Court Hears Petition for Summary Judgment

February 1, 2016,

A New York Estate Lawyer said that, in this probate proceeding, the proponent, one of the decedent's daughters and the sole residuary legatee under the propounded instrument dated March 8, 1983, seeks leave to move for summary judgment more than 120 days after she filed a note of issue. In the event that the first branch of the application is granted, the proponent moves for summary judgment dismissing the objections to probate interposed by one of her sisters and admitting the will to probate. The objectant's papers in opposition only address the proponent's motion for summary judgment.

The issue in this case is whether the motion for summary judgment dismissing the objections to probate should be granted.

A New York Probate Lawyer said that CPLR 3212 (a) application for leave to move for summary judgment may only be granted "on good cause shown." Although the proponent's motion was not filed with the court until more than eight months after the note of issue was filed, the objectant is primarily responsible for the proponent's delay in moving for summary judgment because the objectant requested additional disclosure after the note of issue was filed and then failed to conduct the requested deposition in a timely fashion. Specifically, after the note of issue was filed, the objectant moved to strike it and sought further disclosure. That application was granted to the extent that the objectant was granted leave to conduct a deposition that she requested no later than approximately five months after the date the note of issue was filed. The parties thereafter extended the time to conduct the deposition for a period of approximately two more months. After the objectant's counsel cancelled an agreed-upon deposition date, the proponent's counsel notified him that he would not agree to any further extensions without a court order. The objectant never moved for another extension to conduct the deposition and the instant application was filed approximately one week after a pretrial conference with the court.
Unquestionably, it would have been better practice for the proponent to have moved to extend her time to move for summary judgment prior to expiration of the 120-day period. However, the 120-day rule was promulgated to prevent delaying tactics on the eve of trial to the detriment of the other parties and the court's calendar. Here, if any party is to be faulted for delaying tactics it is the objectant. Accordingly, under the unique circumstances presented in this case, including that it was the objectant who raised the specter of requiring additional disclosure until shortly before the instant application was made and that the proponent did not want to move for summary judgment until the objectant would not be able to rely upon the need for further disclosure as a defense to the motion, the court finds that the proponent demonstrated good cause to grant leave to move for summary judgment after the 120-day period.

A Westchester County Probate Lawyer said the objectant's opposition to the summary judgment motion is primarily based upon events that transpired since the decedent's death on October 7, 1994 at the age of 85. The decedent's distributees are three daughters and two sons. It appears that the sole asset of the estate is the decedent's 25% interest in his home in the Bronx. Prior to his death, the decedent deeded a 25% interest in the house to each of his daughters. After the decedent's death, the objectant commenced an action for partition and sale of the real property against the proponent in the Supreme Court, Bronx County. On June 28, 2005, during an examination before trial in the partition action, the proponent testified that shortly after the decedent's death she found the propounded instrument in a box located in a safe at the decedent's home and she gave it to the attorney-draftsman. Thereafter, on August 17, 2005, the proponent filed the propounded instrument for probate. An affirmation of delay accompanying the probate petition executed by the proponent's attorney indicates that the affiant "was advised" that for years following the decedent's death, there were no conflicts among the decedent's children and, therefore, there was no effort to probate the instrument; however, when such conflicts arose, it became necessary to commence the probate proceeding.

Suffolk Counnty Probate Lawyers said the objections to probate assert that: the decedent lacked the capacity to make the will; at the time of execution, the decedent was subject to duress and undue influence by the proponent; the proponent procured the instrument by fraud; the instrument is improperly executed; and, as the proponent defended the separate partition action and only revealed the existence of the will during her deposition in that action, the proponent is precluded by estoppel and laches from offering the instrument for probate.
In support of the summary judgment motion, the proponent relies upon the affirmation of the attorney-draftsman who served as an attesting witness, the affidavit of the second attesting witness, and the objectant's failure to offer any admissible evidence in support of her objections. In opposition to the motion, the objectant relies upon the affirmation of her attorney and the June 28, 2005 deposition of the proponent in the partition action. The objectant contends that: the proponent is estopped from moving for summary judgment as the proper forum is in the Supreme Court, Bronx County, where the partition action is pending and scheduled for trial; the proponent never adequately explained why it took 10 years to find the propounded instrument and concealed the instrument until the partition action was commenced; the excuse offered by the proponent's attorney in his affirmation of delay accompanying the probate petition is hearsay and, in any event, is undermined by the proponent's deposition testimony in the partition action, to the effect that she found the instrument in a safe in the decedent's home; and there are triable issues of fact relating to her objections.

Summary judgment motions cannot be granted unless it clearly appears that no material issues of fact exist. The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. When the movant has made out a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact. Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial. The papers submitted in the summary judgment application are always scrutinized in a light most favorable to the party opposing the motion.

Where, as here, the attorney-draftsman supervised the will's execution, there is a presumption of regularity that the will was properly executed in all respects. As a result, and even disregarding any hearsay contained in the affirmation of delay submitted by the proponent's attorney, the proponent established a prima facie entitlement to judgment as a matter of law by submitting the instrument, the affirmations of the drafting attorney who also supervised its execution and acted as a witness, and the affidavit of the second attesting witness, demonstrating due execution and testamentary capacity. As the objectant failed to offer any admissible proof to rebut the prima facie case on these issues, the proponent is entitled to summary judgment dismissing the objections alleging lack of testamentary capacity and that the instrument was not executed with the statutory formalities required by EPTL 3-2.1.

The objectant has the burden of proof on the objections alleging undue influence and fraud. As the objectant failed to offer any proof on the issue of undue influence, the proponent is entitled to summary judgment dismissing this objection. Furthermore, as the objectant also failed to produce any proof establishing the classic case of fraud, to wit, that the proponent knowingly made a false statement of fact that caused the decedent to dispose of his property under his will in a different manner than he would have absent the false statement, summary judgment dismissing the objection alleging this type of fraud is also granted.

The objectant correctly notes that the deposition testimony of the proponent establishes that even though she was aware that the will existed shortly after the decedent's death, she waited for more than a decade to produce the will for probate, and that the court may not consider the hearsay statement of the proponent's attorney as evidence explaining the reason why the will was not presented for probate at an earlier date. However, the failure to offer the instrument for probate in a more timely fashion is not, by itself, fatal to the admission of the will to probate. As a probate proceeding is not considered "an action" within the meaning of CPLR article 2, and considering that a surrogate has an obligation to carry out decedent's testamentary wishes regardless of the actions of others, there is no statute of limitations governing the period within which a will may be offered for probate. Moreover, the proponent's substantial delay in offering the propounded instrument for probate is not, by itself, either evidence of fraudulent intent or sufficient to invoke the doctrine of laches or estoppel.

The equitable doctrine of laches may not be used to bar the proponent from proceeding with this probate proceeding merely because of the lapse of time between the decedent's death and the filing of the will for probate. In addition to lapse of time, laches is founded upon the intervention of circumstances during the lapsed time that works to the disadvantage of the party invoking the doctrine, making it unjust to allow the other party to proceed after causing the delay. The objectant has failed to show the existence of intervening circumstances that are prejudicial to her position in this proceeding, such as the death of a witness or the unavailability of other evidence, or that she acted differently than she would have during the lapse of time between the decedent's death and the filing of the will for probate, sufficient to invoke the equitable doctrine of laches against the proponent.

Finally, the objectant's reliance upon the pending Supreme Court partition action to invoke equitable estoppel or collateral estoppel is misplaced. For the court to impose the doctrine of equitable estoppel against the proponent, thereby precluding her from seeking to probate the will, the objectant must show not only that she reasonably believed that the decedent died intestate but also that she changed her position as the result of this belief and, consequently, would now be prejudiced if the proponent were allowed to proceed with the probate proceeding. The objectant has not shown any such change in position or prejudice. It is true that if the decedent died intestate, his 25% interest in the realty would have passed as follows: a 5% interest in the realty to the objectant and a 5% interest to each of her four siblings, including the proponent. Nevertheless, it does not appear that the objectant would have pursued a different course of action with regard to the partition action had she known that her interest in the realty was only 25% instead of 30%. Similarly, although the real property is the subject of both the probate and partition proceedings, the doctrine of collateral estoppel or issue preclusion is clearly not applicable because there is no identity of issues between the two proceedings. The issue in the probate proceeding is the validity of a will, while the issue in the partition action is whether the real property should be sold.

Accordingly, the court held that, for the reasons stated above, there is no merit to any of the objections and the proponent's motion for summary judgment dismissing the objections and admitting the propounded instrument to probate is granted.

