Court Discusses Validity of Will

June 23, 2015,

A New York Probate Lawyer said his controversy involves the validity and effect of certain portions of the will of Mr. X, late of the city of Brooklyn, deceased, and the correctness of the directions contained in a decree of the surrogate of Kings County as to the disposition of certain moneys of his estate. Mr. X was a resident of Brooklyn and died in that city on September 5, 1895, leaving a last will and testament, which was admitted to probate on the 1st of October in the same year. His executors were and are Mrs. MH, his widow, Mr. E, and Mr. J, president of the Kings County Trust Company.

A New York Estate Administration Lawyer said that the will directs the executors to deposit in the Kings County Trust Company all the testator's securities and moneys to constitute what he terms in his will the general fund of his estate. It bequeaths to his wife, Mrs. MH, all the testator's personal property in his Brooklyn residence and devises to her his summer residence in the town of Lee, in Berkshire County, Mass., and all his real estate there for the period of her natural life. At the death of his wife, or sooner, if she consents, the executors are directed to sell said real property and deposit the proceeds to the credit of the general fund of the estate already mentioned. The executors are further empowered to sell any of the testator's personal property not otherwise disposed of whenever, in their judgment, it shall be for the interest of the estate, and to deposit the avails thereof in the same general fund. Out of this general fund the executors are to make payments as follows: (1) Twelve hundred dollars a year to the testator's wife and all taxes and expenses for necessary repairs upon his Brooklyn residence. (2) Six hundred dollars a year to the testator's sister, Frances Wheeler, during the lifetime of the testator's wife, and upon her death, if the said sister survives her, a sum sufficient to insure an income of $600 per annum for the remainder of her life . (3) To the testator's niece, HB, $400 a year during the life of the testator's wife, and upon her death, if the niece survives, a sum sufficient to insure an income of $400 per annum for the remainder of her life.

Upon the death of the wife the executors are directed to appropriate from the general fund of the estate the sum of $35,000, to be expended in the erection of a statue to Lafayette .

Westchester County Probate Lawyers said whatever sum may remain in the estate after the statue is erected is to be applied, first, to the payment of $200 to the town library of Lee, Mass., and then in the proportion of one-fifth each to the Gates Avenue Homoeopathic Dispensary, the Brooklyn Children's Aid Society, the Brooklyn Society for the Prevention of Cruelty to Children, the Brooklyn Home for Aged Men, and the American Society for the Prevention of Cruelty to Animals.

The testator's sister, W, died on November 23, 1902; his niece, HB, died on April 11, 1908, leaving a last will and testament, of which K is the sole executor. It will be seen, therefore, that all the personal beneficiaries under Mr. X's will, except his widow, are dead, and the obligation of his executors and trustees to pay their annuities has ceased.

Suffolk County Probate Lawyers said that among the assets of the estate were 160 shares of the capital stock of the Metropolitan Plate Glass Insurance Company, now known as the Metropolitan Casualty & Insurance Company. The authorized capital of this corporation at the time of the testator's death was $100,000. In 1902 the directors determined to increase it to $200,000, and to this end they declared a cash dividend of 100 per cent., payable out of the company's surplus, on February 15, 1902. Stockholders were accorded the privilege of subscribing at par for the additional stock to the extent of 100 per cent. Of their respective holdings, and Mr. X’s executors availed themselves of this privilege in behalf of his estate and applied the $16,000 which they received by way of dividend to the acquisition of 160 shares of the new stock. It appears that they have since sold these 160 additional shares at public auction at a price which yielded the estate the sum of $19,912.80.

The questions which require consideration upon this appeal are only two in number: (1) Is the bequest in the eleventh paragraph of the will for the erection of the Lafayette statue valid? (2) Is the sum received by the executors and trustees for the additional stock purchased with the surplus dividend of the Metropolitan Plate Glass Insurance Company to be regarded as capital or income?

The provisions of this paragraph can be questioned only upon the ground that the will is indefinite and uncertain as to the persons designated as beneficiaries; but, as Judge G points out, the beneficiary was the city of Brooklyn, and, although it ceased to be a separate municipality in 1897, two years after the testator's death, the existing city of New York has succeeded to all its corporate rights, capacities, and trusts. Among these was the capacity to receive a gift for the erection of a statue.

The question whether the surplus dividend is to be deemed capital or income depends upon the time of the acquisition of the surplus which was divided. The amount of the dividend was $100,000; the findings of the surrogate show that on December 31, 1895, shortly after the testator's death, the surplus of the Metropolitan Plate Glass Insurance Company was $190,000, and that at the time of the adoption of the resolution for the dividend it was $279,000, an increase of $89,000 within that period. This increase, which, under the doctrine of Robertson v. De Brulatour (188 N. Y. 301, 80 N. E. 938) and other cases, is to be regarded as income, was 89 per cent. of the total dividend; and consequently 89 per cent. of that portion of the dividend which went to the executors must also be deemed income. This amounted to $17,722.39. Inasmuch as it exceeds the aggregate of the annual payments directed by the will, and an accumulation of it would be unlawful, the Appellate Division considered that it must go to the corporations mentioned in the residuary clause of the will as being the parties entitled to the next eventual estate; whereas the executor of the deceased niece insists that it should go to her estate inasmuch as she stood in that position.

The statute as to undisposed profits provides as follows: ‘When, in consequence of a valid limitation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.’ This rule is equally applicable to future interests in personal property. But are the corporations mentioned in the residuary clause the ‘persons presumptively entitled to the next eventual estate’ under this will? I think not. The next eventual estate is the bequest of $35,000 for the erection of the statue to Lafayette. The intention of the testator is perfectly clear that, after the provisions for his wife, sister, and niece have been carried into effect, and his wife has died, his estate, to the extent of $35,000, shall be expended for the benefit of the city of Brooklyn, now the city of New York, in the manner indicated.
We have here an estate in expectancy to which the city of New York is next entitled; and therefore the city comes within the very letter and spirit of the statute. If this view be correct, the 89 per cent. for the surplus dividend received by the executors and trustees as proceeds of the surplus dividend belongs to the city, and must be paid by the executors to the city and credited on account of the legacy for the statue.

It follows that the order of the Appellate Division and the decree of the surrogate should be modified, so as to charge the executors and trustees with $17,722.39, instead of $19,912.80, as income arising out of the proceeds of the sale of 160 shares of the Metropolitan Casualty & Insurance Company, and with the balance thereof as capital of the estate, and, further, so as to direct that they pay said income to the city of New York under the eleventh paragraph of the will. As thus modified, the order and decree should be affirmed, with costs to those parties who have appeared and filed briefs in this court.

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Court Decides the Disposition of Real Property

June 22, 2015,

A Probate Lawyer said that, this is an application for a construction of the will of testatrix with respect to the intended disposition of certain real property. Testatrix' holographic will dated October 28, 1931, was admitted to probate on September 25, 1956. In paragraph 'Third' of the will, testatrix provided in part as follows: 'I give to Ms. M (her daughter) In trust for Mr. T her god child and my grandson my home with all furnishings. I positively wish no encumbrance such as a mortgage or lean (sic) to be placed upon this property. This home is not to be rented or leased for any business whatever. I give to my daughter to make sure that she may have a home during her life time. At her death this property goes to her God-child.' The remainderman, Mr. T, survived testatrix but has since died. Petitioner seeks leave to sell the real property described in the will.

