Petitioner Alleges Lack of Testamentary Capacity

May 14, 2015,

A New York Probate Lawyer said the records reveal that in this contested probate proceeding, three motions are before the court. Decedent died and is survived by several brothers and sisters and by an alleged spouse, the objector herein, to whom she was married on August 8, 1953. The propounded paper, makes no provision for the objector and recites, as the reason therefor, the decedent's belief that the objector was not truly her husband since he had previously been married. The decedent further expressed her belief that objector had abandoned his wife in Italy and that his first marriage had never been legally terminated.

A New York Estate Lawyer said that the issue has been joined by the interposition of an answer alleging lack of testamentary capacity, fraud, duress and undue influence and claiming an interest in the estate as the spouse of the deceased.

A Queens Probate Attorney said that the proponent now moves to dismiss the objections on the ground that objector has no status. The third motion before the court, submitted by the proponent simultaneously with his motion to dismiss the objections, seeks to examine the objector on the facts of the alleged prior marriage, the preliminary issue herein. The objector opposes this motion on the ground that 'there is no authority for the taking of depositions for use upon a motion,' citing Matter of Erlanger's Will and Standard Foods Products Corp. v. Vinas Unidas.

Long Island Probate Lawyers in the Erlanger case, the Court was confronted with a situation almost identical to the one now before this court. The surrogate had ordered a hearing on the issue of status of an alleged spouse and had granted an examination before trial on said issue. The motion to dismiss objections awaited the outcome of the hearing. In reversing the order granting an examination before trial, the court held that the preliminary hearing was not a special proceeding in which such examination could be had under section 308 of the Civil Practice Act. Summarizing the view of the court, Justice Martin stated: 'The matter before us being a motion similar to many other motions that are made from time to time in the course of a litigation, it would seem unwise to extend the practice to meet such conditions.'

It would appear, however, that the Appellate Division for the Fourth Department has expressly rejected the First Department view. While agreeing that a party might not be examined, on a motion, under the provisions of section 307, C.P.A., which provides for such examination of witnesses, that court held: 'But for taking the deposition of a party, even for use on a motion, sufficient authority is found in section 288, Civil Practice Act. Under section 288, no excuse is needed for taking the deposition of a party to an action other than that the deposition is material and necessary to the prosecution or defense of the action. An action is more than a trial on the merits. Preliminary motions are a part of the action.' This interpretation has been adopted in the Third Department. Though, as yet, the Appellate Division in the Second Department has not expressed its view on this problem, the Supreme Court in Kings County has reluctantly followed the rule of the First Department in Standard Foods Products Corp. v. Vinas Unidas.

In 1950, the Judicial Council recommended an amendment of the Civil Practice Act to resolve the difference between the departments. Concluding the study which resulted in this recommendation, the Council stated: 'Finally, because it is desirable for motions to be determined after both parties have had a full opportunity to sustain their respective positions, the recommended amendments adopt the liberal practice of the Fourth Department.' While no legislation has resulted from this recommendation, this court agrees with the views of the Judicial Council and with the results reached in the Third and Fourth Departments.

Some light is shed on the view of our Second Department in Matter of Irwin's Will. In that case probate had been opened and leave given to the objectors to intervene. The Surrogate, having first dismissed a motion by the proponent to strike out the appearances of the objectors, ordered a preliminary hearing on the status of said objectors and granted a motion by the contestants for the issuance of a commission to take testimony on the issue of status. The Appellate Division, in affirming with modifications, distinguished the Erlanger and Norton cases, on the ground that, in those cases, pending motions were before the court, whereas, in the case before them, all motions had been disposed of. Since, however, the Appellate Division for this Department has held that an examination before trial may be had on the issue of status, generally determined by the surrogates in preliminary hearings, this court cannot rule that a party who moves to dismiss objections to probate thereby precludes his right to such examination. Motion granted. In the absence of agreement, the time of the examination, which will be had before the official stenographer, will be fixed in the order hereon which should be settled on notice.

The law provides that, “Whenever it shall appear to the court, sua sponte, or by the petition of a person authorized to present a petition for the probate of a will, that there is reasonable ground to believe that any person has knowledge of the whereabouts or destruction of a will of a decedent the court may make an order requiring the person or persons named therein to attend and be examined in the premises.” Another relevant provision provides that “any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof except that one whose only financial interest would be in the commissions to which he would have been entitled if his appointment as fiduciary were not revoked by a later instrument shall not be entitled to file objections to the probate of such instrument unless authorized by the court for good cause shown. Furthermore, renunciation or exclusion of persons having prior or equal right Every eligible person having a right to letters of administration with the will annexed prior or equal to that of the petitioner including an infant, incompetent or conservatee whose guardian, committee or conservator would be entitled to letters, and who has not renounced, must be served.”

Probate Proceedings, estate administration, will contest, and such others relating to the estate of the decedent are common cases filed before the proper courts in different jurisdictions. Many of us sometimes do not know what rights are entitled to us, hence, we never enforced whatever is rightfully due to us. If you are faced with such situations, or you know of someone dealing with such, ensure that you have the services of knowledgeable and skilled legal team who will stand beside you in every phase of your action. Probate Proceedings can be complicated sometimes because of the many different claims of interested persons whose rights are affected. Stephen Bilkis & Associates, with offices located throughout New York, can aid you with the legal assistance you need through its Kings County Estate Litigation Lawyers or its New York Estate Attorneys. Always consult with legal experts regarding matters of legal concern.

Petitioner Seeking Common Law Indemnification in Probate Case

May 13, 2015,

A New York Probate Lawyer said that according to sources, in the instant case, the complainant underwent surgery at a Medical Center, and the deceased served as his anesthesiologist. The anesthesiologist died on October 1, 2002 . On October 21, 2002, the anesthesiologist's father, as executor of his estate, petitioned the Surrogate's Court, to have the decedent's will admitted to probate. The petition to admit the will to probate stated that the decedent died while a domiciliary of New York, and that someone was named in the will as successor executor. By decree, the will was admitted to probate, and sometime later, letters testamentary were issued to his father. Thereafter, the father died.

A Staten Island Probate Lawyer said that in 2003 the complainant commenced the main action against, among others, the Medical Center. In 2008, the Medical Center commenced the instant third-party action against the successor executor of anesthesiologist's estate, seeking common-law indemnification. The successor, a resident of Colorado, retained Colorado attorneys. On behalf of their client, the lawyers entered into a stipulation with the Medical Center, in which, the successor admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for the anesthesiologist. The stipulation also stated that the Medical Center will seek no recovery from the Estate of the anesthesiologist, except to the extent of any professional liability insurance available to the Estate of the deceased anesthesiologist.

