Court Hears Proceeding to Settle an Intermediate Account

November 20, 2014,

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

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

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

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

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

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

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

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

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Court Decides Outcome in Will Contest Proceeding

November 19, 2014,

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

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

Oct. 10, 1955.

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

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

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

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

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

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

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

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

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

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

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

November 18, 2014,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 17, 2014,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Petitioners Request Settlement of Their Account as Surviving Trustees

November 14, 2014,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Validity of Italian Wedding in Question in Estate Administration Proceeding

November 13, 2014,

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

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

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

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

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

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

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

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

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

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

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

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

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

Here in Stephen Bilkis and associates, our Kings County Probate Lawyers will help the executor to present the last will and testament of a decedent before the courts of justice for its probate. For other matters, our Kings County Estate Attorneys will help you with other matters. Contact us now for more information.

Objectant Seeks Order Dismissing Probate Proceeding

October 27, 2014,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court Rules on Holdover Proceeding

October 26, 2014,

A New York Probate Lawyer said this is a probate proceeding where the decedent's son, who is the sole distributee and the sole income beneficiary of a testamentary trust consisting of the entire residuary estate, seeks to revoke his waiver and consent to probate so that he may conduct SCPA 1404 examinations and file objections to probate, if appropriate; and, seeks for an order directing the preliminary executors to discontinue a pending landlord/tenant holdover proceeding they commenced against him in connection with his occupancy of a portion of real property that appears to be the sole asset available to fund the trust. The movant's four sons, two of whom are infants for whom a guardian ad litem was appointed, are the contingent remaindermen of the trust.

The relevant facts are the following:

A New York Estate Lawyer offered for probate is the will dated 30 January 2000 along with a codicil dated 20 July 2009. The codicil amended the will to include a newborn grandson. Both the will and codicil were drafted by an attorney and their execution was attorney-supervised; both were witnessed by three witnesses who also executed self-proving affidavits; it leaves all tangible personal property to the son; in paragraph FOURTH (A) and (C), the entire residuary estate is placed in trust, with all net income, payable to the son quarter-annually or at more frequent intervals if necessary during his lifetime, with the remainder divided equally among the decedent's grandchildren; and, in paragraph FOURTH (B), the "sole and absolute discretion" is vested in the trustees to invade the corpus of the trust in such amounts and at such times as they shall deem appropriate and necessary for the health, welfare, support and maintenance of the son, and directs that such invasion "shall" be made "without considering the effect such invasion may have upon any third persons, including the remaindermen."

A Queens Probate Lawyer said the jurisdiction in the probate proceeding is complete. The son and the two adult grandchildren filed waivers and consents to probate. Preliminary letters testamentary, limited by SCPA 805 (3), issued to the proponents who are also the nominated trustees.
The estate’s only asset appears to be a two-family home in the Bronx, valued at $450,000 in the probate petition. The upstairs apartment is occupied by the son, his wife and the youngest grandchild, and a tenant rents the downstairs apartment.

A Long Island Probate Lawyer said that soon after obtaining preliminary letters, the preliminary co-executors commenced separate holdover proceedings in the Civil Court of Bronx County, one against the son, and the other against the former downstairs tenant who allegedly was paying less than fair market value rent to the son who, in turn, failed to turn it over to the fiduciaries. At that time, the preliminary executors contended that the annual cost to maintain the property exceeded all liquid estate assets because the son kept the money paid by the downstairs tenant and simultaneously failed to pay fair market use and occupancy for the upstairs apartment that he occupies.

Consequently, in response to the holdover proceeding, the son commenced the proceeding at bar. Pending the further order of the court, the preliminary executors were temporarily restrained from proceeding with the holdover proceeding against the son.

The parties entered into a stipulation in open court. Apparently, a portion of the stipulation relating to use and occupancy payments by the son was extended by the parties. In other words, the stipulation provides that the temporary restraining order prohibiting the preliminary executors from continuing the holdover proceeding against the son would remain in effect in order to preserve the status quo pending a determination of the merits of the son's application, and the son would pay the preliminary executors the sum of $900 per month. While the parties were supposed to make further attempts to resolve the matter with the assistance of the guardian ad litem, no resolution has been achieved. Rather, the situation has deteriorated as, instead of paying $900 per month to the preliminary executors, at least, for October and November of 2010, the son only paid Con Edison bills. According to the son, he was justified in withholding the rent because the preliminary executors failed to pay those bills as agreed.

