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A New York Estate Lawyer said that, in this action by plaintiff to recover monies based upon the default of defendants under a commercial line of credit and a concurrently executed personal guaranty, plaintiff moves, pursuant to CPLR 3212, for summary judgment in its favor as against defendants in the amount of $249,770, with accrued interest in the sum of $5,049.94, interest on $249,770 at its prime rate plus .50%, plus late fees in the sum of $1,935.25, and reasonable attorneys’ fees and expenses.

By a Business Credit Application dated October 17, 2005, defendant applied to plaintiff for a Business Revolving Credit Line in the sum of $250,000.1 The Business Credit Application set forth the business information of defendant and the personal financial information of defendants as the other president and vice-president, respectively.

A New York Probate Lawyer said that under the section, entitled “Authorizing Resolution,” as the president, stated that at a corporate meeting. it was resolved that Wood could complete the Business Credit Application and that Wood would then “be obliged to fulfill all of the terms and conditions of the respective note and Credit Account Agreement which it shall thereafter receive.” This section of the Business Credit Application was executed by both defendants on October 17, 2005.

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A New York Estate Lawyer said that, this is the first New York decision to consider the effect of the recent AT & T divestiture on a bequest of AT & T stock. This is a proceeding brought by co-administratrix, for a construction of article “SECOND” of the testatrix’s last will and testament. The testatrix died on September 13, 1985 at the approximate age of 89. The last will and testament of the testatrix, dated February 6, 1982 and a codicil thereto, dated September 27, 1984, were admitted to probate by this court on December 2, 1986. Letters of administration were issued to the petitioner and the respondent.

Article “SECOND” of the testatrix’s will reads as follows: “SECOND: I give and bequeath to each of the following legatees the following number of shares of capital stock of American Telephone and Telegraph Company owned by me at the time of my death …” and thereafter names seventeen legatees, each to receive varying numbers of shares. A total of 1,625 shares of stock were bequeathed under Article “SECOND.” The petitioner is a legatee of 350 shares. Under Article “SIXTH”, the testatrix bequeathed the residue of her estate in equal shares to and among the heirs and the petitioner. It is undisputed that the testatrix owned 2,262 shares of AT & T stock at the time of execution and at the time of death. Therefore, 637 shares pass under the residuary.

A New York Probate Lawyer said the value of the testatrix’s gross estate is approximately $600,000 comprised primarily of stocks, valued at approximately $350,000.00, a house and property, valued between $175,000 to $225,000, jewelry and miscellaneous items, valued at approximately $9,500.00 and two bank accounts, in the amount of approximately $15,000. The testatrix’s closest relatives are four first cousins, once removed, of which only one receives a bequest under the will. The need for a construction arises as a result of the reorganization of AT & T, which occurred between the date of the execution of the will, February 6, 1982, and the date of the testatrix’s death, September 13, 1985.

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A New York Estate Lawyer said that, a motion has been brought before this court to determine whether a domicile of the decedent was changed from New York State to Texas. The facts indicate that on July 5, 1983, the decedent, signed a Power of Attorney appointing his grandson, as his attorney-in-fact. The document was in standard form with a clause stating, this Power of Attorney shall not be affected by the subsequent disability or incompetence of the principal.”

A New York Probate Lawyer said that, around August of 1983, the decedent’s mental and physical condition deteriorated as he was suffering from Alzheimer’s disease. As a result, he eventually was placed in the Gowanda Nursing Home on February 13, 1984. In June of 1984, having difficulty administering his grandfather’s affairs, the grandson who lived in Texas, moved his grandfather to a nursing home located in Texas. Three weeks later, the decedent died. However, prior to his death, the bulk of his assets had been transferred to Texas and preliminary negotiations for the sale of his home in New York were already underway. The actual contract for the sale of his residence was signed on September 28, 1984, after his death. The issued presented by this case is whether the donee of a Power of Attorney, the grandson could change the domicile of the donor, the decedent.

Although this question is one of first impression, there are several cases which the court has considered in reaching its decision. The first case is Matter of Webber, 187 Misc. 674, 64 N.Y.S.2d 281, Surrogate’s Court, Kings County, June 1946, which stands for the proposition that a fiduciary may change his ward’s residence but ordinarily cannot change his ward’s legal domicile. In the Webber case, the decedent, a domiciliary of Kings County, was adjudicated incompetent. Subsequently, she was removed from Kings County and took up residence in a hospital in Westchester County. During her stay at the hospital in Westchester County, the committee of her property with the consent of the committee of her person, sold her dwelling in King’s County as well as all of her personal belongings.

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A New York Estate Lawyer said that, the decedent died on January 22, 2008 survived by a son, a daughter and six grandchildren. The Decedent’s Last Will and Testament, dated June 27, 2000 was admitted to probate, and Letters Testamentary were issued to his two children on March 3, 2008. The Will left each of the Decedent’s six grandchildren $25,000.00, and named his two children equal residuary beneficiaries. Due to the Decedent’s Alzheimer’s disease and advanced dementia that ultimately caused his death, the daughter was appointed Guardian of the person and property pursuant to Mental Hygiene Law Article 81 in New York State Supreme Court in the Fall of 2007. The Decedent had been a successful business man during his life, operating a sole proprietorship until May 1, 2006. Sophie Schubert was his long time secretary and bookkeeper. The secretary retired from the proprietorship on June 25, 2005, but continued to assist the Decedent with business and personal affairs.

A New York Probate Lawyer said that on February 26, 2009, the Estate commenced a discovery proceeding against secretary alleging that she used her relationship as the Decedent’s longtime companion and secretary to unduly influence a series of pre-death non-probate transfers and business decisions in her favor, contrary to the Decedent’s estate plan. On December 18, 2009, counsel for the secretary filed an Answer. The parties thereafter conducted discovery. After a number of court conferences, the parties ultimately failed to reach a settlement, and a hearing pursuant to SCPA 2103 and 2104 was held in May, 2011 relative to her undue influence upon the Decedent, and the Decedent’s capacity to make the non-probate transfers and decisions in dispute.

A Westchester County Probate Lawyer said the disputed transfers occurred between 2005 and 2008, and consisted of the following: loans made to an individual which were assigned to the secretary pursuant to a Memorandum of Understanding dated July 1, 2005; loans to which were conditionally assigned to the secretary and the surviving heirs by Agreement and Memorandum of Understanding dated May 11, 2006; various corporate debts assigned to the secretary commencing May 1, 2006; accounts and an annuity naming her a 1/3 transfer-on-death beneficiary along with the Decedent’s two children; a Prudential Whole Life Insurance Policy for which she was made the designated beneficiary as a result of a corporate resolution signed by her as Secretary of the Decedent’s corporation on January 7, 2008; corporate checks made payable to cash signed by her; and bank accounts of the Decedent held jointly with her. It is alleged that the value of the disputed transactions had a value of approximately $195,000.00 on the date of the Decedent’s death.

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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.”

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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.

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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.

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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.”

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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.’

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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.