Wills

Published on: December 15, 2012

Petitioners Request Withdrawl of Probate Petition and Move for Issuance of Letters of Administration

by Stephen Bilkis

The Facts of the Case:

On 26 October 2000, a decedent died with a Last Will and Testament dated 23 March 1995. Under the will, the decedent left her estate to her two sisters, A and B, or the survivor; named A as executor and B as successor. A predeceased the decedent without issue, thus, the entire estate passed to B.

Sometime in 2005, B petitioned for the appointment of a guardian of her property. The court, finding that B had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, X, a niece, and Y, Esq., as guardians of B’s property. Consequently, in May of 2007, the judge authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. A New York Probate Lawyer said the affidavit of X stated that she located the copy among the decedent’s important papers after her death; that while the decedent must have had the original will, her house had been sold and the purchaser threw away all of her papers. The affirmation of Y also stated that after the decedent’s death, her home was taken over by a former handyman of B, who threw away all of the decedent’s papers. Allegedly, the instrument was prepared by an attorney, who supervised its execution and was a subscribing witness, and has filed an affirmation of due execution. However, the second subscribing witness cannot be located. Thus, the petitioners now move to withdraw their probate petition and ask that the Court issue letters of administration to them (for the purposes of estate administration in an estate litigation). They allege that they are unable to probate the instrument because of the unavailability of the second subscribing witness; and that the distributees have executed agreements waiving their intestate rights so as to mirror the testamentary plan set forth in the subject Last Will & Testament.

Published on: December 14, 2012

Petitioner Alleges Fraud in Will Contest Proceeding

by Stephen Bilkis

The Facts of the Case:

On 8 January 2006, the decedent died with a will dated 31 December 1993. On 26 April 2007, the decedent’s will was admitted for probate (will contest proceeding) by the court and a decree was thereafter issued, and letters testamentary also issued to the decedent’s wife as executor of the estate of her husband, the decedent (for estate administration as may be determined in estate litigation). At the time of the decedent’s death, he owns a surveying business. On 12 December 2007, an Asset Purchase Agreement was entered into between the decedent’s wife and “A” where “A” agreed to purchase the decedent’s business and all of the assets used in connection with the business. The purchase price was $375,000.00. On 14 December 2007, “A” executed a promissory note in the sum of $200,000.00. The note was guaranteed by a Land Surveyor company, “X”. The terms of the promissory note provide that “A” will pay the sum of $200,000.00, together with interest thereon at the rate of 5% per annum, in sixty consecutive monthly payments of principal and interest, each of which, except the last, was required to be in the sum of $3,774.25, the first payment to be made before 14 January 2008. Thereafter, on 14 December 2007, a bill of sale was executed by the decedent’s wife in favor of “A” where she was represented in the sale and in post-closing disputes concerning the sale by lawyer-two. However, no payment was ever made. Thus, on 25 January 2008, by written notice, the wife exercised her option to declare the unpaid principal balance of the promissory note to become immediately due, plus interest. The wife hired lawyer-one, and lawyer-two to act as co-counsel.

In opposition, respondent “A” alleges that the wife breached their agreement by failing to provide adequate documentation to allow him to collect on the accounts receivable; that the wife fraudulently misrepresented the value of the accounts receivable, either by intentionally keeping the necessary documentation from him or by misrepresenting that said documentation ever existed; that the wife fraudulently misrepresented that “A” would be receiving as part of the sale business assets such as cars, documents and files and other significant assets of the business; that, as a result, “A” has refused to make payment on the note. Moreover, “A” argues that lawyer-two should be disqualified from serving as the wife’s co-counsel on the grounds of the advocate-witness rule because he is a material and necessary witness; because he served as the wife’s attorney throughout the negotiation and sale of the business; that lawyer-two has intimate knowledge regarding the assets of the business and what was promised to “A” as part of the sale; that lawyer-two will be deposed and questioned as to the existence of the accounts receivable and his role in furnishing the necessary documents to allow “A” to collect on those accounts; that lawyer-two is a material and necessary witness because he was involved in negotiations, meetings and drafting of documents in connection with the sale. Furthermore, “A” also asks for leave of court to amend his answer to add two affirmative defenses, one alleging mutual mistake concerning the disputed invoices and the value of the accounts receivable and one alleging unilateral mistake by “A” caused by fraudulent conduct on the part of the wife, since the wife’s counsel has declined to stipulate to allow the amendment; that the amendment does not create any prejudice or cause any surprise to the wife; that these defenses arise out of the same set of facts previously set forth in the petition; and that the case is still in the early stages of discovery where no depositions have yet taken place, and the wife will still have the opportunity to seek discovery on these new defenses.