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Petitioner Brings Motion Compelling Appearance of Proponent

January 30, 2016,

A New York Estate Lawyer said that, this is a motion for an order directing the proponent, who is decedent's widow, to appear for an examination before trial to enable petitioner to frame objections to the propounded instrument bearing date March 10, 1961, and for other relief. The filing of a petition and service of a citation in a Surrogate's Court proceeding is analogous to the service of a summons and complaint in an action brought in a court of record pursuant to the Civil Practice Act (Surrogate's Court Act, § 48; Matter of Joslin's Estate, 74 Misc. 332, 134 N.Y.S. 229).

A New York Probate Lawyer said the issue in this case is whether petitioner’s motion for an order directing the proponent, to appear for an examination before trial to enable petitioner to frame objections to the propounded instrument bearing date March 10, 1961 should be granted.

Under Article 29 of the Civil Practice Act, § 288 et seq. and the Rules of Civil Practice, a party served with a summons and complaint may be afforded an examination of the complainant or other party in order to frame an answer. Movant, petitioner herein, is one of decedent's distributees named in the propounded instrument, and in the probate petition and the citation served upon her. Movant is in the position of a defendant served with a summons and complaint, while proponent may be compared to a plaintiff in such an action. The fact that a pro forma answer in the nature of a general denial may be filed is no bar to such examination since a defendant may not know at the time whether he wishes to defend at all. The present application is somewhat analogous thereto. The provisions of the Civil Practice Act apply to proceedings in the Surrogate's Court (Surrogate's Court Act, § 316).

Manhattan Probate Lawyers said the Surrogate has incidental powers with respect to 'all matters subject to the cognizance of the court, according to the course and practice of a court having common law jurisdiction of such matters, except as otherwise prescribed by statute'. The Court of Appeals in a decision at page 423, said, 'the powers that are specific shall hereafter be read as being 'in addition to and without limitation or restriction on' the powers that are general.' Surrogate's Court Act, § 20, subd. 11. Section 40 of the Surrogate's Court Act confers jurisdiction upon the Court to administer justice in all matters relating to the affairs of decedents, as to any and all matters necessary to be determined in order to effect complete disposition of the matter.

New York City Probate Lawyers said Section 144 of the Surrogate's Court Act imposes a duty upon the Surrogate to inquire into all the facts and circumstances with respect to the genuineness and validity of a will before admitting it to probate. This duty is imposed upon the Surrogate regardless of whether or not objections have been filed (173 Misc. 766, 19 N.Y.S.2d 13; In re Jones' Will, Sur., 118 N.Y.S.2d 857; In re Will, 21 Misc.2d 402, 196 N.Y.S.2d 816, 820). There is nothing in the statutes which prohibits an examination before trial under the facts and circumstances existing in proceedings before this Court (Matter of Cook, 244 N.Y. 63, 72, 154 N.E. 823, 826, 55 A.L.R. 806;. The movant may file objections to the probate of the propounded instrument at or before the close of testimony taken before the Surrogate (Matter of the decedent’s Will, 138 Misc. 853, 855, 247 N.Y.S. 514, 516).

The Court determines that special circumstances are present in these proceedings which warrant an examination before trial of the proponent in aid of the Court's responsibility under section 144 of the Surrogate's Court Act. The motion is granted in the Court's discretion in all respects. The proponent will be directed to appear for examination upon the date to be fixed in the order and to produce all papers in her possession for use upon such examination (Civ.Prac.Act, § 288 et seq.). Settle order on notice.

If you have issue regarding the probate of a will, you will need the expertise of a Kings Estate Litigation Attorney and Kings Estate Administration Attorney at Stephen Bilkis and Associates.

Court Decides Status of Unwitnessed Holographic Will

January 28, 2016,

A New York Estate Lawyer said that, the petitioner, a sister of the testator, presents an unwitnessed holographic instrument executed January 9, 1968 ('January instrument') and also a duly executed instrument (which has been proved as a will) dated February 20, 1968 ('February will'). The January holographic instrument necessarily must be denied probate. It was executed in New York; the decedent was not a member of the armed forces; it is unwitnessed. (EPTL 3--2.2, 3--2.1.) As already noted the February will has been duly proved.

A New York Probate Lawyer said that, the January instrument disposes 'of my entire personal estate' to petitioner. The February will provides: 'FIRST: I ratify and confirm all wills heretofore made by me at any time in every respect, except insofar as the same is inconsistent with the provisions of this codicil. SECOND: I direct that any monies realized from any and all Stocks and Bonds in my name be divided equally between: (listing three brothers and his sister).'
The petition presents an issue under the doctrine of 'incorporation by reference' as applied to wills. (see Law Revision Commission Report (1935) p. 431 et seq.; 1963 Report Bennett Comm.; Rept. No. 6.1B pp. 286--350.)

A Brooklyn Probate Lawyer said we put aside quickly the 'doctrine of revivor' which is now statutory (EPTL 3--4.6). Under that doctrine a duly executed codicil may revive a previously revoked will. But the revived will must itself have been duly executed. A will which was not duly executed can never be 'revived' by a later codicil or will. Nor at this stage is it necessary to determine whether the February will disposes of all the testator's property. We consider only the doctrine of incorporation by reference. Does the duly executed February will incorporate by reference the January instrument not as a will but as an extraneous existing paper writing of testator? For reasons quickly apparent an exhaustive discussion of the doctrine is unnecessary on the facts of this case.

Bronx Probate Lawyers said the rule in the majority of states recognizes the doctrine. The majority rule is thus described in 57 Am.Jur., Wills § 233, p. 194: 'a will, duly executed and witnessed according to statutory requirements, may incorporate into itself by an appropriate reference a written paper or document which is in existence at the time of the execution of the will, irrespective of whether such document is one executed by the testator or a third person, whether it is executed and attested as a will, Or whether it is in and of itself a valid instrument, provided the document referred to is identified by clear and satisfactory proof.' (Emphasis supplied.)

Under the majority rule there are two basic requirements. First, the extraneous writing must be in existence at the time of execution of the will. If reference is made in the will to a writing to be executed in the future, the doctrine of incorporation by reference does not apply. The future writing would in effect be a dispositive instrument not executed in conformity with the statute of wills. New York cases also disregard such post-will extraneous writings.

Parenthetically in the above regard, it is observed that the incorporation by reference of extraneous writings doctrine should be distinguished from the doctrine of revocation, abatement or ademption of dispositions by extraneous writings. A corporate stockholders' agreement or a transfer of a Totten trust account (may cause the revocation, ad emption or abatement of a disposition in a will. Such extraneous writings are not testamentary dispositions.

Second, the will must make reference to the specific extraneous existing writing--general reference will not suffice. Thus the reference in the February will--'I ratify and confirm all wills heretofore made' is not a sufficiently specific reference to the January writing to qualify for incorporation even under the majority rule. New York has never fully accepted the majority rule although prior to 1881 it was recognized to a limited extent. See 1935 Report of the New York Law Revision Commission pp. 432--438 and cases cited. The leading case, states the general rule in New York: 'It is unquestionably the law of this state that an unattested paper, which is of a testamentary nature, cannot be taken as a part of the will even though referred to by that instrument.'

The basis for the rule is clear. The same awareness of the possibility of fraud which caused the legislature to surround the execution of a will with prescribed formalities is manifested by the judicial distrust of extraneous existing writings not so executed. However, not all extraneous writings are to be distrusted. Some are executed with safeguards equal to those surrounding wills. Several exceptions have therefore developed to the general rule excluding incorporation of extraneous writings. Some exceptions are apparent rather than real. Others have developed by judicial decision later sanctioned by statutory enactments.

The Apparent exceptions permit incorporation by reference of paper writings not truly dispositive in nature. For example a schedule of assets attached to the will after the subscription, is not dispositive but merely descriptive, if the will itself adequately disposes of such assets. Also an extraneous writing may be admissible in evidence in certain circumstances to either explain an ambiguity in the will or to identify the property or the beneficiaries intended by a disposition. This latter is an apparent rather than a real exception since the writing is not itself dispositive in nature. Two of Judge's early opinions carve out real exceptions to the doctrine of incorporation by reference. Under both exceptions, it will be noted ample safeguards against fraud existed.