A New York Estate Lawyer explained that, in the opinion of the Court, testatrix was primarily concerned with the welfare of petitioner, her daughter. Although she used the terminology 'in trust' in paragraph 'Third,' a careful analysis of the will as a whole reveals that it does not impose the duties of a trustee upon petitioner. The words were used with a layman's conception of their meaning.
According to a Kings County Probate Lawyer, in the absence of an express or implied direction for the payment of income by a trustee to another as beneficiary, no valid trust is created as explained in the case of In re Hasketts' Will, (4Misc.2d 1065, 159 N.Y.S.2d 225, 227). Testatrix gave to petitioner both the actual possession of the realty and the rents and profits. Under such facts, the statute creates a legal life estate with the same incidents of tenure as if the bequest had taken such form. Such a life estate is a freehold estate giving the beneficiary the full possession, use and enjoyment of the property for the duration of her natural life.

A Kings County Estate Attorney said, the Court holds that the true meaning, construction and effect of paragraph 'Third' of the will was to devise the described real property to Ms. M for her life with remainder upon her death to testatrix' grandson, Mr. T. Since the latter survived testatrix but died before the life tenant and there being no words of survivorship in the will, he took a vested interest in the remainder upon the death of the testatrix (Matter of Krooss, 302 N.Y. 424, 429, 99 N.E.2d 222, 225, 47 A.L.R.2d 894). Upon the death of the life tenant the remainder interest of Mr. T will pass to or be payable to his estate.

Westchester County Probate Lawyers said, inasmuch as the real property was specifically devised to testatrix' daughter, who is not an infant or incompetent, section 13 of the Decedent Estate Law does not become operative to confer a power of sale upon the executrix. The executrix may however make appropriate application for the sale of the real property pursuant to sections 233 et seq. of the Surrogate's Court Act. The net proceeds derived upon such sale shall be held by the life tenant for her life in lieu of the realty. Settle decree on notice.

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Court Listens to Proceeding to Establish a Lost Will

May 26, 2015,

A New York Probate Lawyer said this is a proceeding to establish a lost will pursuant to the provisions of Section 143, Surrogate's Court Act. The decedent died February 11, 1958. The Court is satisfied on the testimony of the subscribing witnesses that on February 4, 1958, decedent duly executed a will in accordance with the provisions of Section 21, Decedent Estate Law; that at the time of execution he was fully competent to execute a will and under no restraint.

No copy of the will was produced but the testimony of the subscribing witnesses satisfactorily established its contents. They testified that the will was on a printed form folded at the top to make four pages; that the testamentary dispositions and the nomination of the executrix and alternate executor were typed on the first page, the second or reverse side of the first page was blank and on the third page was the testimonium clause followed by the signature of the decedent. There was an attestation clause after decedent's signature below which the subscribing witnesses had placed their signatures and addresses, Mrs. J.P.M., XXX Eastern Parkway, Brooklyn, N. Y., and Mr. GW, XX Union Street, Brooklyn, N. Y. They further testified that by the will decedent directed payment of his debts and gave the rest of his property and possessions to Mrs. DM; that if she did not survive him decedent left all his property to Mr. GM and Mrs. VM, son and daughter of said Mrs. DM. The will nominated Mrs. Dm as executrix; in the event of her death, Mr. GM and was to serve as executor and decedent directed that neither of them should be required to file a bond.

A New York Estate Lawyer said there was a further provision in the will in the nature of a request that a fence be erected around or on the side of the property wherein Mrs. DM then resided. The witness, Mrs. J.P.M. testified that on the day before decedent's funeral she was at the home of Mrs. DM, who showed her a bundle of papers which she said were all of the decedent's personal papers 'and everything'. Among the papers was the instrument which the witness identified as the will which decedent had signed and to which she and Mr. GW had acted as witnesses. She recognized decedent's signature thereon, her own signature and that of the other subscribing witnesses. Both witnesses testified that never before had they acted as witnesses to a will.
There was further testimony by the son and daughter of Mrs. DM that they had seen the will at their mother's home after decedent's death and that thereafter they were unable to find it after search by them and their mother.

A Manhattan Probate Lawyer said the Court finds that the will was in existence at the time of decedent's death, that it was thereafter lost and that its provisions have been clearly and distinctly proven by two credible witnesses who were the subscribing witnesses. The objections filed by decedent's brother are dismissed and the will will be admitted to probate. Settle decree on notice incorporating the provisions of the will as herein set forth.

New York City Probate Lawyers said that supplementing the decision of the Court, dated February 1, 1960, the testimony further established that the decedent's will contained a statement that he was leaving nothing to his relatives in Norway because he had not seen them in forty years and did not know whether they were living or dead. The decree should incorporate the statement as part of decedent’s will as probated.

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Court Discusses Jurisdiction of Surrogate Court

May 25, 2015,

A New York Probate Lawyer said that petitioner in this custody proceeding is the natural mother of a child born in 1976 in Brooklyn. The respondent is the child's paternal grandmother, who was appointed by as guardian of the person for the child in December 1977. The petition alleges that in May, 1977 the father took the child from the petitioner and gave it to his mother, and that petitioner was afraid to act because of previous assaults and threats. The petitioner-grandmother in the Surrogate's Court proceeding (respondent herein) alleged the natural mother had abandoned the child, that she was a drug addict, and that her whereabouts were unknown. The father executed a waiver and consent to the appointment of his mother as guardian. No supporting affidavits as to the circumstances of the mother's alleged abandonment, her addiction, or her disappearance were submitted; nor was an affidavit of diligent search provided. The letters of guardianship were issued on the ex parte application of the respondent herein, without notice to the mother, and apparently without a hearing.

A New York Estate Lawyer said that on July 19, 1978 petitioner-mother filed a petition for custody of her child in the Family Court. The issue before this Court is whether it may assume jurisdiction in a custody proceeding, where guardianship of the person has been awarded in a prior ex parte proceeding in the Surrogate's Court. The applicable law is to be found in Article 6 of the New York State Constitution, the Family Court and Surrogate's Court Procedure Acts (hereafter "FCA" and "SPCA") and pertinent cases.

Unlike the Supreme Court, neither court has general original jurisdiction in law and equity. The powers and jurisdiction of both the Surrogate and the Family Court Judge are limited. Article 6, Section 12 of the NYS Constitution states:

"d. The surrogate's court shall have jurisdiction over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto, guardianship of the Property of minors, and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law.

"e. The surrogate's court shall exercise such equity jurisdiction as may be provided by law."
The Family Court's jurisdiction, set out in Article 6, Section 13, NYS Constitution includes "the following classes of actions and proceedings . . . (2) Custody of minors . . . , and (7) as may be provided by law: the Guardianship of the person of minors . . ."

The Surrogate of Kings County was quite correct when he issued letters in this case. Article 17 of the SCPA provides a means for issuance of letters expeditiously which will afford guardianship of the person often necessary on an emergency basis to provide food, shelter, education, and medical care to an infant who might otherwise be abandoned. Article 17 SCPA, however, was never intended by the legislature and the Constitution to be the exclusive vehicle for determining custody by reason of the issuance of letters of guardianship ex parte. In most instances, guardianship of the person is issued along with guardianship of the property. Where there is no property possessed by the infant the Surrogate issues guardianship of the person. Here bare facts were asserted in the Surrogate's Court indicating that the infant was abandoned. When these facts are controverted as in this case, by a natural mother who comes forward for the first time to seek an adjudication of her rights, she should not be denied the forum of her choosing by the initiation of a proceeding without notice in another court.

Brooklyn Probate Lawyers said this court has before it a petition for custody by a natural mother who has never been adjudged neglectful or unfit. There is no record of any inquiry by the Surrogate as to the mother's custodial fitness. There is nothing attesting to efforts made to apprise the mother of the guardianship proceeding. Careful inquiry is required when a parent's rights to custody and guardianship are at stake. This court of course may not vacate letters of guardianship issued by the Surrogate. SCPA § 701(3) provides "No court except the court which issues letters shall have power to suspend, modify or revoke them, so long as the court issuing them has jurisdiction of the estate or matter in which the letters were issued."

