New York City

Published on: April 1, 2012

Court Rules on Fees to be Paid to the Guardian ad Litem

by Stephen Bilkis

The decedent, a resident of Nassau County died on January 24, 2006 who on October 24, 2003 created the Revocable Trust U/A during which he executed his will now offered for probate. The instruments were drater by the long time attorney who supervised the execution of both documents. Bulk of the assets were transferred to the trust while he was alive, thus, the will is attributed as “catch all” document. The probates estate is counted at $10,000.00 while the trust holds asets is close to $1,000,000.00.

The guardian ad litem for the decedents daughter claims for his services in the amount of $2,828.00, he rendering 7.2 hours which shall be taken out of the estate. The statute governing the compensation of guardian ad litem provides tht fee is payable in the following consideration:

1. the estate

Published on: April 1, 2012

Court Decides Jurisdiction Issue of French Will

by Stephen Bilkis

This case started in 1951 when one of the heirs of the decedent applied for ancillary letters of administration concerning holographic will that was said to be executed in France. In his petition, it was alleged that the decedent was a resident of France who died in the same country and left properties within the jurisdiction of the New York court. The petitioner also alleged that the will was made according to French law and that the same was recognized and established accordingly under the laws of that country. This claim of the applicant for estate administration of the decedent became an issue particularly with regards to the claim of domiciliary. The question was put forward by the New York state Tax Commission and by another party who in the end filed a motion to stop the proceedings of the court. This latter party had an interest in the case because according to him, the decedent owed him money for the legal services he rendered and which amount he wanted to recover from the property of the decedent. It is worth noting that this same party is the executor named by the decedent in a will and a codicil allegedly executed by the decedent in New York. Thus, it appears the decedent executed two wills and a codicil while he was living.

While the question of the real domicile of the decedent was still pending, the executor pushed through with the estate litigation of the will and a codicil executed by the decedent. The executor named in the will declared that the decedent was a resident of New York at the time of his death. According to a New York Probate Lawyer, the proponent of both the will and the codicil, who is also the executor designated in the will, argued that he was obligated to apply for the settlement of the properties of the decedent because he truly believed that the decedent was a domiciliary of New York and that if the decedent indeed transferred his domiciliary to France, that he has no sufficient information with regards to that and adding further that he was not given the opportunity to establish the veracity of the later will which was probated under French law.

The proponent with his lawyer went to France and there gathered information regarding the domicile of the decedent and also talked to witnesses relating to the will that was executed there. Nassau County Probate Lawyers said it was in France that the proponent was able to claim the money that he wanted to get from the probate proceeding in New York. When he returned to New York, he moved that the probate proceeding be discontinued claiming among others that based on his findings, there is very little chance of them succeeding in proving the New York residency of the decedent and as such, there is no more reason for the proceeding to push through. The proponent also asked the court that the services of his lawyers be paid including the one that he contracted in France.

Published on: March 31, 2012

Court Hears Case to Validate a Will

by Stephen Bilkis

The last will is accepted for probate but the co-administrator requests a decision to dismiss the objections pertaining to the account of the first daughter of the deceased. The second daughter of the deceased and her co-administrator join in their appeals of while the first daughter opposes the motions. The separate motion submitted by the first daughter seek for partial decision without proceedings on her claim to enforce the terms of the deceased of a prior mutual reciprocal will and an agreement not to revoke it. The co-administrator as well as the second daughter opposes the motion.

The mutual reciprocal will was completed by the deceased and his wife. The couple agreed to leave each other’s one-half of their net estates in trust with the remainder of the trust to be passed on another trust in equal shares to their two daughters. A New York Probate Lawyer said their residuary properties are left in trust with equal shares to their two daughters until the daughters reached the age of thirty-five. On the same date, the couple also completed a separate agreement not to revoke their mutual reciprocal wills without the consent of each other. The agreement further states that it will result to the benefit of their heirs.

