Court Decides Motion for Summary Judgment

November 25, 2014,

A New York Probate Lawyer said that before the court is a motion for summary judgment filed in connection with petitions for the removal of fiduciaries in the related estates of the decedents. For the reasons set forth below, the court declines to entertain those portions of the motion seeking the removal of fiduciary in any and all of his fiduciary capacities or seeking relief from the other, and denies the balance of the relief, except that the request for an order compelling compliance with discovery demands will be held in abeyance pending the court's review of all of the relevant documents in camera.

A Kings County Estate lawyer said that Decedents were a husband and wife who tragically died together in an automobile accident on April 22, 2005. They were survived by their three adult sons, movants herein. Both decedents executed wills on November 19, 1986, and both wills provide that in the event that the sons is not survived by a spouse, then the brother shall serve as Executor.

A New York Estate Lawyer said the wills were filed for probate on October 13, 2005 and admitted to probate on March 1, 2006. Letters testamentary in each estate issued to the son on March 3, 2006. At the same time, the son received letters of trusteeship in the father's estate.

On November 1, 2007, movants filed petitions seeking (1) the revocation of letters testamentary issued to the son in each of the two estates; (2) the revocation of letters of trusteeship issued to the son in the estate of the father; (3) the appointment of the co-administrators, c.t.a. of each estate; and (4) a court order directing the son to file accounts as executor of both estates and trustee in the estate of the father.

Manhattan Probate Lawyers said that movants aver that there was intense hostility between the respondents and decedents (and decedents' sons, movants herein) since 1997, due to disputes over family business interests. According to movants, respondents were not permitted to attend decedents' funerals. Despite this history, prior to their unexpected deaths in 2005, the decedents never revoked their 1986 wills or executed new estate planning documents. In their affirmation in opposition, respondents claim that they hold no animosity toward movants.

New York City Probate Lawyers said the motion for summary judgment presently before the court seeks an order: (a) granting summary judgment removing the son as executor of the estates of the parents; (b) granting summary judgment removing the co-trustees of the Trust and the Trust due to misconduct including self-dealing, conflict of interest and waste of estate and trust assets, and directing respondents to account as executors and co-trustees; (c) compelling respondents to comply with discovery demands served on September 28, 2009.
Counsel for respondents filed an affirmation in opposition to the motion which asserts that following the filing of the petitions for removal and for accountings, respondents provided informal accountings and interim judicial accountings along with thousands of pages of documents in response to demands for production. Counsel argues that there are numerous disputed, material and relevant factual issues concerning the conduct of the executors which cannot be resolved as a matter of law.

Movants then responded with a reply affirmation arguing that the respondents' opposition to the motion is based upon unsubstantiated and self-serving allegations and contains no documentation to directly refute movants' charges of fiduciary misconduct and self-dealing.
Summary judgment may be granted only when it is clear that no triable issue of fact exists. The court's function on a motion for summary judgment is "issue finding" rather than issue determination, because issues of fact require a hearing for determination. Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law. The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party.

If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. In doing so, the party opposing the motion must lay bare his proof. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment.

Pursuant to EPTL 1-2.7 a trustee is a fiduciary. As a fiduciary, a trustee "owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect". A trustee is duty-bound to act in good faith in the administration of a trust, with honesty and undivided loyalty to the beneficiaries and avoid any circumstances whereby the trustee's personal interest will come in conflict with the interest of the beneficiaries. The purpose of this rule is to ensure that the trustee's acts are above suspicion and that the trust receives the trustee's uninfluenced judgment.

The conduct of the trustee, as reflected in both the charges made by movants and the response thereto, is the subject of a factual dispute, namely, whether the withdrawal of principal from the Trust was proper pursuant to a corporate agreement or whether the agreement was limited to an insurance policy that had long ago been surrendered. This dispute cannot be determined in the context of this motion. This portion of the motion is denied.

The request for relief stems from a discovery schedule established in connection with the intermediate accounts filed by fiduciaries of the estates and trusts. Movants' counsel concurs that respondents turned over many documents responsive to movants' demand for discovery and inspection, but that respondents refused to supply retainer agreements and time and billing records for the attorneys and accountants who had rendered services to the estates and trusts, or the retainer agreements between attorneys and any related entities. These refusals were made on the grounds of attorney client privilege, as expressed in a letter dated March 26, 2010. Subsequently, counsel for respondents agreed, at a court conference held on July 21, 2010, to provide billing records and the records were provided to movants' counsel on September 1, 2010. However, all pertinent information was redacted from the billing records provided by respondents, making it impossible for movants to determine or object to the reasonableness of the fees charged.

Ordinarily if a party objects to a discovery demand, that party is to serve a response which states with reasonable particularity the reasons for each objection. If objection is made to part of an item or category, the part is to be specified. Here, the fiduciaries objected to certain disclosures, by use of redactions, but failed to state the reason for such; providing materials in redacted form with a brief mention that the documents attached are "redacted" does not constitute as a valid reason for an objection to the disclosure.

When a claim of privilege is presented, it may be advisable to conduct an in camera review of documents claimed to be privileged. The court may defer determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it does not affect substantial rights.

CPLR 3122(b) establishes the requirement under New York law for a privileged document log when a party seeks to claim an attorney-client privilege. The Court of Appeals has recommended that a party seeking to protect documents from disclosure compile a privilege log, specifying the nature of the documents and the basis for the privilege claim, in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review.

The attorney-client privilege seeks to insure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his or her confidences will not later be exposed to his or her legal detriment. The attorney-client privilege has been codified in CPLR 4503(a)(1), which bars disclosure of any confidential communications between a client and his/her attorney.

Because a determination of whether documents are privileged is fact-specific, an in camera review of such documents may have to be undertaken before resolving the issue. The burden of proving that all the requisites of the privilege are present falls on the person asserting the privilege.

n the experience of this court, it is highly unusual for fiduciaries to assert a claim of privilege concerning billing records, and the extensive redaction of data from the records supplied by respondents in this matter creates a virtual mockery of the notion of disclosure. At the same time, the court is cognizant that the attorney client privilege is "of the oldest among common law evidentiary privileges, fostering the open dialogue between lawyer and client that is deemed essential to effective representation" and that the court, too, has not yet seen the redacted data, which may be more sensitive than it appears from the surrounding un-redacted data.

A final determination on the motion for summary judgment to compel production of un-redacted copies of the billing records and production of the requested retainer agreements is held in abeyance pending an in camera review of all of the pertinent documents in un-redacted form.
Any request for relief seeking to compel distributions by of the executor of the two estates or as trustee of the two trusts is stayed by his death, until such time as a fiduciary is appointed for his estate and the personal representative is substituted in place of the executor.

In connection with the conduct of Thomas as trustee, movants argue that the trustees failed to properly include all assets in calculating principal distributions, and that distributions of interest have been questionable. In response, counsel for the respondents argues that distributions from the trust have correctly been based upon "then existing principal," and that interest in her retained earnings in the Enterprises is payable over 10 years, pursuant to the relevant shareholders' agreement, which impacts on the distributions payable by the trustees.

The proper computation of distributions from the trusts is an issue of fact rather than an issue of law. As noted above, accountings have been filed by the trustees, and the information contained in the accounts and in the objections thereto will be pertinent to a final computation. This portion of the motion for summary judgment is denied.

The removal of respondents' counsel on grounds of conflict of interest and misconduct and the setting of counsel's fees are fact-based determinations, not properly decided in the context of this motion for summary judgment. This portion of the motion is denied.

Movants claim that respondents have paid excessive legal and accounting fees and have taken excessive commissions. Moreover, they seek an order surcharging the fiduciaries for these payments and for losses resulting from their conduct.

The court denies as moot those portions of the motion numbered (a) and (b) seeking the removal of the heirs in any and all of his fiduciary capacities, and denies the requests for relief in items (b), (d), (e), (f), and (g) in the motion for summary judgment, which seek: (b) the removal of the co-trustee; (d) an order compelling distributions of principal; (e) an order compelling distributions of income; (f) the removal of respondents' counsel, and (g) the imposition of a surcharge on the fiduciaries. As to the request for relief in item (c), the court will conduct an in camera review of all of the documents requested in un-redacted form and then issue a determination on the motion for summary judgment to compel production of un-redacted copies of the billing records and to compel production of the retainer agreements.

If you are an heir, whose right was deprived by reason of a last will and testament, you can consult our Kings County Will Contest Lawyers, who will inform your rights as heirs. For the probate of a will of a decedent, we also have Kings Probate Attorneys. Call us now here in Stephen Bilkis, we will provide the advice you need.


November 24, 2014,

A New York Probate Lawyer said the petitioner moves for summary judgment on her entitlement to take an elective share of the decedent's estate pursuant to EPTL 5-1.1-A. In opposition, respondents, the coexecutors of the estate, argue the motion is premature as no discovery has been conducted, and there are material and triable issues of fact raised by their counterclaims and defenses.

A Kings Estate attorney said that respondents filed a verified answer alleging various affirmative defenses1 and counterclaims seeking to: (1) have the alleged marriage between the decedent and petitioner deemed null and void ab initio, and to annul the marriage nunc pro tunc; (2) dismiss the petition in its entirety; (3) vacate petitioner's notice of election dated October 26, 2006; and (4) award the estate damages for the costs of this proceeding. Alternatively, if petitioner is not disqualified as a surviving spouse, they seek an award of compensatory damages equal to the elective share, plus interest and costs of the proceeding for the loss to the estate resulting from petitioner's fraudulent conduct.

A New York Estate Lawyer said the decedent died on June 16, 2006, survived by two sons, the coexecutors herein, and four grandchildren from a prior marriage. Petitioner served as the decedent's caretaker during the last decade of his life. The decedent's will dated July 10, 1982, was admitted to probate on October 30, 2006. Letters testamentary were issued to the nominated coexecutors on that date. The decedent's children and grandchildren were the sole beneficiaries under the will. The record reflects that a notice of election dated October 26, 2006 was timely filed by petitioner, and was properly served upon the coexecutors.

Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law. The court's burden is not to resolve issues of fact, but merely to determine if such issues exist. It is a drastic remedy that will only be granted where there is no triable issue of fact.

Brooklyn Probate Lawyers said the court, therefore, must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person of their day in court.The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make out a prima facie case requires denial of the motion regardless of the sufficiency of the opposing papers. If however a prima facie case is made, the burden of going forward shifts to the opposing party to establish the existence of material issues of fact requiring a trial by tendering evidentiary proof in admissible form.

Estates, Powers and Trusts Law § 5-1.1-A allows a surviving spouse a personal right of election to take a share of a decedent's estate when the parties are in fact married on the date of the decedent's death. This statute provides that a husband or wife is a surviving spouse within the meaning of EPTL 5-1.1-A, unless it can be established satisfactorily to the court that any of the grounds for disqualification contained in EPTL 5-1.2 exist.
Petitioner in her affidavit in support of the motion states that she married decedent on June 17, 2005, and remained married to the decedent until the time of his death, annexing as exhibit A, a "Certificate of Marriage Registration" which was filed with the City Clerk's Office of the City of New York.

Bronx Probate Lawyers said the petitioner having shown that she and the decedent were married on June 17, 2005, and remained married at the time of his death has made out her prima facie case. The burden now shifts to respondents to establish a material issue of fact precluding the grant of summary judgment to petitioner on her right to take an elective share of the estate.
An annulment may be granted if one of the parties was incapable of consenting to the marriage for want of understanding or comprehending the significance of the decision to marry. A postdeath action for annulment may be maintained provided the person(s) seeking same establishes an interest to void the marriage. However the granting of a postdeath annulment herein would not defeat petitioner's right of election as a surviving spouse as petitioner's right to elect against the estate became fixed and unalterable upon the death.

As a surviving spouse's right to elect against a will is not disturbed even if the marriage is annulled postdeath, any claim that this motion is premature as required discovery has yet to be conducted is of no moment and does not impact on this motion seeking a determination of petitioner's right to take her elective share under EPTL 5-1.1-A.

Respondents' argument that if the marriage is annulled it will be voided nunc pro tunc and be void from inception, negating the need to demonstrate one of the grounds for disqualification contained in EPTL 5-1.2 as no valid marriage existed in the first place, is misplaced. Pursuant to Domestic Relations Law § 7 a marriage is voidable, not void, if one of the parties thereto was incapable of consenting to the marriage for want of understanding, or consented to same by reason of force, duress, or fraud.

Alternatively respondents argue that if the marriage cannot be voided petitioner should be "equitably estopped" from claiming that she is the decedent's spouse, since as his caretaker she stood in a "fiduciary" relationship with the decedent and the family. By keeping silent about the marriage, petitioner abused the trust accorded her by the family to their detriment. Therefore, respondents argue, petitioner's misrepresentations about her marital status, or her failure to disclose her marital status in the face of an alleged duty to do so creates both legal and factual issues warranting denial of the motion.

The court finds respondents' argument unavailing as there is no legal authority for, nor have respondents cited any for, the proposition that petitioner had a legal duty to inform anyone concerning her marital status, and that failing to do so she is estopped from claiming to be decedent's spouse. In that case, summary judgment was denied to the decedent's first wife seeking the surviving spouse's intestate share where the second wife alleged she married decedent in reliance on the false oral representation of the first wife that she had divorced the decedent. In denying the motion the court concluded that such findings of fact might result in the determination that the equitable defense of estoppel would bar the first wife from claiming a surviving spouse's intestate share.

Finally, respondents argue that the motion should be denied based on petitioner waiving her right to elect against decedent's will. They draw the court's attention to a "handwritten note" written, signed and produced by petitioner which states in pertinent part, "I like the people knows that this marriage is not for money. I'll not take any money from family."

While acknowledging that this handwritten note does not meet the statutory requirements of EPTL 2-1.11, respondents' argue that it should be treated as a common-law renunciation wherein petitioner renounced her rights to any interest she may have had in the decedent's estate and in so doing waived her right to elect against the decedent's will.

For petitioner to have waived her right of election, something altogether different than a renunciation, there must be compliance with EPTL 5-1.1-A (e) (2), which provides that "a waiver or release must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property." The writing herein contains neither a certificate of acknowledgment nor the signature of any subscribing witness rendering it ineffective to waive the surviving spouse's right of election. The purported waiver of the right of election provided by EPTL 5-1.1-A is to be strictly and narrowly construed. A surviving spouse will not be deemed to have waived such important statutory rights unless done so in the most unambiguous and unquestionable language. The "handwritten note" herein fails to comply with any of the strict statutory requirements to be an effective waiver of the spousal right of election.

In conclusion respondents argue that to give this "sham" marriage any validity would be to endorse petitioner's actions and create a rule that will allow future caretakers of the elderly an easy road to gain unlawful inheritance rights.

In this estate valued in excess of five million dollars, the court is cognizant of petitioner's former status as caretaker of the decedent who was 99 years of age, while petitioner was 47 years of age when they married; that petitioner did not disclose that she had married Irving Berk until after he died; and that there are issues concerning his capacity to have entered into the marriage. While this may appear incongruous and seemingly invites a plethora of surreptitious "deathbed marriages" as a means of obtaining one third of a decedent's estate immune from challenge, this is simply the state of the law. It is not for this court to write disqualifications into EPTL 5-1.2 or alter Domestic Relations Law § 7, which makes a voidable marriage void from the time its nullity is declared, rather than from the time of the marriage.

Based on the foregoing, it is the finding of this court that there are no issues of fact concerning petitioner's status as the decedent's lawful spouse on his date of death or her entitlement to exercise the right of election pursuant to EPTL 5-1.1-A.

Petitioner's motion for summary judgment is granted. Without passing on the merits thereof, respondents' counterclaims sounding in annulment and for an award of compensatory damages based on petitioner's alleged fraudulent conduct are dismissed without prejudice.

Here in Stephen Bilkis and associates, we have Kings Probate Attorneys who will file a petition for probate of the last will and testament of a decedent. We will make it a point that the requirements for the probate of the will are complied with. For other matters, don’t hesitate to consult our Kings County Estate Lawyers.

Court Reviews Petition to Modify Endowment Fund

November 23, 2014,

A New York Probate Lawyer said this is a petition to modify restrictions on an endowment fund, pursuant to section 8-1.1 of the Estates, Powers and Trusts Law or, in the alternative, section 522 of the Not-for-Profit Corporation Law. Petitioners, Trustees of a University, seek an order authorizing the subdivision of an endowment fund created by a testamentary bequest to the College of Medicine. The Attorney General of the State of New York (on behalf of ultimate charitable beneficiaries) has reviewed the current audit of the fund and raises no objection to the relief requested in the petition.

A Kings County Estate lawyer said that a decedent died on March 9, 1985. Her last will and testament was admitted to probate by a decree of this court dated April 5, 1985.
In September 1986, Columbia University received $1,500,000 from the estate of the decedent. The University established the Professorship ("Chair") for Clinical Medicine. As of September 30, 2009, the value of the endowment fund had increased to over $5,000,000.

A New York Estate Lawyer said that the University states that the income from the fund exceeds the amount required to fund a chair in clinical medicine. Specifically, the income exceeds the amount that can be utilized under the University's guidelines. The guidelines for endowment funds provide payment of a salary to the professor appointed to the professorship and expenses including laboratory space and research services. Beginning in 2007, the University has required $2.5 million to fund an endowment for a full professorship and $1.5 million to fund an endowed associate or an assistant professorship. The currently expendable income from the Uris professorship generates annual expendable income of $242,284.

Queens Probate Lawyers said the University states that the spending guidelines for endowments limit the amount of funds paid to professors in order to encourage the faculty to obtain research grants and maintain a medical practice. The University contends that the application of the entire fund in the endowment to one professorship would discourage a faculty member from seeking government and industry grants and engaging in patient care.

The University requests permission to subdivide the endowment fund into one endowment account with principal in the amount of $2.5 million, and the remaining principal would be placed in a new account and used to establish one or more additional professorships as the value of the fund allows. Each new professorship would bear the title.

Long Island Probate Lawyers said the petition seeks to modify the terms of the bequest pursuant to section 8-1.1 of the Estates, Powers and Trusts Law or, in the alternative, pursuant to section 522 of the Not-for-Profit Corporation Law. A charitable corporation may apply for the release of a restriction imposed by a gift instrument as to the use or investment of the fund (N-PCL 522). There is a co-existing right to seek modification pursuant to EPTL 8-1.1.

EPTL 8-1.1 subdivision [c] provides "Whenever circumstances have so changed since the execution of an instrument making a disposition for religious charitable, educational or benevolent purposes as to render impracticable or impossible a literal compliance with the terms of the disposition, the court may direct, or make an order or decree directing that such disposition be administered and applied in such a manner as in the judgment of the court will most effectively accomplish its general purposes, free from any specific restriction, limitation or direction contained therein."

EPTL 8-1.1 applies to all charitable dispositions including absolute gifts. This statute embraces both the doctrine of equitable deviation and the doctrine of cy pres. Equitable deviation under EPTL 8-1.1 is the equivalent of modification pursuant to N-PCL 522. Equitable deviation is utilized to alter or amend an administrative provision. The doctrine of cy pres is utilized to effect a substantive change.

The court is mindful of the concern that equitable deviation may be employed to modify a charitable disposition where a substantive change is requested but the higher standard for cy pres cannot be met.

The requirements for cy pres are: "1) the trust must be charitable in nature; 2) the language when read in light of all the attendant circumstances must indicate general rather than specific charitable intent; and 3) the particular purpose for which the trust was created has failed or become impossible or impracticable to achieve".