The parties continue to dispute the actual monthly and annual cost to maintain the property.
The court’s ruling on the matters at issue:

First, the question is whether the son should be permitted to withdraw his waiver and consent to probate so that he may pursue discovery, and, thus, decide if he should file objections to probate. To revoke or withdraw his waiver and consent to probate in this pre-probate context, the son must demonstrate the merits of his application and a reasonable probability of success, notwithstanding that more relaxed proof of "good cause" is allowed before a decree is entered.
Here, on 25 September 2009, the son executed a waiver and consent to probate. On 14 April 2010, the son filed an application to revoke that waiver and consent on the ground that he lacked independent counsel and was not served with the propounded instrument at the time he executed it, and the decedent had difficulty reading and writing the English language.

Bearing in mind that the instrument and codicil were drafted by an attorney, their execution was attorney-supervised, the self-proving affidavits, the absence of any evidence or allegation of undue influence or lack of testamentary capacity, and that there are no other interested persons, the son's allegations as to his potential basis for filing objections are conclusory. What’s more, the son did not dispute the allegations that prior to executing the waiver and consent, he met with the preliminary executors' attorney who informed him about the probate process and the terms of the will. Clearly, it was only when the preliminary executors would not allow the son to operate the realty as he pleased that he questioned the validity of the will.

Accordingly, that branch of the application seeking to revoke the waiver and consent is denied. The son failed to demonstrate any merit to or reasonable probability of success on his potential objections to probate.

Second, the question is with regard to the holdover proceeding against the son which is more problematic.

Here, just after the commencement of the probate proceeding, the relationship between the son and the preliminary executors deteriorated; on the one hand, the fiduciaries and their counsel believed that the son was required to pay fair market value for his use and occupancy of the property in order to maintain the property and possibly increase the value of the potential trust estate for the remaindermen while, on the other hand, the son believed he could live at and maintain and manage the property himself, in any manner he saw appropriate.

Neither position is entirely correct. As a rule, when construing or reviewing the terms of a will or trust instrument, the prime consideration is the intention of the testator as expressed therein. In this regard, a review of paragraph FOURTH would reveal that the primary concern of the decedent was to place the economic interests of the son first, even to the exclusion of the remaindermen, assuming that, in the trustees' sole discretion, such exclusion is appropriate and necessary for the health, welfare, support and maintenance of the son. Obviously, the son is entitled to all of the trust income. It appears that if the realty was sold for approximately its appraised value, the sum paid to the trustees would be in the $400,000 to $425,000 range. It also appears that the son is willing to accept a reduction in the rent for the apartment that he is occupying in lieu of income from the trust. Based upon the intent of the testator, as gleaned from the testamentary trust provisions, it appears that the fiduciaries would be in violation of their obligation to carry out the testator's intent should they insist upon selling the realty, unless the reduced rent that the son is willing to pay plus the fair market rent paid by the tenant of the other apartment is insufficient to cover the projected administration expenses of the estate and trust as well as the cost of maintaining the property.

The son and the preliminary executors seem to agree, at least in principle, with the foregoing analysis of the circumstances under which the son's family could continue to occupy one of the apartments instead of selling the property with the concomitant result of evicting the son's family. Unfortunately, the parties have been unable to agree both upon the reasonableness of the expenses and legal fees incurred by the preliminary executors to date and upon the terms of the interim stipulation entered into on the record in open court. While it would clearly be a breach of their fiduciary duty for the fiduciaries to insist upon a sale for the sole reason that retention of the property would result in their receiving a smaller commission, it is equally clear that the trustees, and not the son, have the right to manage the property. In addition, it is also clear that it is not feasible for the son to occupy the apartment rent-free or to agree to pay a reduced rent and then not honor that agreement. In fact, the guardian ad litem is concerned that the son is not willing to agree to any feasible plan that would allow his continued occupancy of the apartment.

Accordingly, the temporary restraining order previously entered with regard to the holdover proceeding against the son is lifted as of 1 April 2011, unless by 25 March 2011, the son submits to the court, the guardian ad litem and the preliminary executors' attorney proof that he has paid a total of at least $5,400 to either the preliminary executors or Con Edison for his use and occupancy of the apartment for the six-month period from October 2010 through March 2011; in case that the son has not paid that amount for that time period, he may pay the entire amount or any outstanding balance thereon at any time up to 25 March 2011; and, in case that the son timely establishes that he has paid the sum of $5,400 for the six-month period, the court will render a supplemental decision and order further extending the temporary stay and directing all parties, their respective counsel and the guardian ad litem to appear at a conference dealing with all of the issues relating to the realty and to produce certain documents at that time.

In a nutshell, that branch of the son's application seeking to revoke or withdraw his waiver and consent to probate is denied, subject to modification in the event that the son establishes that he paid $5,400 as directed; and, that branch of the son's application seeking for an order directing the preliminary executors to discontinue the holdover proceeding as well as lifting the temporary restraining order as to the holdover proceeding against the son as of 1 April 2011 is also denied.
The court is satisfied that the testator executed the will dated 30 January 2000 and codicil dated 20 July 2009 in compliance with the statutory requirements and that, at the time of their execution, the testator was competent to make a will and was free from restraint.

