A common issue that is found in many contested Guardianship cases and Estate matters is whether a person’s beneficiary designations or asset plan has been the subject of undue influence. New York City Estate Lawyers, like those throughout the state, are accustomed to having clients claim that the only reason the client was not named as a decedent’s beneficiary was because the individuals who did receive assets improperly influenced the decedent’s decisions. Undue influence is not an easy concept to prove or even to completely understand. Courts have recognized that undue influence is not easily determined. Also, wrongful acts by one party over another are typically not as clear-cut as one person threatening the other. The improper conduct is usually more subtle and subversive and may occur over an extended period of time. In most cases the issue as to whether a person’s testamentary plan is the result of undue influence or improper conduct is a question of fact to be determined at a trial. Continue reading →
Litigation concerning estate matters has been discussed in many posts in the New York Probate Lawyer Blog. The variety of Surrogate’s Court disputes sometimes appears endless. These matters include contested probate proceedings, as well as proceedings to discover and recover a decedent’s property from third parties who have wrongfully taken such property. Also, proceedings to remove an Executor or Administrator because of a breach of fiduciary duty are not uncommon.
Recently, a number of stories have been written concerning estate disputes that involve well-known individuals. These articles present good examples of the problems presented when an estate is in turmoil. A post appearing in the hollywoodreporter.com on November 17, 2014 by Eriq Gardner is entitled “Court: Sherman Hemsley Won’t Be Dug Out From Grave.” As reported, Sherman Hemsley was a famous actor appearing in sitcoms as the character George Jefferson. Shortly before his death in July 2012, Mr. Hemsley signed a new Will in which he left his estate to his business manager/best friend. Although the Will was contested by Mr. Hemsley’s brother, the probate court found the Will to be valid. In the appeal, which the brother also lost, he asserted that Mr. Hemsley should have been buried in a different location and that the business manager should not have made this decision. The appeals court declined to order that Mr. Hemsley’s body be removed and found that the brother’s rights to decide where to bury Mr. Hemsley were extinguished. Continue reading →
New York estate litigation may involve many different types of issues. An estate fiduciary such as an executor or administrator may discover and obtain possession of the decedent’s property by commencing proceedings under Surrogate’s Court Procedure Act (SCPA) Section 2103.
However, as New York Probate Lawyers know, one of the most common areas of Surrogate’s Court disputes involves contesting a Will. The basic requirements for a Will execution are found in Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements”. As discussed in earlier posts in this Blog, such requirements include that the testator sign in the presence of the attesting witnesses or that he acknowledges his signature. Continue reading →
The New York Probate Blog contains numerous articles discussing the differences between Surrogate’s Court probate proceedings and administration proceedings. When a decedent leaves a Last Will, the process is to probate the Will and then to distribute the estate assets according to the Will provisions. The appointed Executor will receive Letters Testamentary from the Court. If a person dies intestate (without a Will), the next of kin or distributees need to file a petition to obtain Letters of Administration. New York Estate Litigation Lawyers are aware that there can be many complications and controversies in Administration cases.
A recent decision by Suffolk County Surrogate John Czygier decided on September 16, 2014 and entitled Estate of Lambert, provides an example of many of the potential problems. In Lambert the decedent died as the result of a vehicular accident. He was survived by eight children all of whom were non-marital. Continue reading →
The settlement of a New York estate involves dealing with many different estate assets. These assets may include bank accounts, stocks and bonds and retirement funds. In many instances the most valuable item comprising a decedent’s estate is real property. Such property may be in the nature of the decedent’s residence or investment or commercial real estate.
It is not uncommon that when a person dies their home had been owned by them for many years or even decades. Very often the decedent lived in their home with other family members such as a spouse or children or other relatives like nieces and nephews. Problems tend to arise where the decedent was not survived by a spouse and other family members had been living with the decedent in the home. Typically, the real property residence is either given in a Last Will to persons other than, or in addition to, those who had been living there with the testator. When there is no Last Will and a person dies intestate, the interest in the real estate may pass to a group of individuals who are the decedent’s next of kin or distributees. Such persons may or may not include the residents of the property. Continue reading →
A New York Estate Attorney is familiar with cases where a family member claims that a lifetime transfer of assets or a disposition in a Last Will is the subject of undue influence. Such claims when they arise during the life of a person who is alleged to have been taken advantage of are often the focus of litigation in Article 81 Guardianship Proceedings. These cases are usually filed in the New York State Supreme Court. It is interesting to note that if the Guardianship judge finds that a property transfer was the result of undue influence, pursuant to Mental Hygiene Law 81.29, the Court can void or revoke such transfer. Also, once a Guardian of the Property is appointed for an incapacitated person, the Guardian can commence Court proceedings to recover property that was wrongfully transferred.
After a person has died, a claim of undue influence may be asserted in a Will Contest. Undue influence is one of the grounds upon which a Will can be contested in Surrogate’s Court estate litigation. Continue reading →
Following a person’s death, a petition may be filed with the Surrogate’s Court for the probate of the decedent’s Last Will. Usually, the person nominated as the Executor in the Will engages a New York Estate Lawyer for representation in the probate proceeding. As discussed in prior posts in this blog, a decedent’s next of kin or distributees must receive notice regarding the probate process. Such distributees may sign a Waiver and Consent which provides that they do not object to the Will. If such consent is not forthcoming, then a Citation needs to be issued by the Court and served upon these potential objectants.