Generally, in the application of cy pres there is a further requirement that the donor have a general charitable intent with respect to trusts. The current Restatement of Trusts provides that in the application of cy pres a general charitable intent is presumed unless the donor expresses a contrary intent. The courts in this state still require evidence of general charitable intent in addition to specific charitable intent.

The question of general charitable intent is not so much an issue here, as petitioners do not seek to substitute the charitable institution selected by the testator, modify the charitable purpose, or extend the category of recipients of the award.

Cy pres can be applied to modify a charitable disposition where the change in circumstances is the creation of a surplus fund. A surplus exists where the fund exceeds the amount necessary or appropriate to accomplish the charitable purpose.

This case involves the uncommon situation where utilization of a surplus fund would not only be wasteful but would be counterproductive.

Similarly, in another case, the Manhattan School of Music requested modification of a testamentary bequest for scholarships. The school argued that compliance with the terms of the bequest would defeat the testator's purpose as it would require awards of scholarships to less-than-deserving students.

In this case, the University contends that application of the full endowment to fund a professorship in clinical medicine would eliminate the incentive to (1) obtain grants and (2) provide patient care. The first point relates to the financial impact to the University and the second concerns impairment of the University's commitment to patient care.

The court, therefore, grants the petition. The University is authorized to create an endowment fund of $2.5 million and additional endowment funds to support professorships, as the value of the remaining funds permit. The trustees are authorized, in their discretion, to reduce the number of additional professorships if the income from the funds decrease. Each endowment fund will be used to support a full professorship and each fund will be entitled as Professorship of Clinical Medicine named after the decedent.

Here in Stephen Bilkis and associates, our Kings County Probate Lawyers are here to represent you before the courts in case you seek to oppose an application or petition for probate of a will. If you desire to make a last will and testament and you are uncertain as to what properties to be disposed, our Kings County Estate Attorneys will guide you. Contact us now.

coexecutors Deemed Unfit in Probate Proceeding

November 22, 2014,

A New York Probate Lawyer said in this Probate action, an Order and decree (one paper), Surrogate's Court, New York County, entered on or about May 22, 1995, which removed the preliminary coexecutors, and appointed as temporary administrators, affirmed, without costs.

A Kings County Probate attorney said that the Surrogate's removal of the preliminary coexecutors pursuant to SCPA 711 and 719 was a proper exercise of discretion, and no evidentiary hearing was required under the particular circumstances. While the Surrogate's characterization of the facts as "undisputed" may not have been technically accurate, the unfitness of the coexecutors was established by a combination of documentary proof and the coexecutors' own concessions, and the totality of written submissions failed to raise any triable issue of fact.

The unfitness of the coexecutors to take responsibility for this $1.2 billion estate, bequeathed primarily to charity, was manifest. While "courts will not undertake to make a better will nor name a better executor for the testator", the standard of behavior of a fiduciary is "[n]ot honesty alone, but the punctilio of an honor the most sensitive".

A New York Estate Lawyer said the Surrogate properly concluded that the individual coexecutor, the decedent's former butler wasted estate assets by collecting a substantial salary and lavish fringe benefits, supposedly as a "live-in" estate employee, living as if the estate properties were his own. There was no justification for these emoluments, since he was also entitled to lucrative executor's commissions. This also constituted self-dealing, since this dual capacity was authorized by no one except himself, and the corporate coexecutor appointed and removable under the terms of the will.

Nassau County Probate Lawyers said the Surrogate also properly concluded that the coexecutor routinely commingled personal and estate assets, a serious breach of fiduciary duty for which repayment is no defense.

The Surrogate also properly concluded that the corporate coexecutor created a conflict of interest by granting coexecutor unsecured loans in the amount of $825,000, to pay for his "personal needs," i.e., still more luxuries. This gave the corporate coexecutor a financial stake in his continued service as an executor, so that he could repay the loans out of his commissions, a conflict which was actual and not theoretical, since it was apparent that the corporate coexecutor improperly acquiesced in Lafferty's assorted misconduct.

A Staten Island Probate Lawyer said that whether removal of the co-executors will ultimately be warranted is an issue not properly before the Court at this juncture. In view of the failure to conduct an evidentiary hearing, the various reasons advanced by the Surrogate to support replacement of the co-executors are not sustained by proof of serious misconduct, which the law requires to justify supplanting the decedent's choice of executors. Moreover, because the record is devoid of findings of fact, it is insufficient to permit appellate review of the adequacy of the proposed grounds for removal. Finally, without a judicial accounting, the current record is insufficient to support even the imposition of a surcharge against the co-executors.
The interests of the residual charitable beneficiaries of decedent's estate are represented by the Attorney General, who submits that while, "on its face, invests the Surrogate with sweeping power its exercise must be used only in egregious cases in which the facts are truly undisputed. Because the Surrogate's order was entered without a hearing and is plainly contested over what the order called 'undisputed facts,' it should be reversed." His brief further notes that permitting the removal of a designated executor absent demonstrated substantial grounds sets an unfortunate precedent with an undesirable result.

As a practical matter, the Attorney General maintains that litigation of this preliminary matter, involving the administration of the estate, will generate "greater expense than the alleged financial malfeasance referred to in the order", with the ultimate cost borne by the residual charitable beneficiaries.

There is considerable merit to this position. The statutory language providing that "the court may make a decree suspending, modifying or revoking letters issued to a fiduciary without a petition or the issuance of process" should be read to mean only that no formal notice is required to bring on a hearing for removal. It does not mean that the dismissal of an executor by the Surrogate may rest on less than compelling grounds; and it certainly does not mean that such action may be based on a record that is less than adequate to permit appellate review.

As a consequence of the failure to conduct an evidentiary hearing, the record on appeal is insufficient to permit adequate review of the Surrogate's determination. The "clear showing of serious misconduct that endangers the safety of the estate", and the convincing demonstration of misconduct that would warrant the removal of the corporate fiduciary is not supported by any evidence in the record before us. United States Trust Company, in its brief, asserts that there is no reported case in this jurisdiction in which a corporate fiduciary has been removed as an executor of an estate, and no such case has been brought to the attention of this Court by any other party.

It has long been recognized that a testator is entitled to designate who will settle her estate from among those qualified by statute. Case law therefore holds that "the power to revoke should be exercised sparingly". "Removal is a draconian step and the courts remove fiduciaries sparingly, typically when the estate fund has been jeopardized or the fiduciary has seriously impeded estate administration. Less drastic alternatives includes [sic] directing the fiduciary to post a bond, surcharging her for damages caused by her negligent or wrongful behavior, or denying her commissions".

The objections regarding coexecutor Mr. Lafferty's suitability to serve as executor are a criticism of his lifestyle. But none of his alleged shortcomings, from his alcoholism to his extravagance, is purported to have been unknown to the testatrix when she appointed him executor in her will. As suggested in a case, the rules respecting disqualification of a fiduciary are susceptible to more stringent interpretation, "particularly if he had been named as sole executor by the testator with full knowledge of his present condition". Where, as here, the individual executor is assisted by a capable corporate fiduciary, disqualification requires proof tending to show that he is incapacitated by the "want of understanding", which "implies an entire lack of mental capacity"
The objections regarding United States Trust Company center on unsecured personal loans extended to its co-executor. It is suggested that such a course was improvident and creates the appearance of impropriety. From a purely commercial perspective, however, it can hardly be regarded as unsound to loan money--even the better part of a million dollars--to a man receiving a salary of $100,000 a year, who is expected to receive trust income of $500,000 a year for the duration of his life and a commission of $5 million for his services as executor.

While the corporate fiduciary may have complicated its relationship with its co-executor by making him its debtor, it has not yet been established that its integrity in carrying out fiduciary responsibilities has been compromised in any way. As the Court stated in a case: "In the event that the co-executor's apparent conflict of interest should lead to misconduct--the presumption being strongly to the contrary--objectants will not be left without remedy.

"It would be a serious matter to make any claim of conflict of interest a ground for disqualifying designated executors. Not only would it threaten to substitute the legatees' desires and views for the views of the testator, it would also undoubtedly engender a multitude of proceedings. Few estates would be certain to be free from such attack. Many estates would be subjected to extended proof-taking to determine whether the claimed conflict in fact existed.

"Misconduct, not conflict in interest, merits removal of a fiduciary. The statute provides for resolving claims between the estate and its representative. This is reasonable. Any other view would automatically disqualify from appointment as executor a partner, a joint owner of property, a legatee, a creditor, a debtor, a distributee, a spouse, or one who is a party to an executory contract with the testator. Few would remain eligible."

It should be noted that no objection to the executors nominated by the decedent has been raised by the residual charitable beneficiaries, which will receive the bulk of the estate. Objections to the preliminary executors were raised by motion of an executor in the codicil to a prior will dated July 28, 1987. Other objections were raised by Irwin Bloom, decedent's former accountant, who is embroiled in a dispute with the estate over payments under a severance agreement. Still other allegations have been advanced by three disgruntled former employees of decedent who have commenced separate actions against each appellant. Their action against Mr. Lafferty was largely dismissed for failing to state a cause of action. Their action against United States Trust Company for defamation was dismissed outright for similar reasons, and sanctions were imposed against the parties and their attorney for bringing a frivolous lawsuit. The court noted: "It is apparent that plaintiffs' sole motive in bringing the suit against this defendant is to obtain a cash recovery from the deepest pocket available" With respect to allegations raised by the former employees against appellants and their counsel, the court stated: "Plaintiffs' efforts to convince this court that, along with coexecutors were 'Co-Fiduciaries working together to conceal massive criminal wrongdoing from the public' totally missed the mark, in light of the complete lack of factual support that exists for these extravagant claims"
While the Court has the highest regard for the temporary administrator appointed by the Surrogate and would consider him a far superior executor than him, that is simply not the criterion to be utilized in setting aside the testatrix's choice of fiduciary. As ample precedent makes clear, a testator's selection of an executor is not readily set aside. While the executor is often referred to as a butler, the relationship far exceeded that of employer and employee. As the limited temporary administrator pointed out in his investigative report, it was "akin to a tender and devoted mother-son relationship." Her accountant noted that the property and department managers began to report directly to him at a time when the testator was still making the ultimate decisions regarding her affairs. Removal of her chosen executor, without a hearing or the requisite proof of malfeasance and injury to the estate, is contrary both to the wishes of a sophisticated, strong-willed and determined testatrix and to fundamental principles of decedent-estate law.