The first of the decisions was Matter of Fowles, 222 N.Y. 222, 118 N.E. 611. There testator incorporated by reference provisions of his wife's will simultaneously executed. A will is of course ambulatory in nature, and the wife might have changed her will either before or after her husband's death. In Fowles however there had been no change so that issue was not before the Court. The Judge said (pp. 232--233, 118 N.E. p. 613): ' The rule against incorporation has not been set aside. It has been kept within bounds which were believed to be wise and just. The rule is sometimes spoken of as if its content had been defined by statute, as if the prohibition were direct and express, and not inferential and implied. But the truth is that it is the product of judicial construction. Its form and limits are malleable and uncertain. We must shape them in the light of its origin and purpose. All that the statute says is that a will must be signed, published and attested in a certain way (Decedent Estate Law, § 21; Consol.Laws, ch. 13). From this the consequence is deduced that the testator's purpose must be gathered from the will, and not from other documents which lack the prescribed marks of authenticity. It is a rule designed as a safeguard against fraud and mistake. In the nature of things, there must be exceptions to its apparent generality. Some reference to matters extrinsic is inevitable. Words are symbols and we must compare them with things and persons and events. It is a question of degree. Sometimes the distinction is said to be between documents which express the gift and documents which identify it. But the two classes of cases run into each other by almost imperceptible gradations. One may ratify assumptions of power, extinguish debts, wipe out wrongs, and confirm rights, by the directions of one's will (Bizzey v. Flight, L.R. 3 Ch.Div. 269; 1 Jarman on Wills, 99). In these and other cases, the expressions of the gift and the description of its subject-matter must often coalesce. No general formula can tell us in advance where the line of division is to be drawn.

It is plain, therefore, that we are not to press the rule against incorporation to 'a drily logical extreme'. We must look in each case to the substance. We must consider the reason of the rule, and the evils which it aims to remedy. But as soon as we apply that test, the problem solves itself. There is here no opportunity for fraud or mistake. There is no chance of foisting upon this testator a document which fails to declare his purpose. He has not limited his wife to any particular will. Once identify the document as her will; it then becomes his own.'
The problem of incorporating by reference a writing as ambulatory as another's will is discussed obliquely in Matter of Hull, 37 A.D.2d 325, 325 N.Y.S.2d 340. In that case however a contract prevented or rather would make ineffective any future change in the incorporated will. It is observed however that nothing prevents a testator from incorporating a will or a disposition in a will as now written or from specifically authorizing incorporation of any future desires of the other testator. This is what was done by statute with another real exception carved out by Judge Cardozo.

Matter of Rausch, 258 N.Y. 327, 179 N.E. 755, concerned a direction by testator to pour-over into an existing irrevocable and nonamendatory Inter vivos trust part of his residuary estate. It is one thing, said Judge Cardozo, to hold that a testator may not import into his will an unattested writing of his dispositions and another thing to hold that he may not effectively enlarge the subject matter of an existing Inter vivos trust by reference to that extraneous instrument. This is a real exception to the doctrine of incorporation by reference of extraneous writings. It is logical however because the execution of trust instruments is customarily surrounded by ample safeguards. See also Matter of Warburg, 38 Misc.2d 997, 237 N.Y.S.2d 557; Matter of Hammer, 33 Misc.2d 674, 224 N.Y.S.2d 717; Anno. 12 A.L.R.3d 56.
The pour-over authorization is not statutory (EPTL 3--3.7). The statute provides that when the Inter vivos trust is revocable or amendable, the testator may direct that his disposition shall be effective in accordance with the terms of the trust as it exists at the time of his death or authorize as well future amendments after his death.

A third real exception is also provided by statute. EPTL 13--3.3 authorizes the creation by will of a life insurance trust by reference in the will to the provisions of an existing insurance policy. No doubt there shall be created other exceptions in the future by decision or statute.
In the instant case, the January writing cannot be incorporated by reference into the February will. It is an extraneous writing dispositive in nature and not within any of the exceptions apparent or real.

Accordingly, the court held that the holographic January instrument is denied probate. It is to be given no legal effect. The February will, having been duly proved, shall be admitted to probate as an independent instrument. Petitioner shall be appointed administratrix C.t.a. upon qualifying according to law.

The 'doctrine of revivor' states that a duly executed codicil may revive a previously revoked will. But the revived will must itself have been duly executed. A will which was not duly executed can never be 'revived' by a later codicil or will. If you want to question the legality of a holographic will, seek the help of a Kings Probate Attorney and Kings Will Contest Attorney. Call us at Stephen Bilkis and Associates for legal assistance.

Petitioner Asks for Interpretation of Residuary Clause

January 24, 2016,

A New York Estate Lawyer said that, the residuary clause of the will of the decedent dated December 2, 1999, which was admitted to probate on August 16, 2001, reads as follows: "All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and whosesoever the same may be situate." There is no more. The name of the intended beneficiary of the residuary is missing. As a practical matter, the residuary clause amounts to only 10% of the estate, since the will made pre-residuary bequests of 90% of the net estate.

A Kings Estate Litigation Lawyer said that, the executrix of the will, has petitioned for construction of the will by reading the residuary clause to be the same as decedent's prior will dated June 18, 1997. The residuary clause of the 1997 will provided: "All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and whosesoever the same may be situate I give, devise and bequeath to my nephew, per stirpes. In the event that my nephew, does not survive me, his share shall go to his wife."

A New York Probate Lawyer said in fact, the decedent’s nephew died on November 25, 2000, without issue and the decedent died on November 30, 2000. The persons who would take the decedent's estate in intestacy are a niece, and a great nephew. The decedent’s niece has filed a consent to the relief requested in the petition for construction. The decedent’s nephew defaulted in appearing on the return day of the proceeding. The attorney-draftsperson of the will, has filed an affidavit stating that when the 1997 will was redrafted in 1999, using computer software "some lines from the residuary clause were accidentally deleted."

Obviously a mistake has been made. Nassau County Probate Lawyers said the question presented is whether the mistake can be corrected. For the reasons set forth below, we hold that the testator intended the residuary beneficiary to be the wife of decedent's nephew, and that her name should be inserted into the will.

The difficulty in this case is that there is a line of cases holding that where the name of the beneficiary is missing it cannot be supplied by construction or reformation of the will. In other words, the court cannot supply missing names to correct a mistake, whether of the draftsperson of the will or the testator. There is also another line of cases that hold that extrinsic evidence cannot be admitted unless there is an ambiguity in the will. If extrinsic evidence is not admitted, the prior wills of testatrix cannot be considered, nor the affidavit of the attorney-draftsperson.

Of course, the paramount objective in interpreting a will is to determine the intention of the testator from a reading of the whole will. Furthermore, the testator is presumed to intend to avoid intestacy otherwise he or she would not have bothered to make a will. Even more "The presumption against intestacy is particularly weighty where the subject of the gift is the residuary estate." The Court then quotes Matter of Hayes (263 NY 219, 225, rearg denied 264 NY 459) and says: "The idea of any one deliberately purposing to die testate as to a portion of his estate, and intestate as to another portion, is so unusual, in the history of testamentary dispositions, as to justify almost any construction to escape from it."

A Staten Island Probate Lawyer said thus we have a conflict between two long-standing policies of the law of wills. On the one hand the court is not supposed to supply what the testator has not, through extrinsic evidence or otherwise. On the other hand, the primary objective is to ascertain the intention of the testator in order to avoid intestacy. If we follow the first line of precedent, the fact that no one is named in the residuary clause of the decedent’s will would mean no residuary beneficiary exists and the residue passes by intestacy to her heirs at law. The second line of precedent would lead to the conclusion that anything possible should be done to avoid intestacy and carry out the testator's intent which would mean considering the extrinsic evidence pointing to the decedent nephew’s wife as the intended residuary beneficiary after the death of her husband.

As is often the case, Chief Judge indicated the path to follow when he said: "One principle or precedent, pushed to the limit of its logic, may point to one conclusion; another principle or precedent, followed with like logic, may point with equal certainty to another. In this conflict, we must choose between the two paths, selecting one or other, or perhaps striking out upon a third, which will be the resultant of the two forces in combination, or will represent the mean between extremes." Actually, the law has started to move away from the rigid rule of the line of cases and toward the principle of considering all available evidence, including any available extrinsic evidence, to effectuate the intent of the testator.

Restatement (Third) of Property (Tentative Draft No. 1 [Donative Transfers]) § 12.1 provides: "A donative document, thought unambiguous, may be reformed to conform the text to the donor's intention if the following are established by clear and convincing evidence: (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor's intention was." "There would be no restriction as to the kind of evidence that could be considered for this purpose; the oral statements of the testator and the attorney who drafted the instrument would be admissible. The theory of this approach is that the testator's intention is better served and unjust enrichment of unintended legatees prevented, while the fraud-preventing purpose of the Statute of Wills is accomplished by requiring clear and convincing proof of the necessary elements."