It cannot be argued that the Surrogate's Court's facilities for deciding custody disputes are comparable to those available in this court (Family Court). These specialized services (Bureau of Mental Health Services psychiatrists, probation investigation and reports, home visits and a children's waiting room) are the readily available personnel and tools with which this court discharges its duty to resolve family disputes. In contrast, the Surrogate's Court concerns itself primarily with property questions arising out of the settlement of estates, and has no similar social services readily available to it. As a matter of fact the Probation Department at the direction of the court, made at an earlier hearing, has already investigated the respective abodes of mother and grandmother and has conducted some interviews in depth. The Surrogate's Court mandate is to settle the affairs of decedents. As to infants, its power to award guardianship of the person derives historically from its duty to administer property. In contrast, the Family Court concerns itself with the more personal, and often more complex, questions of family relationships. In this case, the child's property, if any, is not at issue. The appointment of a guardian may have been appropriate at an earlier time when no contest as to custody was apparent, but now that fundamental family relationships are challenged, it is my opinion this court is the best forum in which to decide them.

This court is not arbitrarily asserting jurisdiction after dissatisfied litigants have failed to obtain relief elsewhere. It is simply hearing a case the first time that all concerned parties are before a court of competent jurisdiction. Furthermore, separate awards of custody and guardianship are not necessarily in conflict. "Guardianship of the person does not always, under all conditions, give absolute rights to the custody of the person." Should the petitioner be awarded custody, she may be advised to seek revocation of the guardianship grounded on the law of the case with respect to custody established in this court. In any event, as suggested by Surrogate Bennett in Matter of Abeles, supra, this court's order in the custody proceeding will be brought to the attention of the Surrogate. What the Court said at 248 N.Y. page 72 at 161 N.E. page 423 of Raymond v. Davis, regarding a claimant to a portion of the decedent's estate in the Surrogate's Court applies with equal force to the natural mother's petition as to her family rights in this court:
"To remit the claimant to another forum after all these advances and retreats, these reconnaissances and skirmishes, would be a postponement of justice equivalent to a denial. If anything is due him, he should get it in the forum whose aid he has invoked."

In the interest of due process, prompt resolution of family disputes, and judicial efficiency, there can be no doubt that this court's assumption of jurisdiction is warranted. Motion to dismiss is therefore denied.

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Action Brought Pursuant to Real Property Law Sec. 500 to Have Mortgage Cancelled

May 24, 2015,

A New York Probate Lawyer said that a Motion by plaintiff for summary judgment under Rule 113 of the Rules of Civil Practice. This action is brought pursuant to section 500 of the Real Property Law to have a mortgage cancelled of record on the ground that it is outlawed by the statute of limitations (Section 47-a, Civil Practice Act).

According to a Kings County Estate Attorney, the answer consists of general denials and two affirmative defenses, namely, (1) that the mortgagors on September 17, 1949 acknowledged the mortgage and the indebtedness in writing, thereby extending the statute of limitations, and (2) upon information and belief, that sometime after September 17, 1949 and prior to the expiration of the statute of limitations, the mortgagors absented themselves from the jurisdiction of this court in that they or either of them were then and still are residing in Italy.

A New York Estate Lawyer explained that, on February 8, 1929, Mr. A.C. and Mrs. L.C., his wife, executed and delivered to one Mr. P.K. a mortgage in the sum of $2,750, covering premises owned by them as tenants by the entirety, with interest at 6 per cent. payable quarterly until February 8, 1932, when the balance of the principal sum became due and payable. On the same day this mortgage was assigned to Ms. K.D. Said assignee died testate on August 13, 1940 a resident of Kings County; and his will was admitted to probate on January 22, 1941, and the defendant herein duly qualified as executor thereunder and is still acting in that capacity.
A Kings County Estate Lawyer said, in August, 1941 the defendant filed transfer tax schedules in the Surrogate's Court and in schedule C thereof, among other things, made reference to the aforementioned mortgage and stated that 'according to the decedent's records no interest has been paid on this mortgage for a number of years and the same has been apparently abandoned, the decedent realizing that there was not sufficient equity over the first mortgage for him to foreclose. The fair and reasonable value of this mortgage is none.

Queens Probate Lawyers said that according to a Kings County Probate Attorney, Mr. A.C. and Mrs. L.C. by deed dated September 17, 1949, conveyed the mortgaged premises to Mrs. L.C. individually, said deed containing the recital 'Subject to all liens and encumbrances of record, if any.' Defendant does not claim that he received any interest or principal since he qualified as executor in January, 1941; and thus it would appear that the mortgage was outlawed at the time the aforementioned deed was delivered in 1949.

A Long Island Probate Lawyer said that according to Kings County Probate Lawyer, defendant, however, contends that the recital in the deed quoted above revived the mortgage in question and extended the statute of limitations, particularly since the conveyance was made by the original mortgagors: Such recital, absent other circumstances which amount to an admission of the validity and lien of the outstanding encumbrances, is insufficient to extend the period of limitation.

Nor does it constitute a written acknowledgment or promise under which the mortgagors intended to again become personally liable on the debt pursuant to section 59 of the Civil Practice Act. It appearing, in view of the foregoing, that the mortgage is outlawed, it is unnecessary to consider the second defense herein. On the pleadings and proofs submitted the defendant has failed to raise a triable issue herein and the plaintiffs' motion is accordingly granted.

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Court Decides Validity of a Hospital Lien

May 23, 2015,

A New York Probate Lawyer said in an action, Inter alia, to determine the validity and extent of a hospital lien filed by defendant New York City Health and Hospitals Corporation, plaintiff appeals from an order of the Supreme Court which (1) denied her motion to strike defendant Associated Hospital Services' affirmative defense that the action against it was barred by the contractual period of limitations contained in the applicable group insurance contract, and (2) granted that defendant's cross motion for summary judgment.

Plaintiff's deceased (Mr. PB) was admitted to Kings County Hospital on May 6, 1968, and remained there as a patient until May 16, 1969, except for the brief period between April 11, 1969 and May 5, 1969 during which he was permitted to return home. The cost of his care at the hospital totaled $33,662.28, and a lien for that amount was duly filed by the Health and Hospitals Corporation on October 5, 1971 against the proceeds of a malpractice action which he had theretofore commenced against a Dr. LA. Subsequent to the filing of the lien, Mr. PB expired and his will designating the plaintiff as his executrix was admitted to probate on April 12, 1972.
It is undisputed that at the time of the hospitalization in question, Mr. PB was covered by Two group policies issued by defendant Associated Hospital Services of New York (AHS), each of which contained a contractual period of limitation for the commencement of actions arising thereunder. One, a policy provided: "No action at law or in equity shall be brought against AHS for any claim for Hospital Service unless brought within two years from the date of the Subscriber's admission to the hospital." The other, a policy issued to the Joint Board Fur, Leather and Machine Workers' Unions for their employees, provided: "No action at law or in equity shall be brought to recover on this Contract unless brought within three years from the Subscriber's discharge from the hospital."

