Plaintiff Seeks to Enforce Charging Liens

April 30, 2016,

A New York Estate Lawyer said that, the law firms seek to determine and enforce charging liens pursuant to section 475 of the Judiciary Law. The liens would secure fees claimed by the Firms for legal services to respondent under a retainer agreement dated July 10, 2006 (the "2006 Retainer"). The Firms represented him in a decade-long dispute among several family members, involving various real estate holdings and family trusts. The dispute had been punctuated by at least two abortive settlements, the latter one in 2004. On January 3, 2008, however, the family internecine battles ended in a global settlement placed on the record in open court and then further memorialized in a written stipulation implemented by a closing on August 27-29, 2008. The liens now claimed by the Firms relate to his share of the proceeds of that settlement.

A Kings County Estate Litigation Lawyer said that, discovery having concluded, the Firms and respondent have cross-moved for partial summary judgment. The issues raised on these motions involve the validity of the 2006 Retainer, its allegedly wrongful procurement, and, if it is valid, the meaning of several of its terms and the extent (if any) to which William's obligations under it are subject to conditions that have not been satisfied. The Firms acknowledge that the sums to which they are entitled for work resulting in the 2008 settlement cannot be fully determined without a hearing. Respondent for his part asserts that a hearing is needed to determine the Firms' fees for hourly services in the litigation preceding that settlement.
The 2006 Retainer was drafted and executed on its letterhead. As described below, the Retainer provides for fees in respect of both settlement-related work and litigation-related work. Settlement-related work gives rise to two types of fees: a flat fee and a performance fee, both contingent upon the effectuation of a settlement. Settlement itself is defined as "a settlement among substantially all of the descendants of the decedent and the trusts and estates thereof."
In relevant part, the provisions governing the flat fee are as follows: "The amount of the flat fee will vary only in relation to the time an agreement is reached. For the purposes of this agreement, the time the agreement is reached is the date a settlement agreement (or any ancillary agreement) is signed by any person firm or entity that will be a signatory to the agreement (or any ancillary agreement), whether or not the person, firm or entity is a litigant.
For his part, respondent denies that there is any valid retainer agreement with either firm. As discussed below, he raises several defenses to the lien sought by each as well as one counterclaim against both of the Firms. If the 2006 Retainer is ruled to be valid, the parties also ask the court to resolve disputes concerning the meaning of certain of its terms.

A New YorkProbate Lawyer said notwithstanding the parties' sharp disagreement about the immediate circumstances in which the 2006 Retainer was negotiated, the facts leading to such negotiations are essentially undisputed, and, to the extent relevant here, they are traced below.
On October 11, 2007, one of the Firm partners, died. The other partners nonetheless continued to work on behalf of respondent, including work on a summary judgment motion in the accounting for Ruth's estate. The court denied that motion, and a trial was scheduled for the end of October 2007 and then rescheduled to January 3, 2008. On December 28, 2007, however, the parties called the court to report that they had resolved all outstanding disputes. As indicated above, the global settlement was placed on the record and implemented by a closing at the end of August 2008.

New York City Probate Lawyer said summary determination of a claim or defense is appropriate only where the party seeking it makes a prima facie showing of entitlement to such determination as a matter of law. If such showing is made, the burden shifts to the opposing party to produce admissible evidence establishing that a material issue of fact nevertheless remains open, requiring trial.

In addressing the particular claims, defenses, and counterclaim raised here, the court must be cognizant of certain general principles that underlie the attorney-client relationship. Given the fiduciary nature of that relationship, fee agreements between attorney and client are "affected by lofty principles different from those applicable to commonplace commercial contracts". Accordingly, as a matter of public policy, courts must carefully scrutinize such fee arrangements. A client must be "fully informed of all relevant facts and the basis of the fee charges, especially in contingent fee arrangements". The burden is on the attorneys who drafted the fee agreement to show that it is "fair, reasonable, and fully known and understood by their clients". Moreover, as a general contract principle, where a term of the agreement is ambiguous, that is, reasonably susceptible of more than one interpretation, that term must be construed in favor of the non-drafting client. Where there is no ambiguity, however, the client does not have such an advantage; the instrument must simply be read in accordance with its plain terms. Furthermore, in a dispute between lawyer and client, the latter is not to be perceived as always the former's victim. Indeed, the charging lien itself is the law's device for shielding a lawyer from the possible knavery or overreaching of the client.

Westchester County Probate Lawyers said that tespondent argues that the partner’s compensation must be limited to quantum meruit in that the 2006 Retainer was with the Firm, and that law partnership dissolved by operation of law upon the death of partner, on October 11, 2007. Respondent points out that the Retainer does not contain provisions for its continued effectiveness post-dissolution or for any assignability to another firm. Indeed, he maintains that, as a personal services contract, the Retainer could not have been made assignable and that it therefore cannot now serve as the basis for the partner’s claim to a charging lien. Instead, according to respondent, the partner could not purport to represent him under the 2006 Retainer after the Firm dissolved or, at the latest, after February 2008, when the partner filed a change of attorneys from the Firm to his own. According to William, in the absence of his own separate retainer, the partner has no basis for his claim to a performance fee.

While respondent is technically correct as to provisions of partnership law, the enforceability of an attorney retainer, including its transfer to another law firm or entity, does not depend on partnership law. The case of Goldston v Bandwidth Tech. Corp. (52 AD3d 360 [1st Dept 2008]) makes the point. There the Appellate Division addressed a claim that "the dissolution of the attorney law firm by operation of law upon the departure of [the main attorney providing work to the client] constitute[d] a breach of the retainer agreement", making it unenforceable. The court emphasized that "a change in the organization of a business does not, without more, give rise to a claim by a party contracting with that business even if the reorganization adversely affects the party's interest". The question there, as here, is whether the client clearly recognized that the attorney was continuing the prior representation. Here, the evidence is indisputable that respondent considered his attorney in these proceedings,8 and he was not discharged by respondent until well after this charging lien proceeding was commenced.

A similar rule has been recognized even in the matrimonial context where the policing of retainer agreements by regulation is more stringent. In response to this authority, respondent cites only an unreported Ohio case primarily involving fee-splitting between different attorneys, which does not support respondent’s position. The defenses that the 2006 Retainer was not assignable to the partner and that the settlement did not occur while the retainer was still in effect are dismissed.

Suffolk County Probate Lawyers said the Firms claim that the hourly billing for litigation work is properly the subject of a summary judgment motion as an account stated. Respondent on the other hand argues that he regularly disputed the bills for litigation work and that no account can therefore be stated in relation to such billing. An account stated is merely a contract express or implied as to the amount of compensation due for services rendered. The issue here is whether there is evidence of assent by William to the account as stated. Assent may be implied from actions taken or by the client's silence after receipt of the invoices in question. Respondent alleges that he raised oral objections to the bills that were sent from the Firm almost monthly during June 2006 through August 2008 and from the partner Firm in February 2008 and in August 2008.10 While an oral protest may in certain circumstances create a question of fact as to assent, the law is clear that the client must substantiate the protest that he alleges by making specific, rather than conclusory, allegations detailing when and to whom the alleged oral objections were made and the substance of the alleged conversations. "Bare assertion of oral protest" is insufficient, especially where the debtor receiving the account made partial payments on it. Here, respondent’s assertions amount to nothing more than bare claims of prior oral protests, and moreover, when he had the funds, he partially paid the amounts due. In his affidavit in opposition, he alleges that the Firms' hourly charges "have been and are being disputed" and that this "has been conveyed to the partner a number of times." However, just when and what particular charges he was or is disputing, even at this late date, remain unspecified. Instead, William makes two general points regarding the invoices. First, without referring to any particular invoice, he sweepingly claims that the partner "overdoes things." Second, he claims that there "were innumerable incidences where he would bill [him] for normal office, paralegal, and administrative time that the partner, because he had no secretary or paralegal, would do." But he fails to specify even one of such "innumerable incidences"; nor does he specify when or how such an objection was made. Such belated, conclusory and unsupported claims are insufficient to raise a question of fact on the issue of the accounts stated by the invoices sent to respondent by the Firms. The Firms are therefore granted summary judgment on their claims of accounts stated for hourly litigation work.

The parties disagree about the meaning and application of several of the 2006 Retainer's terms. The first issue in such connection13 concerns the method by which the performance fee is to be calculated under the Retainer's terms. As indicated above, the Retainer defines the size of the performance fee in terms of (a) the value of the settlement ultimately reached for William over and above the $43 million Trigger Amount (the "Increase in Value)" and (b) fixed percentages (varying in direct proportion to the magnitude of the Increase in Value), as follows: "If the Increase in Value is: $0 - $5,000,000, x = 3%; $5,000,001 - $10,000,000, x = 5%; $10,000,001, x = 8%"

According to the partner’s reading, if the Increase in Value is above $10 million (as he maintains it is), then the performance fee is 8% of the Increase in Value in its entirety. By contrast, respondent proposes that in such circumstance the performance fee is instead to be calculated in three steps, applying 3% to the first $5 million of the Increase in Value, 5% to the next $5 million, and 8% only to the amount above $10 million. But the court does not agree that the foregoing terms lend themselves to more than one reasonable construction, much less that they support respondent’s reading. In other words, those terms — "if the Increase in Value is $10 million, x [the applicable percentage] is 8% — unambiguously provide that the performance fee is the product of 8% and the Increase in Value where the latter exceeds $10 million. Indeed, as numerous statutes illustrate, if the terms for which respondent argues had been intended, that intention could very readily have been expressed.

