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Estate Litigation

Our estate and probate litigation services include:

  • Trust litigation: We assist clients in resolving disputes involving existing trusts and testamentary trusts being created during the administration of the estate. The disputes frequently involve family members who wish to contest the trust or designated beneficiary, claims involving breach of fiduciary duty (against the trustee), and other trust disputes.
  • Creditor claims: The executor/personal representative has a duty to carefully examine all creditor claims against the estate. We assist clients in evaluating and validating such claims. In addition, when unwarranted claims are made, we contest the debt.
  • Will contests: We represent plaintiffs and defendants in will disputes, including will contest claims alleging duress, undue influence, and fraud. We also resolve disputes involving lifetime promises and distributions to non-spouses.
  • Other probate litigation: We work diligently to resolve any claims against the estate. In addition, we assist the personal representative/executor to pursue any relevant claims on behalf of the estate.

Maker, Fragale & Di Costanzo have also successfully instituted Surrogate Court proceedings to assert inheritance rights on behalf of children out of wedlock. Over the years, we have proudly recovered millions of dollars for our clients encompassing children out of wedlock, trustee and testamentary beneficiaries.

Dear Clients and Colleagues:

Most clients and many lawyers are not familiar with the benefits which a properly implemented trust may offer. Please read the short article below and inquire about whether the creation and implementation of a trust may benefit you or a loved one.

Best regards,
Costantino Fragale
Maker, Fragale & Di Costanzo
Jaffer v. Hirji is a civil action wherein our firm represents the plaintiffs, and is a cautionary tale for all individuals who transfer their property outright to their loved ones instead of resorting to a proper estate plan, namely, the creation and implementation of a trust.

Very often a person (hereinafter referred to as "Transferor") reposes his trust into a family member and transfers his property to said person under the expectation that his or her wishes concerning the ultimate distribution of the subject property will be honored subsequent to the Transferor's death. (I.e. a parent deeds a certain real property directly to child "A", one of his three children, with the understanding that child A will ultimately share the subject property with his siblings as the father intended).

Unfortunately, our jurisprudence is replete with cases of misplaced trust, and protracted and costly intra-family legal proceedings ensues as a result thereof causing irreparably damaged relationships among siblings. These common litigation proceedings among family members could be prevented with a properly drafted trust. The case of Jaffer v. Hirshi is a paradigmatic example of misplaced trust and this civil action, which is pending in the United States District Court, Southern District of New York, is now proceeding to trial after four years of litigation.

The Salient Facts

Mohammed Hirji ("MH") purchased a house in Hartsdale, Westchester County, New York in 1983 with the stated intention of having his family live in it for the rest of their natural lives. At the time in question, MH had three children living in New York, namely, Ahmed Hirji ("AH"), Kamal Hirji ("KH"), and his daughter Latifa Jaffer who was married to Hussein Jaffer. The Residence was purchased entirely with MH's money but the initial legal owners reflected on the deed were two of his children residing in New York, Ahmed Hirji and Kamal Hirji.

Notably, Since 1983 to this day, Kamal Hirji, Latifa and Hussein Jaffer lived at the Residence. These individuals paid all property taxes, insurance premiums, performed hundreds of thousands of dollars in capital improvements, and for all intents and purposes were the putative owners of the Residence. However, Throughout the years, several deeds were prepared and recorded concerning the Residence. The Residence always reflected at least two members of Mohammed Hirji's family. In 1989, the Residence was transferred from Ahmed Hirji (one of our clients in this litigation proceeding) to Mohammed Hirji and Naushad Hirji, the eldest son of Mohammed Hirji who lived in Tanzania. Mohammed Hirji died in 1992 and another deed was recorded wherein Naushad Hirji's wife was added as a fee simple owner.

The wishes of the late Mohammed Hirji were heeded until Naushad's daughter, Naushima, realized in 2013 that her parents were the fee simple owners of the Residence, at which point in time she procured a power of attorney and commenced an eviction proceeding against 1) Ahmed Hirji, 2) Hussein Jaffer, 3) Latifa Jaffer and their children (collectively our clients in this lawsuit). In response to Naushad's eviction proceeding, our clients filed a lawsuit claiming, among other things, that although the deed of record concerning the Residence reflected Naushad and his wife as the legal owners, a constructive trust should be imposed by the Court in accordance with Mohammed Hirshi' stated wishes and the fact that Ahmed Hirji transferred the property to his brother Naushad relying on a confidential relationship of trust that he would continue to honor the father's wishes.

After three years of litigation, the trial court dismissed our clients' claim for the imposition of a constructive trust. Pursuant to a summary judgment motion, the trial court issued a decision stating in essence that although Naushad Hirji may have had a moral obligation to honor the father's wishes, he was not legally required to do so. Our firm appealed the decision to the United States Court of Appeals for the Second Circuit which reversed the trial court's decision and gave our clients their day in court to establish whether a constructive trust should be imposed. This decision was featured as a decision of interest in the New York Law Journal on April 11, 2018, because it purports to expand the circumstances under which a constructive trust may be imposed and it might affect hundreds, if not thousands, of intra-family transactions in New York.

In the final analysis, whether our clients will ultimately prevail remains to be seen. However, the moral of this legal saga is that a properly implemented trust would have assured the late Mohammed Hirshi's testamentary wishes, saved costly legal fees and prevented this family feud. Maker, Fragale & Di Costanzo, LLP has extensive experience in litigating matters pertaining to estates and trust, and most importantly, we know how to avoid litigation altogether by implementing the correct estate plan and trust suitable for your needs and objectives. If you, a family member or a loved one wishes to protect their property and avoid another "Hirji" feud, call us today.

Our Offices

Yorktown Heights Office

Tel: 914.245.2440
Fax: 914.245.7403
2074 Crompond Rd
Yorktown Heights, New York 10598

Main Office


Tel: 914.925.1010
Fax: 914.925.1011
350 Theodore Fremd Ave
Rye, New York 10580

NYC Office

(By Appointment Only)
500 Fifth Ave
New York, New York 10110
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