Accordingly, a decree is settled admitting the will dated 30 January 2000 and codicil dated 20 July 2009 to probate, without prejudice to any party taking any position in an appropriate proceeding with regard to whether the estate expenses incurred to date were necessary or reasonable, or whether there is any basis for not allowing the proponents to serve either as executors or trustees.

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petitioners Move to Withdraw Petition for Probate

October 25, 2014,

A New York Probate Lawyer said this is a proceeding where petitioners move to withdraw their petition to probate a copy of a testamentary instrument as a lost will pursuant to SCPA 1407and have letters of administration issue instead.

The pertinent facts are as follows:

A New York Estate Lawyer said on 26 October 2000, J, the decedent died. He left a will apparently executed on 23 March 1995. Under the instrument, the decedent left her estate to her two sisters, JB and AB, or the survivor. She named JB as executor and AB as successor. JB predeceased the decedent without issue. As a result, the entire estate passed to AB.
In 2005, AB petitioned for the appointment of a guardian of her property. The court, finding that AB had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, RL, a niece, and GMR, Esq., as guardians of AB's property.

Sometime in May of 2007, a judge authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will pursuant to SCPA 1407. In support of the petition, the affidavit of RL was submitted which states that she located the copy among J’s important papers after her death. While J must have had the original will, J’s house had been sold and the purchaser threw away all of J's papers. The affirmation of GMR states that after J's death, her home was taken over by a former handyman of AB, who threw away all of J's papers.

The propounded instrument was prepared by an attorney who supervised its execution, was a subscribing witness and has filed an affirmation of due execution.

The propounded instrument’s second subscribing witness cannot be located.

A Nassau County Probate Lawyer said that the petitioners moved to withdraw their probate petition and ask that the Court issue letters of administration to them on the ground that they are unable to probate the instrument because of the unavailability of the second subscribing witness. The distributees have executed agreements waiving their intestate rights "so as to mirror the testamentary plan set forth in her Last Will & Testament dated 23 March 1995."

The decision of the court on the issue:

A Staten Island Probate Lawyer said if there is an apparently valid testamentary instrument on file, the Court is under obligation, as much as possible, to try to respect the testamentary wishes expressed therein. As held in Matter of Moyer, 97 Misc 512, 516 (Sur Ct, Monroe County 1916), the Surrogate stated: “If I could consider first and only the wishes of all of the parties directly interested herein, I would be inclined to accede to their wishes and deny probate of this instrument against which they have opposition and admit the prior instrument. The law, however, gives to every person a right to dispose of his property in any manner that best suits him, and, so long as he was possessed of sufficient mental capacity and observed in the execution of the instrument the required legal formality and acted freely, it is his wishes which must be respected, and his testamentary disposition given effect, regardless of the contrary wishes of his heirs at law and next of kin or beneficiaries respecting his property.”

The Court's obligation is a matter of public policy. This is reflected in the authority reposed in the Surrogate's Court to ensure the validity of instruments offered for probate and case law requiring the Surrogate to pass on the validity of testamentary instruments offered for probate. This duty is not relieved by the parties’ agreement to arbitrate the dispute or consent to probate.

Ordinarily, it is the duty of the nominated executor to "take diligent and active steps to procure its probate and to protect the will from an attack from any source." In case the nominated fiduciaries have died or are under a disability, any person designated in the will as a legatee or devisee, or guardian for such person, may petition to probate the instrument. However, the courts have recognized exceptions to this duty where probate would be futile or otherwise unwarranted. Hence, an executor who believes that the instrument is not a valid testamentary instrument is under no obligation to offer it for probate. Also, probate will not be required where the will has become ineffective because the legacies had lapsed and the named executor had died or was unwilling to act. Even an otherwise valid instrument need not be offered for probate where its proof is doubtful or would entail undue time and expense, particularly where the results would be similar to intestacy.

Even where the distribution in intestacy differs from that provided in the instrument, the Court will grant letters of administration where there has been unreasonable delay in probate, where all the legatees are adults and either consent, default or appear but do not file objections. "Where all the parties interested in an estate, either under testacy or intestacy, agree that a will shall not be offered or admitted to probate, it is not within the power of a surrogate to enforce its admission."
Here, however, none of the exceptions to excuse probate are presented. The sole beneficiary under the instrument is alive and the petitioners are expressly authorized by the Supreme Court to initiate probate proceedings on her behalf. Probate does not seem to present insurmountable difficulties.

It is true that the failure to locate the original creates a presumption of revocation by the decedent. However, this presumption may be rebutted where, as here, there is a natural explanation for the failure to locate the original and the copy is found among the decedent's important papers.