The parties agree that there are no factual issues to be determined and that the issue of law to be determined is whether the mutual reciprocal wills and the agreement are valid and enforceable to support the first daughter’s claim as a creditor for a one-half share of their father’s properties. Westchester County Probate Lawyer said that consequently, no trial is needed.

Published on: March 31, 2012

Court Determines Will Contest Issue

by Stephen Bilkis

An alleged will was found by the accused among the deceased person’s possessions. The document was signed by the deceased but the signatures of the witnesses are torn off and missing. The accused states that the attorney whose name appears at the back of the will does not remember having such document as the alleged will or attending on the execution of any will by the deceased. The complainant was named as the executor and sole beneficiary in the will. If the deceased is found to die without a valid will, her sole heir would be her sister, a Finnish citizen who resides in Finland and who intends to file a will contest. Records show that the probate will not be granted and the deceased died without leaving a valid will. Although it is possible that an investigation may reveal and proof may present that the will was validly executed and was not broken and torn by the deceased.

When the complainant learned about the will, his lawyer visited the accused person’s office and requested that the will be filed immediately as required by law. Since the complainant was anxious to file a petition for the validation of the said will, instead of merely filing the will, the accused filed the will on the same day that he filed a petition for the issuance of a ruling to show the reason why the will should not be admitted for validation. A New York Probate Lawyer said they also filed a petition for a ruling to admit the will for validation and directing the issuance of letters of administration to the executor who may qualify or to determine that the act of tearing caused the instrument to be revoked. If the court found that the will was revoked then as an alternative, the complainant request for the issuance of letters of administration to the accused. The accused takes the position that the will is not valid and validation will be denied. Together with the filing of the petition, the accused made a motion that temporary letters of administration be issued to him.

The complainant opposed the motion of the accused for the appointment of the temporary administrator and moved for an order to dismiss the petition to verify the will. He also requested for a further order to authorize him to petition the court to verify the said will. The accused person’s motion was granted and the complainant’s motion was denied. The order denying the complainant’s motion provides that the motion to dismiss the petition for the validation of the will or the alternative issuance of letters of administration to the accused is denied in all respects.

Published on: March 29, 2012

Courts Decide Will Contest Regarding German vs. American Wills

by Stephen Bilkis

This proceeding is about the two last wills made in different states by a deceased woman. The petitioner in this appeal requests for the validation of the will executed in 1955 while the deceased was in New York County. The petitioner as the representative in administering the assets leaves the residuary estate to a New York charity. The deceased traveled to West Germany in 1965 and executed again a holographic will in 1967. The will provides that it revokes all prior wills. The woman died in Germany in 1968. The respondent cross-petitioner is the deceased’s post deceased brother and is the sole successor under the later will. The latter will was established in the court proceedings in West Germany in 1972. The respondent cross-petitioner moved for judgment without trial to dismiss the petition and to deny probate to the prior 1955 will. In addition, the respondent filed a petition for ancillary letters on the basis of the 1967 will.

The court rendered a temporary decision holding the motion for the judgment without proceeding in suspending a trial to allow a full opportunity for each part to present proof and cross-examine each other’s experts on German law. A New York Probate Lawyer said the facts of the case were set forth in that decision and will be presented when necessary. The trial was held upon the issues of whether the German courts issued a judgment or an administrative certificate, whether the document issued by the German court contains a final ruling under the law or merely a pronounced determination and whether a finding of German residency was essential to the establishment of the will in Germany.

The court found that the legal order was rendered by courts of record in Germany in the establishment of the 1967 holographic will of the deceased. In addition, the certificate of inheritance issued by the District Court in Germany constitutes a final decree and not merely a pronounce determination. Moreover, finding of German residency was necessary to the establishment of the 1967 will in Germany. On the basis of the recognized rules, the court gives full acknowledgment to the establishment of the 1967 will of the deceased in the German courts.