Thus, the restatement provides for considering any evidence of testator's intent, but raising the standard of proof from a preponderance of the evidence to clear and convincing evidence. In actuality, the New York courts have already moved in this direction. In Matter of Snide (52 NY2d 193 [1981]) the decedent and his wife each signed the other's will. The Court of Appeals held that the decedent's will should be admitted to probate with the mistake corrected by reading both wills together and substituting the wife's name into the decedent's will wherever necessary, as if the decedent had signed the correct will.

Other cases have held that language missing from a will due to typographical or other error can be supplied to carry out the testator's intent. In Hahn, the court stated "It is well established that when errors in draftsmanship have occurred, courts may add, excise, modify or transpose language or provisions of the instrument to harmonize it with and to effectuate the testator's intent." (Accord, Matter of Martin, 146 Misc 2d 144 [Sur Ct, NY County 1989]; Matter of Lepore, 128 Misc 2d 250 [Sur Ct, Kings County 1985].)

Similarly, a number of cases have held that where the name of the beneficiary is wrong and extrinsic evidence establishes who was really intended to be the beneficiary, the court will order the correction. In Matter of Tracey (NYLJ, Mar. 11, 1996, at 33, col 1 [Sur Ct, Suffolk County]), the attorney-draftsperson submitted an affirmation that through scrivener's error the name of decedent's sister-in-law, Adelaide Berard, was included in the will and not that of the intended beneficiary, the decedent's niece, Adelaide Battipede. The court construed the will accordingly. Likewise, in Matter of Righi (NYLJ, July 22, 1996, at 29, col 3 [Sur Ct, Suffolk County]), a bequest to a sister, Anne Cavanagh, was substituted for the beneficiary actually named in the will, a niece, Catherine Cavanagh. (Accord, Matter of Migden, NYLJ, May 23, 1995, at 27, col 4 [Sur Ct, Bronx County].)

It is a significant step beyond the cases just cited to say that not only can omitted language be added and the name of a beneficiary be corrected, but also that the name left out of the will can be added to the provisions of the will. Nevertheless, it seems logical to this court to choose the path of considering all available evidence as recommended by the Restatement in order to achieve the dominant purpose of carrying out the intention of the testator.

In this case, the court is persuaded that the evidence is clear and convincing that the decedent nephew’s wife is the intended beneficiary of the residuary of the estate of the decedent. As stated above, the previous 1997 will provides for the residuary to pass to decedent's nephew, if he survives me, and if not to his wife. Additionally, two other prior wills dated October 1, 1992 and August 6, 1990 contain an identical residuary clause. This supports the contention of the petition that the identical residuary clause was intended to be included in the 1999 will admitted to probate. Equally convincing is the fact that the decedent nephew’s wife was named the alternate executrix in the will admitted to probate in the event of the death of her husband. The testatrix had sufficient confidence in the nephew’s wife to name her as executrix in the event, which actually happened, of her husband, Sergio, predeceasing the testatrix. This demonstrates that she had not fallen out of favor with the testatrix and been deliberately removed from the residuary. The consent by the niece of the testatrix, and one of the persons who would take in intestacy confirms this saying "I acknowledge that the omission of the name of the residuary was a typographical error, and my aunt continued to have the decedent’s nephew, or his wife, if he was deceased, as the residuary beneficiary." Further confirmation comes from the attorney-draftsperson's affidavit which states "the decedent express intention was to continue the remainder of her property distribution as it was in the previous will."
This conclusion is buttressed by the presumption against intestacy as set forth in Bieley and Hayes. The decedent disposed of 90% of her estate in various percentage bequests. As the Court of Appeals said in Matter of Hayes (supra), almost any construction is justified to avoid the unusual result of the testatrix dying intestate as to the 10% of her estate remaining for the residuary. It is equally illogical to think the attorney-draftsperson put into the will the standard language for a residuary disposition and then deliberately left out the name of the beneficiary. Rather, what makes sense is to construe the will to add the missing provision by inserting the names of the residuary beneficiaries from the prior will. (Matter of Dorson, supra; Matter of Hahn, supra.)

Accordingly, the court held that the residuary clause, paragraph Eighth, of the will of the decedent is construed to insert the name of the decedent nephew’s wife as the beneficiary (her husband, having predeceased).

The rule is that, the testator is presumed to intend to avoid intestacy otherwise he or she would not have bothered to make a will. Even more "The presumption against intestacy is particularly weighty where the subject of the gift is the residuary estate." If you are involved in a similar probate proceeding, seek the help of a Kings Estate Attorney and Kings Will Contest Attorney at Stephen Bilkis and Associates.

Court Hears Proceeding to Declare Living Trust Invalid

January 22, 2016,

A New York Estate Lawyer said that, there are three proceedings pending in the estate of the decedent: (1) a miscellaneous proceeding to declare the decedent Living Trust dated March 19, 2001 invalid; (2) a proceeding to probate an instrument dated March 19, 2001 as the decedent's last will and testament; and (3) a proceeding by the trustee of the decedent Living Trust dated March 19, 2001, to judicially settle his account for the period from March 19, 2001 to May 9, 2007. On July 1, 2010, the court appointed a guardian ad litem for one of the decedent's daughters, in all three proceedings.

A New York Probate Lawyer said that, the decedent died on May 9, 2007, survived by four distributees: two daughters; a son; and a granddaughter, the only child of the decedent’s predeceased son. The propounded will pours over to the living trust. The living trust provides only for the son, specifically omits the two daughters, and does not mention the granddaughter.
A Kings Estate Litigation Lawyer said that, the guardian ad litem has filed a preliminary report in which he details his findings to date and, based upon them, recommends that he continue to represent his ward's interests in all three proceedings. The guardian ad litem reports that one of the daughters has alleged that the decedent’s son exerted undue influence and fraud upon the decedent at a time when he was physically ill and depressed. The guardian ad litem states that, based on his investigation, he deems it appropriate to participate in the SCPA 1404 examinations in the probate proceeding and to continue to represent his ward's interests in all three proceedings. The court agrees with his conclusions.

A Westchester County Probate Lawyer said the guardian ad litem has asked the court to award an interim fee for the services he provided through the filing of his preliminary report. The court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. This applies to the fee of a guardian ad litem.

A Suffolk County Probate Lawyer said that while there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily. In evaluating the cost of legal services, the court may consider a number of factors. These include the time spent; the complexity of the questions involved; the nature of the services provided; the amount and complexity of litigation required; the amounts involved and the benefit resulting from the execution of such services; the lawyer's experience and reputation; and the customary fee charged by the Bar for similar services.

In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts (241 NY 593 [1925]), as re-enunciated in Matter of Freeman (34 NY2d 1 [1974]). Also, the legal fee must bear a reasonable relationship to the size of the estate and to the interest of the ward of the guardian ad litem. Moreover, it is well-settled that time spent is, in fact, the least important factor considered by a court in fixing reasonable compensation.

A sizeable estate permits adequate compensation, but nothing beyond that. A large estate does not, by itself, justify a large fee. Further, the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are important to the court in the determining whether the amount of time spent was reasonable for the various tasks performed. The guardian ad litem is entitled to a fee for his or her services rendered (SCPA 405). The nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee. Normally, the fee of a guardian ad litem is an administration expense of an estate and is paid from estate assets.

The guardian ad litem has filed an affirmation of legal services in which he states that he dedicated 12 hours of time to these proceedings. His time included reviewing the three court files, meeting with one of the parties, communicating with the other parties' attorneys, preparing correspondence, locating the witnesses to the propounded will, and preparing his preliminary report. The guardian ad litem, who is an experienced attorney, informs the court that his usual hourly billing rate is $350.00. Based on the criteria set forth above, the court fixes the guardian ad litem's fee at $4,200.00, said fee to be paid within 30 days of entry of the decree of probate. This decision constitutes the order of the court.

The rule is that, a sizeable estate permits adequate compensation, but nothing beyond that. A large estate does not, by itself, justify a large fee. If you have concerns regarding the estate administration, seek the help of a Kings Probate Attorney and Kings Estate Litigation Attorney at Stephen Bilkis and Associates.