The testator still enjoys the right to determine who is most suitable among those legally qualified to settle his affairs and execute his will, and his solemn selection is not lightly to be disregarded. Appointment is not to be refused merely because the testator's selection does not seem suitable to the judge. The courts will not undertake to make a better will nor name a better executor for the testator."

A hearing is required to decide if any injury to the estate has been occasioned or is threatened by the alleged excesses of the executor or by the conduct of the corporate fiduciary. Accordingly, the order of the Surrogate should be reversed, without costs, and this matter remanded for findings of fact and conclusions of law whether grounds exist for the removal of the preliminary co-executors designated in decedent's will.

For cases involving an heir, whose right was deprived by reason of the provisions of an executed last will and testament, we have our Kings County Probate Attorneys, who will file an Opposition for its probate. If there was a question on the proper partition of the properties of a deceased, our Kings County Estate Lawyers will help you.

petitioner Claims Statute of Limitation Defense is not Valid

November 21, 2014,

A New York Probate Lawyer said the decedent died on May 1, 2004, leaving a will which was admitted to probate on July 7, 2004. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of ghem. The will further provides that the decedent's residuary estate be divided equally among his four children. Letters testamentary issued to his son.

A New York Estate Lawyer said that the son originally filed a First and Final Accounting of his proceedings covering the period May 1, 2004 through January 31, 2008. Thereafter, he filed a document entitled "First Interim Account of the Estate." This document covers the period from May 1, 2004 to January 31, 2008, the same period covered by the First and Final Accounting.
Another son opposed the probate. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent make a loan to him. In addition, the parties acknowledged that the petitioner took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.
After the trial, each party submitted a post-trial memorandum of law. The petitioner argues that the testimony at trial confirmed that oppositor admitted to his siblings at the meeting that he at one time owed his father the sum reflected on Exhibit 3. He did not dispute that he had owed the amount shown, but rather claimed that the money had been repaid, with the exception of $3,400.00. Thus, by claiming to have repaid these funds.

A Westchester County Probate Lawyer said that the petitioner further argues that Oppositor should be equitably estopped from asserting a statute of limitations defense because: (1) he knowingly and intentionally made a misrepresentation as to his possession of the receipts; (2) he made this misrepresentation with the intention that his siblings would refrain from bringing suit to recover the debt; and (3) he knew that he had never repaid the debts and did not have receipts. In any event, Petitioner claims that the partial payment of $3,400.00 revived the running of the statute of limitations.

Suffolk County Probate Lawyers said that the oppositor argues that Petitioner has failed to carry his burden of proof on the issue of the debt by establishing by a preponderance of the credible evidence that Oppositor owed any monies to the estate. Oppositor argues that the original account, verified by Petitioner, did not include the loan. Oppositor argues that the "entire sum and substance of support for the alleged 'loan' due from... [him] was a single page of hand-scrawled figures and notations, suffused with 'whiteout' material covering portions of it."

Oppositor also argues that the "Analysis of Distributions" prepared by the estate accountant and admitted into evidence as Exhibit 7 supports his position because it did not reflect any loans owed by Oppositor to the estate. He contends that the only monies he agreed to repay were monies owed by his wife's company not to his father's estate.

Generally, in determining whether a valid loan exists, a court will consider such things as, "whether notes or other written acknowledgments of indebtedness were executed, collateral was given, a method or time for repayment was fixed by agreement and if there exists any evidence of a systematic repayment". In the absence of an instrument evidencing the transaction, a factual determination must be made as to whether a loan was made. There is no presumption that money, which has been advanced, was advanced as a loan. In fact, it is presumed that the delivery of a check arises from an antecedent debt and is not a loan. The person alleging that a loan was made has the burden of proof.

With respect to the issue of the statute of limitations, "[t]here are two ways in which the statute of limitations may be tolled. One involves part payment and the other a signed acknowledgment". It is well-settled that an acknowledgment of a debt may be sufficient to toll the statute of limitations. As to an acknowledgment, "it must be a signed written acknowledgment of an existing debt which contains nothing inconsistent with an intention on the part of the debtor to pay it"

The parties agree that the burden is on Petitioner, as the fiduciary of the estate, to establish that the loan existed. Here, there was no evidence of a written note setting forth collateral or a method or time for repayment. Accordingly, in the absence of an instrument evidencing the transaction, a factual determination must be made as to whether a loan was made.

It is well settled that a trier of fact in an evidentiary hearing has the unique ability to make credibility assessments based upon its opportunity to view the witnesses, hear the testimony and observe their demeanor.

The court finds that Oppositor's testimony was contrived. Oppositor testified in generalities and displayed selective memory and forgetfulness. The court finds the testimony of Petitioner and Patricia to be more credible. Accordingly, the court finds that Petitioner has met his burden of proof that the decedent loaned Oppositor funds in the amount of $80,627.00 reflected on Exhibit 3.

As to Oppositor's statute of limitations defense, the court finds that the partial payment of $3,400.00 was a payment of an admitted debt, subject to upwards adjustment by Oppositor for the failure to provide receipts. Accordingly, the statute of limitations does not act as a bar to the collection of the debt.

As to the issue of commissions, commissions are not ordinarily payable until the entry of a decree settling a fiduciary's account. Taking a commission prior to the settlement of an account without securing court approval pursuant to SCPA 2310 or SCPA 2311 exposes the fiduciary to the potential of being charged. Ordinarily, the court will allow the commissions but will surcharge the fiduciary the amount of interest the estate lost because of payment, most commonly at the statutory interest rate under CPLR 5004, from the date the unauthorized commissions were taken until the entry of the decree settling the account.

This court has generally taken the position the taking of advance commissions without prior court approval is grounds for "automatic surcharge at the statutory rate of interest of 9%".
Considering all the circumstances in this case and the above principles, the court surcharges the executor 9% statutory interest on the amount paid of $10,000.00 from the date taken until the date of repayment.

Thus, Petitioner's testimony and account show that he (i) withdrew $10,000.00 in commissions without prior court order; (ii) made a $20,000.00 distribution to his company, which he ultimately repaid; and (iii) withdrew $66,000.00 of Oppositor's share as repayment for an alleged loan Petitioner made to oppositor and paid it to himself.

With respect to the issue of attorneys' fees, 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 services rendered in the course of an estate. 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".

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 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 a case. 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.

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 disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same matter, this court discussed the allowance of charges for photocopies, telephone calls, postage, messengers and couriers, express deliveries and computer-assisted legal research. The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth in a case. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

The attorney has submitted an affirmation of legal services and a supplemental affirmation of legal services which shows that the attorney rendered approximately 110 hours at the hourly rate of $350.00 per hour for a total of $36,000.00 plus a flat fee of $10,000.00 for preparation of the accounting. The services performed by counsel included services in connection with the probate of the will; services with respect to the sale of two properties owned by the decedent; review of the antenuptial agreement between decedent and his spouse; review of appraisals; drafting federal estate tax return; appearances at court conferences; preparation of the accounting, work in connection with the Supreme Court proceeding; preparation for trial and conducting of trial. In addition, disbursements incurred amount to $1,911.15 consisting of filing fees, certified mailings, process serving fees and fees for certificates of letters.

Considering all of the factors used to determine the reasonableness of fees, the court fixes the fee of counsel for the executor in the amount of $35,000.00, plus disbursements in the amount of $1,911.15.

Probate of a last will and testament is a court proceeding wherein a will is presented in order that the provisions embodied in it will be effective. Our Kings County Probate Attorneys here in Stephen Bilkis and associates will represent the executor of the will for court’s consideration. For other matters, you can also consult our Kings County Estate Lawyers.

Court Hears Proceeding to Settle an Intermediate Account

November 20, 2014,

A New York Probate Lawyer said in this proceeding to settle an intermediate account of a bank as trustee of two trusts, the appeals are from two decrees of the Surrogate's Court, Kings County, entered October 27, 1972 and July 30, 1973, respectively. The trustee appeals from so much of the first decree as (1) adjudged that the trustee was guilty of gross neglect with respect to one of the trusts, the one established for the benefit of the testator's two daughters, in failing to make the trust productive; (2) surcharged the trustee $23,298.27; (3) adjudged that a certain 1946 consent and release (referred to in the decree as made in '1947') executed by the daughters was ineffective to bind them with respect to the conduct of the trustee subsequent to the date thereof; and (4) adjudged that the In terrorem clause in a certain probate compromise agreement of 1926 had no legal force and effect upon the daughters, who in 1926 were infants.
A Kings County Estate attorney said that the trustee, a remainderman and the executor of the estate of another remainderman appeal from so much of the second decree as (1) authorized and directed the trustee to invade the principal of the daughters' trust by transferring it equally to the daughters and (2) terminated that trust. The trustee also appeals from the further portion of this decree which 'confirms' the $23,298.07 surcharge; said remainderman and executor of a remainderman's estate also appeal from so much of this decree as failed to deny the relief requested in a petition by one of the daughters, and the daughters cross-appealed from another portion of this decree.

A New York Estate Lawyer said the appeals by the daughters dismissed, without costs. The daughters have abandoned their appeals, their briefs asking only for affirmance of both decrees.
The testator died on October 25, 1925, leaving a wife and two infant daughters. By his will, as modified by a codicil and as further modified by a court-authorized compromise agreement, the testator established a trust for the benefit of his two daughters, whereby they were to receive the income from the principal of the trust during their lifetimes, with remainders over to the decedent and, if he be dead, to two individuals in equal shares, or to the survivor of them.

