New York City

Published on: April 22, 2012

Guardian Charged with Gross Negligence

by Stephen Bilkis

A guardian for an old man is accused of gross negligence, malpractice, inaction, unlawful and breach of authority relationship regarding his conduct and/or lack thereof in exercising a certain right of election on the old man’s behalf against the last will and testament of his deceased son.

The claim for compensatory and disciplinary damages results, allegedly, from the defendant’s failure as guardian of the father to have taken steps necessary to have enabled his ward to exercise his personal right of election against an excessive testamentary gift for educational purposes. While this probate proceeding concerned the will of the son who died, the facts herein involved concern the estates of three deceased because, as will appear more fully below, soon after the son died, the mother died and shortly thereafter, the father died.

Under the son’s will, the father, at the time of the son’s death, then over 90 years of age, was one of the son’s two beneficiaries, the other being the mother. The petition for validation of the son’s will was later amended to describe the father as being then a person under disability because he was incapable of managing his own affairs and a request made, in view thereof, for the appointment of a guardian to protect the father’s interests in his son’s estate. By order the then Surrogate appointed the defendant as guardian for the father in the validation proceeding of the son’s will. Parenthetically, the defendant was a long-time friend of the family. In the proceeding, the mother was separately represented by independent counsel.

Published on: April 21, 2012

Widow Thinks Estate Taxes Should Not be Taken Out

by Stephen Bilkis

This case involves the estate of Mr. Frank Wolf. The petitioner is the administrator of the estate, Betsy Wolf. Ethel Wolf is the respondent.

The Estate

The case involves the will of Mr. Wolf. Most of his property was left to his mother, while nothing appeared allocated for his wife. There was also no mention of estate taxes.

Published on: April 20, 2012

Petitioner Files Will Contest Due to Competency of Testator

by Stephen Bilkis

Relative to the petition for probate, the guardian ad litem for the decedent crafted and negotiated the stipulation of settlement of estate was filed before the court for review. The factual circumstances of the case rooted from the time the decedent, a resident of New Hyde Park, Nassau County died on February 15, 2009 leaving a last willl and testament dated June 28, 2007. She was survived by 19 distributees including siblings and the children of four predeceased siblings.

The will leaves all the property in three equal shares, i.e. two to the decedents sisters and the third to the decedent’s niece without mention of the other surviving sister who suffers from Alzheimer’s Disease in whose favor the court appointed a guardian ad litem. Consequent thereto, the 15 distributees filed no objection to the will and preliminary letters issued to petitioner on May 19, 2009.

The will was contested as its execution which was not supervised by an attorney was made through a telephone call from the decedent’s niece herein mentioned and to which issues were raised concerning the competency of the testator at the time of the execution.

Published on: April 20, 2012

Will is Contested Based on Lack of Capacity of Decedent

by Stephen Bilkis

An 87 year old deceased rich man who was never married and had no children had invested wisely and left a non-specific estate of over $7,000,000. His latest will executed left his residuary estate in equal shares to his sister, his brother, two children of his predeceased brother and his sister’s three children — the eldest son, the younger son and a daughter. His sister was named as executor however she died before her brother. His sister’s younger son is the successor executor. His nephew filed a petition to validate the 1988 will and was appointed as preliminary executor. Objections were filed by the deceased man’s brother and the two children of his predeceased brother. The objections alleged lack of authority capacity, fraud and undue influence.

In January, 1989, he was taken to a clinic after becoming dizzy and falling. In April, 1989, he had a stroke. He was seen by the doctors at his clinic, who documented the deterioration of his mental condition. In January, 1990, he established a trust for his sister and her children and ultimately transferred over $1,500,000 to it. In December, 1990, he was found wandering in the Bus Terminal. The nephew arrived at the terminal and returned his uncle to his apartment. However, he was soon discovered walking outside his apartment in his underwear. he police took him to a hospital, where tests showed organic brain syndrome of the Alzheimer’s type. He was placed in the Nursing Home for Adults, an adult care facility. Queens Probate Lawyers said he was hospitalized again where he was diagnosed as having advanced dementia and atrophy of the brain. He was discharged to an adult health care center. The other nephew brought a proceeding to be appointed his uncle’s conservator. He and another uncle were appointed as co-conservators. The rich man’s brother arranged for his brother to be transferred to a facility in California, where he died a few days later.

