Wills

Published on: March 12, 2014

Court Decides Case Regarding Submission of Final Decree

by Stephen Bilkis

A New York Probate Lawyer this contested probate proceeding the attorneys for the executor, on submission of a final decree for probate, seek an allowance in the amount of $20,000 for attorneys’ fees, to be charged personally against the respondent pursuant to SCPA 2302(3)(a). Respondent likewise seeks an allowance in the amount of $20,000 for expenses incurred in the contest.

A New York Will Lawyer said that this proceeding involved the probate of an instrument dated June 2, 1977 and a codicil dated August 11, 1977, both of which were offered for probate by the decedent’s stepson. The earlier instrument names respondent as executor and trustee. The second instrument names the respondent as executor and trustee, and five alternate executors.

Brooklyn Probate Lawyers said it is undisputed that respondent was the attorney-draftsman of both instruments as well as a witness to the instruments along with his wife. All of the competent beneficiaries consent to probate of the will and codicil and the guardian ad litem for one of the decedent’s daughters has filed a report stating that he can find no basis for objecting to the validity of the instruments.

Published on: March 11, 2014

Court Discusses Appointment of Guardian Ad Litem

by Stephen Bilkis

A New York Probate Lawyer said in this probate proceeding, the guardian ad litem for the decedent’s minor children has submitted a preliminary report wherein she recommends that the purported will be admitted to probate if construed and/or reformed as suggested in her report.

A New York Will Lawyer said that the decedent died in June 2006, a resident of Nassau County. The decedent was survived by her husband and her two minor daughters. The will offered for probate is dated October 20, 2000. The will nominates the decedent’s husband as executor. Preliminary letters testamentary issued to the decedent’s husband on June 21, 2006. The gross testamentary estate is valued between $10,000,000 and $15,000,000.

A Long Island Probate Lawyer said the purported will disposes of the residuary estate in two parts, Fund A and Fund B. Fund A is given to a trust for the decedent’s husband for his life with the remainder payable to the decedent’s two children, or the survivor of them. Fund B, is given to the decedent’s husband outright. The proffered will directs that estate taxes, or similar death taxes, with respect to testamentary assets are to be paid out of Fund B. Article Third expresses the decedent’s intention to take maximum advantage of the available tax benefits so that there will be no federal estate taxes due with respect to her estate.

Published on: March 10, 2014

Court Rules on Stipulation of Settlement

by Stephen Bilkis

In connection with a petition for probate, the court has before it for review a stipulation of settlement which was expertly negotiated and crafted by the guardian ad litem appointed to represent the interests of decedent’s sister.

A New York Probate Lawyer said that decedent, a resident of New Hyde Park, Nassau County, died in February 2009, leaving a last will and testament. She was survived by 19 statutory distributees, including four siblings and the 15 children of four predeceased siblings.

The propounded instrument leaves all of decedent’s property in three equal shares, two of which pass to decedent’s sisters. The will directs that the third equal share be paid over to decedent’s niece, who is the nominated executor and the petitioner herein. It makes no mention of decedent’s third surviving sister, who suffers from Alzheimer’s disease.

Published on: March 9, 2014

Petitioner Claims Fiduciary is Unable to Serve

by Stephen Bilkis

A New York Probate Lawyer said the decedent died in January 2008 in Moscow, Russia, leaving a purported will which nominates the decedent’s attorney, and respondent, as executors. Preliminary letters testamentary issued to them by decree of this court in April 2008. The purported will bequeaths the decedent’s 75% interest in the Corporation to Petitioner, who allegedly owns the other 25% interest in the Corporation. The lawyer claims that he is the president of the Corporation and has been so since its formation in 2005. At the time of the decedent’s death, the Corporation owned real property and two automobiles. The purported will also include a $300,000.00 cash bequest to the respondent.

A New York Will Lawyer said that Petitioner is one of three women who were allegedly married to the decedent at the time of his death. She claims she married the decedent in December 2007, after his divorce from a former spouse became finalized in September 2007. The former spouse has filed suit in Russia attempting to invalidate the marriage between the petitioner and the decedent on the grounds that the divorce was invalid. The parties disagree over the status of the Russian proceeding. The preliminary executors contend that the Russian courts have determined that the divorce was not valid and that the determination is final. Both of them have filed a Notice of Right of Election in the probate proceeding.