A New York Estate Lawyer said that as a result of claims filed on behalf of its insured, AHS has paid $20,539.66 to defendant Health and Hospitals Corporation with reference to the decedent's hospitalization, and refuses to pay more. The unpaid balance is thus $13,122.62, the lien for which amount plaintiff herein seeks either to have canceled or else paid by AHS. The action was commenced against the Health and Hospitals Corporation on March 10, 1974 and against AHS on or about April 22, 1974. As against AHS the action was therefore commenced almost five years after the date of Mr. PB's discharge from the hospital and more than two years from the date of his death, thus prompting the insurer to assert the contractual period of limitations as a defense. By notice of motion dated March 25, 1975, plaintiff moved to strike the affirmative defense pleaded by AHS that the action against it was timebarred, whereupon AHS cross-moved for summary judgment dismissing the complaint. Special Term denied the motion, granted the cross motion and dismissed the complaint as against AHS. This appeal followed.

Westchester County Probate Lawyer said that under the circumstances of the instant case, it is our belief that a question of fact exists as to whether defendant AHS may be estopped from relying upon the contractual period of limitations contained in its group insurance contract, and, therefore, that the granting of summary judgment dismissing the complaint against it was unwarranted. Insofar as it appears on the present record, AHS did nothing whatsoever to inform its insured that it was rejecting any portion of his hospitalization claim during the contractual period of limitations, and, in fact, made no payments whatsoever with respect to his hospitalization until after that period of limitations had expired. Moreover, it further appears that it had been determined by AHS as early as November 18, 1969 that at least a portion of decedent's hospital bill would not be accorded coverage.

Suffolk County Probate Lawyers said that since AHS is both the author of the period of limitations incorporated into the group contract as well as the arbiter of coverage thereunder, it is our belief that a factual issue has been raised as to the propriety of its conduct in the instant case. The insured, after all, is in no position to know whether a claim has been rejected in the absence of notification by AHS or the hospital, and the latter has the benefit of a six-year Statute of Limitations within which to sue its patient on the underlying contract claim. The insured would likewise have the benefit of the six-year statute as against AHS but for the latter's insertion of a shorter period of limitations into its group insurance contract.

Hence, the Order modified, on the law, by deleting the second decretal paragraph thereof and substituting therefor a provision denying the cross motion for summary judgment. As so modified, order affirmed, with $50 costs and disbursements to plaintiff.

A claim in favor of the estate of a deceased must be filed with the help of a Kings County Estate Attorney. The rules governing the procedure for filing a petition for these cases properly belongs to legal experts. Also, this claim must be filed in soonest possible time to avoid the settling of limitation for its filing.

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Court Discusses Will Provisions

May 22, 2015,

A New York Probate Lawyer said the holographic will of the testator, a physician, has been admitted to probate. The Court finds no difficulty in upholding the validity of the testator's testamentary scheme as maintained by the two special guardians. Although inartistic in form the will makes testator's intentions clear.

He first provided that if survived by his wife he gave all his 'earthly possession to her without limitations whatsoever. In the event that I should outlive her then my estate shall be disposed of as follows.' Then, stating that his estate was worth over $100,000, he directed the 'administrators' of his estate, later naming his two brothers-in-law as 'executors and administrators,' to pay all funeral and entombment expenses and all legitimate obligations outstanding. The rest of the will contains provisions for the use and sale of his residence, investment of estate funds, payment of annuities to his children, distribution of the whole estate to them or their children, and educational benefits to them, subject to various conditions. The testator died on January 24, 1954, survived by four children, 24, 22, 19 and 16 years old respectively at the time of his death. The three oldest children are married.

A New York Estate Lawyer said the Court construes the will as creating a single trust of his entire net estate, both real and personal, to be held until the youngest child, AB, becomes 22 years of age, to wit, July 29, 1960, or his earlier death. The alternative is not specified in the will but is supplied by law, thus avoiding invalidity of the trust by reason of a fixed termination date. The insertion of the date, July 29, 1960, was merely to indicate the date on which the youngest child would attain his twenty-second birthday and not to fix a date for the termination of the trust or that it was, in all events, to continue until that time. During the continuance of the trust or until the real property is sold any unmarried children may live in the residence mentioned in the will sharing the fixed charges and maintenance expenses of the property.

Nassau County Probate Lawyers said the fact that now only one child, the youngest, is unmarried and cannot reside alone in the house and pay its expenses does not invalidate this provision. The testator explained that he gave only his unmarried children the right to occupy the residence because 'I want no child of mine to be burdened by a brother-in-law or a sister-in-law.' The petitioners may question the wisdom of this provision, but even so the Court may not substitute its judgment for the clear direction of testator.

Furthermore, the will does not preclude an amicable arrangement whereby the unmarried son would reside in the premises together with a married brother or sister, the former paying a proportionate share of the expenses described in the will and the latter paying to the estate a reasonable rental.

Staten Island Probate Lawyers said that during the continuance of the trust each child under 22 years of age is to receive $75 per month until he or she reaches that age, payable out of income and, if necessary, principal. In addition each child is entitled to receive $1,000 a year for four years of college education towards tuition fees and board and $1,500 a year for four years of post-graduate professional education, provided the latter is undertaken within one year after graduation from college. These payments likewise are payable out of income and, if necessary, principal and cease when the trust terminates. Upon termination of the trust upon the youngest child reaching the age of 22 or his earlier death the estate is to be distributed equally to the testator's four surviving children, the issue of any predeceased child to take the share of their parent. Thus the present grandchild of the testator and any grandchildren born before termination of the trust have contingent remainder interests.

If, as indicated, the income of the trust estate is in excess of the required payments as aforesaid, since there is no disposition of the surplus and no direction for accumulation of income, the same is distributable equally to those presumptively entitled to the next eventual estate. They are the testator's four children and, should any one die before the termination of the trust, their descendants if any, per stirpes (to receive in equal proportion). During the minority of a child his share of such excess income may be accumulated.

When the provision of the will is at issue seek the assistance of a Kings County Probate Attorneys to determine the real intention of the testator. With the intervention of a legal expert, all issues in relation to the probation of a will are simplified.

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Court Hears Uncontested Administratrix's Accounting Proceeding

May 20, 2015,

New York Probate Lawyer said in this uncontested administratrix's accounting proceeding, a stipulation has been submitted to the court for its approval and incorporation into the provisions of an intermediate accounting decree.

The decedent died, testate, on the 17th day of March, 1980, survived by a spouse and an infant daughter, born of the marriage between himself and his former wife, who also survived him. Pursuant to the terms of his last will and testament, dated December 6, 1972, the decedent devised and bequeathed his real and personal property, together with the maximum amount allowable as a marital deduction under federal law, to his former spouse, and disposed of the rest, residue and remainder of his estate, in trust, for the benefit of his former spouse during her lifetime. Upon the death of his said spouse, the decedent directed that the principal of the trust estate continue to be held, in trust, for the benefit of his daughter, until she attained the age of 30, at which time, it was to be transferred and paid over to her, outright, if then living, or if not then living, to her then living issue, or if none, to a named charity. The decedent made no provision in the instrument for his second wife. As a consequence, his daughter became the sole beneficiary of his estate, by virtue of his divorce from his former spouse on October 19, 1979.
On the 8th day of July, 1980, the decedent's former spouse, as guardian of her infant daughter's property, filed a petition with the court requesting the probate of the decedent's last will and testament, and the issuance to her of letters of administration. This application was unsuccessfully opposed by the decedent's surviving spouse, whose objections to probate were dismissed in the context of a motion for summary judgment made by the guardian ad litem appointed to represent the interests of the infant in the proceeding. As a result thereof, letters of administration were issued by this court to the decedent's former spouse on November 24, 1980, upon her posting of a bond in the sum of $20,000.00.