The parties further disagree as to whether respondent’s remainder interest in Trust should be discounted to its present value, given intervening life estate. In this connection, the partner’s position— that no such discount is required—is unsupported by the language of the 2006 Retainer as drafted by himself. Nor does he position find support in the spirit of the agreement, which clearly contemplates that the performance fee be based upon the current value (even if only approximated by appraisals from 2004) of whatever was conceded to respondent in the settlement. Accordingly, respondent’s interest in Marital Trust remainder is to be discounted as he has argued.

Each party's motion for partial summary judgment is granted in part and denied in part as set forth in the foregoing discussion. As is indicated by the foregoing, and as is acknowledged by the Firms' request for only partial summary judgment, the precise value of what respondent received in settlement cannot be calculated on this record and is accordingly an issue to be resolved at a hearing.
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Petitioners File Construction Proceeding to Determine Effect of Tax Exoneration Clause

April 29, 2016,

A New York Estate Lawyer said that, the executors have instituted this construction proceeding, prior to the filing of Federal and New York estate tax returns, to determine the effect of a tax exoneration clause, paragraph second and request a reformation or interpretation of paragraph eleventh, which creates a pre1969 residuary, multiple, split-income, charitable remainder trust so as to qualify it for a charitable deduction under U.S.Code, tit. 26, § 2055 as amended by the Tax Reform Act of 1969 (TRA).

A New York Probate Lawyer said that, the testator died on September 9, 1973, age 92, leaving a daughter, age 64, as his sole distributee, and a granddaughter and three great-grandsons. His will, executed on December 19, 1967 was admitted to probate and letters testamentary issued to petitioners on October 1, 1973. Paragraph second of the will provides: 'I direct that all my funeral, administration expenses, just debts, and all estate and inheritance or succession taxes (without apportionment) be paid as soon after my death as may be practicable.'

A Bronx Probate Lawyers said that, the residuary probate estate, after deducting the pre-residuary outright and in trust bequests, but before estate taxes, is $845,580. Petitioners allege that the loss of the charitable deduction because the trust is not a charitable annuity trust under TRA would increase the estate tax by $163,000. It should be noted that prior to December 31, 1969, the estate would be entitled to a charitable deduction since the amounts payable to the charities could be readily determined. Before proceeding with the construction of paragraphs second and eleventh of the will, the court is called upon to determine a question of jurisdiction, which appears to be of first impression.

Manahattan Probate Lawyers said the petitioners named and cited as interested parties, in addition to the charitable and non-charitable residuary legatees, the Attorney General of the State of New York (AG), the United States Treasury Department--Internal Revenue Service (IRS), and the New York State Tax Commission (Commission). With the exception of the IRS all of the cited parties have duly filed notices of appearances.

Decedent's daughter denies any consent to acceleration of the charities' remainder interests and filed an answer opposing the relief requested by the petition. Both the United States Department of Justice and the United States Attorney for the Eastern District filed written objections to the IRS being made a party. They contend that IRS is not a legal entity which can be sued; that if the real party in interest is the United States, it has not waived its sovereign immunity. Because of the opposition of the United States, the IRS cannot be deemed a party.
As a result of the answer, court personnel have had several conferences with the attorneys for all of the parties in an attempt to dispose of the issues amicably. The Commission's attorney participated in such conferences. While the petitioners and all the residuary legatees have filed memoranda of law in support of their respective positions, neither the attorney for the Commission nor AG has submitted a memoranda of law. Following the submission of the proceeding for decision, the Commission moved for an order dismissing the proceeding as to it, or in the alternative, dropping it as a party.

In his supporting affidavit the attorney for the Commission alleges that the allowance of the charitable deduction is a matter for the IRS, which determination, under Article 26 of the Tax Law is binding upon the Commission in the absence of fraud or palpable error. Since the IRS is not a party to this proceeding and in any event would not be bound by any determination of this court under Commissioner v. Estate of Bosch, supra, the Commission contends that it should not be bound by this court's determination, but only by the determination of the IRS.

As to the tax exoneration clause, the Commission admits that under SCPA 1420(4) all parties to the proceeding are bound by the decree of a court unless modified or reversed on appeal. Nevertheless, the Commission argues that an interpretation of the exoneration clause can affect the extent of the charitable deduction, if any, for estate tax purposes, which would not be binding upon the IRS under Bosch, supra, and likewise would not be binding upon the Commission.

No claim is made that the Commission is not a proper party to this proceeding, nor that the appearance by its attorney was in any way unauthorized or improper. Research by the court fails to reveal any reported case in which the Commission has sought relief similar to that requested here.

In a recent case involving a will construction under TRA similar to the instant case the court has been advised that the Commission was cited, appeared but did not file a brief or otherwise participate in the proceeding. Discussing the problems resulting from the judicial construction of the will under TRA and the estate tax implications of his determination, Surrogate Sobel said: 'In the light of local law, as discussed earlier in this decision, and without regard to present or future transitional provisions, this Court is satisfied that the Treasury will accept the ruling of this Court directing minor reformation of the trust in issue. The section 664 Regulations do not require a ruling of the State's highest court in such circumstances.'

The TRA as originally enacted provided for a saving or transitional period (IRC 2055(4)(B)(i)(ii)(iii); Reg. 3664--1(g)(1)(i)(ii)(iii)) which is inapplicable to testator, who, petitioners allege at all times was under no mental disability. In his learned analysis of the TRA as it affects charitable trusts under both the old and new law, Surrogate Sobel in the Stalp case, supra, called attention to the need for statutory relief by Congress. Prophetically, on October 26, 1974, Congress amended section 2055(e) of the IRC by the addition of subparagraph (3), Public Law 93--483, 93rd Congress, H.R. 12035, effective as to the estates of decedents dying after December 31, 1969.

This amendment permits estates of decedents dying after December 31, 1969, with wills executed prior to September 31, 1974, creating old law charitable remainder trusts, which do not qualify as a charitable remainder annuity or unitrust to qualify for a charitable deduction in the following language: 'if the governing instrument is amended or conformed on or before December 31, 1975, or, if later, on or before the 30th day after the date on which judicial proceedings begun on or before December 31, 1975 (which are required to amend or conform the governing instrument), become final, so that the interest is in a trust which is a charitable remainder annuity trust, or a charitable remainder in trust (described in section 664), or a pooled income fund (described in section 642(c)(5)), a deduction shall nevertheless be allowed.'
In the case of wills of decedents which come within the purview of the 1974 amendment to IRC § 2055, it is obvious that they can only be amended or conformed by a local court such as this court. Any other interpretation of the new transitional amendment would render it meaningless. This has been the interpretation given by the courts to the original saving provisions contained in the TRA and the administrative provisions in income tax Regs. The Legislature enacted EPTL 8--1.8 which the Practice Commentary in McKinney's indicates was passed to conform New York law with the restrictions imposed upon charitable trusts by the TRA.

All of the above cited cases involved post TRA executed wills. The courts have uniformly permitted a construction or reformation of wills to enable estates to claim a charitable deduction pursuant to section 2055 IRC as amended by the Tax Reform Act of 1969.

An appearance once served can only be withdrawn with the permission of the court. Accordingly, in light of the 1974 amendment to IRC § 2055 and in the exercise of its discretion, the motion of the State Tax Commission to dismiss the proceeding as to it, or in the alternative, to withdraw its appearance, is denied.

Testator, by grouping the payment of taxes with the payment of debts, funeral and administration expenses in paragraph second, indicated an intent to pay estate taxes on the gifts passing under his will as an expense of administration.

Absent a clearly expressed intent by testator that non-testamentary gifts are exonerated from the payment of estate taxes, they must bear their apportioned share of such taxes
Accordingly, pursuant to the provisions of EPTL 2--1.8 estate taxes will be apportioned against non-testamentary gifts and the taxes attributable to gifts passing under the will are to be paid as an expense of administration to be deducted before division of the residuary estate.
Lastly, the court is called upon to determine testator's intent with regard to paragraph eleventh of his will so that, if it is at all possible, the estate will be entitled to a deduction for the gifts to charity. That testator intended to benefit the three charitable remainde rmen named in his will is obvious. As Surrogate stated in Matter of Stalp, supra, 'This court finds that honest and straightforward charitable motive one devoid of any purpose of tax avoidance has been frustrated by an unintended 'mistake' in will draftsmanship, justifying the Court in allowing reformation of Article THIRTY SECOND of her will by minor judicial surgery as hereinafter directed.'

