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A New York Probate Lawyer said in this Will Contest proceeding, the decedent died in May 2006, survived by his wife and their two children, the proponent and the objectant. The wife suffers from Alzheimer’s disease. Her cousin and an attorney, were appointed her guardians pursuant to Article 81 of the Mental Hygiene Law and they have appeared for her in this proceeding. They filed a notice of election on her behalf.

A New York Estate Lawyer said that the proponent filed the petition for probate in June 2006 and jurisdiction was obtained over all necessary parties in August 2006. The propounded will leaves nothing to objectant, allegedly because the decedent believed that she had converted assets worth $3 million from him and from the wife by use of a power of attorney they had given her. In fact, he pressed criminal charges against her which resulted in her plea of guilty to a Class A misdemeanor. The objectant filed objections to probate; however, she never appeared for her deposition in this proceeding, nor did she ever produce any documents demanded by petitioner. Her initial reason for seeking to delay her deposition was that doing so would violate her Fifth Amendment right against self-incrimination. However, she never appeared for deposition even after the conclusion of the criminal matter when she no longer had a claim of constitutional privilege. She then averred that she was suffering from a psychological condition which prevented her from being deposed. Being unconvinced of that contention, the court, by decision and order, granted the summary judgment motion to the extent that objectant’s objections of fraud and undue influence, upon which the objectant bears the burden of proof, were dismissed.

Regarding petitioner’s motion for summary judgment, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in contested probate proceedings is appropriate where a contestant fails to raise any issues of fact regarding execution of the Will, testamentary capacity, undue influence or fraud.

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A New York Probate Lawyer said the woman died survived by one sister and thirteen descendants of pre-deceased siblings. The deceased woman’s nephew, the Executor filed a Verified Petition to Probate a Last Will and Testament, dated April 17, 1996 in which he was the nominated Executor and in which he and his two siblings were named as the sole residuary beneficiaries. The Executor was granted Preliminary Letters Testamentary on October 29, 2009. Included in his Petition for Probate was an assertion by the decedent’s Executor that, after a diligent search and inquiry there exists no will, codicil or other testamentary instrument of the decedent later in date. The Petition also listed only the decedent’s one surviving sibling, and the Petitioner and his two sisters, omitting ten of the decedent’s distributees, all cousins of the Executor.

The decedent’s one surviving sister and the ten distributees left out of the Petition for Probate, six nieces and nephews and four great-nieces and nephews of the decedent (Objectants), jointly retained their counsel and conducted an investigation that ultimately determined that the April 17, 1996 will probated by the Executor was not the decedent’s Last Will and Testament.

A New York Estate Lawyer said the evidence was adduced that the decedent had executed a Last Will and Testament on July 11, 2000 and subsequently intentionally destroyed it. As the July 11, 2000 will revoked all prior wills of the decedent, its destruction would, in the absence of a subsequent will, result in the decedent’s property passing pursuant to the laws of intestacy and the Executor not being named as executor. Accordingly, on December 1, 2009, the Objectants filed a Verified Answer to the Executor’s Petition for Probate and Objections to the Probate of the April 17, 1996 Will.

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A New York Probate Lawyer said one of the decedent’s sons, the objectant in a probate proceeding and the petitioner in an administration proceeding that was consolidated with the probate proceeding, has now noticed for settlement a decree dismissing the probate petition. He has also moved to have his application for letters of administration restored to the calendar. The decedent’s daughter, the proponent in the probate petition, opposes her brother’s applications and, in effect, seeks to vacate her prior default in her brother’s motion to dismiss her probate petition.

A New York Estate Lawyer said that the decedent died in June 2000 survived by three children. The probate petition was filed in October 2001. The propounded instrument provides for an equal distribution of the estate between the two children other than the objectant. It appears from allegations made in the pending applications that the decedent’s other son, the beneficiary of 50% of the estate under the propounded instrument, died in April 2006 and that he was not married and did not have any children.

Suffolk County Probate Lawyers said the objectant made several applications in the probate proceeding for relief based upon the proponent’s failure to provide requested discovery. The court’s last determination on this issue directed the production of certain documents by the proponent by August 2005. After the August deadline passed without production of the additional documents, the objectant moved to dismiss the probate petition and the proponent’s counsel moved to withdraw from representing her, alleging that she had failed to keep appointments necessary to comply with the court’s directions.