A New York Estate Lawyer said that approximately three months later, the decedent's surviving spouse served and filed a notice of election against his estate. Two years thereafter, a petition to compel an accounting was filed by the decedent's surviving spouse seeking a determination of her elective share against his estate. Although the application was initially contested by the fiduciary, the parties ultimately resolved their differences, and the proceeding was withdrawn in accordance with the terms of a stipulation of settlement requiring the fiduciary to file her account with the court within six months from the date thereof.

Brooklyn Probate Lawyers said that on the 5th day of June, 1985, the fiduciary filed the instant accounting proceeding with the court requesting (1) judicial allowance and/or rejection of various claims filed against the estate, (2) approval of a pro rata payment of those claims which were allowed, (3) fixation of counsel fees in a stated amount, and (4) authorization to pay administrator's commissions in the sum of $6,634.03.

Bronx Probate Lawyers said that in the return date of citation, four creditors, with estimated claims of $4.9 million, appeared in the proceeding. Subsequent thereto, a stipulation was filed with the court providing, inter alia, for the payment of counsel fees in the sum of $70,000, and the settlement and satisfaction of the various debts of the estate in specified pro rata amounts. The terms of this stipulation were thereafter incorporated into the schedules of the petitioner's account, which was amended by order of the court dated March 24, 1986, on notice to all interested parties to the proceeding. As a consequence thereof, the petitioner's only request for relief herein became the judicial settlement of her intermediate account, subject to the court's ratification of the propriety of the stipulation and its terms.

Nevertheless, despite the absence of objections, and/or the written consents of the persons interested in this proceeding, this court will not sanction any portion of the stipulation submitted which seeks to circumscribe its power and duty to pass upon or review any one or more of its provisions which lie within the scope of its statutory and inherent jurisdiction.

More particularly, the court addresses itself to that paragraph of the stipulation which conditions its enforcement and binding effect upon its receiving judicial approval. These kinds of all or nothing proposition leave the court little recourse but to rubber stamp the stipulation regardless of its terms, or disapprove of it in its entirety. Either alternative is but an act of blind justice which this court cannot countenance. Indeed, the court will not place its imprimatur upon any document before it without scrutiny, and it is in this light that it has reviewed the stipulation herein.

A settlement may embrace and be binding upon the court only as to those matters that are within the power of the parties to resolve without prior judicial approval. However, as to those matters that exceed this limitation, a settlement constitutes nothing more than a recommendation to the court as to the manner in which the parties desire to resolve their differences.

Indeed, so great have been the abuses, that it has triggered a policy of judicial intervention even in the absence of litigation. The jurisdiction of the court to exercise such scrutiny is beyond question and has, in fact, recently been held unassailable.

The duty and function of the courts to keep the house of the law in order does not hinge upon whether clients, worn down by injuries, delay, financial need and counsel holding the purse strings of settlement, knowing little about law or lawyers, have had the stamina to resist excessive exactions of attorneys whom they've retained to represent them.

Applying these principles to the case at bar, the court finds the stipulation, to the extent it effectuates a resolution and compromise by the fiduciary of the various claims against the estate to be of full force and effect and binding upon the parties to this proceeding. On the other hand, the court finds the terms of the stipulation, to the extent they encompass an extrajudicial accord as to counsel fees, to be superseded by its power and prerogative, regardless of the circumstances, to assess the reasonableness of the sum set forth.

Accordingly, after a careful evaluation and consideration of the nature, extent and details of the services performed by counsel, as well as the size of the estate and the legal fees which the court presumes will be incurred in connection with its final settlement, the court fixes and determines the fair value of counsel's services to be in the reduced sum of $25,000.00, of which, $15,000.00 has already been paid, for all services rendered and to be rendered through the settlement of the intermediate accounting decree to be submitted herein.

Notwithstanding the foregoing modification of the fee herein awarded to counsel, the court, in all other respects, deems the stipulation between the parties to be fair and equitable, in the best interests of the estate and, therefore, binding upon the signatories thereto.

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Court Reviews Action Brought by Executor for Fathers Estate

May 19, 2015,

A New York Probate Lawyer said this is a proceeding brought by B, the executor of the estate of her father, LS, to determine the validity of a claim made by the Nassau County Department of Social Services against the estate for public assistance rendered to ZS, LS's wife, from June 10, 1996 to October 3, 2002, while LS was still alive.

LS and ZS had two children, B and MS, who is mentally retarded. On August 11, 1972, LS was shot four times in what B described as a "bungled mob" assassination attempt. According to newspaper articles, the gunman mistook LS and three others for the mobsters he intended to kill. LS suffered serious injuries that left him unable to work for the remainder of his life. He began receiving Social Security disability benefits in January 1976 and, according to B, also received a Worker's Compensation award.

A New York Estate Lawyer said that ZS was diagnosed with Alzheimer's disease in 1992. On December 22, 1995, LS, as attorney-in-fact for ZS, executed an "Assignment to Petition the Court for Support Pursuant to 18 NYCRR 360-3.2." It states that, in consideration of the medical assistance and care provided and to be provided to ZS by the New York State and Nassau County Departments of Social Services, ZS assigned to the Nassau County Department of Social Services (DSS) "so much of her right, title and interest to petition the court for support from my legally responsible spouse." LS, as ZS's spouse, executed a "Declaration of the Legally Responsible Relative" on January 4, 1996. It states, "I, LS Schneider, declare that I refuse to make my income and/or resources available for the cost of necessary medical care and services for the Medicaid applicant/recipient listed above."

ZS began receiving Medicaid on June 10, 1996 when she was placed in a nursing home. The record before the court includes a "Medical Assistance Institutionalized Spouse Budget Worksheet," which was signed on March 11, 1997 by a representative of DSS. LS predeceased ZS. He died on October 3, 2002. By prior decision, the guardian ad litem appointed by the court to represent ZS's interest in the probate proceeding in LS's estate was directed to exercise the right of election on her behalf, as the surviving spouse, as the failure to exercise it would have resulted in ZS's non-eligibility for Medicaid.

ZS died on December 3, 2003. The guardian ad litem had not yet exercised the right of election on ZS's behalf and, the right being personal, with certain statutory exceptions, to the surviving spouse, was extinguished upon her death. A personal representative has not been appointed for her estate.

A Manhattan Probate Lawyer said that on or about June 9, 2003, DSS filed the subject claim for $386,382.77 for public assistance provided to ZS from June 10, 1996 to October 3, 2002, claiming preferred creditor status pursuant to Social Services Law §104 (1); the claim was rejected by the estate on September 5, 2003.

LS's will was admitted to probate by decree of this court on February 24, 2004. The will created a supplemental needs trust for ZS to be funded with LS's residuary estate. Upon ZS's death, her supplemental needs trust was to be distributed in accordance with the terms of LS's will, which contained bequests to M of $15,000 in a supplemental needs trust, $15,000 outright to a niece, $5,000 to Putnam ARC, and the rest to B.

New York City Probate Lawyers commenced the instant proceeding on December 1, 2005, asking the court to determine that DSS's claim is invalid and should be disallowed. The petition alleges that LS's gross taxable estate is approximately $566,000 and the net probate estate is approximately $350,625.

By order dated April 21, 2006, the court appointed a guardian ad litem to protect M's interests in this proceeding. The guardian ad litem concludes that the claim should be denied.

DSS filed its verified answer to the petition on September 14, 2006, after the court issued Dec. No. 405 on August 16, 2006 giving DSS thirty days from the date of the decision and order to do so. The DSS asserts that the claim is valid under a theory of an "implied contract" between it and LS.

After the petitioner and DSS submitted memoranda of law, the matter was submitted for decision.

