New York City

Published on: July 21, 2012

Court Decides Ownership of Property Where Couple was Married Twice

by Stephen Bilkis

This case is being heard in the Special Term of the Suffolk County Supreme Court. The case deals with the will of Gladys Guernsey. The plaintiff in the case is the executor of the last will and testament of Gladys Guernsey, Patrick Beary. The defendants in the case are Leach C. Hoffman and James L. Guernsey. The judge overseeing the case is John P. Cohalan Jr.

Action

A New York Probate Lawyer said the plaintiff is seeking a judgment under Article 15 of the Real Property Actions and Proceeding Law. He argues that the estate of the decedent, Gladys Guernsey is the owner of three different parcels of real estate located in Lindenhurst, in Suffolk County, New York. The original testatrix in the case passed away on the 11th of July after beginning this action. Patrick Beary was named as executor and is substituted to complete the action.

Published on: July 16, 2012

Court Finds Clear Error in Will

by Stephen Bilkis

This is a matter involving the estate of Eugenia C. Herceg who is deceased. The petitioner is represented by the law firm of Levene, Gouldin & Thomas, with John H. Hartman for counsel.

Case Background

In the will of Eugenia Herceg there is a residuary clause that is dated the second of December, 1999. This clause states that at the time of her death all of the rest of her personal and real property the same will situate. There is no name of a beneficiary given. In all practicality, this residuary clause only refers to 10% of her estate as the other 90% of the estate is bequeathed to others.

Published on: July 15, 2012

Sibling Claims Decedent was a Victim of Undue Influence

by Stephen Bilkis

An 87 year old bachelor died on May 12, 1992. He had an estate that was worth $7,000,000. He left his estate to his sister, his brother and the two children of his brother who died before him. He also named the three children of his sister as his heirs. The sister was the named executor in the bachelor’s will.

She filed a petition for probate but this probate was opposed by the bachelor’s brother and his nephews. During the pendency of the probate proceedings, the sister died and in her own will, she named her son as the executor of her will and the executor of her bachelor brother’s will. The Surrogate Court granted letters testamentary to the nephew of the bachelor.

The crux of the issue in the probate proceedings is the testamentary capacity of the bachelor at the time of the execution of the will and whether or not undue influence was exerted by his sister so that he executed the will which is now being presented for probate.

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 15, 2012

Court Decides if Letters Testamentary Should be Issued

by Stephen Bilkis

A man who had three children by a first marriage married a woman who had five children of her own. When she married her husband, her husband sold the house he owned and moved into the house of his second wife.

Sometime in Aprill 22, 2009, the man died a month after he executed a will. In this will, he named his daughter by his first marriage and her husband as the executors of his will. The couple was the ones who presented the will for probate. And they also asked the probate court to issue letters testamentary in their favor in accordance with the provisions of the will of their father.

The second wife of the testator objected to the probate of the will on the ground that her husband has had two major strokes and numerous mini strokes all throughout his confinement in a nursing home just prior to his death. He was diagnosed to be suffering from dementia and so he could not have known or understood the contents of the will he purportedly executed.

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 13, 2012

First Wife Petitions Will

by Stephen Bilkis

A man married a woman sometime on February 11, 1921 while they were residents of New York state. A year later, the man filed a case for annulment of his marriage in King’s County. He claimed that the woman he married falsely represented herself. He court dismissed the petition for annulment of marriage.

Two years later, the wife had to be committed to a mental institution and declared as incompetent. She has been confined in a state mental institution from that time until the death of the man in 1954.

A New York Probate Lawyer said five years after the wife was declared incompetent and was ordered to be confined to a mental institution, the man filed another annulment action before the court. This time, the court granted his petition for annulment. The court’s grant of the annulment was conditioned on the execution of the husband of an undertaking to pay the state institution the sum of $7 weekly for her medical costs. The man never signed an undertaking to foot his ex-wife’s medical bills and the clerk of the court never entered the decision granting him the annulment of marriage he had prayed for.

Published on: July 9, 2012

Court Says Larger Estate Doesnt Justify Larger Fees

by Stephen Bilkis

A woman resident died on February 15, 2009, leaving a last will and testament dated June 28, 2007. She was survived by 19 statutory heirs, including four siblings and the 15 children of four predeceased siblings.

The last will and testament leaves all of the woman’s property in three equal shares, two of which pass to the woman’s sisters, the elder sister and younger sister. The will directs that the third equal share be paid over to the woman’s niece, who is the nominated executor and the petitioner. It makes no mention of the woman’s third surviving sister who suffers from Alzheimer’s disease. A New York Probate Lawyer said waivers of citation were filed on behalf of 15 heirs, and jurisdiction was obtained over the remaining three interested parties, including the third sister. None of the heirs raised will contests. Preliminary letters were issued to the petitioner on May 19, 2009 and the letters have been extended upon application.

The court appointed guardian on behalf of the third sister is a guardian for incompetent persons. His report reflects that the probate estate was valued at approximately $570,000.00 and that there were non-testamentary assets of $292,000.00, including $200,000.00 held in joint accounts which named the petitioner as the joint tenant. The guardian ad litem also discovered that the petitioner had established the joint accounts using a power of attorney executed by the woman. He further learned that the last will had been prepared on the basis of telephoned instructions from the petitioner to an attorney, and that the will execution had not been supervised by an attorney. Additionally, based upon information uncovered by the guardian ad litem, which included medical records, serious questions were raised concerning the woman’s competency at the time the will was executed.

Published on: July 8, 2012

Petitioner Files Application to Modify Trust

by Stephen Bilkis

The Facts:

On 13 April 1968, a woman (hereinafter The Decedent) died leaving a will. The petitioner, a Child Care Society (hereinafter Child Care Society), seeks to modify the decedent’s will to designate a Residence for Boys (hereinafter Residence for Boys) as a beneficiary of a testamentary trust (hereinafter Testamentary Trust) established under the decedent’s will in lieu of the petitioner.

On 16 January 1969, the will was admitted to probate (for estate litigation, estate administration or will contest). The will sets forth various charitable beneficiaries. Article Fifth of the will for which relief is sought bequeaths the entire residuary estate to a trust for the benefit of a Child Care Society. Article Fifth further provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. A New York Probate Lawyer said the Testamentary Trust has a remaining principal of approximately $90,000.

Published on: July 7, 2012

Court Decides Validity of Will

by Stephen Bilkis

The Facts:

On 11 March 2011, a decedent died testate at the age of 91. She was survived by one child. Under her will dated 18 November 2010, decedent gave her personal property to her child, $6,000 to Children International, $10,000 to another individual, the proceeds of an insurance policy to a trust created for the benefit of her two grandchildren, her child’s children, and disposed of her residuary estate in three shares, as follows: one share to the trust for the grandchildren; and the other two shares to a supplemental needs trust for the benefit of her child. A lawyer (“the Lawyer”) is the nominated executor and trustee.

Following decedent’s death, the lawyer filed a probate petition as a start of estate administration. The surviving child of the decedent is a person under a disability, having suffered severe strokes in September, 2010. Because the child’s interest is greater in intestacy, a guardian ad litem (“the GAL”) was appointed for her in this proceeding. Preliminary letters testamentary have issued to the lawyer.