A New York Estate Admininstration Lawyer said that by notice of motion, the successor-appellant's newly-retained attorney in New York moved to dismiss the third-party complaint, based upon the appellant's affidavit stating that she had been designated as Successor Executor of the Estate of the deceased anesthesiologist, but the Estate was closed, and her role was extinguished in 2006. Her attorney also submitted an affirmation acknowledging that She had been personal representative for an Estate which was domiciled and probated in Colorado, but claimed that her appointment terminated in 2007, pursuant to Colorado law which provides that, "if no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates". No documents were submitted in support of the appellant's claim that her status as personal representative had terminated. In opposition, the Medical Center noted that "in Colorado to close an estate, assuming there was one in Colorado, you have to file papers. No such papers are annexed to the motion."

In the order appealed from, the Supreme Court denied the successor-appellant's motion on the ground that she failed to establish that at the time of service the estate had been closed under laws of Colorado.

A Nassau County Probate Lawyer said that he successor-appellant acknowledges that she had been appointed the personal representative for the deceased anesthesiologist's estate, "which was domiciled and probated in Colorado." A plaintiff may commence an action in New York against a "foreign executor," that is, an executor domiciled in another jurisdiction. Further, the appellant did not submit any evidence that a closing statement was in fact filed closing the estate, or any other evidence that her appointment terminated. In view of the foregoing, the Supreme Court properly determined that the appellant failed to establish that she was no longer the personal representative of the decedent's estate at the time the third-party action was commenced. The appellant's remaining contentions either are without merit or need not be addressed in light of our determination.

According to sources, as provided under New York Law, “A petition for the probate of a will may be presented by (a) any person designated in the will as legatee, devisee, fiduciary or guardian or by the guardian of an infant legatee or devisee or the committee of an incompetent legatee or devisee, or the conservator of a legatee or devisee who has been designated a conservatee pursuant to article seventy-seven of the mental hygiene law; (b) a creditor or any person interested or any person entitled to letters of administration with the will annexed under 1418; (c) any party to an action brought or about to be brought in which action the decedent, if living, would be a party; (d) the Public Administrator or County Treasurer on order of the court, where a will has been filed in the court and proceedings for its probate have not been instituted or diligently prosecuted. 2. Contents of petition. The petition for probate shall allege the citizenship of the petitioner and the testator and shall describe the will being offered for probate and any other will of the same testator on file in the court and shall set forth the names and post-office addresses so far as they can be ascertained with due diligence of all of the persons required to be cited and all of the legatees, devisees and fiduciaries named in the will or any other will so filed. 3. Direction of court. (a) Where a petition for probate has been filed and the proceeding has not been diligently prosecuted the court may direct the Public Administrator or County Treasurer or authorize any party to take such steps as may be required to bring the proceeding to a decree. (b) Where necessary, the court shall determine the text or tenor of the will as admitted to probate and may incorporate the will or any part thereof in the decree.”

The law also provides, in relevant parts, that, “In a proceeding for the probate of a will process must issue to the following persons if not petitioners: (a) The distributees of the testator. (b) The person or persons designated in the will as executor except that a person designated in the will as substitute or successor executor in the event the designated executor cannot act or fails to qualify need not be served where the designated executor is under no disability. (c) Any person designated in the will as beneficiary, executor, trustee or guardian. (d) Any person designated as beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate's court of the county in which the propounded will is filed. (e) any persons designated in the instrument that created such power of appointment whose rights or interests are adversely affected by the instrument offered for probate. (f) The testator in any case where the petition alleges that the testator is believed to be dead. (g) The state tax commission in the case of a non-domiciliary testator. (h) Where any person to whom process is required to be issued has died, process shall issue to his fiduciary and if none has been appointed, to all persons interested as distributees, nominated fiduciaries or named as legatees or devisees under any will of the deceased.”

Probate, Estate Litigation, Estate Administration, and the likes are often tried and heard before the courts. Persons who have any interest over the subject estate left by the decedent usually resort to legal action in protecting and asserting their rights. In such cases, we need the services of the legal experts who can aid us with the proper remedy or action to take. Stephen Bilkis & Associates, with offices throughout New York, offers the legal assistance of its Kings County Estate Lawyers and its New York Will Contest Attorneys who will not hesitate to aid you in any legal course you decide to take. Speak and consult with your lawyers.

Court interprets Will Document

May 12, 2015,

A New York Probate Lawyer said that the records reflect that these two cases involves matters of probate which was resolved by the court accordingly. In the first probate proceeding, Paragraph 'Fifth' of testatrix' will reads: 'Enclosed in the same envelope with this Will are two sealed envelopes addressed to my four sons jointly. These letters contain information as to my wishes for the disposition of certain items of personal property. It do not bind my Executors by these wishes but ask they give consideration to them.' One of the letter referred to, dated and simply signed 'Mamma', is a moving personal expression of her deep love and affecting for and abiding faith in her four sons. It makes no mention of her property. The other letter, undated and unsigned, suggests distribution of certain items of personal property. Petitioner presents both letters for the Court's consideration as possibly incorporated in the will by reference.

As stated in the will, testatrix' letters to her sons, her nominated executors of the estate, were not to bind them. Consideration for her wishes was all she asked. Her unattested memoranda of desire and expectation are intimately personal in their nature and are couched in terms of love and suggestion, but not of command. Neither her short and concise will nor the letters themselves evidence any intention to bring into the former the mass of detail contained in the latter which, if introduced, would change nothing and would not legally affect the administration or distribution of her estate. Accordingly, the first alternative prayer for relief, granting probate to the attested instrument together with the letters referred to in paragraph 'Fifth' thereof, is denied; the second alternative prayer for relief, admitting to probate only the attested instrument, is granted. Settle decree on notice.

A New York Estate Lawyer said that in the second contested probate proceeding, the executor appeals from an order of the Surrogate's Court, dated February 8, 1988, which denied his motion to set aside a stipulation of settlement and which granted the objectant's cross motion for leave to enter a money judgment in the principal sum of $20,000.

Westchester County Probate Lawyers said that sometime, a stipulation of settlement was entered into between the executor and the objectant daughter of the decedent. The parties agreed, in open court, that the daughter would withdraw all of her objections to the probate of the will of the decedent, with prejudice, and that the executor would pay her the sum of $20,000 with interest from October 27, 1987. It was further stipulated that, if the entire settlement sum was not paid on or before September 30, 1988, a judgment for the unpaid balance plus interest could be entered against the executor without further application or notice to the court. In that event, a mortgage and note on real property owned by the executor personally could be "entered" to secure payment. The stipulation further provided that, if the payment were not timely made, the objections to probate could be reinstated and the matter could proceed to trial.

