Turnover Proceeding in Surrogates Court
September 14, 2010
Devlin v. Knowles, Ameriquest, Citibank
(Surrogates Court, Kings County, 2/7/07)
In this miscellaneous proceeding, Petitioner, the Executor of the estate of Mildred Strand, commenced a turnover proceeding to transfer the real property located at 111 East 3rd Street, Brooklyn, New York, which had been partially transferred, prior to her death, to her grandson, David Knowles, on the grounds of undue influence and lack of testamentary capacity. Ameriquest and Citibank were mortgagees on the premises and were named as respondents. The Court found for Respondent Knowles, even though it found that Petitioner proved that Knowles had a confidential relationship with the decedent. The decedent was elderly and infirm; respondent was responsible for all of the decedent’s affairs, financial, emotional and physical. There was a substantial change from the will, in that the prior will left the bulk of the estate to the Petitioner and the inter vivos transfer of the main asset of the estate to the Respondent-grandson substantially changed the disposition of the decedent’s assets. Petitioner made a prima facie case of undue influence through circumstantial evidence and the burden then shifted to Respondent to explain by clear and convincing evidence why the above listed factors did not lead inescapably to a conclusion of undue influence. Respondent amply met the burden of proving lack of undue influence. Respondent was a godson and a grandchild of the decedent who lived with her for thirty years and who took care of all the decedent’s affairs for many years prior to her death. Despite the fact that he recently got married and was difficult for him to do so, Respondent took care of all of decedent’s needs, picking up medicine, stocking the house with food, collecting rental income, paying all of her bills, dealing with the home health care agencies, doctors, applying for home care, and visiting her in the hospital. The Court acknowledged that Respondent did an admirable job of taking care of the decedent under tough circumstances. The Court contrasted this action with that of the petitioner, who, when the decedent contacted her that she was in need of help and requested that she take care of her on the weekends, she refused, and who abruptly cut off all relations with the decedent for at least three years until decedent’s death. Petitioner’s claims regarding the alleged improper acknowledgment of the deed were equally without merit. Link to Full Text of Decision
Devlin v. Knowles
(Surrogate’s Ct. Kings Cty. 9/27/03)
In this Surrogate’s Court proceeding to turn over a grant of real property, petitioner’s lis pendens was canceled where the summons in the proceeding was not served within 30 days of the filing of the lis pendens. In response to having the lis pendens cancelled, the petitioner moved to enjoin the respondent from selling, mortgaging, assigning, or encumbering the premises. Their motion was denied. Link to Full Text of Decision