Suffolk County Probate Lawyers said the petitioner has filed objections to the will, limited to the appointment of the fiduciaries. A guardian ad litem was appointed for the decedent’s child, who is eight years old. The child lives with the petitioner at the Peachtree Lane property. The guardian ad litem has filed his report wherein he has stated that he will not be filing objections to the purported will pursuant to a stipulation of settlement. Pursuant to the terms of that stipulation, the lawyer has agreed to assign to the son one-half of whatever she ultimately receives under the will. The court has authorized the guardian ad litem to sign the stipulation on behalf of his ward.

Published on: March 8, 2014

Court Decides Case Regarding Petitioners Motion for Summary Judgment

by Stephen Bilkis

A New York Probate Lawyer said the decedent in this Probate action is a resident of Nassau County. She was survived by three distributees, her adult children (2 daughters and a son). She was also survived by her second husband, a lawyer. An instrument dated March 11, 1996, has been offered for probate by the son. The daughters have filed objections to the Will, alleging that it was the product of undue influence and fraud. A guardian ad litem was appointed for the minor children of the daughters. She also filed the same objections with an additional allegation that “on March 11, 1996, the said testatrix did not know or understand the contents of the proposed Will.” However, that particular objection has been withdrawn, by virtue of the letter of the guardian ad litem to the court dated September 27, 2005.

A New York Will Lawyer said that when the decedent died in May 2003, she was married to a lawyer. It was her second marriage. She was first married to her former deceased husband, who died in May 1980. Decedent’s Will cannot be understood in isolation from former husband’s estate. The former husband, along with several members of his extended family, operated a real estate business that had been in existence for several generations. His Will was admitted to probate by this court in August1980. Under his Will, his residuary estate was divided into two shares (I and II). Share I was to be funded with assets that would qualify for the marital deduction then in effect. Three trusts were established by the Will’s Article SECOND, equally funded by Share I. Each of these three Article SECOND trusts was to be administered separately and the net income of each was to be paid to the deceased or applied to her benefit. The trustees were also given the discretion to make principal payments to herein deceased testatrix. Husband’s Will made deceased the donee of a general testamentary power of appointment of the remainder of the three Article SECOND trusts.

Long Island Probate Lawyers said the testatrix’s Will that has been offered for probate purports to exercise her power of appointment, directing that the remainder of the three Article SECOND trusts be disposed of as part of her residuary estate. Article FIFTH of her Will bequeaths the residuary as follows: two-thirds (2/3) in trust for the son; one-sixth (1/6) each for the daughters. The alleged intent of this unequal distribution, when considered with the equal distribution under Article THIRD of husband’s Will, is to apportion the spouses’ real estate interests so that the son obtains a 50% share, the daughters 25% each. It is fair to say that testatrix’s exercise of her power of appointment is the source of the objections to her Will.

Published on: March 7, 2014

Court Hears Case Regarding Validity of Will

by Stephen Bilkis

A New York Probate Lawyer said in this contested probate proceeding, the proponent moves for an order granting summary judgment dismissing the objections and admitting the will to probate. The youngest son of the deceased man cross-moves for summary judgment to authorize the immediate distribution of $2,000,000.00.

A New York Will Lawyer said the man died on at the age of 81. He was survived by his three adult children as his sole distributees. The eldest son is the petitioner; the daughter is the objectant. The youngest son has filed an affirmation in support of his brother’s motion for summary judgment.

The instrument offered for probate was allegedly executed on August 28, 2010. It contains pre-residuary totaling to $525,000.00 bequests $100,000 to the eldest son’s wife, $100,000 to the eldest son’s child, $150,000 to the decedent’s sister, $100,000 to the decedent’s niece, and $75,000 to the decedent’s friend. The residue is bequeathed 2/3 to the eldest son and 1/3 to the youngest son. The daughter is expressly disinherited. She filed objections to probate alleging that the will was not duly executed, that the decedent lacked the capacity to make a valid will, and that the instrument is the result of undue influence and fraud having been perpetrated on the decedent by his eldest son.

