephen Bilkis

A New York Probate Lawyer said that, in this probate proceeding, decedent’s will was previously admitted to probate by decree entered on April 15, 1983. These were dealt with on an interim basis by the decree admitting the instrument to probate prohibiting any distribution of the legacies which were then subjudice. A hearing with respect to those issues has now been completed.

A New York Will Lawyer said that, the decedent’s will was executed on November 18, 1976. She died on June 26, 1979, at the age of eighty-one years. At the time of her death, decedent was a resident of a facility named Fort Schuyler House, where she resided since 1974. In addition to a large number of general bequests to individuals and charitable organizations, the will contains a bequest in the sum of $2,000 to the wife of the attorney-draftsman of the instrument, a bequest of $3,500 to the Executive Director of the above facility at the time decedent resided therein, and a general legacy of $2,500 plus the entire residuary estate to the Assistant Executive Director of decedent’s residence until 1977. The attorney-draftsman of the instrument is the named executor. Decedent had never married and had no issue. Her distributees are eight cousins, all of whom reside in England. No objections to the admission of the propounded instrument to probate were interposed by any of decedent’s distributees.

A Bronx Estate Administration Lawyer said that, the legacy to the attorney-draftsman’s wife presents a simple fact question within the well established perimeters of the Putnam rule. The proof on this subject established that the attorney-draftsman was admitted to practice in 1932. He first met decedent in 1967. Initially, their relationship was social. It gradually became professional with the attorney-draftsman regularly handling such matters as preparing decedent’s income tax returns. In 1972, the draftsman prepared an earlier will for decedent. A copy of this will is in evidence, although the original was destroyed upon the execution of decedent’s present will. The 1972 instrument contains a series of general legacies to cousins of decedent, other persons and a long list of charities. The residuary estate is left to St. Barnabas Hospital. This hospital is reduced to a $2,500 legacy in the instant will.

Published on: October 3, 2013

Petitioner Alleges Legal Malpractice

by Stephen Bilkis

A New York Probate Lawyer said that, in this SCPA 2103 discovery proceeding, respondents, the two principals in a law firm, move under CPLR 3211 to dismiss the petition seeking damages against them for their alleged legal malpractice. The discovery petition alleges that decedent and her post-deceased husband had told movants that they had agreed not to revoke their wills and that the essentially reciprocal wills movants drafted for them, which were executed on May 25, 1983, failed to include the language required to make this agreement enforceable.

A Bronx Estate Lawyer said that, the decedent died on October 22, 1992 and her will executed on May 25, 1983 was admitted to probate. Inasmuch as one of the movants became the successor executor of decedent’s estate, replacing post-deceased husband after he died, one of decedent’s nephews (hereinafter, the “administrator”), a residuary legatee named in the will, petitioned for and received limited and restricted letters of administration pursuant to SCPA 702(9) so that he might commence this discovery proceeding against movants. Although several reasons have been advanced by movants for the dismissal of the petition, the primary ground is that the lack of privity between any legatee under decedent’s will and the movants precludes the legatees from recovering damages based upon movants’ alleged malpractice in rendering legal services to decedent in the drafting of her will.

A New York Probate Lawyer said that, under the 1983 wills drafted for decedent and the post-deceased husband, after the death of the second spouse, almost 100% of both spouses’ estates would have passed 50% to decedent’s five nieces and nephews and 50% to the post-deceased husband’s four children from a prior marriage. The discovery petition alleges that, after decedent’s death, movants drafted a new will for the post-deceased husband which he executed on February 8, 1993. Under this will, one of the movants was nominated as the executor, the first $1,600,000.00 of the estate was bequeathed to the post-deceased husband’s children and only 20% of the residuary estate was bequeathed to four of decedent’s nieces and nephews. The post-deceased husband died on May 27, 1993 and his will executed on February 8, 1993 has been admitted to probate. It appears that decedent’s estate administration has an approximate value of $425,000.00 and that post-deceased husband’s estate has an approximate value of at least $2,000,000.00.