Published on: March 29, 2012

Court Decides if Petition for Preliminary Letters Shoud Be Granted

by Stephen Bilkis

On 28 October 2006, the decedent died leaving a will dated 27 April 2006. The will nominates two (2) executors. Thereafter, one of the executors renounced his appointment. The decedent was survived by his two adult children.

Under the will, the entire residuary estate is left to the decedent’s companion and the decedent’s children are disinherited. One of the named executors (petitioner) now petitions for preliminary letters testamentary.

The primordial issue (in the estate litigation) is whether or not the petition for preliminary letters should be granted.

Published on: March 28, 2012

probate

by Stephen Bilkis

A husband and wife were American citizens domiciled in Israel. The wife executed a will on January 12, 1987 and died on February 25, 1991 in Israel. The husband executed a will on January 14, 1988 died April 11, 1991 also in Israel.

The wife’s will provided that her entire estate will be left to her husband. She also provided that if her husband died before her, then her estate will be executed by her eldest daughter. The estate will then be equally shared by her eldest and middle daughter. Her youngest daughter will only receive $1.

The husband’s will made his wife and his eldest daughter his sole distributees. The husband’s will was probated in Israel in 1991.

Published on: March 28, 2012

Court Rules on Will Jurisdiction Issue

by Stephen Bilkis

An American citizen domiciled in France died leaving behind bank accounts in New York worth less than $1,000.00, real properties worth a few hundred thousand dollars in France and almost a million dollars worth of money and personal property in Switzerland. At the time of his death he was married to a French national and they had one minor child. Prior to his death in 1972, the decedent executed a will sometime in 1970 in New York and this same will was presented for probate by two persons who were not main parties to the case. The New York will stated that half of the entire estate of the decedent must go to the wife and the other half should be held in trust in favour of the minor child. The will specifically directed that the same should be probated in New York.

It was also learned that aside from the will executed in New York, the decedent also executed a deed of donation which will specifically take effect upon his death. This deed of donation was executed in 1972, or 25 days before the death of the testator/Donor and in front of a notary public in France. The deed directed that all the estate of the testator be disposed and transferred in favour of the surviving spouse with a proviso that the minor child’s legitime be protected under French law. The deed of donation then is contrary to what the 1970 New York will provides.

Upon the death of the decedent, a proceeding was instituted in the court of New York for the disposition of the properties of the decedent according to the will executed in New York and at the same time a litigation is also pending and awaiting trial in France disputing the validity of the deed of donation. A New York Probate Lawyer said the proponents of the New York proceedings argued that the New York will should be given preference and that New York law should be applied in distributing the properties of the decedent. They also brought to the attention of the court that there was a pre-nuptial agreement between the spouses limiting the share of the wife to $10,000.00 in case of the husband’s death and that there was agreement between them that the laws of New York should be applied in the distribution of his estate.

Published on: March 27, 2012

Court Discusses Will Contest between Son and Stepmother

by Stephen Bilkis

In legal action arising out of a dispute between the individual plaintiff from New York and his stepmother from Florida with regard to the ownership of corporate stock in a New York corporation, the plaintiffs appeal from an order of the Supreme Court, New York County, and a judgment which granted four motion of the defendants to dismiss the action on the grounds of inconvenient forum. The stock in question had been owned by the father of the plaintiff from New York and the husband of the stepmother from Florida. The couple together had owned and managed the corporation for many years. In a will, the husband bestowed to his wife the corporate stock that had been bestowed to the son in a prior will. It was the offering of the August 1980 will for probate in a Florida court. Objections on the Florida validation had been interposed by the son on the grounds that his father had been incompetent and the subject of undue influence by his stepmother that led to the commencement of the lawsuit in January 1983. Although phrased alternatively, and in some respects inconsistently, the six causes of action set forth in the complaint all rest on the essential claim that at the time the father retired from the corporation, he had entered into an agreement with the son with regard to the disposition of his stock in exchange for the son’s promise alleged to have been fulfilled.