The petitioner asserts that the claim against the estate is invalid on the following grounds: (1) both federal and New York State law preclude the recovery of properly paid medical assistance, except in certain circumstances not applicable in this case; (2) DSS cannot recover against the estate of a Medicaid recipient's spouse; (3) DSS cannot recover against the estate of a Medicaid recipient's predeceased spouse; (4) recovery of a claim is prohibited where the Medicaid recipient is survived by a permanently disabled child; (5) DSS failed to meet its burden of proving "sufficient ability" on LS's part at the time Medicaid assistance was rendered to ZS; and (6) the claim is barred by the equitable defense of laches. DSS counters that the claim is properly recoverable from LS's estate.


Here B acknowledges that an implied contract is created between the Department of Social Security and the spouse of the recipient if the spouse has sufficient ability to contribute to the recipient's care, but refuses to do so. However, she argues that DSS has failed to allege or prove that there was an implied contract between it and LS and that LS had the "sufficient ability" to pay at the time ZS was receiving Medicaid.

There is no question that LS refused to contribute his resources and income to ZS's care. His declaration to that effect is attached as Exhibit 3 to DSS's answer. Further, the Budget Worksheet, which B entirely ignores, shows that LS had excess income and resources at the time that ZS was receiving Medicaid that he could have contributed toward her care. Thus, the court concludes that an implied contract was created between LS and DSS.

In this proceeding, LS left $15,000, to be placed in a supplemental needs trust, to his permanently disabled son, M. There is no evidence that M was financially dependent on ZS or LS. Thus, this court finds, under the authority of Matter of Samuelson (110 AD2d 187 [2d Dept 1985]), that repayment of DSS's claim is not precluded by Social Services Law § 369 (1) (b). However, since LS bequeathed to M $15,000 to be placed in a supplemental needs trust for his benefit, M is to receive that amount prior to the payment of the claim.

Also, B argues that DSS's claim is barred by the equitable defense of laches (time barred). She claims that DSS should have brought suit against LS during his lifetime because, having not done so, LS reasonably concluded that because of his unique personal situation the Department of Social Services had acknowledged by its failure to act that he was not sufficiently able to contribute to his wife's care during his lifetime and therefore would not seek financial contribution from him. The time for DSS to make a determination about whether the community spouse has sufficient ability to contribute is at the time the expenses are incurred.

At the time of the assessment, LS had the opportunity to request a hearing to attempt to establish that the Medicaid minimum monthly needs allowance was inadequate based on exceptional circumstances which resulted in significant financial distress. He did not avail himself of this right, and his estate is foreclosed from arguing now that he did not have the sufficient ability to contribute his support to ZS. Additionally, repayment of the claim, except to the extent such money would come from funds designated for M, will not injure any person the recoupment limitations were designed to protect.

The court is unpersuaded by B's argument that federal law forecloses payment of the claim from LS's estate. B bases her assertion on 42 USC § 1396p (b) (1), which limits recovery to the recipient's estate for medical assistance correctly paid, when the recipient was over the age of fifty-five at the time he or she was receiving benefits. In support of her position, B has asked the court to consider the case of Hines v. Department of Public Aid (358 Ill App 3d 225 [App Ct, Ill 2005]) where the Appellate Court of Illinois determined that the Department of Public Aid could not recover from the estate of the recipient's spouse for Medicaid benefits paid to the recipient.

The court stated, "Because federal law does not provide an exception to the general rule prohibiting recovery of medical assistance payments that would permit recovery from the estate of the surviving spouse of the recipient, Illinois law to the contrary exceeds the authority granted under federal law".

This court has reviewed the Hines case and finds itself in agreement with the dissenting justice, who stated that the majority's conclusion ignores the federal mandate that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual' at the appropriate time prescribed by statute.

In 1997, Supreme Court, New York County, rendered its decision in Commissioner of the Department of Social Services of the City of New York v. Spellman (173 Misc 2d 979 [Sup Ct, NY County 1997]). The Department of Social Services relied on an implied contract theory under Social Services Law § 366 (3) (a) for its claim against the then-living community spouse. The issue in Spellman was whether, "under the Social Services Law, the Department may recover the Medicaid assistance paid for the care of an institutionalized spouse from the community spouse, or whether such recovery is barred because there is no analogous Federal statutory scheme".

In reviewing the statutory framework of the title XIX of the Social Security Act, the court pointed out that it requires a state or local administering agency to take all reasonable measures to ascertain the legal liability of third parties to pay for care and services available under the plan. The court then analyzed, at length, whether federal law preempted state law on this issue and found that it did not.

The court also found that the Department did not have the authority to bring the action while the community spouse was alive, but could bring an action after he died against his estate, since he had sufficient means during the period the medical assistance was rendered to his wife. The court determined that Social Services Law § 366 (3) (a) created an implied contract between the Department and the community spouse and that Social Services Law § 366 (3) (c) specifically authorizes a proceeding to compel any responsible relative to contribute to the support of any person receiving or liable to become in need of medical assistance.

Based upon the governing statutes, the court finds that Nassau County DSS's claim against LS's estate is valid and payable from his net estate, except to the extent payment of the claim would impinge on the $15,000 bequest to M to be placed in a supplemental needs trust.
The settlement of an estate of a deceased loved one may entail hard questions of law that it will require the intervention of an expert legal representative. If the settlement an estate involves claims from different creditors, then it must be assisted by a Kings County Estate Attorneys or Kings County Probate Lawyers of Stephen Bilkis & Associates.

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Respondents Seek to Compel Co-Executors to Provide Various Documents

May 18, 2015,

A New York Probate Lawyer said in this probate proceeding, respondents M and J move to compel the co-executors of the estate, S, the surviving spouse of decedent, and K, accountant of decedent, to reproduce: (1) the original and/or photocopies of prior wills of the decedent; (2) un-redacted photocopies of two letters between decedent and the attorney/draftsman, Mr. L and; (3) un-redacted photocopies of notes taken by Mr. L during two separate in-person meetings with the decedent. For the reasons set forth below, an in camera review of said materials, in un-redacted form, is necessary.

In opposition to respondents' motion, the executors allege they are unable to locate any prior wills and will provide such in the event that they are located. In response to the redactions, the executors contend that Mr. L represented both decedent and decedent's surviving spouse, S, in connection with their estate plan, and had confidential communications with decedent and S, jointly and individually, concerning S's estate plan and assets, and that the contents of those communications concerning S's estate plan and assets are the subject of the redacted material and are, therefore, privileged, pursuant to the attorney-client privilege afforded by CPLR 4503, and not discoverable by third parties. The executors move for a protective order concerning the alleged privileged redactions.

A New York Estate Lawyer said although respondents further argue that the executors' response to their discovery demands is untimely, service of a notice of motion for a protective order suspends disclosure of the particular matter in dispute. The time limitations of CPLR 3122 do not apply where the material sought is claimed to be privileged or where discovery would be palpably improper. The documents sought in this matter are alleged to be privileged, and thus respondents' reference to CPLR 3122(a) is misplaced and the executors' motion for a protective order is timely and proper.

A Queens Probate Lawyer said in actions involving the probate, validity or construction of a will, an attorney or his employee is required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent. Respondents contend in their motion that these documents are not privileged as they contain information pertaining to decedent and his will that the executors are required to disclose.

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

The executors' opposition to respondents' motion is supported by Mr. L's sworn statement, affirming that his correspondences and notes were redacted "in order to preserve the confidential communications between myself and my client, S, and between myself and decedent concerning S's estate plan and assets." Mr. L's affirmation substantiates the existence of facts upon which the motion is based, as it is his own writing which was redacted.