It must be noted that the drafter of the instrument, an attorney who supervised the execution of the instrument and is a subscribing witness, submitted his affirmation giving rise to a presumption of due execution. The inability to locate the second subscribing witness will not bar probate since the testimony may be dispensed with upon a showing of a diligent search to locate the witness, without success.

As a final point, all of the distributees agree that the decedent's testamentary wishes should be adhered to. Under these circumstances, the Court cannot agree to the abandonment of the probate proceeding. Nonetheless, the Court cannot force the petitioners to pursue probate if they chose not to do so. Thus, if the petitioners are unwilling to proceed with the probate proceeding, the Court authorizes the Public Administrator of Kings County to do so.

Accordingly, the petitioners' motion to withdraw the probate petition is denied. The petitioners are directed to complete their papers in support of the petition, including an affidavit showing diligent search for the second subscribing witness by 3 September 2009. If they fail to do so, the Public Administrator shall be directed to file a petition to probate the propounded instrument in their place.

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Decedent's Granddaughter Alleges Failure of Due Execution, Fraud

October 24, 2014,

New York Probate Lawyer said that on 20 March 2012, the decedent at the age of 107 years old died and left a will dated 1 August 1991. She was survived by three distributees, her daughter and the nominated executrix, OJ, and two grandchildren, AC and CC, children of decedent's predeceased son, AKC.

A New York Estate Lawyer said that under the propounded instrument, after several pre-residuary cash bequests, the decedent left her real property to her daughter, and if her daughter predeceased her, to her son, the sole residuary beneficiary. On 30 September 1997, the first codicil to the propounded instrument was executed which added a few small pre-residuary cash bequests. On 3 September 1999, the second codicil was executed which again left the decedent's real property to her daughter but in the event that her daughter predeceased her, such property was to be divided equally among her daughter's three children subject to a life estate in decedent's son-in-law, KJ.

Westchester County Probate Lawyers said that consequently, after the decedent's death, the nominated fiduciary filed the probate petition.

The decedent's distributee and granddaughter, CC, objected on the ground of failure of due execution, fraud and undue influence.

A Suffolk County Probate Lawyer said that after SCPA 1404 examinations were completed and some document discovery exchanged, the proposed executrix, the nominated fiduciary, filed a motion for summary judgment and seeks to dismiss CC's objections.
CC filed a cross-motion to dismiss the probate petition.

The petitioner's motion for summary judgment was granted, the objections are dismissed and the objectant's cross-motion was denied in its entirety. The reasons for this ruling are discussed below.

First, on review of objectant CC's cross-motion and responsive papers, it is apparent that she has abandoned all the objections she initially asserted sounding in fraud, undue influence and lack of testamentary capacity. What remained relates to the alleged failure of the decedent to subscribe her signature or acknowledge the execution of the instrument in the presence of the subscribing witnesses and to the alleged lack of any publication of the instrument as a will.

EPTL 3-2.1 (a) sets forth the formal requirements for the execution and attestation of wills. This provision states that the will must be in writing, signed at the end thereof by the testatrix, the signature must be affixed in the presence of each of the attesting witnesses or acknowledged by the testatrix to each such witness to have been affixed by her, she must declare to each attesting witness that the instrument is her will, there shall be two witnesses whose attestations shall be within a 30-day period, and the witnesses must sign at the testator's request.

The proponent has the burden of demonstrating, by a preponderance of the evidence, that the purported will was duly executed.

While in situations where the attorney-draftsperson supervises the execution of a will, a presumption of regularity arises that the will was properly executed in all respects, there is no such presumption here as it is undisputed that there was no attorney present at the execution ceremony. However, it is also uncontroverted that despite the decedent's failure to procure self-proving affidavits, the witnesses to the testamentary instruments executed affidavits of attesting witnesses except for the witness to the first codicil, ME, and the Court issued an order dispensing with his testimony.

The proponent here has established, and it is undisputed that the decedent's will and both codicils were drafted by an attorney who is now deceased and contain attestation clauses. Well settled is the rule that a presumption of regularity or validity arises where the propounded instrument contains an attestation clause preceding the genuine signature of the attesting witnesses, and is prima facie proof of the facts recited therein.

The testimony of the attesting witnesses here is entitled to great weight even though the subscribing witnesses testify to the contrary or lack any recollection of the details of execution where there were gaps in the witnesses' recollections of the circumstances under which they witnessed the will but the will was admitted to probate.

It is undisputed here that decedent knew all of the witnesses to the propounded will and two codicils for many years prior to the signing of the instruments.

SM was a witness to all three instruments, and his former wife, DR, was the witness to the propounded will.