In 1967 the trustee filed its intermediate accounting. It showed that the daughters' trust neither received nor produced any income during the 20-year period covered by the accounting. The daughters filed objections to the account and the Surrogate, after a trial on the objections, and in an opinion dated July 9, 1969, found that the trustee was guilty of gross neglect in failing to make the trust productive, in that it did not sell the stock and invest the proceeds of such a sale, and surcharged the trustee accordingly.

New York City Probate Lawyers said that thereafter, and by petition dated October 5, 1971, one of the daughters, alleged that the parties were unable to agree on a proposed decree. She requested omnibus relief. Her sister, did not join in or consent to this petition. The joint answer of the executor of the will of the decedent, deceased, denied various allegations of the petitioner's petition and set up four affirmative defenses. The trustee also filed an answer to this petition.

In the opinion of the Surrogate dated May 25, 1972, he iterated some of the facts and noted what was to be included in the decree to be entered on his previous decision. Thereafter, the first decree now under review was made.

A Manhattan Probate Lawyer said that in a further opinion, dated January 30, 1973, the Surrogate authorized the trustee to invade the principal of the trust in whole or in part, in its discretion, and further authorized the trustee to invade the total principal by distributing the shares equally to the two daughters. He further directed that, in the event the trustee was unwilling to do this of its own accord, it must invade the principal and thus distribute the shares, thus terminating the trust.

We concern ourselves only with one contention raised by appellants to wit: that a hearing should be held to determine whether there exists a need to authorize or direct invasion of the corpus of the daughters' trust. We find the proof presented to be deficient in this regard and, accordingly, direct that such a hearing be held, limited to this issue and also for the taking of proof as to whether the transfer of the shares of stock of a company to the daughters might be financially beneficial to them, thus justifying termination of the trust.

e have considered the other contentions raised and find them to be without merit.

Here in Stephen Bilkis and Associates, we have Kings County Estate Attorneys who will draft your last will and testament. We will make it a point that your last wishes before your demise will be embodied in said will. For executed wills, our Kings County Probate Lawyers will bring your last will and testament at the court for its allowance.

Court Decides Outcome in Will Contest Proceeding

November 19, 2014,

Page 727
145 N.Y.S.2d 727
1 Misc.2d 440

Petition of the First National City Bank of New York,
successor by merger of the Peoples Trust Company, to render
and settle its account as trustee of the trust created for
the benefit of Howard F. Welsh by the last will and
testament of Annie P. Welsh, late of the County of Kings, deceased.
Surrogate's Court, Kings County.

Oct. 10, 1955.

Wingate & Cullen, Brooklyn (Conrad Saxe Keyes, Rooklyn, of counsel), for petitioners.
Francis F. Welsh, Montclair, pro se and for respondent, Elmira V. Welsh.
Lott & Livingston, Brooklyn, for respondent, Brooklyn Home for Children.
Merchant, Olena, Buck & Santomenna, New York City, for respondent, New York Congregational Christian Conference, Inc.
Murray & Manson, Brooklyn, for respondent, Orphan Asylum Society of the City of Brooklyn.
MOSS, Surrogate.

A New York Probate Lawyer said in a proceeding to probate the last will and testament of the deceased, which was contested by the three respondents, and which resulted in the will being admitted to probate after a compromise pursuant to which each of the four contestants and the infant respondent would receive $2,000 upon the death of the life beneficiary of the residuary trust created by the will, the said life beneficiary and the Attorney General appeal from so much of an order of the Surrogate's Court, Kings County, dated May 6, 1960, made pursuant to section 231-a of the Surrogate's Court Act, as fixed $2,500 as the compensation for the four contestants' attorneys, the respondents 'for the legal services rendered by them which were useful to the court and of substantial benefit to this estate.'

In the opinion of the Court, the legal services rendered by the contestants' attorneys benefited only the contestants, and not the estate; and, hence, the attorneys must seek compensation from their clients personally.

A New York Estate Lawyer said that an order modified on the law and the facts by striking out the third decretal paragraph fixing the compensation of said attorneys at $2,500, and by substituting therefor a provision denying any compensation to them out of the testator's estate. As so modified, the order is affirmed without costs. Findings of fact implicit in the order and in the opinion or decision of the Surrogate, insofar as such findings may be inconsistent herewith, are reversed and new findings are made as indicated herein.

Bronx Probate Lawyers said in another case, a final accounting of a trust created for the executor under clause Ninth of testatrix' will, a construction is sought as to the disposition of the remainder thereof. Testatrix died on March 27, 1918. Under the aforesaid clause testatrix devised two parcels of realty in trust, with power to convert the same into cash, and to divide the same into two equal parts: 'to pay the income of one of said parts to him, for, and during the term of his natural life, and after his death, to pay the income of said part to the respondent. Testatrix then provided that the income of the other part be paid for life, then to his issue until 21 years old and then the principal to them in equal shares, and if there be no issue, the income to be paid to executor's wife, for life, 'and upon her death, the said part and all increments thereof are to be disposed of as directed in the tenth clause of this, my last Will and Testament.' The income of the trust was paid to him for life and thereafter to executor, who survived him and died on January 7, 1954. The trust still subsists as he died without issue but was survived by his widow, who was the contingent secondary beneficiary of his trust.

Brooklyn Probate Lawyers said the Tenth clause of testatrix' will disposed of her residuary estate, which she gave in trust for the lifetime benefit of a niece, and the remainder was given in equal shares to four charitable organizations. The niece predeceased the testatrix.

The only child of the trustee, contends that there being no provision for the disposition of his father's trust after the death of the executor, the gift lapsed and there was an intestacy, which should be paid to the natural objects of the testatrix' bounty, the heirs, and that upon the death of both trustee and executor, he was left as the sole heir and should receive such part. The probate proceedings however disclose that the two were step-sons of the testatrix.

It is urged that under the principle declared in a case that since there is an unrestricted gift of income without limitation of time and no express disposition of the principal, the corpus of the trust vested in the income beneficiary. A similar argument was advanced in another case and rejected as the instrument under construction contained a residuary clause, under which it was held that the trust corpus was payable to the residuary legatee.

In the instant case no intestacy of the remainder of the trust follows because of the failure to provide for its disposition within its own clause. Clause Tenth--the residuary clause--is broad enough to embrace within it the said remainder, and the will is so construed.

For quality legal services, you can consult our Kings County Estate Lawyers, who are always ready and willing to assist you with your concerns. For more inquiries, you can also ask an advice from our Kings County Probate Attorneys.

Court Settles Who is "Next of Kin" in Probate Proceeding

November 18, 2014,

Decedent died in 1949 leaving a will which he had executed in 1919, some 30 years before his death which was duly admitted to probate.

A New York Probate Lawyer said in Article THIRD, the will created a trust for the life income benefit of testator's wife. Upon her death, the principal was to be paid to son and if he should predecease to his issue. In fact the son predeceased the testator himself as well as his mother the income beneficiary without issue. It that contingency, the will directed the Trustee to pay over, transfer and deliver the principal of the trust fund to and among my next of kin in equal shares but Per stirpes and not Per capita.

A New York Estate lawyer said that the direction is clearly to distribute the principal among Testator's next of kin. The issue is as of what date are the next of kin to be determined (1) 1919 the date of execution of the will; (2) 1949 the date of testator's death or (3) 1975 the date of death of the income beneficiary, testator's wife?

In 1919 the date of execution of the will, testator's sole 'next of kin' was his son. A brother and a sister then living were not next of kin while son was living.

Long Island Probate Lawyer said in 1919, a surviving spouse was not 'next of kin' From 1930 to 1938 there is a gray area made such by the decision in a case. Noting that the case may have been wrongly decided, the Legislature upon recommendation of the Foley Commission enacted provided, that unless a contrary intent is expressed in a will, the term 'next of kin' (also 'heirs' and 'heirs at law') shall include all distributees entitled to take in intestacy under the statute of descent and distribution. Section 47--c expressly included 'a surviving spouse'.

In 1949, the date of testator's death, son was already dead. Testator's 'next of kin' included his widow by express provision of then effective section 47--c. It also included brother and, then living, since under the statute of descent and distribution then in effect, they shared with the surviving spouse when there were no issue surviving.

A Queens Probate Lawyer said that generally a will speaks as of the date of death of testator. This is especially true when terms used in the will are referable to the statute of descent and distribution which testator is presumed to know may be changed by the Legislature at any time. Thus, as next discussed, unless testator intended that his 'next of kin' be determined at the time of the death of the income beneficiary, testator's next of kin at the date of His death were his wife, his brother and his sister.

The fact that the life income beneficiary, as next of kin, is also a remainderman and that she can never come into possession of her remainder interest is a factor to be considered but standing alone does not preclude the determination that her remainder interest became vested in 1949 at the death of the testator.

If testator intended 'futurity'--that his next of kin should be determined as of the date of death of the life income beneficiary 1975 then intestacy will result. None of his next of kin survived the income beneficiary. Sister died in 1971 without issue. Brother died in 1974 without issue. Wife died in 1975 without issue. This is the construction requested by the Attorney-General appearing on behalf of the State Comptroller with whom the principal of the trust must then be deposited.

The Court examined again the relevant provisions of the will to determine testator's intent-- 'in the event that At the death of my said wife my said son Willard shall be dead leaving no issue him surviving, Then to pay over, transfer and deliver the principal of the trust fund to and among my next of kin, in equal shares but Per stirpes and not Per capita.'

The Court found in the language used no expressed intention by testator that his next of kin were required to survive the income beneficiary.

The phrase 'at the death of my said wife' and the word 'then' (also 'when', 'after', 'from') preceding the dispositi of a remainder limited upon a preceding life income interest, merely indicates the time when possession is to begin; such phrases or words do not impose a condition of survival nor prevent earlier vesting.

In the absence of an expressed condition of survival, we examine the constructional preferences. It is when intention is not readily ascertainable or where testator had no intention at all which is very likely in this case that resort is had to constructional preferences. These are not rules of substantive law but merely rules of construction useful in determining what the ordinary testator would have intended if indeed he had given any thought to the disposition under construction.