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A New York Probate Lawyer said a man died leaving a purported will dated March 20, 2009. He was survived by his wife from a second marriage and by five children, one of whom is under a disability. A guardian ad litem was appointed for the disabled child. The purported will provides that 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 divided into seven equal shares with one share for each of the decedent’s children (other than the disabled child) and the decedent’s three step-children. The purported will nominates the decedent’s daughter and her husband, as executors. The purported will has been offered for probate by the nominated executors. A waiver and consent was signed by the wife from the second marriage on May 12, 2009 and filed on June 16, 2009.

The petitioners have filed an application for preliminary letters testamentary. The petition is opposed by the second wife. She has also moved to revoke her waiver and consent. She has filed an affidavit in support of the motions. According to her, she and the decedent were married in 1977. Each had been married previously, their former spouses having passed away. She had three children from her first marriage, and the decedent had five children from his first marriage. At the time of the marriage, she owned a residence in Sea Cliff, New York. Prior to the marriage, the decedent sold his residence and moved in with her.

A New York Estate Lawyer said the second wife claims that it was always their intention that upon her death, her residence would be given to her children reserving the right for decedent to reside there. In 2007, at the urging of the decedent’s daughter and son-in-law, the decedent and the second wife consulted with an attorney at which time she expressed her desire that the residence pass to her children. The attorney prepared a will for each of them and an Irrevocable Trust. The second wife claims she did not understand the intricacies of the trust agreement but was advised and assured that upon her death her children would get her residence.

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A New York Probate Lawyer said in this probate proceeding, the decedent’s eldest son petitions for his appointment as the sole preliminary executor. The decedent’s youngest son opposes that application and cross-petitions for his appointment as the sole preliminary executor. The decedent’s only other distributee, her middle son, who is disinherited under the propounded instrument, supports his eldest brother’s application.

It appears from papers filed in this proceeding that the battle between the decedent’s sons commenced prior to her death. In a petition verified in March of 2010, the eldest and youngest son sought to be appointed as the guardians of the decedent’s person and property pursuant to Mental Hygiene Law. At that time, the decedent was living in her Bronx home with her youngest son who was handling her affairs pursuant to a power of attorney. Due to the decedent’s death on October 26, 2010, the guardianship proceeding was terminated without the appointment of a guardian.

A New York Estate Lawyer said that after the decedent’s death, the will was not produced until the eldest son commenced a proceeding against the youngest son to produce the will and the court entered an order on December 29, 2010 directing its production. Thereafter the eldest and the youngest son filed separate probate petitions, each of them seeking the issuance of letters testamentary solely to himself. In a brief period of harmony, the two brothers stipulated that preliminary letters testamentary would issue jointly to them for a period of 90 days. During that 90-day period, it appears that the two brothers failed to do anything with regard to either the probate proceeding or administering the five parcels of realty owned by the decedent which appear to be the primary assets of her estate. After the preliminary letters expired, the instant applications were presented to the court and the brothers continued trading accusations.

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A New York Probate Lawyer said that, this is a proceeding to vacate a decree of probate and to allow the petitioners to withdraw the waivers of process, consents to probate they executed on May 17, 1999. The petitioners are the decedent’s four adult children, the executor of the estate, opposes the requested relief. Respondent is the decedent’s surviving spouse; he and the decedent were married in November 1991. The husband is not the father of the petitioners.

A Bronx Estate Litigation Lawyer said that, on February 20, 2008, the court issued a decision and order wherein the court granted the petitioners’ counsel’s unopposed motion to withdraw as the petitioners’ counsel and stayed the proceedings for 30 days after a copy of the order was served by overnight delivery on the petitioners. A copy of the order was served as directed, and the period of the stay has expired. The petition to vacate the decree granting probate and for other relief has now been submitted for decision.