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

Respondents argue that the attorney-client privilege does not apply because the correspondence is addressed solely to decedent, regarding his estate plan, and the meetings between decedent and Mr. L took place in the presence of third parties. The executors allege that the redactions to each document were made in order to preserve the confidential communications between Mr. L and S concerning S's own estate plan and assets. Redactions were made to the following four documents:

(1) Correspondence dated December 19, 2006;
(2) Correspondence dated January 29, 2009;
(3) Attorney Notes dated December 5, 2008;
(4) Attorney Notes dated January 30, 2009.

Long Island Probate Lawyers said that the two pieces of correspondence consists of letters addressed solely to the decedent and signed by Mr. L. The letters are marked "Personal/Confidential." The first sentence of each letter states, "The following is a summary of your estate plan which has now been revised..." The contents of the letters seem to relate directly to decedent's testamentary plan. This court cannot decipher the unknown, and an in camera review of these letters in un-redacted form is required to determine whether S's estate plan and assets are discussed in either letter and if the attorney-client privilege attaches.
Mr. L indicates on his notes that present at this meeting were decedent, H, and K. Respondents argue that the presence of H, a nominated co-trustee of the deceased’s Trust and K, accountant to decedent, waives the attorney-client privilege. The attorney-client privilege attaches to confidential communications between an executor and an attorney, to the exclusion of third persons, including beneficiaries of the estate. The presence of a third party during the communication between the attorney and the client indicates that the communication was not confidential. In such a case, the privilege does not attach.

However, when the court deems the third person to be an "agent" of the attorney or the client, the communications remain privileged. Here, there has been no claim by S that H or K was S's agents. Un-redacted copies of the notes from this meeting are to be provided to respondents.
Mr. L indicates that the decedent and S were present at this meeting. The executors contend that S is a client of Mr. L's and that any communication made during this meeting was confidential in respect to both clients present at the meeting. The attorney-client privilege seeks to insure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his or her confidences will not later be exposed to his or her legal detriment. The attorney-client privilege has been codified under CPLR 4503(a)(1), which bars disclosure of any confidential communications between a client and his/her attorney. Again, an in camera review is necessary to determine whether S's estate plan or assets were the subject matter of Mr. L's notes.

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

This court is aware that the attorney client privilege is of the oldest among common law evidentiary privileges, fostering the open dialogue between lawyer and client that is deemed essential to effective representation and will remain mindful of this throughout an in camera review. A final determination on the motion to compel un-redacted copies of particular disclosure is held in abeyance pending an in camera review of the documents in un-redacted form. Un-redacted copies of the documents shall be submitted to the court within 21 days of the date hereof.

To know more about the effect of Attorney-client privilege and its limitation in court as to testimonies and papers requested to be presented in court for a testimony to ascertain facts which involve the decedent during his/her lifetime, call the Stephen Bilkis & Associates.
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Court Decides Power of Appointment in Decedent's Will

May 17, 2015,

A New York Probate Lawyer said that records reflect that the instant proceeding was brought by the petition of a Trust Company as the surviving trustee of the trust created by the will of the decedent for his son for (1) an instruction to the trustees as to the validity of the purported exercise by the will of the son of a testamentary power of appointment pursuant to the testator's will, (2) a judicial settlement of the accounts of the trustees, and (3) a determination of the commissions payable to the company as surviving trustee.

It appears that the infants who are represented by the guardian ad litem are interested in the instant proceeding by reason of the following circumstances: (a) The testator, who died on December 31, 1939, a resident of New York, and whose will was admitted to probate in this Court on January 15, 1940. (b) The infant wards herein are the three grandchildren of the testator's son, who died on March 20, 1968, and whose will was admitted to probate on March 26, 1968. The son left him surviving his wife, a natural son, (from whom there has been no issue), and an adopted son, who is the father of the three infants constituting the infants herein. (c) The testator's son was a beneficiary, as well as a trustee, under a trust created by the will of his father. Pursuant to that trust, the son was entitled to the net income from that portion of the trust corpus which had been set aside for his benefit and, in addition, was entitled to appoint such corpus, 'in such estates, interests and proportions' as he 'shall in and by his last will and testament in that behalf direct, limit and appoint,' to a class of persons consisting of the testator's issue and the spouses of such issue. In default of such an exercise of the power of appointment, testator's will provided that the property subject to the power would be given absolutely to the issue of the child possessing the power or, if the child were not survived by such issue, then absolutely to the testator's issue then surviving. (d) By his will, which was admitted to probate, the son, purported to exercise the power of appointment given him pursuant to his father's will.

A New York Estate Lawyer said the threshold consideration in the instant case is the testator's intention regarding the power of appointment, as reflected in his will, and specifically whether an appointment in further trust is authorized.

The court held that the testator's will provides that, upon the death of each of his children, the capital of the respective trust created for that child's benefit will be given 'unto such person or persons out of a class composed of my issue and the spouses of such issue and in such estate, interests and proportions as such child shall in and by his last will and testament in that behalf direct, limit and appoint.' In providing that the power of appointment may be exercised 'in behalf' of members of the class 'in such estates, interests and proportions' as the child may direct, it is apparent that the testator intended to authorize the child to make a testamentary gift of any interest in the property whatsoever, whether an income interest, life interest, or otherwise, and by any means the child might deem appropriate, including a trust, or any other device to accomplish the gift thus made. Any other construction would imply that the testator's inclusion of the words, 'in such estates, interests and proportions,' have no significance.

Nassau County Probate Lawyers said that moreover, judicial precedent indicates that such language as that found in the testator's will should be construed to authorize an appointment in further trust. The Appellate Division of the Supreme Court, First Department, was faced with a similar problem in In re Hart's Will. In that case, the testator left the residue of his estate in trust, the income payable to his nephew for his life, the testator further conferring a testamentary power of appointment upon his nephew. The donee nephew provided in his will for a further trust of the principal of the subject trust corpus, with income payable to his wife during her lifetime. The Court, discussing the applicable authorities at length reversed a contrary decision by the Surrogate and held that, by authorizing his nephew to dispose of the principal of the trust 'in such manner' and 'in such shares' as the nephew might by his will appoint, the testator had authorized the appointment in further trust, inasmuch as such language indicated the testator's indifference to the quality or manner of estate appointed.

A further question respecting the testator's intention is involved. When the testator's will was executed, as well as when he died, the maximum possible period during which the absolute power of alienation could be suspended, was that which could be measured by tow lives in being on the date of such a suspension. Inasmuch as the trust created by the testator contained 'spendthrift' provisions which would suspend the absolute power of alienation, and inasmuch as the trust term was measured by 'two lives' then in being (the respective lives of his wife and his children), it is clear that under the law then prevailing the testator had exhausted the maximum permissible period for such a trust. Therefore, it could be argued that the testator could not have intended the trust to be extended for any additional period, through exercise of the power of appointment bequeathed to his children or otherwise.

However, Staten Island Probate Lawyers said that in such an argument would proceed from a false assumption. There is no indication that the testator's creation of a trust term measured by two lives has any bearing on his intention with respect to the testamentary power of appointment; the assumption that any such relationship exists, and that any information regarding the testator's intention with respect to the scope of the power of appointment can be deduced from the length of the trust he created, would appear, therefore, to be totally unfounded. Indeed, as discussed above, the words of the testator's will which do describe the testator's interest with respect to the scope of the power indicates clearly that, except for a limitation to the described class of potential legatees, the testator intended to authorize any exercise of the power in favor of such persons as the donee might deem appropriate, and that he was simply indifferent as to the type of interest in the subject property and the manner of conveyance which might be established through exercise of the power.

Another issue is whether, in the Testator's Will, 'Issue' Should be Construed to Include an Adopted Child and His Issue.