The Court considered three such rules of construction applicable generally, but as well in this case to determine This testator's preference.

In a case, when the remaindermen are Named individuals as distinguished from a class there exists a strong presumption in favor of vesting and against a condition of survival. Obviously testator expected that his named remainderman would survive to take possession. If a remainderman had survived he could have disposed of his remainder interest as he saw fit. For such reason it is presumed that testator would have no objection to allowing the remainder interest to pass to the named remainderman's estate to be disposed of as directed in that remainderman's will or as in intestacy.

When the remaindermen are a horizontal class (of equal degree of consanguinity) such as 'children', or 'grandchildren', or 'brothers and sisters', the same rule and reasoning is applied. There is a presumption in favor of vesting and against a condition of survival.

When the remaindermen are a vertical class (more than one generation) such as 'issue' or 'heirs' or 'next of kin', the presumption is against vesting and in favor of a condition of survival. Testator by using a term which includes more than one generation has indicated that his intention has extended beyond a single generation. Thus the use of the term 'next of kin' imports futurity and an intention that the remaindermen so designated are required to survive the life income beneficiary.

Closely related to the above, is the situation where a holding that a remainderman was not required to survive, would vest the remainder in the life income beneficiary who would never take possession.

Of course if the life beneficiary is himself the ancestor whose horizontal or vertical class of relatives are the remaindermen, the presumption follows the rules set forth in 1(b) and 1(c) above. However when the testator himself is the ancestor whose class of remaindermen include the life beneficiary, as in the instant case, it is generally presumed that he intended to exclude the income beneficiary from the class and that therefore survivorship was intended.

But not the average testator, nor indeed any testator, ever intends that his property shall pass to the State Comptroller. Nor did the decedent.

Therefore the will is construed as vesting the remainder interest in his next of kin living at his death but subject to be divested if and only if any of his next of kin survive the life income beneficiary. Since none did survive the trustee is required to pay the principal of the trust equally to the estates of wife, brother and sister as set forth in the petition.

If indeed it is testator's intention which we seek from the direction under consideration And if he were available to express such intention, it is certain that (over the result of deposit with the Comptroller) he would prefer that the principal of the trust be disposed of in accordance with the finding of this Court. The Court therefore finds that this was his actual intention. The will is so construed.

For cases involving probate of wills, you can consult our Kings County Probate Attorneys here in Stephen Bilkis and associates for a worthy and reliable advice. For matters involving questioning a will for probate, our Kings County Will Contest Lawyers will file your opposition before the courts of justice.

court Decides Who Should Receive Life Insurance Proceeds with Reciprocal Will Issue

November 17, 2014,

A New York Probate Lawyer said that decedents were husband and wife, presumably died simultaneously in a fire in their home on December 13, 1959. Decedents left reciprocal wills which were duly admitted to probate in Wayne County on January 15, 1960. On that day Letters Testamentary on their wills, both late of the Town of Lyons, New York, were issued to the executor of the City of Detroit, Wayne County, Michigan.

The executor petitions for the Judicial Settlement of his first intermediate account in the two estates. In such petitions he asks that this Court determine to whom the $16,813.20 insurance settlement, received on account of the fire loss to the real estate of the decedents at New York, should be paid.

A New York Estate Lawyer said the question before the Court is whether the sum of $16,813.20, which represents the insurance settlement because of the fire loss to the real property should be distributed as part of the residuary estates of the decedents or whether the said sum should be paid to specific devisee of this real property, the Church.

The Court has read all of the cases cited and has made a study of other case Law as well as several treatises on the questions involved. The main question involved here leads to a number of other questions, some of which are not too clear from the cases or from the textbooks.

A Staten Island Probate Lawyer said the rules and doctrines are set forth which become case Law only if they apply to the particular case at hand. The Doctrine of Ademption is, of course, a recognized doctrine as are other doctrines of Law. They all, however, must be applicable to the case at hand. The time of the presumed simultaneous deaths of the testators in relation to the fire cannot, of course, be pinpointed. There is no evidence of death prior to the fire, but presumably was during it, and certainly not after the fire.

Reading the contract of insurance we find that the insurors had an option to repair or restore in specie. There also is no question but that the property in question damaged by fire was real property. There certainly was no time for the testators here to change their wills or to repair the damage as they were found dead at the scene.

In order to arrive at a decision on the issue here as to where this amount of $16,813.20 received as a result of insurance settlement should be paid, it was necessary to sift all of the cases in view of the facts of the case before the Court.

The language of the wills clearly shows the intention of the testators to specifically devise this property to the Church which is plain and obvious.

The question before the Court, therefore, is whether the New York Rule with respect to insurance proceeds paid as a result of damage to real property is such that the intent of the testators clearly set forth in their wills to devise this real property unto the Church should be defeated as a matter of Law and the proceeds go to the residual estate.

After carefully weighing all of the cases and the Law in relation to the specific facts in this particular matter, the Court rules that in both equity and Law the proceeds of this insurance policy which has been paid as a result of the damage to the real property should be paid over by the executor to the Church.

The wording of the will specifically makes this devise and there is no direction to the Church to maintain the real property, keep it, or any restriction whatsoever. Intent of the testators in the will was to give the property to the Church and they themselves could have transferred it into specie. The insurers by the terms of their policy had the option to repair it or to themselves turn it into specie. This the insurors have done and the proceeds should be paid to the specific devisee of such real property.

In an old case, which the Court had read prior to its being cited to him, the Rule of Ademption was considered not applicable to devisees of realty and, as the Court in that case said, I, too, see ample reason for refusing sanction to the introduction of a doctrine which if applied to this devise of real property would completely defeat the very definite and specific intent of the testators here that this property or as this case turned out, its equivalent, should go to the devisee named in their wills.

The Court has read the case and studied it in conjunction with this case and in the light of the other cases which are cited above. The case has been quoted as the basis of the contention by attorneys here who feel that the insurance proceeds become part of the residuary estate. This Court has considered the thinking in that Rule but feels that such Rule does not apply in this particular situation which undoubtedly comes under the term commonly known as a 'Common Disaster' and, as the Court has read in Columbia Law Review and Jessup's Surrogate Practice, a Surrogate should not allow such a Rule to prevail and covercome the very specific and definite intention of the testators.

There seems to be no disagreement among the attorneys as to the fact that the portion of this property that was destroyed was simultaneous or is presumed to be simultaneous with the deaths of the testators and presumably part of the damage and perhaps all was before their deaths. Therefore, the Court rules that the doctrine should not be applied in deciding the present issue.

Treatises on this matter seem to go along with the reasoning that insurance proceeds from a fire, such as this, should go to the specific devisees. In reading American Law Reports this thinking is endorsed.

The Court, therefore, holds that this specific devise, in whole or in part, should not be revoked by doctrine. The Rule of Ademption should not apply to real property and likewise should not be stretched to apply to insurance proceeds which are the substitute for the real property specifically devised without any contingencies or restrictions by the testators to the Church and should go to such devisee.

Here in Stephen Bilkis and Associates, our Kings County Probate Attorneys will protect the decedent’s interest by properly representing the executor before the courts of Justice. If you wish to draft a last will and testament, let our Kings County Estate Lawyers help you. We will ensure that the provisions embodied in the will are allowed by law.

Petitioners Request Settlement of Their Account as Surviving Trustees

November 14, 2014,

New York Probate Lawyers said this is a proceeding by the petitioners, and a Bank, for the judicial settlement of their account as surviving trustees of an express trust created by the father in a letter writing dated March 10, 1902, and for the construction of the trust instrument in conjunction with the will of the testator for whose immediate benefit the trust was created.

A Kings County Estate lawyer said that in March, 1902 testator had four sons. On March 10th of that year he established the instant trust in a letter addressed to Joel and a few days later delivered the securities constituting the corpus of the trust to his 2 sons, as trustees.
The settlor augmented the corpus of the trust pursuant to instruments executed in 1905, 1907, 1909, 1910 and 1911. On December 24, 1909 the 2 sons as trustees, properly designated their brother (now a co-petitioner) as a co-trustee.

The settlor died on July 4, 1915. His son, the original life beneficiary died on May 30, 1924, survived by one son, who had been born on October 16, 1914. Said son, the elder left a will, dated April 21, 1920, which did not refer to the power of appointment granted him by the trust instrument. Following various specific gifts of both realty and personalty, the will disposed of the residue.

A New York Estate Lawyer said that after the death of Joel the elder in 1924, the trustees applied in income from the trust fund to the use of Joel the younger. The latter died in an airplane accident on October 18, 1955, survived by his son, sole lineal descendant, born on February 5, 1943, who is represented herein by the special guardian. The will of the decedent, the younger was admitted to probate in California, where letters of administration c. t. a. were issued on June 29, 1956. The Surrogate's Court, New York County, later issued limited ancillary letters of administration c. t. a.

Westchester County Probate Lawyers said that during 1953 the son executed written bills of sale, assigning to an individual, interests in the corpus of the trust to the extent of $24,000. On October 8, 1954, he executed a loan agreement with the First National Bank of Philadelphia, Philadelphia, Pa., now the First Pennsylvania Banking and Trust Company, in which he assigned all his interest in the corpus as security for a loan of $375,000. On September 2, 1955 there was served upon the corporate trustee-petitioner a warrant of attachment against the property, in an action against him brought by the United States of America to recover $6,069.48 with interest from February 26, 1948.

The accounts of the trustees have been judicially settled on four prior occasions, resulting in judgments entered respectively on February 27, 1926, March 22, 1934, May 4, 1942 and November 24, 1944.

Suffolk County Probate Lawyers said the instant petitioner, who was a defendant therein, set up a cross answer denying that all the interests were merged. The plaintiffs therein contended that the trust was indestructible during the lifetime of the son. The court granted the plaintiffs' motion for judgment on the pleadings, struck out the defense and held that while was entitled to the income of the trust, he was not then entitled to immediate possession of the corpus.