Petitoner Moves for Judgment

January 20, 2016,

A New York Estate Lawyer said that, defendant moves for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs' complaint fails to state a cause of action. The complaint alleges that plaintiffs are sons of the decedent, there is no indication that they are the only children, and that decedent prior to her death employed the defendant, an attorney, to prepare a will for her execution. It is claimed that decedent directed the defendant to provide for a residuary clause naming plaintiffs as legatees thereof. The decedent could neither read nor write English and she executed the will relying, it is claimed, on defendant's representation that the residuary clause had been prepared as directed whereas, in fact, the residuary clause was omitted from the will. Although decedent has been dead since January 30, 1961, there is no allegation that the purported will has been admitted to or offered for probate. No copy of the purported will is attached to the complaint nor are any of its provisions pleaded so that the court may know what provisions, if any, were made for the plaintiffs in the purported will. No allegation is made as to the identity of the decedent's heirs-at-law who would succeed to the residuary estate in the absence of a provision for the disposition thereof in the will.

A New York Probate Lawyer said the issue in this case is whether defendant’s motion for judgment on the pleadings pursuant to Section 476 of the Civil Practice Act on the ground that plaintiffs' complaint fails to state a cause of action should be granted.

A Brooklyn Probate Lawyer said the plaintiffs urge the sufficiency of their complaint on the basis of two California cases. They claim that Goldberg v. Bosworth, 29 Misc.2d 1057, 215 N.Y.S.2d 849 (Special Term, Supreme Court, Kings County, 1961) follows the California decisions. In the Biakanja case, a will was denied probate because the defendant who drew it, a notary public, not an attorney, notarized the will instead of having it subscribed by attesting witnesses. The plaintiff was the sole legatee named in the will and by reason of the denial of probate resulting solely from defendant's action, he received one-eighth of the estate instead of all of it. The defendant was held liable. In the Lucas case, the defendant attorney in attempting to create a testamentary trust violated the rule against perpetuities and the trust was held invalid. The beneficiaries thereof brought suit. The court sustained the complaint on the theory that the beneficiaries, although not in privity with the defendant attorney, were the primary objects of testator's bounty and thus the express beneficiaries of the agreement between the testator and defendant attorney for the execution of the will.

The New York case, Goldberg v. Bosworth, supra, cannot be considered as controlling herein. Special Term dismissed the complaint brought against an attorney who had a devisee sign as a subscribing witness which defeated the devise. Two causes of action each in negligence were dismissed because of the statute of limitations and the third cause of action was for fraud which was not properly pleaded. There was no determination made as to the sufficiency of the complaint which alleged negligence on the part of the defendant.

Bronx Probate Lawyer said New York authorities do not extend liability to an attorney whose negligence may bring harm to a third party with whom he has no privity provided the charge is simple negligence. An attorney is not liable to a third party for acts performed in good faith and mere negligence on the part of the attorney is insufficient to give a cause of action to the injured third party. He is liable to a third party only when he is guilty of fraud or collusion or of a malicious or tortious act.

There is, in the court's opinion, no reason to extend the liability of an attorney as presently defined under the New York rule and since the complaint makes no allegation of fraud, collusion or of a malicious or tortious act, the complaint cannot be sustained. In addition, as previously pointed out, until the will is admitted to probate no damages can result to persons who claim that the probated will would have contained certain provisions for their benefit were it not for the fault of another.

Accordingly, the court held that the motion is granted.

If a complaint fails to state a cause of action, seek the help of a Kings Estate Attorney and Kings Probate Attorney at Stephen Bilkis and Associates.

Petitioner Claims She is Entitled to Decedent's Net Estate and Letters Testamentary

January 18, 2016,

A New York Estate Lawyer said that, in this probate proceeding petitioner claims that under the terms of the propounded instrument she is entitled to decedent's net estate and to letters testamentary. The respondents have appeared and filed their consent to probate the instrument, but dispute petitioner's claim. A construction is requested to determine whether the provisions of paragraph 'Fourth' are operative and dispose of decedent's estate.

A New York Probate Lawyer said that, the instrument is a joint and mutual will of decedent, and her husband. He died first, on April 30, 1958, leaving only jointly owned property, and his will was therefore not probated. She died on December 13, 1958 leaving personal property. By said will each devised and bequeathed to the survivor the entire net estate, but made no alternative disposition in the event he or she predeceased, except as set forth in paragraph 'Fourth' of the will. It is therein provided that in the event the deaths of both of them would occur 'simultaneously or approximately so, or as a result of a common accident or calamity, or under circumstances causing doubt as to which of us survived the other,' then the entire net estate was devised and bequeathed to the sister of the decedent herein, and in identical eventualities nominated and appointed her executrix 'of this our joint and mutual will and testament.'

A Queens Probate Lawyer said that, in another case, this is an application for limited letters of temporary administration. Decedent executed a will in Ireland which was witnessed by the manager for the United States Lines in Ireland and the American Consul in Cork. Beside a small bequest to a friend, the entire residuary is bequeathed to petitioner described as decedent's granddaughter. The will does not name an executor. The granddaughter petitions for probate of the will and for letters of administration c. t. a. She makes this motion for limited letters of temporary administration so that she can commence an action against the United States Lines before the statute of limitations runs out. This motion is opposed by Agnes Schmidt, one of two sisters who are distributees of decedent, on the ground that the wrongful death suit is 'exclusively for the benefit of the decedent's wife, husband, parent, child or dependent relative.' She argues that petitioner is none of these and that under section 118 of the Surrogate's Court Act, letters should issue to a distributee, namely, herself, so that she might bring the action against the steamship line.

A Long Island Probate Lawyer there is no claim that the deaths of husband and wife were the result of or caused by any of the eventualities specifically provided for, nor, as stated, does the will name any devisee or legatee substituting the predeceased husband. The propounded instrument having been validly executed must be admitted to probate. The conditions for the alternate disposition of decedent's property not have eventuated, since her husband predeceased her, the result is that the property must be distributed as in intestacy.
The petitioner is not entitled to letters testamentary. Her designation as alternate executrix under subdivision 'b' of paragraph 'Fourth' of the will was to be effective only in the event decedent's death occurred under the circumstances set forth in subdivision 'a' thereof. Since decedent did not die under such circumstances the alternate appointment of petitioner as executrix fails. However, as a distributee petitioner is entitled to appointment as administratrix with the will annexed under subd. 3, Section 133, Surrogate's Court Act, the respondents being non-resident aliens. Letters will issue to her upon qualifying according to law. Settle decree on notice.

The applicable federal statute provides that the action shall be maintained by the personal representative of the decedent (Title 46, Sec. 761, U.S.C.A.). Since it appears that the will of decedent is uncontested and that on its probate petitioner would be entitled to letters of administration c. t. a. as the sole residuary legatee (Surrogate's Ct. Act, § 133, subd. 2) and would be the person authorized under the federal statute to prosecute the action, the Court will appoint her Temporary Administratrix under Limited Letters, upon qualifying according to law. Upon the will being admitted to probate, the Temporary Letters will be revoked and letters of administration c. t. a. will issue to petitioner. Settle decree on notice.

If you want to contest validity of a will under probate, seek the help of a Kings Will Contest Attorney and Kings Estate Litigation Attorney at Stephen Bilkis and Associates.

Petitioner Brings Hearing to Compel the Production of Wills

January 16, 2016,

A New York Estate Lawyer said that, in these two proceedings to compel the production of the wills of the decedent, the children of the decedent, who are also the stepchildren of the testator, ask the court to seal the documents which have been produced by the respondent. By petitions dated July 25, 2008, petitioners sought to compel the New York City Police Department (NYPD) to produce documents in their possession purporting to be the wills of the testators. Pursuant to SCPA 1401, the court directed the NYPD to produce any documents in their possession purporting to be the decedents' wills in court on August 12, 2008.

A New York Probate Lawyer said that, on August 12, 2008, counsel for the petitioners, counsel for the testator’s parents, and counsel for the NYPD appeared in court. The NYPD complied with the order and turned over the documents to the court. Asserting that matters contained in the documents may cause embarrassment to the decedents and their families, the petitioners, joined by the testator’s parents and the NYPD, made an oral application to seal the documents. The court declined to entertain the oral application and instead provided the petitioners, and the testator’s parents, as well as the NYPD, with an opportunity to submit their written application by August 14, 2008. In the interim, the court has maintained the relevant documents in chambers. The petitioners submitted their written application, while the testator’s parents and the NYPD did not.

Nassau County Probate Lawyers said the issue in this case is whether the NYPD can be compelled to produce the documents in their possession purporting to be the wills of the testators.