According to SM, in his testimony, he knew decedent for over twenty years; despite the significant passage of time between the date of the will of 1 August 1991 and the date of his SCPA 1404 examination on 30 January 2013, he recalled that he was asked to witness decedent's will and codicils and did, in fact, serve as a witness to all three instruments; he readily identified his signature and the signature of his former wife, and the other witness to the propounded instrument; and, he identified his signature on the first codicil, remembered sitting down at the table with decedent and going over her second codicil and specifically recalled decedent sitting next to him at the kitchen table requesting him to sign as a witness.

According to DR, in her testimony, she knew the decedent; she recalled that the decedent had been clear and coherent on 1 August 1991; at the time, the decedent recognized her and knew who she was; and, she was able to identify her signature on the 1991 instrument and that of her former husband, SM.

The other witness to the first codicil, ME, is now deceased.

The second codicil was witnessed by SM, AS and DS.

According to AS, in her testimony, she knew the testatrix for many years; her son married the decedent's granddaughter; she was asked to be a witness to the decedent's second codicil; when shown the second codicil, she identified her signature; the execution ceremony took place at decedent's home, and on the date in question, the decedent was jovial; the decedent recognized her and her husband, they spoke, and the decedent asked her to sign the codicil; and, the decedent's daughter was not present at the execution ceremony.

According to DS, the third witness to the second codicil, in his testimony, he knew the decedent well for a number of years; he identified his signature and his wife's signature on the instrument; he recalled being present at decedent's home on the date the instrument was signed but he did not recall who initially asked him to serve as a witness; on the date of the execution, the decedent was alert, and her general health seemed good; and, they spoke and observed the decedent sign the document on that day.

The court took note of the fact that although the recollections of the subscribing witnesses may be faulty as to the details of execution, the lack of any prior experience on the part of the subscribing witnesses rendered them unaware of the necessity of noting or recalling the essential formalities of execution. Further, in light of the passage of time which exceeded twenty-one years since the execution of the propounded instrument, an inflexible rule that the subscribing witnesses must remember in detail not only what they saw and heard but require them to recognize and identify the signature of decedent, could defeat the statute’s objective.
On the objectant's claim that proof of publication is lacking as the provisions of the propounded instrument were not read aloud during the execution ceremony, well settled is the rule that there is no requirement that the document be read aloud. "Substantial compliance is sufficient and no particular form of words is required, or is necessary, to effect publication." Some "meeting of the minds between the testator and the attesting witnesses that the instrument they were being asked to sign as witnesses was testamentary in character" is sufficient and a request to have the witnesses sign the will can be inferred from the circumstances surrounding the entire execution.
The surrounding circumstances here were sufficient to establish to the witnesses that the writing was a will. As the witnesses' testimony makes clear, they knew the purpose of their visit to the decedent at her home and that they were being asked to sign as witnesses. A request to sign is inferable from the circumstances and the testimony demonstrates substantial compliance with the minimum statutory prescription for execution of the testamentary instruments. What’s more, on all three occasions, the decedent conducted the execution ceremonies without an attorney at her home and not in the presence of any of the beneficiaries to the instruments.

As provided for under the rules, summary judgment in a contested probate proceeding is only proper where the proponent makes out a prima facie case for probate and the objectant fails to raise any genuine material issue of fact. in order to defeat summary judgment, the objectant must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact.

While it is true that the objectant's responsive papers in support of her cross-motion to dismiss the proponent's motion for summary judgment consist only of her attorney's affirmation, it is nevertheless incumbent upon the Surrogate Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity.

According to the decedent's daughter, OJ, in her testimony, her mother had lived for many years in New York City although she maintained real property in Rhinebeck, New York where she visited on the weekends until she relocated to the property in the 1980's.

It is undisputed that decedent, her daughter, son-in-law and their children resided in separate residences located on the property for many years, and her son-in-law made certain improvements to the property.

According to the proponent, the nominated fiduciary, in her testimony, she cared for the decedent by herself up until 2002; the decedent lived on her own without assistance but she brought her meals and performed other tasks; after the decedent fell and fractured her shoulder in 1997, the decedent was no longer as active as before; when the decedent underwent a major surgery in 2002, she was required to hire care givers; thereafter, the decedent suffered a slight stroke and the physician advised her that the decedent required 24-hour care; and, in 2007, in view of the doctor's instructions, the decedent was moved to a nursing home.

The decedent's estate plan here was remarkably consistent. Under the propounded instrument, the decedent gave all her personal and household possessions contained in her home to her son, divided all her tangible personal property including all insurance policies equally between her son and daughter, gave her daughter the real property, and her son was named the sole beneficiary of her residuary estate and if he predeceased decedent, then to his children. The first codicil merely provided for a few additional cash bequests to benefit decedent's after-born great-grandchildren. The second codicil which objectant's counsel deems "the least important of the three instruments" provided that following decedent's daughter's death, the real property be given to her daughter's children subject to a life estate in her son-in-law rather than her son.