The sum of $8,000 which decedent directed to be paid in quarterly instalments to his daughter for life, first from income and 'so much of the principal as may be necessary' created an annuity.
The court has computed the present value of the annuity, based upon a female age 64, as of the date of the decedent's death to be $79,318.42. After inquiry, the court has been informed that petitioners can purchase a similar commercial annuity from an insurance company for $86,811.93 without any refund, and with a refund feature for $91,463.40. Under the 1974 amendment to the TRA, the court will amend or conform the decedent's will by the use of the doctrine of segregation as did Surrogate, so that the indefeasibly vested income and principal payable to the charities qualifies as a deduction under IRC § 2055.

Rather than create six separate trusts as requested by petitioners in their brief and accelerate payment of one-half of the residue to the charities, which is opposed by decedent's daughter, the court will create four separate trusts as set forth below.

The residuary estate will be ascertained after deducting from the gross probate estate, debts, funeral, administration expenses, estate taxes (after apportioning the taxes attributable to the non-testamentary gifts), and the cash bequests, both outright and in trust pursuant to paragraphs third through tenth inclusive, from which a charitable annuity remainder trust of $80,000 will be created. Pursuant to EPTL 8--1.8 this trust will be held by the trustees pursuant to all the income and estate provisions of the Internal Revenue Code and regulations relating to charitable annuity trusts from which an annuity of $4,000 per annum (5% Of the principal), will be paid in quarterly instalments first from income and then from principal to the decedent's daughter for life. The annual excess income, if any, and principal upon death to be paid to the three designated charities in accordance with the proportions designated in paragraph eleventh (a) 4, 5 and 6 of the decedent's will.

A second private non-charitable remainder trust found of $80,000 is to be created to be held by the trustees from which an annuity of $4,000 per annum (5% Of the principal in quarterly instalments, is to be paid to the decedent’s daughter for life, first from income and then from principal, excess annual income and the principal upon her death to be paid to the persons designated in the proportions set forth in paragraph eleventh (a) 1, 2 and 3 of the provisions of the decedent's will.

The balance of the residuary estate after the funding of the two $80,000 trust funds to be divided into two equal trusts both to be held during the life of the decedent's daughter, one for the benefit of the charitable and the other for the other non-charitable remainder men pursuant to the provisions of subparagraph (b) 1, 2, 3, 4, 5 and 6 of paragraph eleventh of the decedent's will. The charitable trust in accordance with the provisions of EPTL 8--1.8 shall be held by the trustees subject to all of the income and estate tax provisions of the IRC and regulations relating to charitable foundations.

Since the non-charitable income and remainder interests are not indefeasibly vested, the court cannot commute the annuity payable to the decedent's daughter without affecting the rights of the non-charitable remainder men who can only be ascertained upon the death of the annuitant.
The aggregate value of the charitable annuity and non-charitable trusts ($160,000) will fully assure the payment of the $8,000 annuity payable to the decedent's daughter during her life.
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Court Discusses Residuary Clause of Will

April 28, 2016,

A New York Estate Lawyer said that, this is a proceeding to construe and reform Article III, the residuary clause, of the last will and testament of the decedent so as to enable the estate to qualify for an unlimited New York estate tax marital deduction. While an application to reform a will to enable the estate to qualify for a deduction for New York estate tax purposes and not federal may be uncommon, it is permissible.

A New York Probate Lawyer said that, the decedent died on July 21, 1988 survived by a spouse and three children. His will, dated December 14, 1979, was duly admitted to probate on December 19, 1988. Under Article III of the will the residuary estate, which comprises the entire estate with the exception of some personalty previously bequeathed to his wife, is divided into two trusts, Trust A and Trust B. Under Trust A, the decedent bequeathed in trust for his wife the following: "A pecuniary amount equal to the maximum marital deduction allowable to my estate for Federal estate tax purposes ($250,000 or 50% of my adjusted gross estate, as the case may be, less any adjustment required for marital deduction gifts made by me during my lifetime), less the aggregate amount of marital deductions, if any, allowed for interests in property passing or which have passed to my wife otherwise than by the terms of this Article, and less also the amount if any, required to increase my taxable estate to the maximum amount as to which, considering all deductions and credits allowable to my estate, there will be no federal estate tax payable by reason of my death."

Under the terms of Trust A, his wife receives the entire income for life, to be made at least quarter-annually, and an unrestricted right to invade principal. The wife has a testamentary power of appointment over the corpus and in default thereof, the corpus is to be added to the principal of Trust B. Under the terms of Trust B, the income is to be distributed at least quarter-annually to the spouse for life, subject to her need for the same, with power in the trustee to distribute income amongst the decedent's descendants and their spouses. The trustee has discretion to invade principal for the benefit of the spouse. Upon the wife's death, the principal passes equally to the decedent's children, then living, or their descendants.

Long Island Probate Lawyers said that if further significance to the instant application is the following provision, set forth in Article III (D)(2)(b): "With respect to Trust A, notwithstanding any contrary provision the trustee shall have no power or discretion which would deprive my estate of the marital deduction under the law and the rulings and regulations with respect thereto in force at the time of the determination of said marital deduction."

Decedent's wife, who is also the executrix of the estate, as well as the decedent's three children and their spouses request and/or consent to a construction of the will which would allocate the entire residuary to Trust A, thereby eliminating Trust B.

Brooklyn Probate Lawyers said by virtue of the unified credit under Internal Revenue Code § 2010(c) the estate will be shielded from Federal estate tax liability, irrespective of whether the unlimited marital deduction is available. However, the comparatively lower New York unified credit equivalent of $108,333.00 will not exempt the estate from New York estate tax liability. Accordingly, reformation herein is sought for the purpose of avoiding New York estate taxes only.

At the time the will was executed, the maximum marital deduction allowable for both Federal and New York estate tax purposes was equal to the greater of $250,000 or one-half the adjusted gross estate as provided by the Tax Reform Act of 1976 (TRA: 90 U.S.Stat. 1525). The monetary limitation on the federal estate tax marital deduction was eliminated and made unlimited by the Economic Recovery Tax Act for decedent's dying after 1981. Subsequently, New York followed suit and eliminated the monetary limitation on the New York estate tax marital deduction for decedent's dying after September 30, 1983. McKinney's Session Laws of N.Y.1982, C. 916, § 83.

Despite the fact that many provisions of a will are tax motivated, many persons fail to revise their wills to reflect these changes in the tax laws. Consequently, courts are repeatedly requested to reform wills so that an intention to minimize taxes will not be defeated. Where, as here, revision is sought for the purpose of receiving the benefit of the unlimited marital deduction not available at the time the will was executed, such relief has been held to be warranted where an intention to minimize taxes is coupled with a primary intention to benefit the spouse. Evidence of such intent has been found to exist where the will contains a maximum marital deduction formula provision and a provision directing the executor to compute the marital deduction in accordance with the laws in effect at the time of the decedent's death. It is observed that the ERTA does not define what is meant by a maximum marital deduction formula provision. As to this point, courts and treatises have classified a provision which refers to the "maximum marital deduction as defined by the TRA" or a provision which bequeaths to the spouse "one-half the adjusted gross estate" as maximum marital deduction formula provisions.

The decedent's will contains both a maximum marital deduction formula provision and a provision expressly requiring the executor to compute the marital deduction in accordance with the laws in effect at the time of the decedent's death. The wife's unlimited right to the income and the principal of Trust A as well as her entitlement to discretionary payments of the income and principal of Trust B reveals that the decedent considered her welfare to be of primary importance. While the wife's entitlement to the income of Trust B was not hers exclusively, the trustee had no discretion to distribute income to others unless the wife did not need the additional income for her care. Further, the trustee's power to invade the principal was exercisable only for the benefit of the wife.

On the basis of the above, the entire residuary estate is allocated to Trust A, thereby eliminating Trust B. Accordingly, the estate may now qualify for the unlimited marital deduction.
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Plaintiff Moves for a Summary Judgment in Lieu of Complaint for Payment

April 27, 2016,

A New York Estate Lawyer Plaintiff moves pursuant to CPLR § 3213 for an Order granting summary judgment in lieu of complaint for payment allegedly owed on a promissory note. "Defendants" or "the Estate", as executors of the Estate of the decedent cross-move for summary judgment dismissing this proceeding pursuant to § 1810 of the Surrogate's Court Procedure Act.

This case arises from a loan transaction between plaintiff and the decedent a real estate developer. Prior to his death, he was a 55% owner in Flatbush Extension, LLC ("Flatbush Extension"), which owned properties located at 67, 75, and 85 Flatbush Avenue in Brooklyn. On or about March 27, 2007, U.S. Bank and Flatbush Extension entered into a secured loan agreement (the "Loan Agreement") pursuant to which the parties agreed that Flatbush Extension could borrow up to $50,000,000 in connection with the development of a luxury condominium project ("Flatbush Extension Project").