Public access to the courts is a hallmark of our system of adjudicating disputes and is "rooted in our distrust for secret tribunals." By secreting the proceedings before it, a court removes "the bright light cast upon the judicial process by public observation which diminishes the possibilities for injustice, incompetence, perjury, and fraud." Accordingly, applications to seal court records will only be granted where an overriding compelling interest is demonstrated.
In determining whether to seal records, courts are bound by the provisions of section 216.1 of the Uniform Rules for Trial Courts. (22 NYCRR 216.1.) That rule states: "Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard." (22 NYCRR 216.1 [a].)

Staten Island Probate Lawyers said that in determining whether good cause has been demonstrated, courts must weigh the interests of the public against the interests of the parties. In support of the applications in both estates, neither the testator’s parents nor the decedent’s children submitted an affidavit. Instead, counsel for petitioner submitted an affirmation alleging "the contents of the documents contain information which is potentially embarrassing to the memory of the decedent and his family." Also annexed to the application is an affirmation from counsel for the NYPD which contains the conclusory and hearsay allegation that counsel spoke with a detective who expressed concern that not sealing the documents "may serve to impede the investigation." However, although the NYPD was specifically advised that if it had an interest in sealing the records, the NYPD would have to apply for a sealing order and was provided an opportunity to do so, the NYPD has submitted no such application.

In support of their contention that court records may be sealed if matters contained therein are deemed embarrassing. In that case, which was decided in the context of a wrongful death compromise, the decedent's parents requested that the court seal the file because it contained the decedent's medical records. They alleged the medical records contained anecdotal notations which could be embarrassing to the decedent's memory and to his family. The parents' application was joined by the defendants in the wrongful death proceeding because the defendants wished to keep their settlement a secret. The court sealed the file, finding that the privacy interests with regard to the medical records and the court's policy to encourage settlement of cases outweighed the rights of the public to have access to the file. Matter of R.R. is inapplicable to the instant case. The privacy of medical records traditionally has been paramount to other interests, and the need for privacy with relation to such records has been recognized by both state and federal legislatures. In examining the documents submitted in this case, the court finds no information which would require the privacy afforded to medical records.*

The applicants also cite a 1993 case decision to support their application. In Twentieth Century, the Appellate Division reversed the lower court's ruling to grant the public access to the proceedings involving the approval of an employment agreement between a motion picture studio and an actor who was a minor. This case, too, is inapplicable. The reasoning in Twentieth Century is grounded in the long established practice of courts to keep private information relating to infants—"in matters involving the protection of an infant, we find that [the public interest] is not sufficient to overcome the compelling arguments made in favor of preserving the privacy of the parties, particularly the infant." Additionally, the court in Twentieth Century also considered a court's responsibility to protect the interests of the infant by virtue of Arts and Cultural Affairs Law § 35.03, which allows an infant to enter into binding and beneficial contracts with the approval of a court. The record in this case makes no such compelling argument for sealing. In fact, as noted earlier, no affidavit was submitted from any individual who may potentially be affected by the disclosure of the records herein.

When the parties were before the court on August 12, 2008, they expressed a need to keep these proceedings private from the press who have already published details regarding the tragic deaths of the testators. The court is cognizant that "widespread public awareness kindled by media saturation does not legitimize mere curiosity." However, this application does not merely raise concern regarding the general public's access to the records. In proceedings involving purported wills, there may be persons other than distributees who are interested in the provisions of a will. The court is reluctant to limit access to purported wills, because to do so would necessarily impede the rights of legatees who may wish to pursue their rights under a decedent's testamentary plan. The legislature's concern that distributees not impede the rights of legatees is evident from such enactments as SCPA 1003 (5). That section requires that in proceedings to appoint an administrator in situations where a purported will is on file with the court, all those who may be interested in the will are entitled to process. To seal the records on the request of distributees would prevent possible legatees from assessing their rights and would set a precedent not warranted under the facts here. Furthermore, probate and administration cases are necessarily not private matters and usually involve multiple parties. Sealing these records, in effect would also seal the records for all parties involved in any future accounting or miscellaneous proceedings before the court in these estates. Although petitioners' counsel states they will not seek to probate the purported wills, in a proceeding for administration in lieu of probate, the legatees and devisees must be cited. (SCPA 1003 [5].) Even if the legatees waive the right to be cited, they must have received a copy of or have examined the will for the waiver to be effective.

Additionally, wills do more than dispose of assets. For some persons, wills contain their final thoughts regarding their lives and their relations with others. Accordingly, the court must also balance the desire of the deceased to have his or her final sentiments be known. In the instant case, the decedents were attorneys who were no doubt aware that wills are not effective unless they are granted probate by a Surrogate's Court and that court files are open to the public.
Conclusory claims of the need for confidentiality of settlement agreements are insufficient to seal a record and the mere fact that embarrassing allegations may be made even if ultimately found to be without merit, is not a sufficient basis for a sealing order." The finding of good cause required by section 216.1 "presupposes that public access to the documents at issue will likely result in harm to a compelling interest of the movant." Here, the applicants have failed to cite any compelling interest that would be harmed if the public were given access to the documents produced in this matter.

Accordingly, the application to seal the documents is denied. However, the court will keep the records in chambers for one week to allow the parties, if they wish, to apply for an order from the Appellate Division with regard to the sealing of these records.

If you are facing the same situation in the case at bar, seek the legal assistance of a Kings Estate Litigation Attorney and Kings Estate Attorney at Stephen Bilkis and Associates.

Objectant Pro Se Moves for Order Granting Trial By Jury

January 14, 2016,

A New York Estate Lawyer said that, in this contested probate proceeding, objectant pro se, moves for an order granting her a trial by jury. The proceeding was commenced by petitioner on December 15, 2005. Respondent filed objections to probate on August 3, 2006.The decedent died testate on October 24, 2005. Petitioner is decedent's sister; she is a distributee, as well as the nominated executor and residuary beneficiary under the propounded instrument dated May 11, 1974. Respondent is a distributee; she is a daughter of one of the decedent's pre-deceased brothers. She does not receive anything under the propounded instrument.

A New York Probate Lawyer said that respondent asserts that she verbally requested a jury trial at conferences before two different court attorney-referees and was "told that the conference would be first."1 She contends that she was not informed that a jury demand had to be in writing, although she also states her belief that she "signed for this." Had Katherine advised the court that she wanted a jury trial, she would have been advised to file a jury demand.
The issue in this case is whether respondent’s motion for an order granting her a trial by jury should be granted.

Westchester County Probate Lawyers said the court said that under SCPA 502 (2)(a) states that "each respondent demanding a jury trial must do so in his answer or objections." It is on this basis that petitioner opposes respondent’s request. Her attorney also refutes Katherine's assertion that she verbally requested a jury trial. Petitioner’s attorney states that the "only discussion about a jury trial was raised at a court conference on February 8, 2008." He states that prior to that date, respondent had insisted the matter be heard by the judge. Petitioner’s attorney also asserts that respondent’s actions have delayed the proceeding and prejudiced the estate.

Suffolk County Probate Lawyers said a party who fails to timely demand a jury trial is deemed to have waived the right. However, the court has the discretion to relieve the party from the waiver and allow the filing of a late jury demand if it does not cause undue prejudice to the other parties, if the delay is a short one. Here, the delay is a lengthy one, eighteen months. Courts have generally taken a hard line and disallowed nunc pro tunc jury demands regardless of actual prejudice or lack thereof to the other party (Matter of Bosco, 141 AD2d 639 [2d Dept 1988]["[t]he petitioner's misunderstanding of the law and alleged reliance on erroneous legal advice do not warrant the granting of such an untimely demand [eighteen-month delay] regardless of the lack of prejudice to the respondent"]; Fils v. Diener, 59 AD2d 522 [2d Dept 1977] [excusing five-month delay was an abuse of discretion]; Zelvin v. Pagliocca, 32 AD2d 561 [2d Dept 1969] [four-and-one-half month delay]). This is true even in the case of a pro se litigant (Matter of Fruchtman, NYLJ, Nov. 28, 1997, at 34, col 3 [Sur Ct, Kings County] [two-and-one-half-year delay]).

In her moving papers, respondent again asserts that one of the court attorney-referees is "in harmony" with respondent’s attorney. This assertion was the subject of a prior decision (dec no. 666, October 30, 2007) of the court, which denied respondent’s motion for disqualification of the court attorney-referee because respondent did not assert any of the statutory disqualifications set forth in section 14 of the Judiciary Law to support her motion and because the record did not reveal any other basis on which the court might be inclined to assign a different court attorney to the case.