A New York Estate Lawyer said that, the decedent died on December 5, 1998 at the age of 57. Her last will and testament dated March 11, 1995 was admitted to probate by decree dated July 29, 1999, and letters testamentary were issued to the husband. The affidavit of subscribing witnesses annexed to the will states that the will was executed under the supervision of an attorney. The decedent left her entire estate to her husband. In the event that the husband had predeceased the decedent, the decedent bequeathed the estate to the petitioners, per stirpes.

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A New York Probate Lawyer said this action stems from plaintiff’s attempt to purchase certain real property, located at Bronx County (“subject property”), in August 2005, from four members of a family.

One of the members, a lady, died testate in February 1986. Under the terms of her Will, her husband had a life interest in certain properties, but not the subject property, only access to its garage. Article Sixth of the Last Will and Testament provided that their son had a life income interest in the subject property which was to be held in Trust by Trustees. The son’s daughters were allowed to occupy the first floor and second floor, respectively, and, upon the son’s death, the subject property was to be transferred jointly to the daughters, decedent’s granddaughters. The Will also provided that, upon the husband’s death, the son would substitute as Co-Executor and Co-Trustee in his place. The other Co-Executor and Co-Trustee attorney was never a party to the sale of the subject property. Further, the husband and the lawyer never obtained Letters of Co-Trusteeship for the Article Sixth Trust, and only the husband took action as an unauthorized Trustee with regards to the subject property.

A New York Estate Lawyer said that Probate Petition and Notice of Probate were filed with the Surrogate’s Court in April 1988, naming the husband and the lawyer as Co-Executors and Co-Trustees. It also requested that Letters of Testamentary be issued to them and that Letters of Trusteeship be issued to them under the Article Third and to the lawyer under the Article Eleventh. Thereafter, the Surrogate’s Court issued Letters of Co-Testamentary and Co-Trusteeship to the Petitioners. However, the Letters of Trusteeship were limited to Articles Third and Eleventh Trusts. The Surrogate’s Court provided a letter to the GAL stating that no application for Letters of Trusteeship was issued under Article Sixth of the Will.

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A New York Probate Lawyer said that, this is a proceeding to vacate a decree of probate and to allow the petitioners to withdraw the waivers of process, consents to probate they executed on May 17, 1999. The petitioners are the decedent’s four adult children, the executor of the estate, opposes requested relief. Respondent is the decedent’s surviving spouse; he and the decedent were married in November 1991. The husband is not the father of the petitioners.

A New York Estate Lawyer said that, on February 20, 2008, the court issued a decision and order wherein the court granted the petitioners’ counsel’s unopposed motion to withdraw as the petitioners’ counsel and stayed the proceedings for 30 days after a copy of the order was served by overnight delivery on the petitioners. A copy of the order was served as directed, and the period of the stay has expired. The petition to vacate the decree granting probate and for other relief has now been submitted for decision.

A Bronx Estate Administration Lawyer said that, the decedent died on December 5, 1998 at the age of 57. Her last will and testament dated March 11, 1995 was admitted to probate by decree dated July 29, 1999, and letters testamentary were issued to the husband. The affidavit of subscribing witnesses annexed to the will states that the will was executed under the supervision of an attorney. The decedent left her entire estate to her husband. In the event that the husband had predeceased the decedent, the decedent bequeathed the estate to the petitioners, per stirpes.

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A New York Probate Lawyer said that, this case, and an analogous matter decided on the same day, raise troubling questions about the use of pre-printed or form living trusts, which are now being heavily marketed in New York State. The instant case is especially disturbing, because its trust takes the form of loose pages contained in a three ring binder. The proceeding was initiated by the petitioner” for the probate of the Will of the decedent who died on September 9, 1996. The decedent’s Will, executed April 30, 1996, leaves his entire estate to the ” Revocable Living Trust dated April 30, 1996 and any amendments thereto.” The trust agreement provides for lifetime income and principal payments to the decedent as he directs. Upon the decedent’s death the principal remaining is to be distributed to the petitioner, a friend. An alleged amendment leaves 99.75% of the principal balance to the petitioner and .25% to another friend. The decedent is the sole lifetime trustee. The petitioner is either sole personal representative under the Will and sole successor trustee under the trust, or a co-fiduciary in each. A prior Will, dated October 24, 1990, which bequeathed one tenth of one percent of the estate outright to the other friend and the balance to the petitioner, was also filed with the court. The decedent left assets of about $1 million, of which approximately $950,000 had been transferred into the trust and passes according to its terms and $60,000 remained in his name at death and passes according to the provisions of the Will.