When the decision denying the claim to immediate possession of the corpus was rendered in 1942, the infant represented herein by the special guardian, was not yet born. The special guardian here urges a certain measure of conclusiveness of the 1942 judgment to the issues raised in this proceeding. While the rights of persons thereafter born may under certain circumstances be determined in proceedings antecedent to birth, the present issues such as those raised by the creditors, so differ from that essential to the judgment in the prior litigation as to preclude the application of the principles of res judicata.

As set forth above, the trust instrument provided that upon the death of the survivor, the trustee were to pay over the corpus to said children and lineal descendants, in such shares, whether equal or unequal, and upon such terms, as you may direct by your Last Will and Testament, or if no such direction is given, then in equal shares per stirpes and not per capita.'

Section 18 of the Personal Property Law provides as follows: 'Personal property embraced in a power to bequeath, passes by a will or testament purporting to pass all the personal property of the testator; unless the intent, that the will or testament shall not operate as an execution of the power, appears therein either expressly or by necessary implication.'

To the same substantial effect, except for the omission of the word 'therein', is section 176 of the Real Property Law.

The power of appointment given to Joel the elder, being limited to exercise by will to the classes of his 'children and lineal descendants,' was a special testamentary power of appointment in trust, applicable to personal as well as real property. Such a special power, as well as a general power, is embraced by sections 18 of the Personal Property Law and 176 of the Real Property Law, supra.

It is settled that a testamentary gift of the residue is sufficient to execute a power of appointment which has been conferred upon the testator unless it appears expressly or by necessary implication from the language of the will that the will should not operate as an execution of the power. Section 18 of the Personal Property Law and the companion Real Property Law section make the intention of the testator the controlling factor and create a rebuttable statutory presumption of an intention to exercise the power.

Clearly there was no express provision in the will of Joel the elder, showing that he did not intend to exercise the power. In a case, it was stated that the term 'necessary implication' found in sections 18 and 176 'results only when the will permits of no other interpretation. 'Necessary' is defined to mean, 'Such as must be;' 'Impossible to be otherwise;' 'Not to be avoided;' 'Inevitable.'. The intent not to execute the power, therefore, must not be implied unless it so clearly appears that it is not to be avoided.'

The emphatic command of the statutes is illustrated by the holdings that a power of appointment conferred in a subsequent trust agreement is validly exercised by a previously executed will containing no specific exercise of any power of appointment.

The guardian strongly urges that since Joel the elder left his residuary estate, in the event his son predeceased him, to a cousin, an ineligible appointee under the power, this fact necessarily implies that the testator did not intend to exercise the power of appointment. He cites in support of this contention. These cases are distinguished and placed in proper perspective in another case, in a manner in which this court concurs. It is true that in the case, the will was executed before the power was given and therefore without knowledge of its terms.

Having held that the effective exercise of the power of appointment by the will of Joel the elder entitles his son's estate to the corpus of the trust, the court will now consider whether the trust ended upon the death of the younger Joel in 1955 or whether it will continue during the lifetime of a petitioning trustee for the benefit of lineal descendants.

The personal representative of the younger son's estate and his creditors maintain that the trust instrument is not the product of expert drafts-manship; that words like 'children' and 'lineal descendants' were used loosely and that the settlor intended merely to create a spendthrift trust for the benefit of his son, with a remainder in children.

The guardian, on the other hand, contends that the settlor purposely used proper legal terms of varied meaning which should be strictly and literally construed, that as a 'lineal descendant' his ward need not have been in esse when his grandfather Joel died in 1924, and that the settlor was not only interested in future estates, but intended to protect them fully during the stipulated term of decedent's life.

The relationship between the stipulated term and the natural term where only the construction of a valid trust was involved, was considered in a case where the testator created a trust for the benefit of his granddaughter during the lives of his two sons. Upon the death of the sons, the trust was to terminate and the corpus was to be paid over to the grandchild or her heirs. The grandchild died before the two sons. The court found that the primary object in the mind of the testator was to create a trust for the sole use and benefit of the granddaughter, and upon her death even before the expiration of the stipulated term the trust terminated and the corpus passed to her heirs at law.

In the opinion of the court, the position of the guardian on his branch of the case appears to be sound. The use by the settlor of the words 'lineal descendants,' obviously of broader import than the word 'children', used elsewhere, connotes a consideration for other than issue of the first degree. Obviously, the creation of a spendthrift trust for the elder was not the sole object of the settlor, since otherwise there would have been no need for or purpose to the second sentence of Article 'First' and the measurement of the trust on the additional life of the decedent.
It is held that the trust has not terminated so that demands for immediate payment from the remainderman's interest are premature. The United States Government as a creditor does not ask for payment but asks only that its lien by attachment be established. Such relief is authorized by section 916(6), Civil Practice Act, and it is granted.

No objections have been interposed to the account although the special guardian has reserved on that branch of the proceeding. He may have until September 6, 1957 to serve and file his supplemental report and objections, if any, to the account. If there be any such objections further decision will be rendered thereon. If there are no objections to the account, an order may then be settled accordingly.

If you are an heir, whose right as such was deprived, our Kings County Will Contest Lawyers here in Stephen Bilkis and Associates will protect your interest as such. We will file the necessary action for your protection. For other matters, we also have Kings County Estate Attorneys.

Validity of Italian Wedding in Question in Estate Administration Proceeding

November 13, 2014,

A New York Probate Lawyer said that the petition in this probate proceeding describes the respondent, as decedent's 'alleged widow'. The latter claims that she married decedent by proxy in a civil ceremony performed in San Mauro La Bruca, Province of Salerno, Republic of Italy, on October 26, 1950, in accordance with the laws of that Republic. Decedent's five children of a prior marriage question the performance and validity of such marriage.

A New York Estate Lawyer said that a preliminary hearing was ordered on the issues so raised and proof was taken thereon. Nine documents were admitted in evidence without objection in support of the widow's claim. Exhibit 1, in English, is an application by decedent for the issuance of an immigration visa for the widow's entry into this country. Exhibits 2 to 9, inclusive, are certified copies of records of the Bureau of Vital Statistics of San Mauro La Bruca aforementioned, which were required by the Civil Code of Italy for the performance of the proxy marriage in question. These documents are in Italian, translated into English and properly authenticated.

Thereafter, decedent executed a power of attorney before a notary public in Brooklyn, N. Y., by which he constituted and appointed his nephew, domiciled and residing in San Mauro (decedent's native town), 'to represent him in the celebration of a civil marriage in the Town of San Mauro La Bruca, Province of Salerno, Republic of Italy, between himself and the daughter of the decedent domiciled and residing in San Mauro'. Decedent also executed a petition to the Attorney General of the Court of Appeals of Naples, Italy, seeking permission to marry the said woman in San Mauro by power of attorney granted for that purpose as required by Article III of the Civil Code of Italy, which was granted by the Attorney General pursuant thereto on September 21, 1950.

A Nassau County Probate Lawyer said that an expert on Italian Law whose qualifications are not questioned, testified that he procured all of the documents marked Exhibits 2 to 9, inclusive, at the request of the widow, that he had read them before the hearing, fully knew the contents thereof and that after examining the same he was of the opinion that a valid marriage by proxy had been performed by the Mayor of San Mauro, pursuant to Article 111 of the Civil Code of Italy as evidenced by Exhibit 6.

Staten Island Probate Lawyers said that certain objections interposed by the widow's opponents require disposition. The objection of respondent, one of decedent's children by his first marriage, made after all the documents were marked in evidence came too late and in addition was not within the issues. It is therefore overruled. The marriage was performed through the agency of decedent's nephew, as his attorney in fact. Her testimony was not objected to on the ground that she was interested in the event. The rule harmonizing the conflicting authorities on the subject, laid down in a case, requires overruling of the objection.

The prohibition of section 347 of the Civil Practice Act does not extend to personal transactions with the agent of a deceased person, and an interested party may testify to transactions with an agent though the principal and agent or either of them is deceased. Furthermore, the widow's testimony objected to is cumulative and would not affect the result event if struck out, since the marriage as well as the identity of the parties thereto uncorroborated by her testimony are amply established by documentary evidence. Moreover, the objections to the testimony were expressly waived on the record.

When the marriage in question was performed the decedent was a widower and she was single. They were not related by blood or affinity. Cohabitation was not required to validate the marriage under the law of Italy.

The only question remaining is: Does the law of New York State recognize a proxy marriage celebrated in Italy in conformity with its law? The Court has studied and considered the entire body of the proof and the contentions of the parties and has reached the conclusion that decedent's widow has sustained her claim.

The Court of Appeals of this state regards as settled law that the legality of a marriage between persons sui juris is to be determined by the law of the place where it is celebrated, unless it is repugnant to the public policy of this state, such as marriages prohibited by positive statute and those which contravene natural law.

The Domestic Relations Law of this state provides: § 10. Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.'

Section 5 does not expressly declare void a proxy marriage celebrated in a foreign state or country. Section 12, however, provides that though no particular form or ceremony is required when a marriage is solemnized in this state, 'the parties must solemnly declare', in the presence of the authorized celebrant and attending witness or witnesses, 'that they take each other as husband and wife'.Though proxy marriages have never been authorized by statute in this state, they have never been considered repugnant to its public policy and do not contravene the natural law. A comprehensive annotation on proxy marriages is found in a case, which in part says:

'There are reports of proxy marriages in ancient times, and it is certain that they were permissible in certain instances under canon law and the late Roman law. A papel decree on proxy marriages was issued about 1300 A.D. In England the canon law concerning proxy marriages was adopted in the King's Ecclesiastical Law, and apparently this was the law of England until the adoption of the Marriage Acts in the eighteenth century. It is therefore possible, although there are no judicial decisions on the question, that the proxy marriage is a part of the common law in this country.