In this case, respondent did not serve or file a timely jury demand. Indeed, she first requested a jury trial approximately eighteen months after she filed objections to the probate of the propounded instrument. Accordingly, her motion for a jury trial is denied. This is the decision and order of the court.

The rule is that, a party who fails to timely demand a jury trial is deemed to have waived the right. However, the court has the discretion to relieve the party from the waiver and allow the filing of a late jury demand if it does not cause undue prejudice to the other parties, if the delay is a short one.

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

Petitioner Brings Photocopy of Last Will and Testament to Hearing

January 10, 2016,

A New York Estate Lawyer said that, this is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated March 2, 1981, the original of which cannot be located; the decedent died April 4, 1981. The petitioner is the decedent's daughter-in-law, the surviving spouse of the decedent's post-deceased son. At the time of her death in 1981, the decedent's only distributees were her son and her estranged spouse. She resided in a house owned by her estranged spouse. The decedent's only asset was a home on the same block which was then occupied by her son and his family. The propounded instrument leaves the entire estate to her son. Petitioner alleges that after the decedent's death, the decedent’s son advised her that the decedent had left the residence in which they were residing to him. She also claims that she was not aware that any steps needed to be taken regarding the property until after the decedent’s death in April 2005, when she attempted to place the house on the market for sale.
A Kings Estate Administration Lawyer said that, a waiver and consent has been filed by the executor of the estate of the estranged spouse, decedent's estranged spouse who post-deceased the decedent. A renunciation and waiver and consent have also been filed by the son of petitioner and decedent's son.

New York City Probate Lawyers said the issue in this case is whether this is an uncontested proceeding to probate a copy of the last will and testament of the decedent should prosper.

A New York Probate Lawyer said that pursuant to SCPA 1407, a lost or destroyed will or codicil may be admitted to probate only upon establishing: (1) that the will has not been revoked; (2) proper execution; and (3) the provisions of the missing will. It appears that the execution of the original instrument was supervised by an attorney permitting the inference that the statutory requirements were met, thus satisfying the requirement of proof of due execution. The court is further satisfied that the original instrument's provisions have been established by a photocopy which is a true and complete copy of the original instrument as executed (SCPA 1407[3]).
As to revocation, the court notes that the will was executed only about one month prior to the decedent's death from pulmonary fibrosis. Because she was estranged from her husband, her son was the only natural object of her bounty and the will leaves the entire estate to him. At some point after the decedent's death, David and his family moved into the decedent's former residence and the petitioner continues to reside there today. Thus, while the decedent's death was many years ago, no search was made for her will until recently. The courts have recognized the fact that a photocopy of an executed will found in decedent's papers after death is some evidence of non-revocation (Matter of Mittelstaedt, 278 App. Div. 231 [4th Dept. 1951]; Matter of Herbert,89 Misc 2d 340 [Sur Ct, Nassau County 1977]; Matter of Papadopoulos, NYLJ Dec. 14, 2005, at 28, col. 5 [Sur Ct, Kings County]). Here, the will was executed in the decedent's home two days before her admission into the hospital where she died one month later. The court finds it extremely unlikely that the decedent, knowing that her death was near, would go to the trouble of having a will prepared and executed, which left her estate to her only child, and then destroy the will within 48 hours. What seems infinitely more likely is that the original will was accidentally lost or destroyed, either when the home was cleaned out after the decedent's death, or in the ensuing 27 years since then.

Accordingly, Manhattan Probate Lawyers said the copy of the decedent's will dated March 2, 1981 shall be admitted to probate (SCPA 1407) and letters of administration, c.t.a. will issue to the petitioner upon her duly qualifying (SCPA 708).

Under SCPA 1407, a lost or destroyed will or codicil may be admitted to probate only upon establishing: (1) that the will has not been revoked; (2) proper execution; and (3) the provisions of the missing will. If a will is lost, seek the help of a Kings Estate Attorney and Kings Estate Administration Attorney in order to know your remedy.

Two Children Seek to Have Status Changed Pursuant to Statute EPTL 5-3-2

January 8, 2016,

A New York Probate Lawyer said that, in this probate proceeding, two non-marital children have moved to have their status as children entitled to benefits under the after-born statute (EPTL 5-3.2) determined. In a prior decision (Dec. No. 80, Feb. 7, 2008), the court ruled that any question regarding a party's status in a probate proceeding should be determined as a preliminary matter and stayed all other proceedings. Rather than question any of the underlying facts, such as proof of paternity, the parties have consented to have the motion submitted assuming the truth of the movant's allegations for a determination of whether as a matter of law those allegations state a cause of action entitling the claimants to after-born status.

The decedent died on January 13, 2007, survived by eleven children; three from a first marriage, four from a second marriage and four alleged non-marital children. The will offered for probate benefits only one child from the first marriage, the petitioner and named executrix, who inherits the entire estate valued at several million dollars.

A New York Estate Lawyer said that EPTL 5-3.2 creates a rule of presumed intent for a testator who may have inadvertently omitted a child born after he executed his will. If he gave something to existing children and the after-born is neither provided for nor mentioned in the will and unprovoked for by some settlement, the after-born shares in the gift to existing children. Case law has granted non-marital after-born children the same rights as marital after-born children if they can establish their inheritance rights under EPTL 4-1.2. Since the Wilkins case was decided, the after-born statute has been amended to address the rights of after-born non-marital children (L. 2007 ch. 423, eff. Aug 1, 2007). The amendment provides: "For purposes of this section, a non-marital child, born after the execution of a last will shall be considered an after-born child of his or her father where paternity is established pursuant to section 4-1.2 of this chapter."

A Westchester County Probate Lawyer said that while the amendment became effective only after decedent's death, it essentially codifies preexisting case law. The claimants allege that after the decedent executed his will on June 24, 1996, he underwent DNA tests in 2005 and 2006 which revealed to him for the first time that he was their biological father. Although the claimants were in fact born long before the execution of decedent's will, they claim that non-marital children, only known or acknowledged by their father after execution of his will, should be accorded the same presumption of inadvertent disinheritance as an after-born child and extended the same rights.

Generally, Suffolk County Probate Lawyers said that a child is entitled to after-born rights only if born after execution of the will. There is no reported exception to this rule other than for a child adopted after the execution of a will, even though born previously. The statute itself speaks clearly of a "child born after the execution of a last will" (EPTL 5-3.2 [a]). The claimants argue that the meaning should be extended to a non-marital child who is known or acknowledged by a decedent only after execution of his will. However, this court is not at liberty to conjecture about, add to or subtract from words having a definite and plain meaning. To engraft exceptions where none exist are trespasses by a court upon the legislative domain. When a statute is free from ambiguity and its sweep unburdened by qualification or exception, a court must apply the language as it is written.
The 2007 amendment to EPTL 5-3.2 quoted above specifically restricts a non-marital child's entitlement to "a non-marital child, born after the execution of a last will." "This court may not ignore a statute's language in an effort to derive or construct a legislative intent that could easily have been articulated by the Legislature when it drafted the [amendment] the court will not exceed its authority by reading the [claimant's] language into the statute". It is accordingly concluded that claimants are not entitled to any rights under the after-born statute (EPTL 5-3.2).
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Court Interprets Will and Codicil That Contradict Each Other

January 6, 2016,

A New York Probate Lawyer said that, the Appellate Division has affirmed a decree of the surrogate of Kings County, which admitted to probate the will of the deceased, and which construed certain of its provisions. It consisted of two instruments, a will and a codicil, both of which were wholly written by the testator and were executed a few years before his death. The testator died April 9, 1909, unmarried and leaving no descendants. The will was executed in 1899. By its first and second articles the testator gave to his nieces respectively, legacies of $75,000 and $50,000. He directed that the two legacies should be held in trust, and that ‘the income shall be paid only to said legatees respectively and an amount of ten thousand dollars ($10,000) of the principal may be paid to each of them if they so elect when they attain the age of 30 years, to purchase and furnish a home.

The remainder of their respective legacies shall remain in trust and in case of the death of either of them without issue, before the death of their legatee under Art. IV herein, then the share of such decedent shall in such event revert to her the said Inez Hoffman. And in case either said nieces should die without issue subsequently to the death of their Aunt they said and prior to the death of their grandmother then in such case their respective shares shall in like manner revert to their grandmother.’ Article 3 gave to his brother, a plantation in Louisiana. By article 4 the testator gave to his sister, , known in the family as a legacy of $125,000, to be held in trust ‘and the income thereof to be paid to herself only, with this proviso however that she may if she wish draw not exceeding Ten Thousand dollars ($10,000) with which to purchase and furnish a home for herself. In case of her death without issue and prior to that of her mother, all her interest herein shall revert to her mother.’ He also gave to her all his ‘interest in and to the estate’ of his mother. By article 6 the testator appoints his mother his ‘residuary legatee, the amount to be placed in trust as herein provided in Art. VIII, for her sole benefit, and the income come thereof to be paid to her.