A New York Probate Lawyer said that on or about June 1, 2007, U.S. Bank extended a separate, unsecured loan ("Loan") to the decedent, in his individual capacity, in the amount of $5,000,000. To evidence the loan, Lax executed a promissory note, dated June 1, 2007 (the "Note"), which matured on June 1, 2009. The nature of the credit line was outlined in the Summary of Terms and Conditions (the "Term Sheet"), dated May 22, 2007, which generally states that U.S. Bank made the loan to allow Lax to "provide a portion of the predevelopment costs associated with various real estate projects that he was involved with."

Nassau County Probate Lawyers said that, on November 3rd, 2008, prior to the maturation of the Loan, he passed away. On February 9, 2009, defendants adult children, were appointed preliminary executors of the Estate by the Surrogate's Court, Kings County. On or about March 11, 2009 and April 15, 2009, U.S. Bank sent letters to counsel for the Estate advising that Lax had failed to comply with non-monetary obligations set forth in the Note which constituted an "Event of Default" as defined under the Note. Specifically, the March 11, 2009 letter advised that Lax had failed to deliver information documenting his net worth, liquidity, and debt-to-asset ratio as required under the Note. The letter also advised the Estate of the cross-default provision contained in the Note, which provided that a default event under the Flatbush Extension Loan Agreement constituted a default event under the Note. The April 15, 2009 letter advised that U.S. Bank had accelerated the Loan as provided for in the Note and was demanding repayment. On or about March 11, 2009 and April 15, 2009, U.S. Bank also sent letters to Flatbush Extension advising of defaults under the Loan Agreement and demanding repayment of the loans related to the Flatbush Extension Project.

Staten Island Probate Lawyers said by letter dated April 24, 2009, Flatbush Extension rejected U.S. Bank's assertion that it had defaulted under the Loan Agreement and objected to U.S. Bank's decision to cease funding the Flatbush Extension Project, claiming that such alleged non-monetary acts of default had been waived in the course of a restructuring of the project from condominium to rental units. By letter dated May 1, 2009, the Estate rejected U.S. Bank's assertions that Lax had defaulted under the Note, claiming there had been neither a default under the Note nor a basis for cross-default based on the Loan Agreement.

Defendants did not repay the Loan on the June 1, 2009 Maturity Date, and on June 10, 2009, U.S. Bank served the Estate with a formal Notice of Claim pursuant to § 1803 of the Surrogate's Court Procedure Act. On June 24, 2009, U.S. Bank sent a "Second Demand for Repayment" letter to the Estate demanding repayment of the Loan based upon the occurrence of the Maturity Date. Defendants did not respond directly to the Notice of Claim, but, by letter dated July 17, 2009, rejected the Bank's claims under the Note as alleged in the June 24, 2009 letter, denying that there had been a default.

On September 29, 2009, U.S. Bank commenced a foreclosure action against Flatbush Extension in Supreme Court, Kings County, seeking to recover the amount allegedly due under the Loan Agreement. See US Bank National Association, v Flatbush Extension LLC, et al., Index No. 26434/09. On October 8, 2009, U.S. Bank filed this action by motion for summary judgment in lieu of complaint pursuant to CPLR § 3213, claiming that the Note qualifies as a stand-alone instrument for the payment of money only and is in no way related to the Loan Agreement. Defendants have cross-moved to dismiss pursuant to SCPA § 1808, claiming that the Surrogate's Court is the proper forum to address the validity of Plaintiff's claims, as Plaintiff failed to commence the instant action within 60 days of rejection of its claim pursuant to SCPA § 1810.

The Surrogate's Court Procedure Act § 1810 provides that: Nothing in this article shall prevent a claimant from commencing an action on his claim at law or in equity, provided that where a claim has been presented and rejected or deemed rejected pursuant to 1806 in whole or in part the action must be commenced within 60 days after such rejection. To trigger the statute of limitations, a "claim" must therefore be presented and rejected. Section 1803 of the SCPA sets forth the required form of a claim as follows: 1. Every claim against the estate of a decedent must be in writing, contain a statement of the facts upon which it is based and the amount thereof. In addition, the fiduciary may require the claimant to present proof by affidavit that the amount of the claim is justly due, that all payments thereon, if any, have been credited, that the claimant knows of no offsets and no evidence of indebtedness and holds no security, except as specifically described in the affidavit.

2. The notice of a claim required by this section shall be presented by delivering a copy thereof to a fiduciary personally or by certified mail return receipt requested addressed to the fiduciary at the place of residence stated in the designation or upon the clerk of the court whenever the fiduciary cannot be found or served within the state after due diligence; 3. No claimant shall be entitled to enforce payment of a claim in any proceedings in the court unless the claim be presented in accordance with the provisions of this section or unless it shall be based upon a decree or order of the court or a valid judgment rendered by a court of competent jurisdiction.
Once a Notice of Claim is made, SCPA § 1806[1-2] requires the executors of an estate to "promptly give notice in writing to the claimant of the allowance of the claim or of its rejection or of the rejection of some part thereof," as well as "the reasons therefor." If "the fiduciary shall fail to allow the claim within 90 days from the date that it has been presented to him, the claim shall be deemed to have been rejected." SCPA § 1806[3].

The parties dispute the date on which the statute of limitations began to run. Plaintiff argues that: (1) a Notice of Claim sufficient to satisfy the requirements of § 1803 was not served until June 10, 2009, nine days after the Loan matured; (2) the default and demand letters were sent to the attorneys for the Estate merely to notify the Estate of the default and the subsequent acceleration of the Loan; (3) Defendants never formally responded to the Notice of Claim and therefore it was deemed rejected on September 9, 2009, ninety days after service; and (4) a timely action was initiated in this Court on October 8, 2009, well within the sixty day limit to proceed outside of Surrogate's Court. Defendants disagree, arguing that: (1) the default and demand letters satisfied the requirements of SCPA § 1803; (2) they expressly rejected Plaintiff's assertion that the Estate had defaulted under the Note in the May 1, 2009 letter of counsel; (3) they expressly rejected Plaintiff's assertion again via letter of counsel on July 17, 2009; and (4) by filing on October 8, 2009, Plaintiff's action was initiated two months beyond the 60-day period of limitations and is therefore time-barred.

The provisions of the SCPA carefully prescribe the procedures required for the administration of an estate, including the order of the payment of debts. See e.g. SCPA Art. 18. "Certainty in the administration of estates" requires that "the statutes on the presentation of claims" be "strictly construed." As such, the SCPA should be "complied with in all its essential particulars," and "nothing short of a written claim exhibited to the representative, as the statute plainly requires, and absolutely rejected by him, will have the effect of establishing the time for the commencement" of the statute of limitations. Ulster County Savings Inst., 161 NY at 33-34 [1899].Although no prescribed form of a Notice is Claim is mandated under SCPA § 1803, the statute does require that the Notice be written, contain a statement of the facts upon which the claim is based, and the sum claimed and be served personally upon the representative of the estate. There is no question that the Notice of Claim served by Plaintiff on June 10, 2009, following the failure to pay the Note on its Maturity Date, qualifies as a Notice of Claim pursuant to SCPA § 1803. However, this Court finds that Plaintiff's March 11, and April 15, 2009 letters cannot be construed as § 1803 Notices of Claim on the Estate because each lacked essential elements as required by the SCPA. First, neither letter was served on the fiduciaries personally. See SCPA § 1803[2]. To the contrary, they were addressed and delivered only to counsel for the Estate by mail. Second, the March 11, 2009 default letter, which provided notice only of non-monetary reporting defaults under the Note and the default of Flatbush Extension under the Loan Agreement, failed to contain an amount due (see SCPA § 1803[1]), but merely advised the Estate of the events of default and provided the Estate with an opportunity to cure. While containing a notice of acceleration and a demand for payment of a sum certain, the April 15, 2009 letter related only to the non-monetary curable defaults previously noticed, which not the basis of the present action are.

Not until June 10, 2009 did the Plaintiff deliver a proper § 1803 Notice of Claim addressed to the fiduciaries of the Estate personally, setting forth, in writing, the amount due and a statement of facts upon which the claim was based, supported by an affidavit. Despite the earlier "rejection" by counsel to the Estate of the "claims" made in the May 11, 2009 and April 15, 2009 letters, the Estate was required to respond to Plaintiff after receipt of the June 10, 2009 Notice of Claim, which was expressly premised, as indicated in the supporting affidavit, upon the obligation to make payment in full, according to the terms of the Note, on June 1, 2009. Plaintiff's "Second Demand for Payment," dated June 24, 2009, which followed the actual Notice of Claim, is superfluous to the issue of Notice of Claim, but it is to that letter that Defendants responded in counsel's letter of July 17, 2009. The critical issue is whether the July 17 letter constituted a response to the June 10 Notice of Claim, as required under SCPA § 1806, so as to commence the running of the 60-day statute of limitations under SCPA § 1810, as Defendants contend, or did not, thereby effectuating the provision of SCPA § 1810[3] that the claim would only be deemed rejected after 90 days. Defendants' attorney's letter of July 17 expressly states that it is "in response to the letter dated June 25, 2009 [sic] sent by your client" and references the prior letter of counsel dated May 1, reiterating the prior denial of default "based on the decedent’s alleged failure to provide financial documentation from November 2007."