Suffolk County Probate Lawyers said it is well settled that a stipulation of settlement made in open court is binding upon the parties thereto, absent fraud, collusion, mistake or accident or other grounds of a similar nature. In the instant matter, the executor has failed to establish that he, a practicing attorney for about 29 years, was unable to understand the clear and distinct terms of the stipulation. Indeed, a review of the record clearly reflects that the executor understood the terms and agreed to them. There is no evidence to support the executor's contention that the Surrogate's Chief Law Assistant and the objectant coerced him into entering into the stipulation. We find absolutely no evidence of fraud, mistake or collusion in the execution of the stipulation.

Courts are faced with many kinds of cases, including those of estate administration, estate litigation, will contest and other concerns involving the estate of a decedent. In such circumstances, it is important for us to know and be aware of the extent of our interest over the subject matter of the proceeding in order for us to be able to secure the legal remedies available to us. Hence, we may seek the services of legal experts. Stephen Bilkis & Associates, with offices located throughout New York, its Kings County Estate Lawyers or its New York Probate Attorneys are willing to extend aid and render legal assistance to those who seek it.

Probate Court Interprets Holographic Instrument

May 10, 2015,

A New York Probate Lawyer said that sources show that the complainant offers for probate a holographic instrument, 2-1/4 3-3/4 inches in size, written upon both sides thereof. The decedent's signature appears directly below the dispositive provisions with no space for any other signatures below it. The first witness's signature is on the right-hand side of the paper parallel to the edge thereof approximately at a right angle to the decedent's signature and followed by the word 'witness'; the other witness's signature appears immediately thereafter at a right angle to the first witness's signature on the side of the paper opposite decedent's signature. This witness's signature is inverted in relation to decedent's signature and preceded by the word 'witness.'

The question submitted before the court is whether the witnesses signed 'at the end' of the propounded instrument is in accordance with the requirements of section 21(4) of the Decedent Estate Law.

A New York Estate Lawyer said that the Court ruled that, Section 21 of the Decedent Estate Law was designed to prevent fraud and its beneficial purpose should not be thwarted by an unduly strict interpretation of its provisions, especially where there is no opportunity for a fraud to have been perpetrated. As stated in the Field case, 'Form should not be raised above substance, in order to destroy a will, and the substantial thing in this case is a paper which reads straightforward and without interruption from the beginning to the end, and when thus read the signature is found at the end.'

A Queens Probate Attorney said the court is satisfied that by the propounded paper, which is informally drawn, the decedent intended that it be his last will and testament. He was familiar with the basic requirements for the execution of a will and aware that his signature had to be witnessed. There not being sufficient space below or to the sides of decedent's signature on the small piece of paper, the witnesses, of necessity, were forced to affix their signatures in the only spaces available on the paper. Under the circumstances indicated in this proceeding, a rigid construction of section 21 is not resorted to since there was no possibility of fraudulent additions to the instrument. The law affords the right of testamentary disposition, and a decedent's wishes where clearly stated should not be thwarted unless clearly required. The court is further satisfied that the witnesses to this instrument signed in the only spaces available with intent to witness decedent's last will and testament in substantial compliance with section 21 of the Decedent Estate Law.

The genuineness of the instrument, the validity of its execution and the competency of the decedent all having been proven to the court's satisfaction, the instrument will be admitted to probate.

Long Island Probate Lawyers said that according to sources, a petition for the probate of a will may be presented by (a) any person designated in the will as legatee, devisee, fiduciary or guardian or by the guardian of an infant legatee or devisee or the committee of an incompetent legatee or devisee, or the conservator of a legatee or devisee who has been designated a conservatee pursuant to article seventy-seven of the mental hygiene law; (b) a creditor or any person interested or any person entitled to letters of administration with the will annexed under 1418; (c) any party to an action brought or about to be brought in which action the decedent, if living, would be a party; (d) the Public Administrator or County Treasurer on order of the court, where a will has been filed in the court and proceedings for its probate have not been instituted or diligently prosecuted. 2. Contents of petition. The petition for probate shall allege the citizenship of the petitioner and the testator and shall describe the will being offered for probate and any other will of the same testator on file in the court and shall set forth the names and post-office addresses so far as they can be ascertained with due diligence of all of the persons required to be cited and all of the legatees, devisees and fiduciaries named in the will or any other will so filed. 3. Direction of court. (a) Where a petition for probate has been filed and the proceeding has not been diligently prosecuted the court may direct the Public Administrator or County Treasurer or authorize any party to take such steps as may be required to bring the proceeding to a decree. (b) Where necessary, the court shall determine the text or tenor of the will as admitted to probate and may incorporate the will or any part thereof in the decree.

Stephen Bilkis & Associates, with offices throughout New York, provides legal assistance in cases involving estate administration, estate litigation, will contest and the likes. They have their Kings County Estate Lawyers, or its New York Probate Attorneys who are willing to hear and assist any legal problem you may have involving matters of the estate.

Probate Court Conducts an Accounting Proceeding

May 9, 2015,

A New York Probate Lawyer said that records show that in the instant case, the decedent died on August 27, 2003 a resident of New York. She was survived by her son and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate on November 12, 2003 and letters testamentary issued to the executor for estate administration. The will provides that the residuary estate be divided equally between the two children but that the daughter, if unmarried, be given a two year right to occupy the decedent's home provided she pay real estate taxes. The daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

Submitted for decision in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant's fees and reimbursements to the executor of sums advanced by him.

The court ruled that, as with any request for a fee, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate regardless of a retainer agreement. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

A New York Estate Lawyer said that in evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent; the complexity of the questions involved; the nature of the services provided; the amount of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services. In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts. Also, the legal fee must bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. Moreover, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.

Nassau County Probate Lawyers said that the burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed.

With respect to accountant's fees, normally, accountant's services are not compensable out of estate assets unless there exist unusual circumstances that require the expertise of an accountant. The fee for such services is generally held to be included in the fee of the attorney for the fiduciary. "The purpose of this rule is to avoid duplication. Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee".

A Staten Island Probate Lawyer said that in this estate the executor originally retained the lawyer at a fixed fee of $12,000.00 for 40 hours of professional time with an understanding that provided for compensation for additional unanticipated services. He was billed and was paid for $1,000.00 in additional services. He primarily handled the probate proceeding, negotiating with the daughter's attorney regarding a possible purchase of the decedent's home by her and qualified the son as the appointed fiduciary. He obtained a waiver and renunciation from the drafting attorney nominated as a co-fiduciary, reminded the daughter of her duty to vacate the premises and handled the sale of the premises. He filed an inventory with the court and communicated with the firm who handled the preparation and filing of this account. Others was retained by the original lawyer and the executor on or about July 22, 2005. Their fees include 24.51 hours of various partners time and 46.48 hours of paralegal time plus disbursements wherein some has already been paid and a certain amount remains outstanding.