Under the circumstances, it cannot be said that the decedent's daughter and her children were not the natural objects of a gift of her real property in light of the close proximity of their homes on the property for many years, the daughter's role as a care giver to decedent, their close relationship and the improvements they had made to such property. In addition, the objectant's contention that under the terms of the propounded instrument she was virtually disinherited is devoid of any merit. It is observed that decedent's son was the beneficiary of her personal property and the sole beneficiary of her residuary estate, and if he predeceased decedent, which he did, the objectant and her sibling became the sole residuary beneficiaries of the decedent's estate. Whether the objectant's share of the decedent's estate is not what she anticipated as her papers indicated, that claim cannot be properly addressed in the context of a contested probate proceeding and is thus not before the Court.

Last of all, the objectant's contention that the decedent's daughter, at her mother's behest, arranged for an attorney (now deceased) located in White Plains, New York to draft the decedent's will is more properly directed at an objection sounding in undue influence. As noted, this objection has been abandoned. Even so, as the decedent had not resided in Dutchess County but had been a long-term resident of New York County, it is not unusual that she would ask a family member for a recommendation as she knew few people in the area. Furthermore, it is undisputed the attorney performed other services for the decedent over the course of a decade.

As a rule, the determination whether to dismiss objections and admit a will to probate is within the sound discretion of the Surrogate Court and, absent a showing of an abuse thereof, its determination will not be overturned.

Here, the proponent has met her burden of proof with respect to due execution and the objectant failed to raise any issue of fact for trial. Thus, the proponent's motion for summary judgment was granted, the objections were dismissed and the objectant's cross-motion was denied. The genuineness of the Will and the validity of its execution have been established to the satisfaction of the Court and is therefore admitted to probate pursuant to SCPA 1408 and EPTL 3-2.1.

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Court Looks at Motion to Vacate

October 23, 2014,

A New York Probate Laywer said on 17 June 2007, seven months after executing her will, the decedent, AB, died. Her husband predeceased her in 2001, and she never had any children, biological or adopted. The decedent was survived by six distributees: NK, GKH, and EKS (children of the decedent's predeceased brother, HK; and, DK, BK, and KK (the children of decedent's predeceased nephew, RK, and who apparently spell their surname differently, with a double last letter). The six distributees reside in Australia.

The proponent and executor, G, had been employed by the decedent as a full-time caregiver who lived in the decedent's home.

A New York Estate Lawyer said that on 21 September 2007, G filed a petition for probate, stating that the decedent left no distributees, surviving or deceased. Under Paragraph 6(a) of the petition, the "name and relationship" of all persons with a "legacy, devise or other interest, or nature of fiduciary status" is asked. In G's original probate petition, she stated that she was the decedent's live-in companion and the beneficiary of the decedent's entire estate, as well as the designated executor. The only other individual named by G as a person interested in the decedent's estate is G's sister, RG, a resident of Ukraine, who is listed as the successor beneficiary of the decedent's entire estate and the nominated successor executor. The petition reflects 23 Alexander Drive in Oyster Bay, which had been the decedent's home, as G's address. In response to question 8(a), which asks whether "any beneficiary under the propounded will, listed in Paragraph 6 or 7 above, had a confidential relationship to the decedent," G indicated that she, "petitioner," had a confidential relationship with the decedent.

On 25 September 2007, preliminary letters issued to G with the court directing the submission of a family tree. On 8 November 2007, G submitted an affidavit stating "I am not aware of any disinterested person capable of giving a Family Tree Affidavit xxx" and advised the court that the decedent spoke occasionally with someone named NK and was visited by someone named FR but that she did not know whether the decedent was related to these individuals.

On 25 February 2008, counsel for various members of the decedent's family advised the court by letter that the decedent had executed a will in 2001 in which members of the decedent's family and the family members of her late husband were named as the beneficiaries and co-executors. A copy of the executed will was furnished to the court but counsel advised that the original signed document had not been located, that the family members intended to prove that the proffered 2006 will was procured by G by means of fraud and undue influence, that the decedent was not of sound mind or memory and was not capable of making a will in 2006, and that the will was not properly executed. The letter also accused G of committing perjury on the basis of the sworn statements made by G in her petition that the decedent left no distributes even though she had actual knowledge of the distributees’ existence and other extended family members. Counsel for the decedent's family demanded that the petition for probate be amended to reflect the decedent's distributees. A copy of the said letter was sent to counsel for G
G filed a consent to change attorney dated 25 February 2008. On 10 April 2008, G filed another consent to change attorney, dated 28 March 2008. On 18 April 2008, with the representation of the third attorney, G filed an amended petition. Under the amended petition, G is not listed as an interested person under paragraph 6(a), despite her interests under the will. This amended filing reflects that the decedent left an alleged nephew, NK, and two alleged nieces, GKH and EKS, all of whom are the children of the decedent's predeceased brother, HK. In reply to question 8(a) as to whether any beneficiary under the will had a confidential relationship with decedent, in this amended petition for probate, G checked "None."