A motion for summary judgment in lieu of complaint is appropriate where "an action is based upon an instrument for the payment of money only." CPLR § 3213. A promissory note qualifies as an instrument eligible for treatment under CPLR § 3213 if the plaintiff provides proof of the note and a failure to make the payments called for by its terms. The usual standards for summary judgment apply to CPLR § 3213 motions. In order to obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action.

Accordingly, Plaintiff's motion for summary judgment in lieu of complaint is granted. Defendant's cross-motion to dismiss is denied.

If you are having problems in the administration of your estate, seek the help of a Kings County Estate Administration Attorney and Kings County Probate Attorney at Stephen Bilkis and Associates.

Sister Petitions for Allowance of a Claim Against the State

April 26, 2016,

A New York Probate Lawyer said that, proceeding the sister of the decedent individually and as administratrix with the will annexed of the estate of the deceased, for the allowance of a claim against the estate of deceased husband of which respondent is executor. Judgment of the Special Term allowing the claim in part, was affirmed in part and reversed in part by the Appellate Division, and claimant appeals.

A New York Probate Lawyer said that in 1903 the husband and his wife, lived in Brooklyn. The wife owned a building at Classon Avenue, in a part of which she lived with her husband. On January 17, 1903, she made her will, and on March 27, 1903, she died. By her will she made her husband executor and gave her sister, $1,000. She then provided: ‘Fourth. I give and bequeath to my beloved husband all of the rest and remainder of my estate both real and personal to have and to hold the same to him, his heirs and assigns forever, with the understanding that at the decease of the said husband all of the estate which he shall derive under this will which shall then remain by him undisposed of he shall give and turn over to my sister.’

Westchester County Probate Lawyers sais her will was duly probated, and letters testamentary were issued to the husband. The decision in this case contains findings of fact, among which are the following: ‘3. That the entire estate, both real and personal, of which said wife, died seized or possessed, consisted of the following: ‘Real estate: Classon avenue, borough of Brooklyn, city of New York. ‘Personal estate: Amount on deposit in Kings County Trust Company, $4,500. ‘5. That under said decree the Surrogate's Court of Kings County, in judicially settling and allowing the account of said husband as executor of the estate of Anna C. Erickson, directly to be turned over to him the sum of three thousand one hundred and fifty-five and 19/100 ($3,155.19) dollars balance of personal property remaining in the hands of said husband as such executor. ‘6. Said husband thereupon transferred to himself said balance of three thousand one hundred fifty-five and 19/100 ($3,155.19) dollars as directed by aforesaid decree, taking the same pursuant and subject to the provision of said fourth paragraph of the said will of the deceased.’

Suffolk County Probate Lawyers said the husband died on the 1st of February, 1914, leaving a last will, in which he gave all of his property, after the payment of his debts and funeral expenses, to his sister and sister-in-law, to be divided between them share and share alike. His will was duly admitted to probate and letters testamentary were duly issued to the defendant as executor. The court further found: ‘8. That at the time of the death of said husband all the estate which he derived under the aforesaid will of said wife, which then remained by him undisposed of, was as follows: ‘Parcel of real estate known as Classon avenue, borough of Brooklyn, city of New York. ‘The sum of one thousand five hundred ($1,500) dollars borrowed on such real estate by said husband. ‘9. That on or about the 3d day of February, 1914, Amanda Tillman, the plaintiff herein, was duly appointed by a decree of the surrogate of the county of Kings administratrix with the will annexed of all and singular the goods, chattels, and credits which were of said wife, deceased, left unadministered. ‘10. That on the 2d day of April, 1915, the plaintiff individually and as administratrix aforesaid caused a claim for said three thousand one hundred and fifty-five and 19/100 ($3,155.19) dollars to be duly presented to said executor, but he has refused to allow the same, and, on the contrary, on or about May 17, 1915, caused notice to be served on the plaintiff herein that he doubts the justice and validity of the claim and disputes and rejects the same.

A Kings County Will Contest Lawyer said that, the plaintiff appealed to the Appellate Division from so much of the judgment as dismissed the first cause of action of the complaint, and the defendant from so much of the judgment as directed the return of the $1,500 as stated. The Appellate Division affirmed the judgment so far as it was appealed from by the plaintiff, and reversed the judgment so far as it was appealed from by the defendant, and directed judgment generally dismissing the complaint. It is from the judgment entered upon such order that the plaintiff appeals to this court.

A Kings County Estate Litigation Lawyer said that, this action is brought to recover the amount of the two claims presented by the plaintiff to the defendant and which were rejected by him. The complaint is divided into two causes of action; one for the recovery of said $3,155.19 and interest, and the other for the recovery of said $1,500 and interest. Even if we admit that the plaintiff is right in her contentions in regard to the meaning and effect of the will of the decedent she cannot recover either of said amounts, except upon a finding that such amounts, or some part thereof, or of one of them, were derived by her husband under her will, and remained undisposed of by him at his decease.

The Special Term found in substance that none of the $3,155.19 remained undisposed of by the husband immediately before his decease, and the complaint as to the first cause of action was thereupon dismissed. The Appellate Division unanimously affirmed the judgment dismissing such first cause of action. A unanimous affirmance by the Appellate Division imports that there is evidence supporting or tending to sustain the findings of fact made by the trial court upon which such judgment was entered by it.

This court cannot review the question of fact upon the determination of which the judgment dismissing the first cause of action is based. The judgment dismissing the complaint, so far as it relates to the claim for $1,500 and interest, is before us on the merits.

The action is not in terms for the construction of the will of the decedent, although a determination of the plaintiff's claims, so far as we are permitted to consider them, requires us to determine the intention of the testatrix as expressed in the will. The plaintiff's contentions are wholly based upon the provisions of the will, and the fact that the husband accepted the devise and bequest to him under such will. No prior or other contract between the decedent and her husband is pleaded or claimed, and no evidence was presented at the trial in any way relating thereto.

In considering the will it is unnecessary to discuss the power and authority of the testatrix, if she had so desired to give to her husband a life estate in her residuary property with authority to use the principal thereof in his lifetime, and to her sister all or any part of such residuary property remaining unused at his death. A gift to one, followed by a gift to another of such part thereof as may remain at the decease of the first taker, can be enforced, when the intention of the giver is clear and definite to limit the gift to the first taker to a life estate, with power to dispose of the principal or any part thereof during his lifetime, and to give to another such part of the principal as is not disposed of in the lifetime of the first taker.

The gift over after a gift that is apparently absolute is sustained, because it is ascertained that it was not the giver's intention to make an absolute gift, but one qualified and limited by the subsequent or other provisions of the will or instrument creating the gifts. The common-law rule governing repugnant gifts has been changed by statute.

The first part of the fourth paragraph of the will under consideration, which we have quoted, provides: ‘I give and bequeath to my beloved husband, all of the rest and remainder of my estate both real and personal to have and to hold the same to him his heirs and assigns forever.’
It constitutes a clear, certain, unqualified, and absolute gift to her husband. If she had not added a further provision in the will no question could possibly arise as to her meaning and intention, or as to his absolute title to such rest and residue of her estate.

It cannot be disputed that at the time she made her will it was her wish and desire that her husband should give what remained of such rest and residue of her property undisposed of at the time of his death to her sister. Did she intend to do more than express such wish and desire? If she had intended to qualify and limit the gift to her husband to a life estate, with the right to use so much of the principal thereof as he should choose during his life, she should have provided in the will for such limitation in as plain and clear terms as she had used in giving him such rest and residue. Such intention could have been clearly and definitely stated by giving the rest and residue of her property to her sister subject to such prior gift to her husband. She did not leave such rest and residue in trust, nor did she by clear, certain, or other terms qualify the absolute gift to him. The statement by her in the latter part of said fourth paragraph of her will emphasizes and makes certain that the gift to her husband is absolute, because she says that her husband ‘shall give and turn over to my sister what shall remain by him undisposed of. The testatrix trusted her husband to respect her wish and desire in the disposition of any part of the rest and residue of her property not used by him in his lifetime.
The principal contention against the construction of the will as claimed by the defendant rests in the use by the testatrix of the word ‘understanding,’ which it is said imports a contract already made or arising from an acceptance by her husband of the bequest and devise. The word ‘understanding’ is one of common use, but of varying meaning.

It is at least not clear that the testatrix, by the use of the word ‘understanding,’ intended that her husband could not accept the gift to him without thereby becoming obligated as by contract to give any part of the rest and residue of her property remaining undisposed of by him at his decease to her sister. It is assumed by the parties that no contract was ever made upon which the will is based, and that the obligation of the husband to the testatrix's sister arises, if at all, by the acceptance of the bequest and devise.