The original lawyer shepherded a probate proceeding through the court in circumstances where there was a possibility of a coexecutor-attorney claiming a right to serve and where the daughter, through her counsel was considering objections to her brother's nomination based upon his qualifications. Animus between these siblings generated some of these additional fees. He also handled the closing on decedent's home and preparation of the inventory. To the extent he relies upon time expended by him, he has failed to produce contemporaneously-maintained time records of the amounts of time allegedly expended and describing with particularity the precise services rendered. Therefore, it is difficult for the court to correlate the tasks performed to the alleged time in excess of forty (40) hours. However, no objection to the fee has been raised and the amount is not unconscionable. Therefore, the legal fee requested by the original lawyer is allowed.

With respect to the other employed, there was an apparent effort to minimize fees by the use of a paralegal. Nevertheless, an excessive amount of time appears to have been devoted to duplicative services of consultations between the partners and the lawyer, in telephone conferences with him and in reviewing the lawyer's emails and responding thereto. Additionally, several hours in November and December of 2006, which are not precisely ascertainable, were expended in the preparation of both attorneys' affidavits of services. Finally, disbursements for UPS, priority mail, postage and photocopying are disallowed. However, as set forth above, the other employed has already discounted its fees and therefore the reduced amount requested is reasonable and allowed as are the disbursements in a specific sum through entry of a decree in this proceeding.

The executor also seeks reimbursement for plus an additional expenses since the account was filed, for funeral expenses, travel related expenses and miscellaneous postage, film, landscaping and other costs. Of these expenses are for travel from the executor's home in Ohio to New York for food, gas and lodging. When it can be inferred that the testator knew that travel by a representative she nominated, such as her son who resides in Ohio, would be required, reimbursement of such travel expenses in permissible. Thus reimbursement in travel expenses is approved. Reimbursement paid to a landscaper and funeral expenses for the minister, florist and funeral luncheon are also allowed. Other expenses for postage, film, bulbs, duct tape and signs are deemed to be costs of performing routine fiduciary duties and are deemed absorbed by commissions whether the fiduciary is a resident or non resident of this state.

Stephen Bilkis & Associates, with offices located throughout New York, offers the services of its skilled Kings County Probate Lawyers and its seasoned New York Estate Attorneys in cases such as but not limited to will contest, estate litigation, estate administration. Some cases involving matters of the estate are complicated due to claims of persons whose rights are affected therein, and application of laws of different jurisdictions. Therefore, to ensure that your rights are protected at all times, consult and speak with your legal experts.

Courts Review Abiguity in Will Clause

May 8, 2015,

A New York Probate Lawyer said that according to sources, this will contest action, involving the construction of a latent ambiguity in a will clause, foregrounds the difficulty of determining close cases in the absence of a clearly enunciated burden of proof. An earlier decision denied summary judgment on an objection in this estate accounting challenging “the Executor's claim that a rare book collection worth more than $5 million at the time of decedent's death was included in the specific bequest of tangibles,” finding a latent ambiguity requiring consideration of extrinsic evidence and directing a hearing on the issue. Familiarity with the facts set forth in that opinion is assumed, but a few need be repeated in order to place the resulting hearing, and testimony adduced there, in context.

The decedent, died leaving an estate of approximately $17 million. His two-page will, admitted to probate on September 5, 2007, named his wife as his executor. In Article SECOND, it made a specific bequest of tangibles to his wife, and in Article THIRD, it bequeathed the residuary, two-thirds to his wife and one-third to his son. In her capacity as executor, the wife signed and filed an estate tax return that specifically designated a “rare book collection” valued at $5.2 million, which she has deemed included in the specific bequest to her. Whether the Collection was or was not included in the specific bequest is the issue raised by the son, as objectant to the wife's intermediate accounting.

A New York Estate Lawyer said that witnesses testified at the hearing. The Decedent was a passionate collector of pre–1800 materials relating to festivals, or “fêtes,” and had been engaged in assembling the Collection for many years, beginning before his marriage. The Collection consisted of books; prints, manuscripts, pamphlets, scrolls and broadsides. Most of the Collection was maintained in decedent's apartment, the books in a glass-fronted bookcase prominently featured in the living room, with other items in storage boxes specially constructed to avoid damage from light and dust. Some twenty-one larger items were kept in a safe deposit box at a nearby bank. The wife, a collector in her own right, assisted him in assembling the Collection, and whenever pieces from the Collection were lent to museums, their provenance was described as that of “Mr. and Mrs.”

In the witnesses testimony, both put to rest any notion that decedent was “collecting for investment purposes.” However, shortly after decedent's death, the wife began the process of monetizing the Collection, first bringing the items in the safe deposit box to the apartment, and then engaging to auction off the vast majority of the pieces contained in it. Perhaps the most significant testimony was that explaining the nature of “collections” and “collecting.” He explained, for example, that the Club is “not a book club in the sense that people get together and discuss current novels or nonfiction books and discuss them back and forth. The Club is made up of people who are, certainly, concerned with books as information, as texts, but also as historical artifacts, as objects of art, and as the focus of collecting.”

Westchester County Probate Lawyers said that collectors, like decedent, are, he explained, interested in the “historical value, the state of bibliography or scholarship” of objects “worthy of being collected together.” He elucidated this latter phrase and the term “collection” in general, by describing a “collector” as “somebody collecting in an area that hasn't been collected very heavily before or that a collector is taking a new approach to putting together a collection of books” and further explained, “the goal being to discover something about these books that wasn't known before or that allows scholars and collectors to look at these books in a new way.”

Suffolk County Probate Lawyers said that where a will contains an ambiguity, the court's primary, overriding task is to determine the decedent's intent. Various canons and rules of grammatical construction may be utilized in aid of this endeavor, but are not, in themselves, dispositive and, indeed, when literally applied, often lead to opposite results. Here, for example, the parties argue about the placement of commas in the phrase “household furniture or furnishings, books, pictures, jewelry and other articles of personal or household use” and whether the phrase “of personal or household use” modifies all that comes before, or only “other articles.” Engaging in mechanical reading of the text could result in several different but plausible constructions: that all “books” and “pictures” (but not manuscripts, broadsides, pamphlets, etc.) are included in Article SECOND; that all items displayed (and thus “used”) are included, but those stored in boxes, wherever located, are not; that all items located in the apartment are included, but those stored at the bank are not; that “books” has its usual meaning such that the hardback novels and nonfiction books that decedent read, enjoyed, and retained are the objects referred to in Article SECOND, but the “books” and other protected items in the Collection are not; etc.