Published on: October 2, 2013

Court Discusses Will Construction Statute

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested probate proceeding, the primary issue is whether the “within one thirty day period” for the completion of the will ceremony prescribed by EPTL 3-2.1(a)(4) commences on the date of the signature or the date of the first acknowledgment where the testator has signed the will prior to any acknowledgment of his signature. Although this appears to be a case of first impression, a literal reading of the statute coupled with its legislative history clearly indicates that the period does not commence until the first acknowledgment.

A Bronx Will Contest Lawyer said that, the propounded instrument is dated May 5, 1987. Decedent died on August 1, 1987. Two of the attesting witnesses executed their depositions in the Probate Department of the court. Each of them indicated that the other witnesses were not present when deponent signed the will as a witness and neither witness could pinpoint the date on which he or she had signed the will. One of the witnesses stated, “I do not know when I signed the will but I believe it may have been in July.” Their depositions raised serious questions not only as to whether more than thirty days had elapsed between the date that decedent had signed the will and the date that her signature was acknowledged to the second witness but also as to whether more than thirty days had elapsed between the acknowledgment of decedent’s signature to the first and second witness. Inasmuch as probate of a will may not be allowed unless the court is satisfied as to the validity of its execution (SCPA 1408), the matter was referred to the Principal Law Assistant to take testimony.

A New York Will Lawyer said that, two attesting witnesses and proponent testified. Proponent stated that, at the request of the decedent, on March 31, 1987 he delivered from a law firm to the decedent the will together with instructions for its execution. On the Saturday before Memorial Day, decedent returned the executed will. One of the attesting witnesses was positive that she was the first witness to whom decedent’s signature was acknowledged. This occurred, in May, 1987, most likely a weekday, perhaps on a Wednesday. The other witness who testified had to be subpoenaed. Although he had previously indicated that he did not “believe” that he had witnessed the will before July, 1987, he now testified that “I have no recollection when I signed the will, but if they are stating that they saw my signature in early May on that will it very well is possible that I signed it” then.

Published on: October 1, 2013

Court Rules on Probate Case Regarding Testamentary Capacity

by Stephen Bilkis

A New York Probate Lawyer said that, in this motion for summary judgment, the nominated executor under the propounded instrument dated January 14, 1949 seeks a judgment admitting the will to probate. The New York Province for the Society of Jesus (the Jesuits) is the sole beneficiary under the propounded instrument and the President of the Society is the nominated executor.

A New York Will Lawyer said that, the decedent died on December 28, 1986 at the age of 72. He was survived by two brothers, one of whom filed objections to probate. The objectant alleged that the instrument was not executed in accordance with the required statutory formalities, that it was a product of fraud and undue influence and that decedent executed it by mistake without having read it. The objectant subsequently died and his daughter, in her capacity as the executrix of his estate, was substituted as a party in his place. Movant contends that the objections fail to raise any legitimate factual issue as to the validity of the instrument.

A Nassau County Probate Lawyers said that the movant notes that a Jesuit is free to dispose of his property to whomever he wishes prior to taking his final vows. However, in conjunction with taking his final vows, which include a pledge to be completely dependent upon the Society, a Jesuit is required to execute a will leaving his entire estate to the Society. He is also required to execute other documents in which he represents that he does not believe that he presently owns any property and that, if he is mistaken in this belief, he shall give it to the Society. He also agrees to renounce any property that he might thereafter be entitled to receive by inheritance and that he will give to the Society any property thereafter acquired by gift or legacy other than by inheritance. Decedent entered the Society on February 1, 1932 and took his perpetual vows in 1934. It was not until January 1949, that he executed the propounded instrument, the other required documents and took his final vows.

Published on: September 30, 2013

Court Discusses Problem with Will’s Signature and Format

by Stephen Bilkis

In this probate proceeding, the propounded instrument upon its face raises a question as to its conformity requiring that a will be signed by the testator “at the end thereof”. A New York Probate Lawyer said in the instant instrument, the testatrix’s signature appears below that of the subscribing witnesses. The problem is compounded by the manner in which the testatrix misused a printed will form.