While an expectant estate may exist subject to a prior estate with an absolute power of disposition, and although such expectant estate may be defeated in any manner or by any act or means which the party creating such estate in the creation thereof has provided for or authorized (Real Property Law, § 57; Personal Property Law, § 11), an absolute estate is repugnant as a matter of fact to a gift over to a third person. It is because of such repugnance in fact that an apparently absolute estate cannot be cut down or qualified, unless the intention is clear and definite.

Where there is an absolute gift of real or personal property, in order to qualify it or cut it down, the latter part of the will should show equally clear intention to do so by use of words definite in their meaning and by expressions which must be regarded as imperative.

The gift to the husband in this case was absolute. There is no gift therein to Amanda Tillman. Neither is there such clear and certain statement of intention shown by the will as to make him, through the acceptance of the devise and bequest to him, obligated as by contract to give any undisposed of part of the rest and residue of the decedent’s property to her sister, nor to make such contractual obligation a specific charge upon the gift to her husband.

An agreement entered into between a testatrix and a legatee, that is clear and definite in its terms and which constitutes the basis in whole or in part for a legacy, will be enforced by the courts. So, also, where there is a clear and definite gift by will, which by the terms of the will or by operation of law is clearly and definitely charged upon the real property owned by the testator at his death, a person accepting a gift of such real property thereby obligates himself to pay the charge.

The plaintiff in this case has not shown that a contract was made between the sister and her husband on which the will was based, or which contemplated a charge upon the gift to him. She has not shown a gift to her by the will of the decedent. Upon the facts before us, she cannot sustain her complaint.

Accordingly, the court held that the judgment should be affirmed, with costs.

If you want to contest the validity of the disposition of the will of the decedent, seek the legal representation of a Kings County Will Contest Attorney and Kings County Estate Litigation Attorney at Stephen Bilkis and Associates.

Court Discusses Jurisdiction Issue

April 25, 2016,

A New York Estate Lawyer said that, in a proceeding to probate the last will and testament of the decedent respondent appeals (1) from an order of the Surrogate's Court, Kings County, dated October 14, 1992, which (a) denied her motion, inter alia, to declare that the decedent was domiciled in Florida at the time of his death and to resettle a decree of the same court, dated August 7, 1992, to provide that the decedent was not a New York domiciliary, and (b) granted the administrator's cross motion for a decree declaring that . validly exercised her right of election and that the decedent was domiciled in New York at the time of his death, and (2) as limited by her brief, from so much of an order of the same court, dated March 17, 1993, as directed the Dime Savings Bank to deliver the entire balance in Account No. 800003241 to the administrator.

A New York Probate Lawyer said that, the Surrogate erred in finding that the decedent was a domiciliary of New York at the time of his death as the appellant demonstrated by clear and convincing evidence that the decedent had changed his domicile from New York to Florida. Contrary to the recitation in the August 7, 1992, decree and plaintiff’s contention, the appellant did not stipulate that New York was the decedent's domicile. The record of the proceedings before the Surrogate on July 7, 1992, does not reflect any such agreement.

The decedent's intent, as evidenced by his conduct and statements, is the critical element in determining whether there has been a change of domicile. While the decedent's purchase of a Florida residence, his acquisition of a Florida driver's license, and the fact that he registered to vote in Florida are not determinative, those acts, coupled with his statements declaring Florida to be his domicile demonstrate that the decedent intended to change his domicile.

Nassau County Probate Lawyers said that the decedent signed a "Declaration of Domicile and Citizenship" stating that he had changed his domicile from New York to Florida and declaring his domicile to be in Florida "to the exclusion of all others". The decedent's will, executed in Florida, expressed his intention that the validity and interpretation of the will be governed by Florida law. Under the will, virtually all of the decedent's assets were devised to a revocable trust. That trust was also created in Florida and specifically provided that it would be administered in Florida and governed by the laws of that State. These documents evidence the decedent's clear and unequivocal intention to change his domicile to Florida.

Staten Island Probate Lawyers said we find it unnecessary to remit the matter for a hearing on the issue of the decedent's domicile as it is conceded that no additional evidence would be adduced at such a hearing. The evidence in the record before us demonstrates, clearly and convincingly, that the decedent changed his domicile.

Because the decedent was not a New York domiciliary at the time of his death and did not elect to have the disposition of his property in this State governed by New York law, plaintiff has no right of election pursuant to EPTL 5-1.1 (see, EPTL 5-1.1[d][7]. Consequently, the Surrogate erred in finding that she validly exercised her right to an elective share in the decedent's estate.
The Surrogate did not improvidently exercise his discretion in directing that the balance of the Dime Savings Bank account be delivered to the administrator who demonstrated that he had insufficient funds to administer the estate.

We decline to make any general declaration as to the applicability of Florida law, as requested by the appellant in her motion in Surrogate's Court. The Surrogate did not specifically address that issue when he denied that branch of the appellant's motion which was to resettle the decree dated August 7, 1992. In light of the limited scope of the record before this court, the question of the applicability of Florida law to the decedent's will and the revocable trust he established cannot be determined at this juncture. Thus, the matter is remitted to the Surrogate's Court, Kings County, for further proceedings. Ordered that the order dated October 14, 1992, is modified, on the law and the facts, by deleting the provisions thereof which denied those branches of respondent’s motion which were to declare that the decedent was domiciled in Florida and to resettle the August 7, 1992, decree accordingly, and which granted the cross motion, and substituting therefor provisions granting those branches of her motion and denying the cross motion; as so modified, the order is affirmed, and the matter is remitted to the Surrogate's Court, Kings County, for further proceedings in accordance herewith; and it is further, ordered that the order dated March 17, 1993, is affirmed insofar as appealed from; and it is further, ordered that the appellant is awarded one bill of costs payable by the estate.

If you want to have the domicile of the decedent be changed, seek the legal advice of a Kings County Estate Litigation Attorney and Kings County Probate Attorney to know what will be the process of the said petition. Call us at Stephen Bilkis and Associates.

Plaintiff Seeks to Recover Damages for Breach of Contract

April 24, 2016,

A New York Estate Lawyer said that, in an action, inter alia, to recover damages for breach of contract, which was commenced in the Supreme Court, New York County, transferred to the Surrogate's Court, Kings County, and joined with a probate proceeding the defendants appeal, as limited by their brief, from so much of a decree of the Surrogate's Court, Kings County, dated November 29, 2011, as awarded the plaintiff interest at the rate of 18% per annum upon each installment payment due and owing to the plaintiff individually and in his capacity as preliminary executor of the estate of the decedent, payable by the defendant from the date each payment became due, and the plaintiff cross-appeals, as limited by his brief, from so much of the same decree as is in favor of him individually and against the defendant in the principal sum of only $480,000 and is in favor of him in his capacity as preliminary executor of the estate of the decedent and against the defendant in the principal sum of only $480,000.
A Kings County Probate Lawyer said that, the plaintiff, individually and in his capacity as the executor of the estate of his mother, commenced this breach of contract action against the defendant to recover monthly installments due and owing both to him personally and to the estate beginning in February 2006, pursuant to a stock purchase agreement executed in September 1996. In exchange for shares of stock in a closely held corporation, defendant agreed to pay the total sum of $1,800,000 in monthly installments over the course of 15 years. The agreement provided for the monthly payment of $5,000 for the first five years, $10,000 for the next five years, and $15,000 for the final five years, with all payments inclusive of interest at the rate of 18% per annum.

A New York Probate Lawyer said that a prior determination, this Court modified an order of the Surrogate's Court so as to grant those branches of the plaintiff's motion which were for summary judgment on the breach of contract causes of action. The Surrogate's Court entered a decree upon that determination in favor of the plaintiff and against defendant, both in his individual capacity in the principal sum of $480,000, and in his capacity as the executor of the estate in the principal sum of $480,000, as those amounts equaled the sum totals of the monthly payments due beginning in April 2006. In addition, the Surrogate's Court awarded the plaintiff prejudgment interest upon each monthly payment from the date it became due at the rate of 18% per annum.

New York City Probate Lawyers
said in settling the decree upon remittitur from this Court's prior determination, the Surrogate's Court improperly considered evidence that defendant made monthly payments in February and March 2006. By failing to plead payment as an affirmative defense in its pre-answer motion to dismiss the complaint or in an answer, defendant waived the defense and was barred from submitting evidence of partial payment in opposition to the plaintiff's proposed decree. Accordingly, we increase the principal sums awarded to the plaintiff from $480,000 to $490,000 to reflect monthly payments due, beginning in February 2006.
Contrary to the contention of defendant, CPLR 5001(a) mandates an award of prejudgment interest on the principal amount of the damages awarded for its breach of contract even though the monthly payments due were deposited in an escrow account during the pendency of this action, and defendant received no benefit from the disputed payments while they were held in escrow. However, the Surrogate's Court improperly applied interest on the monthly payments due at the rate of 18% per annum. "When a claim is predicated on a breach of contract, the applicable rate of prejudgment interest varies depending on the nature and terms of the contract". The contract rate of interest will be "used to calculate interest on principal prior to loan maturity or a default in performance," and in the absence of "a provision in the contract addressing the interest rate that governs after principal is due or in the event of a breach, New York's statutory rate will be applied as the default rate". Under the terms of the agreement at issue here, each monthly payment includes interest at the rate of 18% per annum. Since the contract rate has already been applied to each monthly payment prior to its maturity, and the agreement does not include a provision addressing the interest rate that governs after each monthly payment is due or in the event of a breach, the Surrogate's Court should have applied interest upon each monthly payment from the date it became due at the statutory rate of 9% per annum.