The objections to probate were tried before the Surrogate in a non-jury trial. The trial lasted nine days and was vigorously challenged. Based on the record, the Court found that the deceased rich man lacked the ability to execute a will in 1988. It further found that he was susceptible to undue influence due to his weakened physical condition, that his sister’s relationship with him was motivated by her interest in his money. It is further found that there was a confidential relationship between him and his sister created by her control over his finances. Critical to the finding that his sister had actually exercised undue influence over him in the will contest were the findings made by the Court that prior to 1986, he had given only small gifts to family members but that after his sister began to exert influence over him, he transferred almost $2,000,000 to trusts for the benefit of her children and that she signed checks to each of her children from an account he established. The nephew does not dispute receiving the money, but argues that he had no knowledge of any impropriety.

Published on: April 19, 2012

Court Decides Jurisidiction for US Citizen with Properties in South America

by Stephen Bilkis

A rich man died leaving several properties in Central America and two States in the U.S. Almost two and one-half years later, a petition was filed in the court of a U.S. State by the Country of the deceased man for the order which is alleged to have been destroyed after the man’s death. That petition contains the further allegation that the man was, at the time of his death, a resident of the Country from Central America. The petition was amended in which the petitioner set forth transactions and proceedings with U.S. State Tax Commission wherein the petitioner was advised of the Commission’s disagreement that the man had been a resident of the U.S. State. The petition was thereupon amended to read that the man, at the time of his death, was either a resident of the U.S. State or a resident of the Country from Central America.

The petition against the U.S. State was to dismiss their petition for the probate of the will on the grounds that the involved U.S. State court has no jurisdiction to entertain the proceeding and if it has jurisdiction, that it should decline, in its discretion, to exercise it. The Petitioner Country requests a hearing on the matter of the deceased person’s residence and the location of his property.

A New York Probate Lawyer said that tax Law requires that in every proceeding for original letters appointed by in the estate of a non-resident deceased person, the State Tax Commission must be cited as a necessary party. The section contains other provisions to protect the State’s interest with respect to the collection of any tax that might be payable. The petition herein having been amended so as to leave open the question of the man’s residence, the State Tax Commission is taking no active part in the process of the proceeding. It is obvious, therefore, that the amendment of the petition represents not so much a change of mind on petitioner’s part but rather an effort to avoid at this time unnecessary legal action.

Published on: April 18, 2012

Heir Brings Will Contest Action

by Stephen Bilkis

A woman died and signed a will two days prior to her death. The will state that she left her entire estate to one man. But, she did have another will dated many years prior to her death. It states that she left her assets to her brother and sister, unfortunately they did died already, and it says if they died partial of the assets will be preceded to one of the Catholic Congregation and the remainder to her cousin and his wife.

The man filed a civil case to validate the earlier will, to which the other heirs from another will filed an objection. The eight day trial resulted on a denial to the motion, by which the jury found that the deceased person doesn’t have the legal ability to make a will and it was only done by influence. A New York Probate Lawyer said the man requests a higher court to review the lower court decision and again denied. The heirs of the late will filed a petition to legally validate it. They issued temporary letters and no objection has been filed. And the other man from earlier will seeks leave to file objections to the late will, a stay to pending appeal and an order requiring the temporary administrator to file a bond pending appeal.

Based on records, in order to file objections, the prospective objector must have an interest in the properties that would be adversely affected by the admission of the will to attest. The man argues that he has standing because he has an interest in the properties and would be adversely affected by validation of the late will. And, as an appellant, he has contingent interest in the properties. However, this is not sufficient to file objections. The adverse consequences must be the direct result from the admission of the will to validate. It is clear that the man is not adversely affected by the validation of the late will. A Bronx Probate Lawyer said the only ground on which he can objects to the validation of the will is that there is a valid later will, which is the earlier will. However, the argument has already been determined in the prior trial and been rejected. He also argues that the court should permit him to intervene under its discretion to permit any party with a fair or slightly possible financial interest to intervene.