Will Contests and other estate litigation can take a long time to resolve. During the delay in obtaining a resolution of the probate issue, there are many matters concerning an estate that need to be attended to. For example, assets such as bank and stock accounts need to be collected, the decedent’s debts and estate obligations such as estate and income taxes must be paid and other assets such as real estate have to be secured and maintained. Continue reading →
A New York Estate Lawyer is familiar with the various provisions of the Estates, Powers and Trusts Law (“EPTL”) and the Surrogate’s Court Procedure Act (“SCPA”) that impact estate planning. One of the provisions of the law that has caused much controversy over the years concerns the commonly known “no contest clause”. Section 3-3.5 of the EPTL contains the authority and rules regarding these clauses. While the statute allows the use of this limiting language in a Will, the statute also provides some limitations. For example, EPTL 3-3.5 states that the contest provision is not breached when an infant or incompetent opposes probate. Thus, such individuals do not forfeit their inheritance under the Will. The statute also allows pre-objection discovery under SCPA 1404 as to the witnesses to the Will, the Will’s preparer, the nominated executor and the proponent without resulting in any loss of beneficiary status under the Will.
In many instances the language of a no-contest clause in a Will may be unclear as to the extent of the conduct resulting in a forfeiture. An interesting example requiring interpretation of such a clause was presented in Matter of Prevratil decided by the Appellate Division 3rd Dept. on July 24, 2014. In Prevratil, a disinherited son filed objections to the probate of a 2011 Will that had made no provision for him. The son had been the sole beneficiary to an earlier 2006 Will. The 2011 Will contained a no contest clause. Since the named executor of the 2011 Will initially refused to petition for its probate, the beneficiaries filed a petition for probate seeking letters of administration. The disinherited son asserted that the actions by the beneficiaries to have an administrator appointed circumvented the 2011 Will’s named executors and, therefore, amounted to a contest of the Will resulting in their forfeiture of their Will bequests. Continue reading →
Controversies are not uncommon during the course of administering an estate. New York estate lawyers are familiar with the Surrogate’s Court procedures involved with such matters. Executors and Administrators have the fiduciary obligation to protect the interests of the estate in connection with all disputes regarding the decedent. A few recent cases highlight the different types of lawsuits that an estate may be involved with.
Matter of Elena Duke Benedict involved the determination of the validity of a claim against an estate. In this matter, trustees of certain trusts created by the decedent asserted that the decedent’s estate owed the trusts monies that were borrowed from the trusts by the decedent during her lifetime. The claim was based upon promissory notes that were signed by the decedent. Although the executor opposed the claim, in a decision dated May 8, 2014 Westchester Surrogate Anthony Scarpino found that the claim was valid and enforceable against the estate. Continue reading →
Real estate is typically one of the most valuable assets comprising a decedent’s estate. Typically, a person’s residential house is a major asset. Many individuals also own commercial properties that may be used as a part of a business or may contain tenants. In view of the large worth of real estate assets it is common that the property is at the center of many estate battles.
A common occurrence appears to involve a pre-death transfer of the real estate interest to one person to the exclusion of others who would otherwise receive the property pursuant to a Last Will or through their rights of intestacy as a distributee of a decedent. Moreover, these lifetime transfers often occur when the decedent is elderly and suffers from physical or psychological conditions. Also, the deeds may be executed by persons acting as an attorney-in-fact under a power of attorney. Since these changes in property ownership appear to be improper and deprive potential beneficiaries of valuable inheritance rights, lawsuits in the Surrogate’s Court and Supreme Court frequently occur concerning ownership rights and the validity of the deeds reflecting the transfers.
A recent case decided by Kings County Justice Francois A. Rivera on February 20, 2014 provides a good example of a controversy created by real estate owned by a decedent. In Juliano v. Juliano, the decedent (“Beatrice”) had owned a home in Brooklyn where she lived with some of her adult children. Beatrice had made a Last Will in which she left her entire estate, which included the house, to her four children in equal shares. Approximately 6 years prior to her death it appears that Beatrice signed a deed transferring her entire interest in the house to her son to the exclusion of the other 3 children. However, it seems that the son receiving the property (“Frank”) did not accept or record the deed at the time it was signed by Beatrice but waited about 6 years to record it.
Interestingly, the Court voided the deed because it found that the gift was not effective due to the lack of proper acceptance by Frank at the time the deed was made. Additionally, although the Court found that there was a confidential relationship between Beatrice and Frank that would have provided a basis for a finding of undue influence, the Court declined to void the transaction on that ground since it had determined the deed was invalid due to the lack of acceptance.
As an estate litigation attorney, I have represented numerous individuals in situations where issues have arisen concerning the alleged improper transfer of real estate and other assets from a decedent to a family member or to a third party. These cases are typically presented in Surrogate’s Court proceedings and Supreme Court proceedings. Sometimes the issue is raised before a person dies and is litigated in a Guardianship case. The Guardianship Court has the power to void deeds and other transactions it finds to be improper due to the abuse of a power of attorney or the incapacity of persons making the transfer.