Published on: December 12, 2012

Court Rules on Complex Will Contest Case

by Stephen Bilkis

The Facts of the Case:

On 2 October 2005, a resident of Sands Point died with a will dated 6 June 1996. He is survived by his wife, his children, A, B and C, and his granddaughter, X, the infant daughter of a predeceased son, D. On 21 September 2006, the will was submitted for probate (will contest proceeding) and letters testamentary issued to the decedent’s wife, the decedent’s daughter, A, and the decedent’s brother. On 23 April 2008, A and the decedent’s brother filed their account, which was subsequently amended and supplemented. Thereafter, a guardian ad litem was appointed by the court to represent the interests of X. The administration and the account reflect ongoing discord between the wife and the decedent’s other fiduciaries, A and the brother, dominated by conflict over the computation of the wife’s elective share. Ultimately, the parties executed a stipulation, receipt, release and refunding agreement which resolves all of the disputed issues other than the legal fee paid from estate assets to an attorney, who provided legal services to A and the brother at the onset of the administration but whom they later replaced. The stipulation provides that for purposes of calculating the wife’s elective share, the gross estate is valued at $2,115,942.00; that the expenses paid to date, plus the amount reimbursable to the wife for administration expenses which she incurred, total $438,817.00. The parties agreed that the fees of their current attorneys and that of the guardian ad litem be fixed by the court.

The Issues of the Case:

Published on: December 6, 2012

Plaintiff Seeks Summary Judgment in Property Dispute

by Stephen Bilkis

Defendant Neptune Estates, LLC (“Neptune”), owner of 380 Neptune Avenue, Brooklyn,, NY (“Property”), entered a contractor’s agreement with defendant Big Poll Construction, Inc. (“Big Poll”) whereby Big Poll would act as the general contractor on a construction project on the Property (“Project”). In February 2009, plaintiff entered two subcontractor agreements with Big Poll whereby plaintiff agreed to perform the structural steel work, masonry, and concrete slabs on the Project.

A New York Probate Lawyer said that Neptune alleges that on or about February 22, 2009, Neptune removed Big Poll for cause and hired non-party Future City Plus, Inc. (“Future City”) to act as the new general contractor on the Project. A construction contract between Neptune and Future City was executed. On March 15, 2009, plaintiff entered two subcontractor agreements with Future City whereby plaintiff was to be paid $181,000 and $191,000, respectively, for the structural steel and masonry and concrete slabs on the Project. Neptune alleges that Future City subsequently terminated these subcontracts with plaintiff for cause on December 15, 2009.

Long Island Probate Lawyer said that, exactly nine months after Future City entered the contractor agreement with Neptune, plaintiff filed a mechanic’s lien (“January Lien”) against the Property and, pursuant to Lien Law § 9(3), plaintiff identified the person with whom the contract was made as “Big Poll & Son Construction, LLC and Future City Plus, Inc.”. After Neptune moved to discharge the January Lien, Justice Bunyan vacated the January Lien without prejudice in a short form order with the consent of the parties. The order indicated that “a new Mechanic’s Lien may be filed in a timely manner. This is without costs to any party.” On April 1, 2010, plaintiff filed a second mechanic’s lien (“Lien”) and identified the person with whom the contract was made as “Big Poll & Son Construction, LLC. There may be a claim against the successor on the project, Future City Plus, Inc., if this company agreed to assume the obligation of its predecessor.” This is the only substantive change from the January Lien other than the identity of the plaintiff’s attorney and the signatories to the Lien.