Published on: April 17, 2012

Court Decides if an Executor has the Right to Request a Discovery Proceeding Regarding Property

by Stephen Bilkis

The issues being raised in this estate case have two aspects. One issue talks about the objection of probate on the last will and testament of the deceased. Another issue raised on the case was whether the main executor of the will had the right to request for discovery proceeding concerning the property owned by another party.

Before the writer of the will and testament passed away, he drafted an instrument which states that all his property should go to his niece. The niece named on the will becomes in effect the executor of the will.

A New York Probate Lawyer said a few months after the drafting of the first instrument, the decedent had allegedly turned over a deed of one of his real properties to another party other than his niece by marriage. However on the same day, the decedent drafted an instrument and identified it as his last will and testament. According to that instrument, it would revoke or reverse all wills drafted prior to the recent one. This includes the first draft that named his niece the sole executor of his estate.

Published on: April 16, 2012

Court Decides if Signed Waiver and Consent to Probate is Valid

by Stephen Bilkis

A man who died in New York City was survived by two brothers. One lived in Endicott and the youngest in Pennsylvania who drove to Endicott and arrived in the evening to attend his brother’s funeral the following day.

Prior to the funeral, the youngest brother suggested that arrangements be made to read the will soon. Shortly after the funeral a conference was held at the Trust Company. Present were the two brothers, the executive vice-president of the Trust Company; the counsel for the Trust Company; and an associate attorney with his father-in-law.

A New York Probate Lawyer said the testimony concerning what occurred at that conference is completely contradictory. Postponing for the moment a discussion of the completely opposing testimony, it is agreed that both the living brothers each signed a form of Waiver and Consent to Probate. These waivers were retained by the father-in-law of the associate attorney.

Published on: April 16, 2012

Court Dicusses Validity of Joint Will in Light of Recent Divorce Proceeding

by Stephen Bilkis

A couple executed a Joint Will that will make whoever is the survivor among them as the one to be given the entire property whether own individually or several and be the executor of the irrevocable Joint Will. The Joint Will further provided that whatever remained after the death of the survivor would be distributed to a trust, with equal shares of the trust to be allocated among their grandchildren and one of their children, their daughter. The Joint Will’s terms state that it is forever binding, and may be revoked or modified only by a writing subscribed by both parties and executed with the formality of a Will.

A New York Probate Lawyer said that approximately 8 years after the execution of the Joint Will and after approximately 50 years of marriage, the couple was divorced by judgment dated April 6, 2001. Several months before, apparently in anticipation of the divorce, the couple reaffirmed the Joint Will by executing a Marital Settlement Agreement, the terms of which were incorporated into the divorce judgment. The agreement stated, in pertinent part, that neither party would attempt to revoke the Joint Will, and provided quit claim deeds granting sole title of their condominium to the husband and sole title of their other condominium to the Wife. No further action was taken by either the Wife or the husband regarding the Joint Will.

In 2006, a NY Probate Lawyer said the Wife established her 2006 Irrevocable Trust, the body of which was her condominium. The Wife and her son-in-law were named as the trustees.

Published on: April 11, 2012

Court Conducts an Accounting Proceeding

by Stephen Bilkis

Before the Nassau County Surrogate Court is the Public Administrator’s motion to dismiss the objections in a contested accounting proceeding.

The woman decedent, a resident and domiciliary of Nassau County, died testate. She was survived by her daughter and three sons.

Decedent executed a last will and testament bequeathing her residuary estate equally among her four children and appointed one of her son as executor. The son-executor filed a petition for probate of the will and for letters testamentary. Decedent’s daughter and executor were each represented by counsel while the other two sons appeared personally in the probate proceeding. The other children of the decedent objected to the appointment of the executor. The beneficiaries entered into a settlement, in open court, for the probate of the will and that they would appoint the Public Administrator as administrator of the estate. The will was admitted for probate and, at the same time, letters of administration were issued to the Public Administrator.