Published on: March 6, 2014

Court Decides Case Regarding Lost Will

by Stephen Bilkis

A New York Probate Lawyer said a deceased man was survived by his wife and three adult children. Afterward, his last will was offered to probate. The man’s 2003 last will bequeathed his personal property, shares of stocks and real property to his wife. A trust is also established for the benefit of his wife, and upon her death, the property was to be held in trust for their three children until they reached the age of thirty.

A New York Will Lawyer said the article sixth of the man’s 2003 last will provides that the man’s interest for various companies and real property is to be held in trust for the benefit of his wife, but subject to the option of his son to purchase the same.

Afterward, the last will was admitted to probate and the letters testamentary was issued to the estate administrator.

Published on: March 5, 2014

Court Discusses Revocation of a Waiver

by Stephen Bilkis

On 22 April 2009, EB, a resident of Nassau County died purportedly leaving a will dated 20 March 2009. He was survived by his wife from a second marriage, JB, and by five children.

A New York Probate Lawyer said that under the purported will, one-third (1/3) of the residuary estate is to be placed in a supplemental needs trust for the decedent’s wife; the remainder of the residuary estate is to be divided into seven equal shares with one share for each of the EB’s children (other than P) and the decedent’s three step-children; and, it nominates KH, EB’s daughter, and PH, KH’s husband, as executors.

Consequently, the purported will was offered for probate by the nominated executors. On 12 May 2009, a waiver and consent was signed by JB. On 16 June 2009, it was filed with the court. P, one of EB’s children, is under a disability. Thus, a guardian ad litem was appointed for her.

Published on: March 4, 2014

Court Discusses Case Involving In Terrorem Clause

by Stephen Bilkis

A New York Probate Lawyer said a petition for the probate of an instrument dated 11 March 2008 was filed by the nominated executor before the court along with the recovery of property alleged to be an asset of the estate pursuant to SCPA 2103.

A New York Will Lawyer said the parties are: petitioner, the nominated executor; and, respondents, the children of decedent and children of a predeceased son.

The respondents seek: a stay of the probate proceeding pending conclusion of the SCPA 2103 proceeding; a stay of the probate proceeding pending a construction of the in terrorem clause in the instrument offered for probate; an order granting petitioner the right to depose the nominated successor executor prior to filing objections; and, an order granting petitioner the right to depose the nominated successor executor and attorney-draftsman of a prior instrument purporting to be the last will and testament of decedent, again, prior to the filing of objections.

Published on: March 3, 2014

Court Rules on Case Involving a Terrorem Clause

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is a petition for the probate of an instrument dated March 11, 2008. Petitioner is the nominated executor. Respondents are children of decedent and children of a predeceased son. Also pending before the court is a proceeding by the nominated executor for the recovery of property alleged to be an asset of the estate (SCPA 2103). The examinations of the attorney-draftsman, the nominated executor, and the attesting witnesses have been completed.

A New York Will Lawyer said that, on this motion, respondents seek: (1) a stay of the probate proceeding pending conclusion of the SCPA 2103 proceeding; (2) a stay of the probate proceeding pending a construction of the in terrorem clause in the instrument offered for probate; (3) an order granting petitioner the right to depose the nominated successor executor prior to filing objections; and (4) an order granting petitioner the right to depose the attorney-draftsman of a prior instrument purporting to be the last will and testament of decedent, again, prior to the filing of objections.

A Nassau Estate Litigation Attorney said that, in support of that branch of the motion which seeks a stay of this proceeding pending a construction of the instrument offered for probate, petitioners allege that the in terrorem clause violates public policy. An issue as to whether a provision of a last will and testament violates public policy must be resolved by construction of the instrument to determine the testator’s intent and the effect of the provisions on the persons to be influenced. However, the court has no authority to construe a will before its admission to probate. That branch of the motion is therefore denied.