Westchester County Probate Lawyers said we reject the contention of defendant that the cross appeal should be dismissed as untimely since the record is silent as to when the decree with notice of entry was allegedly served upon it and when its notice of appeal was allegedly served upon the plaintiff.

Accordingly, the court held that the appeal by the defendant is dismissed, without costs or disbursements, as he is not aggrieved by the decree appealed from (see CPLR 5511); and it is further, ordered that the decree is modified, on the law, (1) by increasing the principal sums awarded to the plaintiff both individually and in his capacity as preliminary executor of the estate of the decedent from $480,000 to $490,000, and (2) by deleting the provisions thereof awarding interest at the rate of 18% per annum upon each installment payment from the date it became due, and substituting therefor provisions awarding interest at the statutory rate of 9% per annum upon each installment payment from the date it became due; as so modified, the decree is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Surrogate's Court, Kings County, for the calculation of the interest due in accordance herewith and the entry of an appropriate amended decree thereafter.

If you want a will to be subject to probate, you will need the legal representation of a Kings County Estate Administration Attorney and Kings County Probate Attorney at Stephen Bilkis and Associates.

Plaintiff Brings Case to Determine Disposition of Real Property

April 23, 2016,

A New York Estate Lawyer said that, in a probate proceeding in which an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, for ejectment, and for injunctive relief was transferred from the Supreme Court, Kings County, to the Surrogate's Court, Kings County, the defendants appeal, as limited by their brief, from so much of an interlocutory judgment of the Surrogate's Court, Kings County, dated January 28, 2010, as, after a nonjury trial, and upon a decision of the same court dated May 19, 2009, determining that a certain deed dated June 6, 2002, is null and void and dismissing their first affirmative defense, and upon a decision of the same court dated October 13, 2009, determining that a certain deed dated May 9, 2001, was not procured through the exercise of undue influence and dismissing their third affirmative defense, is in favor of the plaintiff and against them determining that the plaintiff holds in fee simple absolute certain real property as described in the deed dated May 9, 2001.

“In reviewing findings made following a nonjury trial, this Court may render the judgment it finds warranted by the facts, taking account in a close case the fact that the trial judge had the advantage of seeing the witnesses”. In this case, the testimony established that the deed dated June 6, 2002, was not “entitled to be recorded” until it was resubmitted with the appropriate fees attached. Accordingly, upon our review of the record, we find no error in the determination of the Surrogate that since the deed dated June 6, 2002, was not recorded, it was not delivered to the defendants prior to the decedent's death.

Moreover, a New York Probate Lawyer said that we decline to disturb the Surrogate's determination that the deed dated May 9, 2001, was not procured by undue influence. The defendants failed to submit evidence supporting their contention that a confidential relationship existed between the plaintiff and her parents, who executed the deed, or that the deed dated May 9, 2001, was procured by the exercise of undue influence.

Bronx Probate Lawyers said the defendants' remaining contentions are without merit. We decline the plaintiff's request for the imposition of sanctions.

Accordingly, the court held that the interlocutory judgment is affirmed insofar as appealed from, with costs.

A Manhattan Probate Lawyers said that, in another case the decedent initially commenced this action for personal injuries against the defendant Standard, claiming that he was injured by the inhalation of asbestos. Special Term granted the motion of the decedent's daughter, to be substituted as the plaintiff in place and stead of her father in her capacity as the executrix of his estate and to amend the original complaint to include a cause of action for her father's alleged wrongful death. Special Term denied Standard's cross motion to dismiss the complaint as against it, rejecting Standard's argument that the Surrogate's Court, Kings County did not have the power to declare Maurer the executrix of her father's estate and probate his will since he was a domiciliary of Florida at the time of his death.

Pursuant to SCPA 204, when the jurisdiction of a court is called into question in a collateral proceeding, the jurisdiction is presumptively, and in the absence of fraud or collusion,
conclusively established by an allegation of the jursidictional facts contained in a verified pleading. Contrary to Standard's assertion, there were no fraudulent statements in the petition. While the petition alleged that the decedent was a domiciliary of Kings County, it also indicated that decedent had died in a Florida nursing home. In addition, annexed to the petition were papers intended to inform the Surrogate of the decedent's connection with Florida. Thus, the Surrogate was supplied with all of the relevant facts, and in the absence of fraud, the defendant has no standing in a collateral proceeding to have the determination overturned.

Standard's alternative argument for dismissal of the action is equally unavailing. The proposed amended complaint sets out a sufficient cause of action for wrongful death. In any event, Standard advances arguments more appropriately considered on a motion for summary judgment. If this is indeed what Standard was seeking, its cross motion was premature as issue had not yet been joined (CPLR 3212[a] ).

Finally, Special Term properly retained jurisdiction over the action to recover damages for personal injury and wrongful death, as the instant lawsuit involves independent matters involving controversies between living persons and not matters affecting the estate of the decedent.

If you have a claim against the estate, seek the help of a Kings Estate Litigation Attorney and Kings Estate Attorney at Stephen Bilkis and Associates in order to file your claim.

Court Decides Case Regarding Interpretation of Will

April 22, 2016,

A New York Estate Lawyer said that, this is an application by the Public Administrator of the County of Kings for a construction of testatrix' will and other relief. Testatrix died on December 27, 1919 leaving a will dated February 11, 1905 which was duly admitted to probate in this Court on June 18, 1920. Except for the printed portions of the form used, the instrument was entirely written by pen and ink. After providing for the payment of her lawful debts, testatrix devised all her property, real and personal, to her friend, who was also named sole executrix with the further proviso as follows: 'after Death the Balance what is left go to my Brothers or their heirs. (naming them) To be Equally divided Between my Brothers or heirs of my Brothers' (italics, capitalization and spelling as in original).

A New York Probate Lawyer said that, it appears that upon testatrix' death took possession of real and personal property of testatrix and by conveyances, transfers, assignments, sales, and alienations, by said testatrix individually and as executrix, the assets of the estate were disposed of among the several persons named in the petition herein. The question posed is whether by testatrix' will she took a fee or a life estate with or without power of alienation or disposition.

Queens Probate Lawyers said a will drawn by a layman must be construed with that fact in mind. The testatrix' intention must be gathered from the instrument as a whole, and when such intention is ascertained, it controls. The handwritten portion of the instrument is contained in a single long paragraph, devoid of proper sentence structure, capitalization or spelling. Although the testatrix lacked knowledge of legal terminology used in testamentary instruments, her intentions may be gleaned from a careful reading and analysis of her will. It is apparent testatrix had her brothers in mind as well as her friend, as objects of her bounty. The testatrix' intention to devise and bequeath to Annie a life estate with the remainder, which she called the 'Balance', to her brothers is apparent from the fact that she used the following language: 'After the death of my friend I appoint as Executor for my Brothers as named above. There would have been no purpose in naming a successor executor unless testatrix expected that there would be a remainder left after the friend’s death which would require its administration by a successor executor. What may appear to be an absolute gift expressed in an anterior clause of a will may be cut down by a posterior provision which is generally deemed to be a subsequent intention (Matter of Randall's Will, 77 Misc. 41, 43, 137 N.Y.S. 319, 320).

However inartistically expressed, Long Island Probate Lawyers said the testatrix' intention to give her friend a life estate and the remainder or residuary estate to her brothers or their heirs after the death of her friend, is further revealed by the following provisions in her will: (1) payment of the balance over; (2) naming of her brothers and their heirs as recipients of such balance; (3) specifying the shares each of such remainder men were to receive; and (4) naming of a successor executor to protect her brothers' interests in the estate after the death of the primary beneficiary. Where the language used points to more than one possible interpretation of testator's intent that one should be adopted which prefers those of the blood over strangers. In the absence of clear and unequivocal language to the contrary, the Court is justified in adopting a construction in favor of blood relatives.

Accordingly, the Court determines that testatrix devised and bequeathed a life estate to her friend, without power to encumber or alienate the principal thereof. Settle decree on notice.
If will is defective, the heirs have the right to contest the same. You will need the legal expertise of a Kings County Will Contest Attorney and Kings County Estate Litigation Attorney at Stephen Bilkis and Associates. Call us now for free legal advice.

Trustee Brings Action for Judicial Settlement of Account

April 21, 2016,

A New York Estate Lawyer said that, the decedent died on December 31, 1915. His will, made on October 20, 1915, was admitted to probate on March 31, 1916. The Kings County Trust Company was granted letters testamentary on March 31, 1916 and letters of trusteeship on October 24, 1934.