Examination of the printed form reflects that after utilizing the areas reserved for dispositive provisions and the designation of a fiduciary, the area for the testatrix’s signature is ignored and left blank, as are the blanks in the printed attestation clause. After the blank attestation clause appears the signature of two subscribing witnesses and their respective addresses. A New York Will Lawyer said that each of these subscribing witnesses appeared before the Probate Clerk and testified that at the time of execution they were shown an instrument, the decedent stated it was her will, she signed it in their presence and thereafter, in the decedent’s presence and at her request, the witnesses affixed their signatures to the instrument.

Beneath where there appear the respective signatures of the subscribing witnesses is a printed “Affidavit of Subscribing Witness.” This affidavit is filled in with the testatrix’s name as if she were a subscribing witness to her own will. The line at the end of the affidavit is signed by the testatrix and a notarization of her signature is on the instrument.

Published on: September 29, 2013

Court Hears Case for Will Contest Between Brother and Sister

by Stephen Bilkis

A son of the decedent, who is the objectant in a probate proceeding, petitions for the issuance of limited letters of administration to himself in order to obtain the decedent’s medical records and to commence an SCPA (Surrogate’s Court Procedure Act) discovery proceeding against the decedent’s daughter with regard to real property purportedly transferred by the decedent to her shortly after the decedent executed the instrument propounded in the probate proceeding. A New York Probate Lawyer said the daughter, who is the proponent of the instrument, filed objections only to that branch of the application seeking limited letters to commence the discovery proceeding. She argues that the son is going on a fishing expedition and any claim he might make concerning the realty transfer is barred by the statute of limitations.

The decedent died and was survived by the daughter, the petitioner and another son who post-deceased. A New York Will Lawyer said the executed propounded instrument gives the daughter a one-half interest in real property located in the Bronx, with the other half of that property divided equally between the two sons; however, a few weeks later, the decedent purportedly transferred the same property to the daughter and post-deceased son as joint tenants with rights of survivorship.

A Manhattan Probate Lawyer said limited letters of administration are issued pursuant to SCPA and in those instances where, as here, it is unlikely that the person who is the nominated or appointed fiduciary would pursue a claim either because it is against herself or against another party that the fiduciary would not be inclined to pursue.

Published on: September 28, 2013

Brother Battles Sister Over Father’s Estate

by Stephen Bilkis

A man died at the age of 71 years and his wife, who had been battling cancer, also died the day before his own death. The deceased man’s successors are his children.

A New York Probate Lawyer said at the examination, the ten passbooks, the deceased man’s hospital records, the deceased man’s spouse’s hospital records, and the man’s daughter’s examination in the contested probate proceeding were admitted in evidence. Almost the entire balance in eight of the accounts had been withdrawn shortly prior to the death of the deceased man and the entire balance had been withdrawn from two accounts.

The accounts were payable as to either the deceased man or his spouse or the survivor in trust for the man’s daughter, to either the deceased man or his spouse or the survivor in trust for their granddaughter, to either the deceased man or his spouse or the survivor in trust for the son of the deceased man and to the deceased man or his spouse or the survivor.

Published on: September 27, 2013

Petitoner Brings Will Contest Proceeding

by Stephen Bilkis

Two cases are before the court for resolution.

A New York Probate Lawyer said in the first case, the contestants in a will contest or probate proceeding of the Estate of A appeal from the order of the Surrogate’s Court, Kings County, entered on 9 October 1959 which denied their motion for the entry of an order denying probate to an alleged codicil in accordance with the court’s decision of 13 August 1957 or in the alternative, for summary judgment denying probate to said alleged codicil according to Rules of Civil Practice, rules 113, 114 and directed that the proceeding be placed on the calendar for a day certain.

The court affirms the order with one bill of $10 costs and disbursements, payable out of the estate.