A New York Estate Lawyer said that, at her death, the principal and any accumulated income there may be shall be divided pro rata between the legatees named in articles I, II, and IV herein respectively upon the basis of their respective legacies herein and to be subject to the same trust restrictions stated herein appertaining to their several legacies hereunder.’ By article 8 the testator appointed the Union Trust Company of the city of New York as the trustee for the trusts in his will and as the executor thereof. A year later the testator executed the codicil. By that instrument he, first revoked the legacies given in article 4 of the will to his sister Inez and substituted in place thereof the sum of ‘$25,000, SUBJECT TO ALL THE CONDITIONS and terms as expressed in said art. iv, with this exception to wit: that the sum of $2,500, instead of ten thousand dollars, be allowed her out of said amount for purchase of a home for herself if she so elects.’ Next he bequeathed to his sister, the sum of $35,000 and to his brother, the sum of $10,000, and then provided as follow: ‘And I hereby make these two legatees, upon the death of my mother, pro rata residuary legatees under the terms and conditions as set forth in Art. VI herein, as additional residuary legatees. The above legacy to his brother is in addition to the one in his favor under Art. III herein.’

Nassau County Probate Lawyers said that the contents of the will and codicil have been sufficiently referred to for the present purpose. When they became operative at the testator's death, his mother and the brother and sister mentioned in the codicil had been dead several years. He left an estate of upwards of $2,000,000, and his next of kin consisted in two sisters and certain nieces and nephews. While this will is not always well expressed, and indicates that the testator was not advised by counsel in framing its provisions, his intention is sufficiently apparent. It has been questioned and construed with respect to the validity of the trusts and with respect to the effect of the provisions of the codicil upon the division of the residuary estate.

A Staten Island Probate Lawyer said that by the principal instrument the intention of the testator was to make provision for his two nieces for his sister, and for his mother. He placed his gifts to them in trust, as to each, and each trust terminated at the death of the particular beneficiary. The trustee was to hold each legacy and the residuary estate as separate trusts, subject as to testator's sister and nieces to the right to withdraw $10,000 for the purchase of a home. The principal of the trusts for his nieces, in case either died without issue, was to go to their Aunt; or, if she should have died, to their grandmother. In case of the death without issue of his sister Inez, her mother was to receive the trust fund. While a gift of the principal of the trust to children of a beneficiary is not expressed, it arises by implication. The testator, though apparently making no provision for the contingency of issue, as by a gift in words to such, nevertheless only gives the remainder to others in the case of a beneficiary's death without issue. No remainder man could take except in that event. He will be deemed, therefore, to have intended the trust fund to go primarily to the children, if any there should be. They would take an estate by implication.

Some criticism is made, by way of argument, upon the use of the word ‘share’ by the testator, when directing the disposition of the trust fund upon the death of a niece. It is suggested that that indicates a gift only of the beneficiary's share of the trust income and that the trust continues as to the principal; but that proposition is untenable. It is very clear that the trust funds were not to be held in solido, but in several trusts. They are so treated in the will, and each terminated at the death of the beneficiary. The word ‘share,’ however inapt, had reference to the principal of the trust. It referred to the portion of his estate which the testator had set apart, and, if susceptible of two meanings, that one will be given which will support the testamentary provision. Nor is there any difficulty with respect to the trusts in the residuary estate created by article 6. Under the original will, at the death of the testator's mother, who was to have the use of the residuary estate for life, it was to be divided between the two nieces and the sister of the testator, pro rata, ‘upon the basis of their respective legacies and to be subject to the same trust restrictions appertaining to their special legacies.’ The effect of this disposition of the residuary estate by the testator was to create additional and separate trusts for each niece and for the sister in shares therein, which would be defined by ascertaining the proportion which the amount of each legacy bore to the aggregate of the three legacies. For instance, under the will, before it was affected by the codicil, the residuary estate would be divided into fractional parts, represented in the case. New trusts were created in these shares, each of which terminated upon the death of the beneficiary.

I think that the trusts created by the will were valid and that they effected no illegal suspension of the power of alienation, either as to the gifts of the legacies, or as to the disposition of the residuary estate. That every contingency was not anticipated by the testator, in providing for the death of a beneficiary, is no reason for holding the trust invalid. It was sufficient for the surrogate, in passing upon the objections made to the will, to determine whether trusts had been created, which were valid under our statutes. What might become of the remainder upon the death of a beneficiary, in a contingency not foreseen by the testator, was a question which was not required to be decided in advance by the surrogate.

Enough has been said concerning the original will and its trust provisions, and the more serious question, upon this appeal, arises with relation to the provisions of the codicil. The codicil reduced the legacy of the testator's sister Inez from $125,000 to $25,000, and the legacy, as reduced, was subjected to the same ‘conditions and terms' as expressed with reference to the legacy given in the will, except as to the option of withdrawing an amount for the purchase of a home, which was also reduced to $2,500. The codicil then gave legacies to the testator's sister Wilhelmina and to his brother John of $35,000 and $10,000, respectively, and made ‘these two legatees, upon the death of his mother, pro rata residuary legatees under the terms and conditions, as set forth in Art. VI,’ the residuary clause of the will. As these two legatees predeceased the testator, the question is, what became of the shares in the residuary estate so given to them? Did he die intestate as to those shares, or did they go to augment the shares of the other residuary legatees, who survived him? The latter conclusion was reached by the court below, and in my opinion it was erroneous. I think that we should hold the testator to have died intestate as to the shares in his residuary estate, which his brother John and his sister Wilhelmina would have taken, had they survived him. The pecuniary legacies to them lapsed by reason of their deaths prior to the testator's; but there could be no lapse of their shares in the residuary estate. The failure of a part of the disposition of a residuary estate will not augment the shares of the other residuary legatees. When there is such a failure, there results a residue of a residue and the rule is well settled that it will not be added to the other shares; but will pass to the heirs or next of kin. The general rule that in a will of personal estate a general residuary clause carries whatever is not otherwise effectually and legally disposed of is not applicable where the residue of a residue is in question.

In considering the effect of the codicil, we do not look to what happened, when it became operative. We seek for what the testator intended by it when arranging the disposition of his residuary estate. Will and codicil are to be read together, as one instrument, and, so read, we observe that the gift of the testator's residuary estate was not to a class; for it was to certain persons named, in shares which were not equal, but which were definite and not dependent for their amounts upon the number who should survive. Each legatee was to have a definite fractional share of the residuary estate.

The intention of the testator in disposing of his residuary estate is to be ascertained not by what occurred long after the execution of his will, but by what was, apparently, or presumably, in his contemplation, at the time he was making it. A testator is presumed to speak as of the time of executing his will and to base his calculations upon his dispositions taking effect. The difficulty here arises in the testator's having neglected to make provision in anticipation of the failure of his sister Wilhelmina and his brother John to survive him, or to change his will after their deaths. This is not a case where the presumption against intestacy is available. It is simply the case of a contingency not provided for and whose happening has left portions of the residuary estate indisposed of. The testator had given his residuary estate to five persons.
Although the brother's legacy in the codicil was given in addition to the devise in the original will of the plantation, I do not think that his share of the residuary estate should be increased by the appraised value of the latter. I incline to the view that the prorating of his and the sister's shares with the other legacies could never have been intended except upon the basis of the two pecuniary legacies just bequeathed to them. The use of the words ‘pro rata’ was with obvious reference to them.

I reach the conclusion that, in so far as the decree of the surrogate admitted the will to probate and upheld the validity of the trusts created, it adjudged correctly; but in so far as it adjudged that the residuary estate was divisible among the testator's two nieces and his sister, Inez, as surviving legatees, it was erroneous. I advise, therefore, that the decree of the surrogate and the order of the Appellate Division affirming the same be modified, so as that it shall be adjudged, as the construction of this will, that the testator died intestate as to the shares of his residuary estate given to his sister and to his brother, and that the said shares, representing 45/195 thereof, are divisible among his heirs and next of kin, according to the statute in such cases, and, as so modified, that the said order and decree be affirmed, with costs in this court to all parties appearing by counsel, to be paid out of the estate.

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