The task of construction is made more difficult by the absence of a clear burden of proof. The parties were repeatedly asked which bore the burden of proof, and what the burden is (i.e. preponderance, or clear and convincing) but neither provided any compelling authority, nor was the court successful in locating any helpful New York precedent. Instead, appellate cases make pronouncements like “[w]here language of a will does not affirmatively show the claimed intention, the burden of establishing such intention is on the party seeking to effectuate it”, which would appear to place equal burdens on both parties. The Restatement also fails to provide assistance to the trier of fact in a close case, such as this, stating: In resolving an ambiguity in a donative document, the construction placed on the document by a fiduciary (or other payor) is not entitled to a presumption of correctness in litigation. The court resolves the matter de novo”.Although the absence of burden allocation is understandable, it makes the task of a trier of fact significantly more difficult in cases which, by their very nature, involve ambiguity or lack of clarity.

There are at least two possibilities for allocation of the burden, which would serve, at least in some cases, conflicting policies. There could be a presumption that the construction of the will proposed by the executor is correct, placing the burden on objectant. This allocation would, arguably, further the decedent's general intent as demonstrated by her choice of a particular person as her fiduciary. On the other hand, where the executor herself is a beneficiary who would benefit from a particular construction, the burden might be placed on her. This would further the general principle that a fiduciary owes loyalty to all beneficiaries and may not engage in self-dealing. Or, these allocations could be adopted together (i.e., burden on objectant unless fiduciary is a beneficiary under the ambiguous language; then burden shifts), thus providing greater certainty and decreasing the litigation burden on the courts.

In the absence of appellate guidance, however, the court is left in a situation similar to another other issue in which no burden of proof has been imposed, determining the “best interests of the child” in initial custody and visitation proceedings between parents, which has been heavily criticized.What follows, therefore, is the court's best evaluation, based on the evidence adduced at the hearing, of what decedent meant in executing the ambiguous will at issue here.

The single most important “fact” emerging from the hearing relates to the meaning of “collection” as it, in turn, relates to the items in controversy, however denominated. That is, rather than a number of independent objects - books, prints, etc. - the “Collection” was, itself, the entity: an amalgamation, carefully assembled, that, in and of itself, constituted an object of research, study and contemplation. Whether described in exhibition catalogues, articles in art publications, conversations between decedent and curators, or in the Form 706 Estate Tax Return signed by the wife, there were not simply, or primarily, x number of individual books, y number of prints, z number of manuscripts, etc., but rather a single whole, greater than the sum of its parts, understood and valued as such. Decedent spent much of his life, often with his wife's loving assistance, creating the Collection, that is, literally, continuously making something, of continuing growth, that was of scholarly, historical, bibliographical and aesthetic value considered as a whole.

As such, it is difficult to believe that decedent intended to include this, his life's avocation, in the pedestrian phrases “books, pictures and other items of personal or household use.” Instead, it seems more likely that the absence of any mention of the Collection, a major asset, like the absence of mention or description of decedent's stock portfolio, was intentional, and reflected an intention, on the one hand, to leave his widow a home filled with that which she herself used, but to divide his major assets (apart from the specifically noted cooperative apartment) between her and his son by consigning them to his residuary estate.

Another piece of evidence, adduced at the hearing, strongly supports this conclusion. This is a letter, written by decedent on the same date that he executed his will, to his stepdaughter. The letter clearly states decedent's intention, if he predeceased his wife, to leave two-thirds of his estate to her and one-third to his son, the objectant.

Understandably separating out the home which they had shared, decedent left his financial and monetizable assets, a considerable stock portfolio, and the valuable Collection to his wife and son in a two-thirds/one-third split. If the Collection were to be included in Article SECOND, his son would receive only about one-sixth of his estate, an amount entirely inconsistent with the intent expressed by decedent in his contemporaneous letter to his stepdaughter. For these reasons, in the absence of a strong burden on objectant, the court finds from all the evidence that decedent intended the Collection to pass in his residuary estate. Accordingly, the objection is sustained, and the Collection passes via Article THIRD, the residuary clause of decedent's will. This constitutes the decision and order of the court.

Stephen Bilkis & Associates, with offices located throughout New York, renders legal assistance especially in cases involving estate litigation, will contest, estate administration or any matters involving the estate such as those relating to construction or interpretation of the provisions of the decedent's will as shown in the instant case, or collection of a sum of money against the estate of the testator, or those affecting the rights of the heirs or other beneficiaries. Through its well trained Kings County Estate Lawyers or its knowledgeable New York Probate Attorneys, a legal team who is not only skilled but willing to assist and aid you the proper remedy, you can be assured of a competent representation before the courts.


Parties Seek a Judgment as a Matter of Law

May 7, 2015,

A New York Probate Lawyer said that records reflect that in a contested probate proceeding, the objectants appeal from a decree of the Surrogate's Court, which, after reserving decision on the proponent's motion pursuant to CPLR 4404 for judgment as a matter of law, made at the close of the evidence, and after the trial ended in a hung jury, upon the granting of the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate.

After the parties rested at trial, the proponent moved pursuant to CPLR 4404 for judgment as a matter of law. The Surrogate's Court reserved decision on the motion and submitted the issue to the jury. After the trial ended in a hung jury, the Surrogate's Court, upon granting the motion and determining that the will in question was duly executed and not a forgery, inter alia, directed that it be admitted to probate. Contrary to the objectants' contention, the Surrogate's Court properly entertained the motion after the trial ended in a hung jury.

A New York Estate Lawyer said that moreover, the Surrogate's Court properly granted the proponent's motion. Although the objectants alleged that the will was forged and not duly executed, they failed to adduce sufficient evidence, as a matter of law, to support their objections. Where, as here, the attorney-draftsperson supervised the will's execution, there was a presumption of regularity that the will was properly executed in all respects. In addition, the self-executing affidavit of the attesting witnesses created "a presumption that the will was duly executed" and also constituted "prima facie evidence of the facts therein attested to by the witnesses". The objectants failed to overcome this presumption, as a matter of law, because they relied upon either the failure of the attesting witnesses to recall the circumstances of the will's execution or a highly selected reading of their prior deposition testimony which was controverted by the rest of the witnesses' testimony. Furthermore, the testimony of the objectants' expert did not, as a matter of law, establish that the will was forged. The objectants' remaining contentions are without merit.

New York Probate Lawyers said that the law provides that, 'Any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will or of any portion thereof except that one whose only financial interest would be in the commissions to which he would have been entitled if his appointment as fiduciary were not revoked by a later instrument shall not be entitled to file objections to the probate of such instrument unless authorized by the court for good cause shown'. However, the law also provides that, 'before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution. New York City Probate Lawyers said that the court may, however, accept an affidavit of an attesting witness in the manner and under the circumstances prescribed. 2. If it appears that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate as a will valid to pass real and personal property, unless otherwise provided by the decree and the will and decree shall be recorded. 3. Where the petition alleges that the testator has disappeared under circumstances sufficient to justify the belief he is dead the court shall take proof of the facts. If it appears that the testator is dead the court may make a decree determining such fact and admitting the will to probate. The decree shall be binding in its effect upon the interests in the estate of persons under disability and of future contingent interests of persons not in being as well as the interests of adult competent persons.'