A New York Estate Lawyer said that, in reviewing the probate submissions, the court discovered that both the Will and the trust were so ambiguously worded that it was impossible to determine the decedent’s wishes regarding one of the most fundamental elements of his estate plan–the nomination of the fiduciary. Further examination of the documents revealed a staggering number of additional ambiguities, inconsistencies, apparent irrelevancies, and outright errors, many of which pose major problems in ascertaining or effectuating the decedent’s dispositive intent.

A Queens Probate Lawyers said that, at this same time, another construction proceeding involving a form living trust, which contained provisions analogous to those in the document already under review, was brought before the court. The executor of the Will of concerned that the merger of legal and equitable interests in her father’s trust might render it ineffective and hence not a proper receptacle for the pour-over of his estate assets, sought a construction permitting all of the property to be disposed of according to the trust’s terms. Faced with the Howard request for construction of similar provisions, as well as with the immediate need in the instant case to identify the fiduciary and to ascertain the decedent’s intentions regarding other significant provisions of both instruments, this court determined that a construction of the instant Will and trust was necessary at the present time. The Surrogate’s Court has the power to construe a Will when construction is necessary to determine questions in a proceeding before it or to make a complete disposition of a matter. Because one major obscurity concerning the ultimate disposition of the probate estate in the instant matter involved minors or unborn as possible takers, a guardian ad litem was appointed.

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A New York Probate Lawyer said that, this case, and an analogous matter decided on the same day, raise troubling questions about the use of pre-printed or form living trusts, which are now being heavily marketed in New York State. The instant case is especially disturbing, because its trust takes the form of loose pages contained in a three ring binder. The proceeding was initiated by the petitioner” for the probate of the Will of the decedent who died on September 9, 1996. The decedent’s Will, executed April 30, 1996, leaves his entire estate to the ” Revocable Living Trust dated April 30, 1996 and any amendments thereto.” The trust agreement provides for lifetime income and principal payments to the decedent as he directs. Upon the decedent’s death the principal remaining is to be distributed to the petitioner, a friend. An alleged amendment leaves 99.75% of the principal balance to the petitioner and .25% to another friend. The decedent is the sole lifetime trustee. The petitioner is either sole personal representative under the Will and sole successor trustee under the trust, or a co-fiduciary in each. A prior Will, dated October 24, 1990, which bequeathed one tenth of one percent of the estate outright to the other friend and the balance to the petitioner, was also filed with the court. The decedent left assets of about $1 million, of which approximately $950,000 had been transferred into the trust and passes according to its terms and $60,000 remained in his name at death and passes according to the provisions of the Will.

A New York Estate Lawyer said that, in reviewing the probate submissions, the court discovered that both the Will and the trust were so ambiguously worded that it was impossible to determine the decedent’s wishes regarding one of the most fundamental elements of his estate plan–the nomination of the fiduciary. Further examination of the documents revealed a staggering number of additional ambiguities, inconsistencies, apparent irrelevancies, and outright errors, many of which pose major problems in ascertaining or effectuating the decedent’s dispositive intent.

A Nassau County Probate Lawyers said that, at this same time, another construction proceeding involving a form living trust, which contained provisions analogous to those in the document already under review, was brought before the court. The executor of the Will of concerned that the merger of legal and equitable interests in her father’s trust might render it ineffective and hence not a proper receptacle for the pour-over of his estate assets, sought a construction permitting all of the property to be disposed of according to the trust’s terms. Faced with the Howard request for construction of similar provisions, as well as with the immediate need in the instant case to identify the fiduciary and to ascertain the decedent’s intentions regarding other significant provisions of both instruments, this court determined that a construction of the instant Will and trust was necessary at the present time. The Surrogate’s Court has the power to construe a Will when construction is necessary to determine questions in a proceeding before it or to make a complete disposition of a matter. Because one major obscurity concerning the ultimate disposition of the probate estate in the instant matter involved minors or unborn as possible takers, a guardian ad litem was appointed.

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