A Westchester County Probate Lawyer said that on 13 June 2008, counsel for the family members, representing the three above-named alleged distributees and DK, BK and KK, children of the decedent's predeceased nephew, RK, filed a notice of appearance and family tree affidavits signed by EKS, the decedent's niece, and JA, a niece of the decedent's husband. According to the affidavits and the family tree, the decedent had three brothers who predeceased her: AK (who had no children), HK (who predeceased but was survived by four children, one of whom died leaving no children) and JK (whose only son, RK, died in 1991, leaving three children).

A Suffolk County Probate Laywer said that by letter dated 28 July 2008, G's attorney asked counsel for the family to "consent to the extension of Preliminary Letters, recognizing the fact that the Preliminary Executor is not permitted to distribute any moneys to estate beneficiaries until such time as full Letters are issued." G's attorney further indicated that he was trying to determine whether the family tree and the affidavit of heirship provided to the court by the decedent's family would be sufficient to establish heirship, and opined that a genealogist might be required. The family's attorney agreed to consent to the extension of preliminary letters.

On 18 September 2008, another amended petition was filed and in this last version, G acknowledged the existence of the six alleged distributees. The court did not require that a supplemental citation be served on the newly acknowledged distributees; a notice of appearance on their behalf had previously been filed. G's attorney did not provide counsel for the distributees with a copy of the second amended petition or advise him or his clients that it had been filed.

According to G's attorney, in his affirmation in opposition to the instant motion, sometime in September 2008, he telephoned an associate of opposing counsel with the intention of inquiring whether objections were going to be filed but despite the associate's assurance that she would call back the next day, the call was not returned; on 24 October 2008, he had a decree granting probate with notice of settlement served personally on the office of counsel for the distributes; and, no objections were filed within five days of the date of personal service.

On 31 October 2008, based on the second amended petition, the 2006 will proffered by G was admitted to probate and the issuance of full letters on 3 November 2008 followed.

The motion now before the court, also dated 31 October 2008, followed.

According to the movant’s counsel (family’s counsel), in his affirmation in support of the motion to vacate the decree, the motion should be granted as the objectants have previously indicated that they seek to avail themselves of the right to file objections to the probate of the will presented by the petitioner; proceedings pursuant to SCPA §1404 should take place prior to the court making any determination on the objections to be filed by objectants; this has not occurred as the objectants were unaware of the filing of the second amended complaint by the petitioner as the same was never served on their counsel; and, the objectant's counsel erroneously believed that the notice of settlement served by the petitioner was for the re-issuance of temporary letters of Probate.

According to G's attorney (opposing counsel), in opposition, the motion must be denied as it does not meet the standard established in 2008 by the Court of Appeals for vacatur of a probate decree, particularly, "a probate decree should be vacated only if petitioner can demonstrate facts constituting a substantial basis for challenging the proffered will and a reasonable probability of success on the merits of its undue influence claim;" and, the movants did not meet the requirements of CPLR 5015 for relief from a judgment or order, namely: excusable default; newly discovered evidence; fraud, misrepresentation or other misconduct; lack of jurisdiction or reversal; or, modification or vacatur of a prior judgment on which the order or judgment is based.
According to the movant’s counsel, of the five categories of relief, the circumstances surrounding his failure to timely file objections to probate give rise to an excusable default; he pointed out that G’s attorney requested that he consent to an extension of temporary letters but then served him with a notice of settlement for full letters, without any prior notification of this change in strategy and neglected to send him a copy or give notice of the second amended petition filed with the court on 18 September 2008; he was away from the office when the notice of settlement was received and he reasonably assumed that the notice of settlement was for the previously agreed upon extension of preliminary letters, and therefore did not object; and, he was waiting for the second amended petition to be filed, after which he intended to proceed on behalf of his clients.
Here, the fact remains that the movants' counsel took no court action on behalf of his clients at any point prior to making the motion for vacatur; and, at no time did counsel file objections or seek discovery and merely stated an intent to do so. While movants' counsel is correct in saying that a copy of the second amended petition should have been sent to him, opposing counsel is equally correct in pointing out that the second amended petition contained no changes or information previously unknown to counsel, and movants' counsel had no reason to expect that it would. The opposing counsel’s failure to send a copy of the second amended petition to the movants' counsel is not a jurisdictional defect. Even if the court were to find that the above facts are sufficient to establish an excusable default, the movant's counsel failed to establish the second prong required for vacatur, namely, "a reasonable probability of success on the merits." The court is not taking the position that there are no facts to vacate the decree of probate, but rather, that the facts to support vacatur have not been properly presented to the court.