Stephen Bilkis & Associates, with offices located throughout New York, its Kings County Probate Attorneys and its New York Estate Lawyers, are familiar and experienced in handling cases such as the instant case, or actions involving Estate Litigation, Will Contest, Estate Administration and the likes. Hence, if you are in need of a legal advice, consult with your preferred legal team.

Court Interprets the Provisions of a Trust

May 6, 2015,

New York Probate Lawyers this is an uncontested proceeding for reformation of Article FIFTH of decedent's last will and testament dated November 21, 1979, as amended by Article II of a codicil thereto dated March 24, 1982 (collectively, the "will"). Decedent died on December 12, 1984. The will was admitted to probate by decree of this court.

A Kings Probate lawyer said that Petitioner, the sister of the decedent, is a co-trustee of the trust created under Article FIFTH of the will (the "Trust") for the benefit of decedent's son, who suffers from chronic physical disabilities, including malfunctioning kidneys, for which he is receiving dialysis treatment. On July 14, 2006, following the death of the decedent, who had been serving as co-trustee with petitioner, successor letters of trusteeship were issued by this court to Bonnie Linzer, who is petitioner's daughter as well as a remainderman of the trust.

A New York Estate Lawyer said that under Article III of the codicil, a trustee who is also a beneficiary of the trust is prohibited from (1) exercising discretion to pay or not to pay income or principal from the trust; (2) determining whether a beneficiary of the trust is disabled; (3) terminating any trust or life estate thereunder; and (4) exercising discretion to allocate receipts or expenses between principal and income. Petitioner and the daughter, who are remaindermen of the trust as well as the co-trustees, are thus unable to act in respect to these decisions.

On January 17, 2007, an individual, who is not a remainderman, was appointed to serve as a successor co-trustee. Successor Letters of Trusteeship issued to him on January 19, 2007, and he is now serving as a co-trustee along with petitioner and the daughter. He has submitted an affidavit in support of the relief requested by petitioner.

According to petitioner, the Trust is valued at approximately $572,000, consisting of cash, cash equivalents and marketable securities. Petitioner avers that she is concerned that the language of Article FIFTH will frustrate the decedent's intent that trust funds be available for the duration of decedent's life for his comfort and maintenance. Petitioner states that, although Decedent has medical insurance, the cost of his medical care may exceed the amount covered by the insurance and, over time, completely deplete trust assets prior to Decedent's death. For that reason, Petitioner requests that Paragraph A of Article FIFTH be reformed into a special needs trust by eliminating Paragraph [A][2] of Article Fifth.

Courts are generally loathe to reform testamentary instruments and, as a rule, will not, unless reformation effectuates the testator's intent. When construing a will, the testator's intent is to be gleaned from a sympathetic reading of the instrument in its entirety and not from a single word or phrase. It is of paramount importance that the testator's actual purpose be determined and effectuated to the extent it comports with the law and public policy.

Westchester County Probate Lawyers said in a case, the trustee of a discretionary trust established under a will brought a proceeding to judicially settle his account. The New York State Department of Mental Hygiene filed objections to the disallowance by the trustee of its claim for reimbursement from the trust for the cost of the care of the trust's lifetime beneficiary, the testator's daughter, who had been a patient at a Psychiatric Center since 1947. Surrogate's Court, Bronx County, dismissed the objections, finding that "under the terms of the trust at issue, it is not an abuse of discretion for the trustee to decline to invade corpus for the purpose advocated by objectant".

In reaching its conclusion, the court relied on the language of the testator's will and codicil, which the Court found evidenced the testator's knowledge of his daughter's disabilities and his apparent intent to provide for her ongoing needs during her lifetime within the framework of a continuing trust. The Court also reasoned that in recent years the view of public assistance had changed from that of a "gift" to a "right" and that the stigma attached to it had, for the most part, disappeared, particularly with respect to programs "designed to meet the astronomical cost of illness or institutional care of any sort.

Suffolk County Probate Lawyers said it is divorced from the realities of life to presume that if the testator were aware of the facts as they now exist, he would desire to pay the immense cost for his daughter's care in preference to having society share his burden". When the case reached the Court of Appeals, it held that, as a matter of law, the trustee did not abuse her discretion by refusing to invade the trust's corpus to reimburse the Department of Mental Hygiene.

Enacted in 1993, EPTL 7-1.12, in essence, codified the holding in the cited case. The statute authorizes the creation of non-self-settled, testamentary supplemental needs trusts when the following requirements are satisfied: (1) the person for whose benefit the trust is established suffers from a "severe or chronic or persistent disability"; (2) the trust evidences the intent that the assets be used to supplement, not supplant, government benefits; (3) the trust prohibits the trustee from using assets in any way that may jeopardize the beneficiary's entitlement to government benefits or assistance; and (4) the beneficiary does not have the power to assign, encumber, direct, distribute or authorize distribution of trust assets. The policy of the State of New York is to encourage the creation of supplemental needs trusts for people who are mentally or physically disabled.

Courts have shown a willingness to reform wills to obtain the benefits of an SNT where the testator's intent to supplement, rather than supplant, government benefits is evident from the language of the testamentary instrument and such reformation would not change the testator's dispositive plan.

The proposed reformation of the trust for decedent's benefit meets the criteria enunciated in the jurisprudence and later in EPTL 7-1.12. the decedent, the income beneficiary, suffers from chronic disabilities. The will evidences decedent's intention to provide for decedent to the extent that his needs are not met by government assistance and that the trust's assets be used to supplement, not supplant, government benefits.

In that regard, Article FIFTH [A][2] currently directs that principal may be paid to, or on behalf of, decedent from time to time for his health, support or maintenance "taking into account funds available from other sources." Decedent has no power to dispose of any trust assets. The requested reformation does not alter decedent's testamentary plan and the court finds the requested reformation to be in Decedent's best interests. Significantly, the Nassau County Department of Social Services was cited in this proceeding and did not appear or object. Finally, all other interested parties have consented to the relief requested in the petition.

Accordingly, the petition to reform the trust under Article Fifth of the will is granted. The co-trustees should be mindful of the restrictions imposed on petitioner and Daughter by Article III of the codicil.

Drafting a last will and testament is not simply drafting it. Its provisions must be in accordance with the law. Our Kings Estate Attorneys here in Stephen Bilkis and Associates will help you draft one’s last will and testament to ensure that it will confer with the law. In order for the provisions of the last will and testament will be effective, you can also ask for the assistance of our Kings Probate Lawyers, who will help your executor to bring the will in Court for its probate. For more inquiries, you can contact us. We will be glad to give solutions to your problems.