The said agreement states that the son would receive stipends for the rest of his life. Summarized briefly, the complaint alleges that the father had promised to sell and deliver his shares to the corporation and in fact did so, and that the corporation should be declared the lawful owner. That if it be found that the father had not delivered his shares in accordance with his agreement the plaintiffs are entitled to specific performance. That alternatively, the father had promised to bestow the shares to his son in a will, which he would not alter until his death, and he in fact made such a will, the revocation of which in the 1980 will constituted a breach of the agreement. That if at the validation proceedings the will is rejected and the father is deemed to have died without a valid will or under a will not containing endowment of the stock to the son, the plaintiffs are entitled to specific performance. That if declaratory or specific performance relief is not granted, damages should be awarded to the son from the stepmother in the amount that had been paid by the father under the stipend agreement because of her alleged tortious interference with the agreement between the father and his son.

Lastly, that the stepmother and several of the other individual defendants, joined together to cause the father to breach his agreement, activities in furtherance of this plan occurring both in New York and Florida, and that the plaintiffs are entitled to damages in the amount of the stipend payments that had been made to the father.

Published on: March 26, 2012

Court Listens to Jurisdictional Challenge of Will

by Stephen Bilkis

An appeal on the ruling on the last will and testament of a deceased woman was filed in the Surrogates’ Court of Eric County. In the first appeal, the respondents appeal from a ruling admitting the last will and testament of the deceased who is a resident of Vermont to original validation and granting letters of administration and letters of trusteeship to the petitioner. In the second appeal, the respondents appeal from an order that dismissed their challenge to matter of jurisdiction of the Surrogate’s Court to the validation of the deceased woman’s will. In the third appeal, the respondents appeal from an order that denied their motion for leave to renew the jurisdictional challenge that was dismissed by the order in the second appeal. The order in the third appeal superseded the order in the second appeal therefore the second appeal must be dismissed. In the third appeal the Surrogate erred in denying the respondents’ motion for leave to renew and upon renewal, should have declined to exercise jurisdiction over the property of a nonresident and granted the respondents’ motion to dismiss the petition. The findings and order of the Vermont Probate Court accepting original jurisdiction over the property constitute new or additional facts that were unavailable at the time of the original challenge and that would change the prior determination.

Turning to the merits of the ruling in the first appeal and the order in the third appeal, it is firmly established in New York that jurisdiction over the property of a nonresident should not be transferred from the resident of the person who made the will unless it is required by some vital rule of law. Further, the Surrogate’s Court may exercise jurisdiction over a nonresident deceased person’s property when the deceased leaves the property in the state. A New York Probate Lawyer said that in determining whether to accept an application for original validation of a will of a nonresident which has not yet been admitted for validation in the deceased person’s residence, a court should examine the nature of New York’s contacts with the deceased and her property, including the location of the assets, the residence of the nominated executor and beneficiaries, the expense of proving the will in the residence of the deceased, the deceased person’s request, if any, for New York validation and the good faith of the proponents. The court should also consider what weight should be given to the fact that the residence of the deceased has already assumed jurisdiction over the property.

The petitioner contends that the Surrogate properly exercised jurisdiction over the property of the deceased based on the exercise in her will of certain limited powers of appointment over two trusts established by her predeceased husband for her benefit. Bronx Probate Lawyers said the property includes a trusts owned property situated in New York and ownership of three bank accounts allegedly located in New York. Contrary to the petitioner’s contention, the assets of the trusts were never the deceased woman’s property and thus are not for validation assets located in New York sufficient to grant jurisdiction in New York over the deceased woman’s property. It is well established that the property in a trust remains the property of the benefactor until it absolutely entrusted in some person or corporation and that a beneficiary with a power to appoint by will is a mere representative of the benefactor. Thus, when the deceased exercised the powers of appointment gave her by the terms of the trusts in favor of other trusts established in her will, she was not disposing of her own assets but, by authority bestowed upon her by her husband, she was disposing of property which never lost its identity as part of the trusts’ property.