New York Probate and Estate Administration Lawyer Blog
A New York Probate Lawyer said a woman died at the age of 91 and was survived by five nieces and nephews, who are the children of her two predeceased brothers. She left no other successor.
The daughter of the woman’s niece offered for probate a document as the woman’s last will and testament. The four other successors also filed waivers and consents to the probate of the proposed document. Preliminary letters testamentary were then issued.
A New York Will Lawyer said the witnesses of the document were subsequently examined. The first witness is also the attorney-draftsman of the proposed document. Afterward, the other grandniece filed an objection to the probate and demand for a jury trial.
Westchester County Probate Lawyers said the witnesses then appeared at the call of calendar and they both stated that the matter was ready for trial. They further stated that a jury trial was already scheduled. The proposed document provides for the appointment of the woman’s grandniece as the will administrator.
According to the petition, the woman’s estate consists of real property valued at $550,000 and $5,000 in personal property.
Subsequently, the will administrator moves for an order granting them a decision without trial requesting to dismiss the objections filed by the woman’s other grandniece. The grandniece however opposes the motion.
Suffolk County Probate Lawyers said that based on records, a request for decision without trial may be granted only when it is clear that no triable issue of fact exists.
The attorney-draftsman testified that he met the woman to discuss her instructions about her last will. In an affidavit, the attorney-draftsman states that he was contacted by the woman’s grandniece, who had obtained his name from the county’s bar association referral service. The woman’s grandniece told him that her grandmother wanted to make a will, that she had limited eyesight and that her sister had recently died. Later, the attorney-draftsman made an appointment to visit the woman at her home. The woman told the attorney-draftsman that she wanted her assets to go to two of her grandnieces. The attorney-draftsman states that the woman told him that her grandniece had been of great assistance to her and to her sister.
At the meeting, the woman supplied the attorney-draftsman with her personal and familial information, her income and her assets.
The attorney-draftsman further testified that he prepared the will in accordance with the woman’s instructions and mailed a draft to her home. The will execution ceremony took place at the woman’s home. According to the attorney-draftsman, only he, his secretary and the woman were present.
The attorney-draftsman also asserts that in the course of the ceremony the three of them were talking. He testified that his assistant mentioned to the woman that, although they had spoken on the telephone in the past, they had not met until then. They also spoke about some other documents that the attorney had prepared for the woman. The attorney also told the woman that he had the will with him and asked her if she wanted to sign it. The woman stated that she wanted to sign it. Since the woman had limited vision, the attorney read the contents of the document to the woman in the presence of his assistant.
The attorney testified that the woman was clear, lucid and understood what she was about to do. He testified that the woman did not appear to be acting under duress in signing the document. He also asked the woman if that is the last will she wanted to sign, and she answered that it was.
He then stapled the document and showed the woman where to sign it. He observed the woman sign the will. Then, while they were all still together at the woman’s home, the attorney and his assistant signed the attestation clause. They later signed the affidavit of subscribing witnesses in front of a notary in her office.
The attorney’s assistant also testified that she silently read a copy of the will while the attorney-draftsman was reading aloud the original to the woman. She also testified that the attorney asked the woman whether she declared the document to be her will and whether she requested that with them as the witnesses, to which the woman answered in the affirmative. She further testified that she observed the woman to be as sharp as a tack.
She also stated that the woman stated that she understood the contents of the will and that she wanted it to be her will. She also watched the woman sign the document. They also signed the attestation clause in the woman’s presence.
Sources revealed that the court is satisfied that the last will was executed in conformance with the statutory requirements of the law. The court also found that the woman’s will administrator has made a showing of entitlement to the request of decision without trial on the issue of due execution of the proposed document. The court also searched the record, and found that it is devoid of any evidence that the document was not properly executed.
The opponent also bears the burden of proving that the woman is capable in making a will. Consequently, the court found that the will administrator has met her burden of proving that the woman is capable in making her last will on the date she executed her last will. As a result, the will administrator’s motion on the issue of testamentary capacity is granted.
The other grandniece also asserts burden of proof on the issue of undue influence. She states that her cousin, as will administrator, became closer with their grandmother toward the end of her life because her cousin wanted their grandmother’s money. She also states as far as she knows her grandmother suffered no illness and believes that her cousin deliberately took her to the hospital where she was put to death like most seniors. The court however stated that there is absolutely no evidence in the record that anyone unduly influenced the woman to make or execute the proposed will. As a result, the motion of the will administrator on the issue of undue influence is granted. Also, the request for decision without trial is granted regarding fraud.
The grandniece also allege that her grandmother had promised her father that he would receive a real property and that they owed him money because he allegedly provided financial support to his sisters during his lifetime. The property is an asset of the woman’s estate.
The court stated that the grandniece’s bald assertion, that the woman, or anyone else for that matter, promised her father her interest in the house. There also is no evidence that her father made a transfer in reliance upon the woman’s alleged promise to give the real property to him. And, finally, there is no evidence that the woman was unjustly enriched. So, even if the grandniece had standing, the evidence before the court fails to establish the existence of a triable issue of fact that would require a trial on the issue of whether a constructive trust should be imposed on the real property. The grandniece’s objections are dismissed to the extent they attempt to allege that issue.
Consequently, the motion for decision without trial is granted, and the other grandniece’s objections to the probate of the proposed document are dismissed.
Whenever you want to create your last will, you can seek assistance from Nassau County Estate Attorney. Furthermore, you can also ask legal guidance from Nassau County Probate Lawyer or Nassau County Estate Administrator Lawyers when you want to offer for probate someone’s proposed document or last will. Simply visit Stephen Bilkis and Associates office for more queries.