Court Looks at Will Construction Issue

May 5, 2015,

Probate Lawyers said that according to a Kings County Estate Attorney a Judgment of the Supreme Court, Kings County, dated July 6, 1966, was reversed, with $30 costs and disbursements; plaintiffs' motion for summary judgment granted; and action remanded to the Special Term for the making and entry of an appropriate judgment declaring rights in accordance with the views set forth herein.

A Kings County Probate Lawyer said one Mrs. M died on December 1, 1934 and her last will and testament was duly admitted to probate. The critical provision of the will, with respect to this action for a declaratory judgment, devised her large plot in Greenwood Cemetery to defendant, the Cemetery corporation, with the direction that her remains and those of her late husband be interred there; and further that 'until the limitation of interments is reached, the remains of my children and my stepchildren and their respective husbands or wives, and their children and their respective husbands or wives, may be interred in the said lot of land, and that interments in the said lot be restricted to the persons so designated.'

A New York Estate Lawyer said that according to a Kings County Estate Lawyer, the Plaintiffs seek to include in the class entitled to burial all descendants and step-descendants and their respective spouses 'until the limitation of interments is reached.' Defendant argues that the will limits the class to first and second generation descendants and step-descendants and their respective spouses.

A Kings County Probate Lawyer said that it is undisputed that the plot, consisting of 3,024 square feet, contains a mausoleum, which accommodates 16 crypts, and surrounding land which accommodates 38 grave spaces, each of which can take three interments. Of the total 130 available burial places, only nine are now filled. There are only 21 eligible persons in the class, as limited by defendant.

Manhattan Probate Lawyers said that as explained by a Kings County Estate Attorney, for all practical purposes, that number cannot be enlarged, since the sole surviving child of the testatrix is a 75 year old widow. Thus, 100 burial places will be wasted and unfilled if defendant's and Special Term's interpretation be adopted.

A Kings County Will Contest Attorney finds that the testatrix's plan was to provide a family burial resting place (see Matter of McNeil, 18 A.D.2d 170, 238 N.Y.S.2d 389). Justice and reason require that 'children', as used in this instrument, be construed to include all direct line and step-descendants until the limitation of interments is reached.

New York City Probate Lawyers said that according to a Kings County Estate Administration Attorney, the prefatory clause inserted before the definition of the class to be entitled to burial would be stripped of all meaning under the facts and circumstances of this case if the determination at Special Term be upheld. The authorities do not favor such excisional construction of instruments (Matter of Buechner, 226 N.Y. 440, 123 N.E. 741).

A Kings County Will Contest Attorney said that since the testatrix was so generous and liberal in including within the class to be benefited stepchildren and grandchildren and spouses of all children and grandchildren, both direct and step, we believe her plan and intention were not so restrictive and exclusive as to exclude those whom plaintiffs seek to benefit; otherwise, the prefatory clause was surplusage and devoid of all meaning.

When the execution of the last wishes of the testator stated in his or her last will and testament is hampered by other interested person, just like in the case at bar, contact a Kings County Estate Attorney and County Will Contest Attorney at Stephen Bilkis & Associates to help you enforce the proper interpretation of a will.

If you want to probate lost will or a will allegedly written with undue influence exercise upon the testator, our will contest attorneys will handle it for you. In matters of settling a final account of the estate or a trust created under a will, our estate lawyers are expert for the subject matter. Call us at our toll free number or visit our office near you.

Petitioner Files an Appeal in Will Contest Proceeding

May 4, 2015,

A New York Probate Lawyer said that, this is an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (207 App. Div. 388,202 N. Y. Supp. 201), entered December 7, 1923, which affirmed a decree of the Kings County Surrogate's Court admitting to probate a paper propounded as the last will and testament of the deceased.
A Kings Estate Litigation Lawyer said that, another case is a motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (202 App. Div. 843,194 N. Y. Supp. 978), entered July 21, 1922, which unanimously affirmed a decree of the Kings County Surrogate's Court admitting to probate a paper propounded as the last will and testament of the deceased deceased. The motion was made upon the ground that permission to appeal had not been obtained.

The only question was as to whether the will was duly executed, one of the witnesses testifying that there was no publication thereof.

Accordingly, the court held that the order is affirmed, with costs, on ground that contestant's evidence was incredible as matter of law.

If you want to file an opposition in the probate of a will, seek the help of a Kings Will Contest Attorney and Kings Estate Litigation Attorney at Stephen Bilkis and Associates.

Petitioner Files an Application for an Order Extending the Statute of Limitations

May 3, 2015,

New York Probate Lawyers said this is an application for an Order extending the statute of limitations to allow the petitioner to commence an Article 78 proceeding against the State Tax Commission (Commission).

The Audit Division of the Commission, on December 20, 1979, issued a Notice of Determination and Demand for Payment of Sales and Use Taxes Due for the period June 1, 1976 through August 31, 1979. Petitioner filed a petition for revision of that determination and for refund of sales and use taxes under Articles 28 and 29 of the Tax Law. A hearing was held on November 21, 1985 at which petitioner appeared. A Decision was made on May 28, 1986 which modified the Determination, but left an amount due of $83,884.58.

A New York Estate Lawyer said by letter dated May 28, 1986, the Commission notified petitioner of the Decision and advised that petitioner had now exhausted his right of review at the administrative level. Pursuant to section(s) 1138 of the Tax Law, a proceeding in court to review an adverse decision by the State Tax Commission may be instituted only under Article 78 of the Civil Practice Law and Rules, and must be commenced in the Supreme Court of the State of New York, Albany County, within 4 months from the date of this notice.

A Brooklyn Probate Lawyer said the papers submitted on this motion show that Mr. R, the "sole proprietor" of the Petitioner-Corporation died on September 30, 1982; that under the terms of his Last Will and Testament admitted to probate in Kings County, New York, an undivided one-half interest in the restaurant, bar and grill located at No. 761 St. John's Place, Brooklyn, New York is given to Mrs. C, and to Mrs. C in trust "for my daughter, L." Mrs. C, mother of L, is designated Executrix and Trustee in the Will. It was the operation of a business at these premises which lead to the sales tax question.

Concededly, no proceeding under Article 78, CPLR, has been commenced. The present application to extend the Statute of Limitations is brought by Mrs. C alleging that L is an infant, age 13, who has been adversely affected by the Commission's Decision. Under CPLR, Section 217, a proceeding of this nature must be commenced within four months after the final determination or with leave of the court where the petitioner, or the person whom he represents at the time was under a disability specified in Section 208. In such case, the proceeding must be commenced within two years.

A Brooklyn Probate Lawyer said in the case now before the Court, the sole shareholder of the corporation died after the initial Determination and before the final decision of the Commission.
Arguably, this infant is adversely affected by the final decision of the Commission, although the named petitioner is a corporation. From the present state of the record, many things are not clear which might necessitate an evidentiary hearing at some point, if this court grants the relief sought. The court is mindful also of Section 1138(a)(4) of the Tax Law, which requires payment of all taxes, penalties and interest, together with the filing of an undertaking as a condition precedent to commencing an Article 78 proceeding in a case of this nature.