'Since the proxy marriage celebrated in the District of Columbia was valid in that jurisdiction both as a common-law marriage and as a marriage by proxy, the marriage must be recognized as valid in this State.' For cases in other states holding that a foreign proxy marriage will be recognized see 'Recognition of Foreign Marriages', 170 A.L.R. annotation p. 949 et seq.
It follows that the marriage by proxy in San Mauro La Bruca, Province of Salerno, Italy, on October 26, 1950 must be recognized in this state. the wife is adjudged and decreed to be the lawful widow of decedent. Settle decree on notice.

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Objectant Seeks Order Dismissing Probate Proceeding

October 27, 2014,

A New York Probate Lawyer said that, in this contested probate proceeding, petitioner seeks a declaration that the proceeding was commenced on December 8, 2005, before the commencement of a probate proceeding in Arizona. Objectant seeks an order dismissing the probate proceeding on the grounds that this court lacks subject matter jurisdiction (CPLR 3211 [a] [2]) and that there is a prior proceeding pending in Arizona (CPLR 3211 [a] [4]).

A New York Estate Lawyer said that, the decedent died on December 4, 2005, survived by two grandchildren. The decedent was born and raised in Brooklyn. For many years, the decedent and his wife lived in Florida, where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona, where his grandson lived. They were living in Phoenix when the decedent's wife died. The decedent remained in Phoenix until moving to New York in late September 2005. While living in Phoenix, the decedent executed a will, dated April 2, 2004, which left his estate to the trustee revocable trust. On the same day, he executed a trust agreement creating a revocable inter vivos trust. Under the terms of the trust, the estate passes to one of the grand children upon the decedent's death.

A Brooklyn Probate Lawyer said that, in 2005, the decedent called his sister, and told her he wanted to return to Brooklyn to live with her. she and her daughter visited the decedent on September 27, 2005. At that time, the decedent was 95 years old and suffering from cardiac problems. He asked his sister to take him back to Brooklyn to live with her. According to the said sister, the decedent told her that he wanted to change his will, revocable trust and health care proxy before boarding the plane. On September 30, 2005, the day they were to travel to New York, he visited the offices of the law firm in Arizona and asked her to change the beneficiaries of the 2004 will and trust. The decedent executed a new will, an amendment of the 2004 trust and a health care proxy in the office. The 2004 trust was amended to provide that, upon the decedent's death, his sister receives one half of the trust principal, his granddaughter receives three eighths of the trust principal and his grandson receives one eighth. The decedent then left immediately for the airport, without stopping to get his glasses, clothes or medicine. They traveled back to New York that day, September 30, 2005.

A Bronx Probate Lawyer said that, on the same day, the grandchild filed an emergency petition for his appointment as conservator and guardian of the decedent. He alleged that the decedent had been taken from his house by church members on September 28, 2005. The proceeding was ex parte. Based upon his testimony, the Arizona court granted his petition, appointed him temporary guardian of the decedent, pending a hearing on whether a permanent guardian should be appointed shortly after arriving in New York, the decedent was hospitalized for surgery for a blood clot on his leg. The sister’s daughter had a petition prepared for the appointment of a guardian. Meanwhile, the Arizona attorney who drafted the 2005 will was served with a petition demanding that she deliver the decedent to Arizona. In response to the turnover petition, the decedent submitted an affidavit, dated October 25, 2005, stating that he was domiciled in Brooklyn and listing the sister’s address as his domicile.

A Bronx Estate Lawyer said that the Mental Hygiene Law article 81 petition was filed on October 27, 2005 in Supreme Court, Kings County. A court evaluator was appointed and interviewed the decedent. The decedent died on December 4, 2005, before either proceeding could be concluded. According to the affidavit in support of petitioner's motion, the petitioner's attorney filed a petition to probate the 2005 will, accompanied by a check for $1,250, on December 6, 2005. The petition stated that the decedent was domiciled in New York. The probate clerk accepted the petition and filing fee and made an entry in the minute book. No file number was issued, pending review of the petition. On December 8, 2005, the attorney was notified in writing that the petition was not accepted for filing because there was insufficient proof of New York domicile. The check for the filing fee was also returned on the ground that the check had alterations. On December 14, 2005, the attorney submitted a replacement check for the filing, a copy of the decedent's affidavit of domicile filed in the Arizona conservatorship proceeding, stating that his domicile was 2418 Cortelyou Street, Brooklyn, New York, and an attorney's affirmation on domicile.

A Bronx Probate Lawyer said that, on December 16, 2005, the grandchild filed a petition to probate the 2004 instrument in the Maricopa County Court of Arizona, claiming that the decedent was domiciled in Arizona. On December 20, 2005, the attorney's affirmation on domicile was rejected because it was based upon information and belief. On January 23, 2006, petitioner filed a copy of the court evaluator's report, stating that the decedent told the evaluator that he was happy to be back in New York and did not want to return to Phoenix, Arizona. On January 31, 2006, the probate clerk issued a file number for the probate proceeding. On February 1, 2006, the grandchild filed objections to probate of the 2005 instruments. The objections deny that the will was executed in accordance with the formalities of law, that the decedent lacked testamentary capacity, that the will was executed by mistake and that the execution was not freely made but the result of undue influence, duress and fraud. In addition, the objections claimed that there was a prior proceeding pending in Arizona to probate the 2004 will and that this court lacks subject matter jurisdiction.

A Bronx Estate Litigation Lawyer said that, petitioner moved for preliminary letters testamentary and a determination on the petition to probate the 2005 will filed in the Surrogate's Court of Kings County on December 6, 2005. The grandchild filed an affidavit in opposition which claims that the court should dismiss the motion (and presumably, the proceeding) on the grounds that (1) this court lacks subject matter jurisdiction (CPLR 3211 [a] [2]), and (2) there is a prior pending proceeding in Arizona (CPLR 3211 [a] [4]).

The issue in this case is whether the motion for dismissing the probate proceeding on the grounds that this court lacks subject matter jurisdiction (CPLR 3211 [a] [2]) and that there is a prior proceeding pending in Arizona (CPLR 3211 [a] [4]) should be granted.

CPLR 3211 (a) (4) provides that a party may move for a judgment dismissing one or more causes of action against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States. The court need not dismiss upon this ground but may make such order as justice requires.

In Surrogate's Court, all proceedings are special proceedings commenced by the filing of a petition. In addition, SCPA 301 (a) provides that a proceeding is commenced with the filing of a petition, provided process is issued and service on all respondents is completed within 120 days. While SCPA 301 expressly provides that the date a petition is filed is used for purposes of statute of limitations questions, the date a petition was filed has been used to determine when a proceeding was commenced in other situations.

In the instant case, the petition was filed on December 6, 2005. Papers are filed upon their physical receipt by the court clerk. The clerk accepted the petition but did not issue a file number or record its filing until a supplemental affidavit of domicile was filed. Petitioner submitted a supplemental affirmation of domicile on December 14, 2005, but it was rejected by the clerk because it was executed by the petitioner's attorney upon information and belief. It was not until the petitioner filed a copy of the report of the court evaluator that the petition was accepted and a file number issued. By then, objectant had initiated a probate proceeding in Arizona.

Whether the Arizona proceeding was filed first depends on whether the New York proceeding was initiated upon filing the petition on December 6, 2005 or upon being accepted by the probate clerk on January 31, 2006. This, in turn, depends on whether the requirement that petitioner establish domicile by the supplemental documents was jurisdictional. The analysis starts with the fact that the petition filed on December 6, 2005 conformed to the requirements of the SCPA and was in proper form. The allegations in the verified petition are prima facie proof of the facts asserted until denied by an answer, objection or other proof. Therefore, for purposes of obtaining subject matter jurisdiction, the allegation that the decedent was domiciled in New York creates a prima facie showing of subject matter jurisdiction, subject, of course, to rebuttal.

This result is not affected by the fact that the probate clerk required a supplemental proof of domicile. Whatever the basis for the requirement of additional proof of domicile, furnishing such proof is not required by the SCPA or CPLR. Therefore, the requirement is not jurisdictional and does not affect the filing date.

However, the failure to tender the filing fee in proper form may be a jurisdictional defect. The CPLR expressly provides that filing must be accompanied by the appropriate filing fee. The Court of Appeals has indicated, albeit in dicta, that the payment of a filing fee under the CPLR is jurisdictional. There appears to be split among the departments of the Appellate Division on the issue, with a majority holding that the tender of the filing fee is jurisdictional, so that the failure to pay the required fee renders the filing fatally defective.

SCPA 301 has no corresponding provision. The SCPA does provide that, upon filing a petition for probate, the clerk shall charge and receive a fee as determined in SCPA 2402. Upon receiving the petition and fee, the clerk accepts the papers for filing and issues a file number. Therefore, it is not clear whether the tender of the filing fee is jurisdictional.

In the instant case, the court need not determine whether the improper tender rendered the filing void. A replacement check was accepted on December 14, 2005. This cured the defect. Using either date, December 8, 2005 or December 14, 2005, the New York proceeding was filed before the filing of the probate petition in Arizona on December 16, 2005. Based on the above, the court determines that the New York probate proceeding was initiated by December 14, 2005.

Accordingly, objectant's application to dismiss this proceeding on the ground that there was a prior proceeding pending in Arizona is denied.

The claim that this court lacks subject matter jurisdiction depends on whether the decedent established domicile here. This requires a hearing. Since the probate proceeding in New York was filed first, principles of orderly administration of justice and conservation of judicial resources mandate that the New York court should hold the hearing on domicile. Since the probate proceeding in New York was filed before the one in Arizona, this court should hear and determine the decedent's domicile.

Accordingly, the court held that the application to dismiss the proceeding on the ground of lack of subject matter jurisdiction is held in abeyance pending a determination of domicile.

The rule provides that a party may move for a judgment dismissing one or more causes of action against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States. If there has been a violation of this rule, seek the help of a Bronx Estate Attorney and Bronx Probate Attorney at Stephen Bilkis and Associates. Call us.