A New York Probate Lawyers said that, by the ninth paragraph of the will testator gave his residuary estate to his executor, in trust, to pay the net income arising therefrom to his wife, for and during her life. The wife died on March 11, 1959. The will provides that upon her death 'said trust is to terminate, and the corpus thereof is to go, and I give, devise and bequeath the same, in equal shares, among my then surviving nephews and nieces, and the issue of any deceased nephew or niece (except issue of my niece), such issue taking in equal shares the share their parent would have taken if living. It being my intention not to make the issue of the niece beneficiaries under this my Will.' The trustee brought this proceeding for the judicial settlement of its account and has requested in its petition 'That the Court find and determine that, in accordance with the intent of said decedent, as set forth in Paragraph Ninth of his said Will, the net distributable principal of said now terminated trust is primarily divisible into four equal major shares, one each for the lawful issue living at such termination and who represent decedent's deceased nephews and nieces, respectively, the issue of each said deceased nephew and niece, respectively, to receive, in equal sub-shares, per stirpes, the equal major share which the deceased nephew or niece whom they represent would have taken, if living; and direct distribution accordingly.

Long Island Probate Lawyers said that the decedent had four nephews and four nieces. All of them died before the termination of the trust. Two nephews and two nieces died without issue. A deceased nephew, was survived by five sons and a daughter. A deceased nephew, left a daughter and a son. Alice Ash, a deceased niece, was survived by two daughters and a grandson, the only child of her deceased son, a deceased niece, was survived by her son Edward V. Barton, and by three grandchildren.

Brooklyn Probate Lawyers said that since the testator died prior to the enactment of section 47-a of the Decedent Estate Law, which became effective on April 30, 1921, the common-law rule respecting the interpretation and meaning of the word 'issue' is applicable to the will. While that rule, presumed in the absence of any other expression of testamentary intent, includes descendants in every degree, the courts were inclined to hold that the presumption would yield to a very faint glimpse of a different intention.

Here the gift of the remainder upon the termination of the trust is in equal shares among testator's then surviving nephews and nieces, and the issue of any deceased nephew or niece, such issue taking in equal shares the share their parent would have taken if living. The language used by the testator imports a gift by representation through a parent and consequently a per stirpes distribution. Distribution should be made of a one-fourth major share divided, in equal parts, among the six children of a deceased nephew; a one-fourth major share should be divided, in equal parts, between the two children of a deceased nephew; a one-fourth major share should be divided, in equal parts, among the two children and a grandson of a deceased niece, and the remaining one-fourth major share should be divided among the issue of a deceased niece.

In the absence of objections there should be paid from the respective remainder interests of the amounts thereof assigned by them, respectively, to Prom Undies, Inc. Account settled. Submit decree on notice construing the will and settling the account accordingly.

Every will of the decedent must undergo probate proceeding. In this process you will need the expertise of a Kings County Estate Litigation Attorney and Kings County Probate Attorney at Stephen Bilkis and Associates. Call us now.

Executrix of Estate Brings Suit for Wrongful Death

April 20, 2016,

A New York Estate Lawyer said that, in an action to recover damages for personal injuries and for wrongful death, the defendant (hereinafter Standard) appeals from so much of an order of the Supreme Court, Kings County, dated December 16, 1985, as, inter alia, denied its cross motion to dismiss the complaint as against it.

A New York Probate Lawyer said that, the decedent initially commenced this action for personal injuries against the defendant Standard, claiming that he was injured by the inhalation of asbestos. Special Term granted the motion of the decedent's daughter, to be substituted as the plaintiff in place and stead of her father in her capacity as the executrix of his estate and to amend the original complaint to include a cause of action for her father's alleged wrongful death. Special Term denied Standard's cross motion to dismiss the complaint as against it, rejecting Standard's argument that the Surrogate's Court, Kings County did not have the power to declare the executrix of her father's estate and probate his will since he was a domiciliary of Florida at the time of his death.

A Nassau County Probate Lawyers said that, pursuant to SCPA 204, when the jurisdiction of a court is called into question in a collateral proceeding, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclusively established by an allegation of the jursidictional facts contained in a verified pleading. Contrary to Standard's assertion, there were no fraudulent statements in the petition. While the petition alleged that the decedent was a domiciliary of Kings County, it also indicated that decedent had died in a Florida nursing home. In addition, annexed to the petition were papers intended to inform the Surrogate of the decedent's connection with Florida. Thus, the Surrogate was supplied with all of the relevant facts, and in the absence of fraud, the defendant has no standing in a collateral proceeding to have the determination overturned.

A Staten Island Probate Lawyer said that standard's alternative argument for dismissal of the action is equally unavailing. The proposed amended complaint sets out a sufficient cause of action for wrongful death. In any event, Standard advances arguments more appropriately considered on a motion for summary judgment. If this is indeed what Standard was seeking, its cross motion was premature as issue had not yet been joined (CPLR 3212[a]).
Finally, Special Term properly retained jurisdiction over the action to recover damages for personal injury and wrongful death, as the instant lawsuit involves independent matters involving controversies between living persons and not matters affecting the estate of the decedent.

In another case, a Kings County Estate Litigation Lawyer said that, in a contested probate proceeding, the petitioner, who is the executor named in the will; the testator's widow, and several of the legatees and beneficiaries under testator's will and codicils, appeal from so much of a second amended decree of the Surrogate's Court, Kings County, entered March 21, 1963 after a nonjury trial upon the Surrogate's opinions, as denied probate to the paper writing, dated April 30, 1959, which was propounded as the third codicil to the testator's will. Decree, insofar as appealed from by the respective parties, affirmed, with costs to the petitioner and to the contestants’ payable out of the estate.

A testator's wishes regarding the appointment of a fiduciary will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing. Courts will not lightly set aside a decedent's choice of fiduciary. "Decedent's selection of a fiduciary must be given great deference and the power of the court to deny the issuance of letters to a nominated fiduciary is strictly circumscribed by statute. Courts should nullify a testator's choice only upon a clear showing of serious misconduct that endangers the safety of the estate. Unless the nominated fiduciary is disqualified under SCPA 707, he cannot be denied letters".

Accordingly, the court held that the order is affirmed insofar as appealed from, with costs.
If you think that there is a defect in the drafting of a will of the decedent, seek the legal representation of a Kings County Will Contest Attorney and Kings Probate Attorney at Stephen Bilkis and Associates.

Court Decides Case Regarding Preliminary Letters Testamentary

April 19, 2016,

A New York Estate Lawyer said that, in a probate proceeding, the petitioner, appeals from so much of a decree of the Surrogate's Court, Kings County, dated July 1, 2004, as denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of the decedent and granted those branches of the motion of the objectant, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to the objectant.
A Kings County Estate Administration Lawyer said that, a testator or testatrix has the right to determine who is most suitable among those legally qualified to settle his or her affairs, and that selection is not to be lightly discarded. While the Surrogate may disqualify a person from receiving letters of administration where the friction between such person and a beneficiary interferes with the proper administration of the estate.

Suffolk County Probate Lawyers said that here, the testatrix, in her last will and testament, expressly nominated and appointed the petitioner as the executrix of her estate. Thus, her intent as to this appointment was clear. The Surrogate's Court, inter alia, denied that branch of the petitioner's cross motion which was for the issuance of preliminary letters testamentary and granted that branch of the motion of the objectant, which was to deny the issuance of preliminary letters testamentary to her. Based upon the motion papers alone, the Surrogate's Court concluded, among other things, that the relationship between the petitioner and her attorneys, and the objectant, was "palpably poisoned," and that the papers submitted by the objectant evidenced a "rational hostility toward the petitioner and her counsel." We further note that the Surrogate's Court, in rendering its decision, deemed it unnecessary, in light of its conclusion, to reach the issue of whether the petitioner's appointment under the will as the executrix was procured by undue influence.

Notwithstanding the evidence demonstrating that there was friction and hostility in the relationship between the petitioner and her counsel, and the objectant, an evidentiary hearing should have been held to determine whether such friction and hostility would interfere with the proper administration of the estate and whether the petitioner's appointment as executrix under the will was procured by undue influence (see Matter of Scheu, 29 AD2d 626 [1967]; Matter of Goldman, 8 AD2d 737, 738 [1959]), thereby warranting a departure from the express intent of the testatrix. Thus, we remit the matter to the Surrogate's Court, Kings County, for an evidentiary hearing on those issues and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to the objectant.

Accordingly, a New York Probate Lawyer said the court held that the decree is reversed insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Surrogate's Court, Kings County, for an evidentiary hearing in accordance herewith, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to the objectant. The petitioner's remaining contentions are without merit.

A Westchester County Probate Lawyer said the rule is that, the testator or testatrix has the right to determine who is most suitable among those legally qualified to settle his or her affairs, and that selection is not to be lightly discarded. If you wish to assign an administrator of your estate, seek the help of a Kings County Estate Administration Attorney and Kings County Probate Attorney at Stephen Bilkis and Associates.