The testator's will is silent with respect to the meaning of 'issue'. Furthermore, it should be noted that the statute set forth in Section 2-1.3 of the Estates, Powers and Trusts Law, which specifically provides for the inclusion of adopted children and their issue within the term 'issue' unless a contrary intention is indicated, is not applicable to the instant case because such provision was not effective until March 1, 1964, and its effect is prospective only. The same is true with respect to the definition of 'issue' contained in Section 1-2.10 of the Estates, Powers and Trusts Law, which applies only to the wills of persons dying after its effective date, September 1, 1967.

However, as the Court held in In re Grace's Will, the statutory inclusions of adopted children within classes such as 'issue', unless a contrary intention appears, is merely a codification, albeit also a clarification, of judicial precedent established for many years. Accordingly, since no contrary intent is expressed in the testator's will, the Court will construe the will to include the adopted son, and his three children, to be 'issue' capable of taking pursuant to an exercise of the power of appointment.

Lastly, as to whether an Appointment in Further Trust is Permitted by Law, the court ruled that, Pursuant to the applicable sections of the Estates, Powers and Trusts Law, there is no doubt that the appointment in further trust herein is valid. Since the subject power of appointment is not a general power which was presently exercisable, the permissible period of the rule against perpetuities begins at the time of the creation of the power, that is, on the date of the testator's death, December 31, 1939. Furthermore, the permissible period which is applied is not that which was in effect in 1939, but that which was in effect at the time the power was exercised. It appears that all of the lives by whom the term of the trust herein would be measured were all in being on the date of the creation of the trust and of the power of appointment. Since the applicable permissible period is that set forth in Section 9-1.1, which was in effect on the date of the son's death, and since that statute provides for a permissible period measured by 'lives in being at the creation of the estate and a term of not more than twenty-one years,' it is clear that the appointment in further trust is valid pursuant to the applicable statutory law.

No cases have been found specifically determining the constitutionality of Section 10-8.2 of the Estates, Powers and Trusts Law, but there have been several decisions in which that section and companion statutes contained under the Law have been applied in circumstances similar to those presented in the instant case. For the will of the son has provided that in the event the appointment in further trust is invalid, a legal life estate and remainder is created which would have the similar effect of giving his wife the income of the subject property for her life, and the principal thereafter to his issue. As discussed, the only significant difference between the two provisions is that the further trust would continue for what would be, presumably, a longer period, since it would not be terminated until the death of both his widow and his son. In view of the provisions of the applicable statutes, as well as the cited judicial precedents, it would appear that the appointment in further trust by the will of the son is a valid exercise of the power of appointment created pursuant to the will of the testator.

In cases involving estate litigation, estate administration, will contest and the likes, it is very important that we speak and consult with the experts in such fields. Stephen Bilkis & Associates, with offices throughout New York, has the services of its seasoned Kings County Probate Lawyers and its skilled New York Estate Attorneys who will ensure that your rights are protected whether as an heir, trustee, beneficiary, or someone whose rights may be affected. Hence, seek the assistance of your lawyer involving legal matters.

Court Interpretes Will Construction Issue

May 16, 2015,

A New York Probate Lawyer said from the records, these are two cases involving estate litigation. In the the first probate proceeding, a construction has been requested. The will directs that the residuary estate be given to the testator's wife, and in the event of a common disaster, to the testator's daughter. The wife's death occurred prior to the testator's but the will contains no provision to cover this contingency. The disposition of the estate is further complicated by the following paragraph of the will: 'FIFTH: I have not mentioned my son in this Will because he is completely paralyzed and is unable to take care of himself, and after the death of myself and my wife, my daughter has promised to take care of my son, and I know she will keep her promise.'

A New York Estate Lawyer said that the court ruled that, 'The first rule of testamentary construction, of course, is that a will be interpreted to reflect the actual intention of the testator and the second that this intention be ascertained from a reading of the document as a whole. If a 'general scheme' be found, it is the duty of the courts to carry out the testator's purpose, notwithstanding that 'general rules of interpretation' might point to a different result.'

In the Matter of D'Allesandro, the will similarly did not provide for the contingency that ensued. The court stated: 'There are many instances in which a testamentary disposition, made in a contingency which is provided for but did not occur, is held to apply by necessary implication to a contingency which did occur although not provided for in the will.'

The guardian ad litem of the son, contends in his report that, since the will does not cover the present situation, the testator should be declared to have died intestate. However, a finding of intestacy will result in exactly a situation which the testator expressly sought to avoid, namely, that his son receive a direct share of his estate. The language of paragraph fifth does not impose any legally binding condition on the daughter but is held merely precatory in nature. The will is construed as intending a gift by implication to the daughter of the residuary estate absolutely.

Finally, the court has received affidavits relating to the competency of one of the attesting witnesses. An accompanying letter signed by the witness' wife verifies the signature on the will as that of her husband's. Pursuant to SCPA 1405, the court will admit the will to probate on the strength of this verification and the testimony of the remaining witness.

In the second case, a motion is made to strike out a counterclaim interposed in this action wherein complainant seeks to compel the executrix to deliver to her a bank passbook of an account in the Interest of a Trust Company. It is alleged that such executrix have possession of the passbook, without which the complainant cannot withdraw the fund, and that they have refused to deliver it to her upon demand.

Westchester County Probate Lawyers said the defense answer admits all of the allegations of the complaint except that she 'is entitled to possession of the said bank book' and it also contains certain matter asserted as 'a separate defense and by way of counterclaim.' In that contention it allege the opening of the account by deceased in form in trust for the complainant, as well as the making of the will herein above referred to. They further allege that objections to the probate of the will have been made by certain persons, who would be the intestate distributees of deceased, of whom complainant is not one; that such objections, among other things, challenge her testamentary capacity; that the funds going into the bank deposit set up for her derived from a sale of real property of the deceased, and that no part thereof 'was produced or provided by the complainant;' that the bank account was set up approximately two months prior to the execution of the will; that if such objections to it are sustained the validity of the disposition of the aforesaid bank account likewise will be attacked; that the defense have been presented with adverse claims to the funds represented by such bank account by both complainant and such distributees of deceases, and that they 'cannot determine, without hazard to themselves, the right of the said persons to the said property and are exposed to double liability as the result of such adverse claims.' The defense assert their willingness to deliver the passbook and the fund it represents to whomsoever shall be adjudged entitled to it. They allege that they have impleaded the distributees who make the adverse claims as aforesaid by service upon them of a summons and interpleading complaint, together with a copy of the original summons and complaint served upon them in this action.'

Suffolk County Probate Lawyers said the complainant objects that the aforesaid matter does not constitute a proper counterclaim 'for the reason that it does not raise questions between the said executrix and the complainant herein, along with the interpleaded parties'; also that it does not constitute a legally valid counterclaim against the complainant. The primary test of a counterclaim, of course, is that it must be sufficient to support an independent cause of action against the person or persons against whom it is asserted. This includes 'a plaintiff or a plaintiff and another person or persons alleged to be liable'.

The attacked pleading meets that test. The facts asserted would support an independent action of interpleader as it formerly existed, which is not ousted by the new statutory practice, or an action to determine a disputed claim of title to personal property. The procedure in the form followed under the new (and concurrent) practice governing interpleader is consequently correct. This disposition is without prejudice to any application which complainant may make, if so advised, as to the alleged default in pleading on the part of the interpleaded parties. Motion denied. Settle order on notice.

Stephen Bilkis & Associates, with offices located throughout New York, handle cases of estate administration, will contest, and such other matters relating to probate. Its well trained Kings County Estate Administration Lawyers and its New York Probate Attorneys are willing to give you sound advise or any legal assistance.