The motion to extend the time in which to institute a proceeding under Article 78, CPLR, to review the decision of the Commission dated May 28, 1986 is granted upon the condition that petitioner comply with Section 1138(a)(4) of the Tax Law. All rights are reserved to the Commission to raise any and all defenses including the defense of Statute of Limitations in the Article 78 proceeding, if such a proceeding is commenced.

If you encounter same incident where the trust created for the benefit of an infant is adversely affected by government levy on taxes, seek the assistance of a Kings County Estate Attorneys of Stephen Bilkis & Associates to help you with your legal remedies.

You can also seek the advice of our Kings County Probate Lawyers in cases of other issues involving the last will and testament of your deceased loved one. Call us now.

Court Discusses Contruction of a Residuary Trust

May 2, 2015,

A New York Probate Lawyer said the petitioner, the surviving trustee of a trust created on January 21, 1932, by and for the benefit of one Mrs. W, makes application for settlement of its account and asks for a construction whether the whole or any part of a legacy of $20,000 bequeathed under article fourth of the will of the donee, is payable from the corpus of the trust.

A New York Estate Lawyer said the pursuant to the trust agreement, the settlor, Mrs. W, reserved to herself the right to receive the income therefrom and directed that upon her request the trustee should pay over to her any part of the principal up to the sum of $50,000. In addition to the above, she reserved the power 'to modify, alter or revoke this agreement, in whole or in part, to withdraw any of the principal of the trust fund therefrom in addition to the aforesaid $50,000.' The agreement also provided that upon her death the principal should be 'paid out and disposed of in such manner as the settlor might direct by any last will and testament made by her effectual at the time of her death.'

The settlor died on October 26, 1955, leaving a last will and testament dated January 20, 1949, which was admitted to probate. Paragraph fourth of the will provides: 'As my adopted daughters, benefitted by the terms of the will of my late husband and my granddaughter, A, did not, she having been born after the execution of said will, I give and bequeath to my said granddaughter, A the sum of Twenty Thousand ($20,000) Dollars.'

Queens Probate Lawyers said that by paragraph sixth of the will, the testatrix bequeathed in trust to her executor and trustee 'all the rest, residue and remainder of my estate, both real and personal, of every kind and nature including any and all moneys now held in trust for me under any Deed of Trust or Will, and over which I may have power of disposition, either by will or by the terms of any Deed of Trust heretofore or hereafter made by me.' The testatrix then provided that the trust estate should be divided into three equal parts for the benefit of her two adopted daughters and her natural daughter, M.

Long Island Probate Lawyers said the personal estate, exclusive of the appointive funds, is insufficient to pay the legacy of $20,000 to her granddaughter, A, the legatee named in paragraph fourth of the will. The estate is valued at approximately $34,000. However, out of said estate $10,000 in real property is specifically devised and $10,000 from a life insurance policy is demonstratively bequeathed to two other granddaughters of the decedent.
The estate is also subject to administration expenses and debts in excess of $3,000, exclusive of federal and state estate taxes. The appointive fund has an approximate net worth of $101,000 before estate taxes.

The parties hereto have stipulated as to the following facts: That the decedent's income did not appreciably vary during the period from January, 1949, the time of the execution of the will, to October, 1955, the date of testatrix's death; that she owned substantially the same amount of income producing property at the time the will was executed and at the time she died; that the testatrix withdrew from the appointive fund approximately $44,000 during the years 1933 through 1949 but through the years 1947, 1948 and 1949 she withdrew $22,000; that she continued to withdraw funds therefrom after the execution of the will; that decedent had no other sufficient funds or income available to satisfy the needs for which these principals were made; that at the execution of the will she owned no substantial properties other than the trust fund and income therefrom; and that these withdrawals are evidence of the settlor's intention to consider the principal of the trust as her own funds readily available to her.

The law presumes that a person knows the approximate extent of his or her property and we must presume that the decedent knew at the time of the execution of her will that her personal estate would not be able to meet her expressed intent to equalize the position of her three granddaughters by making up for the benefits that her granddaughter, A, had failed to receive from testatrix's husband. It would thus appear that the testatrix must have intended to make available to the said A the moneys available in the corpus of the trust over which she had the power of appointment. The testatrix by reason of her power to modify or revoke the trust and by reason of her invasion of the principal to the extent of over $44,000 must have regarded the trust estate as constituting her own assets over which she had power of testamentary disposition and must have intended that the entire will, and not merely the residuary clause exercised her power of appointment under the trust indenture.

A situation substantially similar to the one herein arose in Matter of Burchell's Trust, 278 App.Div. 450, 105 N.Y.S.2d 431. There the decedent created an inter vivos trust in 1891. At the time that she drew her will in 1943, her personal estate was less than she had at her death, which amounted then to $5,000 and a house in Florida.

‘In holding that the general legacies should be paid from the appointive fund the court said: 'She must have known that unless the assets of her 1891 trust were to be drawn upon in order to fulfill these bequests, they would fail, almost entirely. She must have intended that her bequests should be met out of the assets of the inter vivos trust under her power of appointment.' The court, however, was troubled by the fact that the power of appointment was exercised in the residuary clause alone and expressly in favor of the general legatees. In resolving this problem the court said: 'It could hardly have been the purpose of the testatrix by this clause to give all the assets of her inter vivos trust to her residuary legatees, thus allowing her prior bequests to fail.‘
‘A residuary clause, by its very nature, is ordinarily intended to dispose of what is left after making provision for prior gifts. Only the 'rest, residue and remainder' after making these gifts was to pass to her residuary legatees. This clearly referred to the rest, residue and remainder of her inter vivos trust after payment of prior legacies, as well as to the insignificant amount of personal property to which she held absolute title. If it referred only to her individual estate, no residuary clause would have been necessary since all that she held in her own name would have been exhausted in paying but a small fraction of her prior bequests. The conclusion to be drawn is that the entire Will was deemed by the testatrix to be in exercise of her power of appointment under the trust indenture.’

Applying the principles above stated the appointive fund may be resorted to in satisfying the $20,000 legacy under paragraph fourth of the will. The account of the surviving trustee of the trust should be allowed as filed.

When you have problem interpreting a provision of a will, call the estate and probate lawyers of Stephen Bilkis & Associates at once. As some of the proviso in a will may conflict with other proviso, this could, however, be remedied by looking on the real intention of the testator.

Our Kings County Estate Attorneys and Kings County Will Contest Lawyers are always ready to provide you solutions in all your legal issues. Call us and we’ll advice you free of charge.