Published on: December 4, 2012

Case Involving Testamentary Assets Transferred to Surrogate Court

by Stephen Bilkis

This is a case being heard in the Supreme Court, Appellant Division, and Third Department. The case before the court is an appeal from an order made in the Supreme Court at Special Term that granted the defendants motion to remove the action to Queens County Surrogates Court.

Case Background

New York Probate Lawyers said the plaintiff started this action against the defendants to recover the amount of $1000 that was found in the personal effects of the decedent, his uncle. The defendants allege that the money constitutes testamentary assets to be distributed by the Surrogate’s Court. The will of the decedent was offered for probate in the Surrogate’s Court of Queens County and the plaintiff has filed objections to probate.

Published on: December 3, 2012

Court Decides Contested Probate Proceeding

by Stephen Bilkis

Queens Probate 25

This is a case being heard in the Appellate Division of the Supreme Court of the State of New York, Second Department. The case involves a contested probate proceeding. The proponent is appealing an order that was made in the Surrogate’s Court of Westchester County. The order is dated the 24th of July, 2009 and denied the proponent a motion for summary judgment on the ground that it was premature. The order was made without prejudice with the opportunity to renewed.

Case Discussion and Decision

Published on: December 2, 2012

Petitioner Contends Undue Influence

by Stephen Bilkis

Queens Probate 26

This is a probate proceeding being held in the Second Department, Appellate Division of the Supreme Court of the State of New York. In this case the residuary legatee, who was named in a will dated December of 1955, offered it for probate as the last will and testament of the decedent. The legatee is appealing a decree that was made in the Surrogate’s Court of Queens County. The decree denied probate for the will on the ground of lack of testamentary capacity and undue influence.

Case Discussion

Published on: December 1, 2012

Court Decides Whether Opening a Bank Account Constitutes a Settlement

by Stephen Bilkis

This is a case of appeal regarding probate. The case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. The appellant is appealing a decree that was made in the Surrogate’s Court of Queens County. The decree admitted a will to probate and allowed the opening of a savings account by the testator in trust for his son that was born after the will was executed and constituted a settlement within the meaning of section 26 of the Decedent Estate Law. The appellant also states that the after born son is barred from taking an intestate share of the estate.

Case Discussion

A New York Probate Lawyer said when reviewing the case it is this court’s opinion that the Surrogate did not have the authority to determine the rights of the after born infant under section 26 of the Decedent Estate Law. The question of whether opening a bank account constituted a settlement within the meaning of section 26 should not have been decided without notice and without an opportunity for the interested parties to be heard.

Published on: November 30, 2012

Respondent Claims Right to Letters of Administration

by Stephen Bilkis

This is a matter being held in the Second Department, Appellate Division of the Supreme Court of the State of New York and involves the probate of a will. The petitioner is appealing an order that was made in the Surrogate’s Court of Queens County on the 12th of January, 1960. The order denied her motion to strike out the appearance, authorization, and objections to probate that were filed by the respondent, the Public Administrator of Queens County.

Case Discussion

A New York Probate Lawyer said a special guardian was appointed by the court on behalf of the unknown distributees of the estate. The special guardian consented to act and filed objections to probate. The court directed service of citation upon the respondent. The respondent then filed a notice of appearance authorizing his attorney to appear in his place. The petitioner challenged the respondent’s status in this proceeding, which was confirmed by the Surrogate’s court act that allows the respondent to represent unknown persons in matters of probate.

Published on: November 29, 2012

Court Explains Powers of an Executor

by Stephen Bilkis

The case is being heard in the Special Term of the Supreme Court located in Queens County part 1.

Motions

A New York Probate Lawyer said there are several motions made in regard to this matter. The plaintiff is seeking that separate defense be struck out and the counterclaim against the plaintiff be dismissed on the ground that the court does not have jurisdiction over the counterclaim, the defendant does not have the legal capacity to sue, there is another action pending over the same cause, and the counterclaim does not state facts that are sufficient for a cause of action.