However, while the movants' attorney failed to meet the standard for vacatur, the court is troubled by many of the facts on record.

First, G's initial petition disclaimed any knowledge that the decedent left surviving distributes. G's alleged lack of knowledge is disputed by multiple documents. It appears that G submitted false information to the court and only when challenged did she change her sworn statements.
Second, in paragraph 6(a) of G's initial petition for probate, she accurately reflected her relationship with decedent as that of a "live-in companion." G then deleted this information from her amended petition and second amended petition, the latter of which was the basis for the admission of the will to probate.

Third, in response to item 8(a) of the petition, G stated on her original petition that she was in a confidential relationship with the decedent. However, in her amended petition and second amended petition, G checked the box indicating that no confidential relationship existed. A legatee who is the decedent's sole live-in caregiver and who is otherwise unrelated to the decedent is often found to have been in a confidential relationship with the decedent. Had this question been answered accurately by G, the court might have scheduled a hearing prior to the issuance of full letters.

Fourth, aside from G's own conduct, it must be noted that the 2006 will differs radically from the copy of the decedent's prior will submitted by the attorney for the distributees, in which the decedent bequeathed her estate to the members of her family and the family of her husband. There is no clear indication that anything occurred subsequent to 2001 that would have led the decedent to disinherit her entire family. What’s more, the 2001 will was prepared and its execution was supervised by an attorney whose office was located in Nassau County, where the decedent resided, whereas, the 2006 will was prepared and was supervised by an attorney in Brooklyn, New York. It is not shown how the decedent came to use this attorney and the affidavit of the attesting witnesses did not indicate the location where the subject instrument was executed.

Fifth, the 2006 will provides that in the event G predeceases the decedent, all of the decedent's property will pass to G's sister in the Ukraine. In Matter of Martinez (NYLJ, 19 September 2007 [Sur Ct, New York County]), the court addressed a will which left everything to a person who had been in a confidential relationship with the decedent. The court held that "when the person alleged to have benefitted by the exercise of undue influence is in a confidential of (sic) fiduciary relationship with testator, an inference arises that her influence was undue xxx requiring the beneficiary to explain the circumstances of the bequest xxx."

Standing alone, any one of the said facts might be insufficient to prove undue influence or fraud, particularly in view of the fact that no original copy of the 2001 will has been proffered.

Nonetheless, the combination of these factors casts doubt on the validity of the probated will.
It is the court's chief concern to admit only valid wills to probate and the court must be satisfied as to the genuineness of the will before admitting it to probate. Even after a will has been admitted to probate, the court may still examine "issues concerning its validity and effect."

Here, the court's admission of the 2006 will to probate was based, in part, on substantive omissions and misstatements by the proponent and upon review the court is not satisfied as to the genuineness of decedent's 2006 will.

Accordingly, the court vacates its decree dated 31 October 2008 which admitted to probate the decedent's will dated 8 November 2006; vacates letters testamentary issued to G; will reissue preliminary letters testamentary to G; and stays the executor from making distributions or expending any funds she may have already distributed to herself.

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Court Decides Motion to Vacate Will

October 22, 2014,

A New York Probate Lawyer this is a proceeding where JPM Bank (JPM), co-executor, moved pursuant to CPLR §5015(a)(2) to vacate the decree admitting to probate the decedent's will dated 24 June 2005 (2005 Will) due to newly discovered evidence. Several charities, the residuary legatees under a prior instrument that are adversely affected by the 2005 Will, join in the application; and, movants seek removal of JPM's co-executors and appointment of JPM as sole preliminary executor.

The following are the pertinent events that took place:

On 12 September 2005, the decedent died at the age of 93 years. He was survived by two nephews, MF and SF, and the issue of a predeceased nephew. On 21 February 2006, the 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to JPM, MF and ME.

A New York Estate Lawyer said sometime in August 2006, AL, a legatee of a small bequest, discovered that the decedent's testamentary plan had been revised significantly from her penultimate will and that the decedent's long-time attorney, LS, had not supervised the 2005 Will's execution.

According to AL, as the decedent's friend and investment advisor, he had almost daily conversations with the decedent and her home attendants in the months preceding the execution of the 2005 Will; as he worked on an active trading floor, these telephone calls were recorded; he recalled having had several conversations between March 2005 and May 2005, in the months after the decedent had suffered a stroke and preceding execution of the 2005 Will, in which it seemed MF and SF were assuming increased control over decedent's finances and were pressuring the decedent to change her will; he requisitioned the tapes of those calls and brought the transcripts to the attention of JPM; and, the transcripts, including conversations directly with the decedent, depict behavior by MF and SF that supports the alleged undue influence.
In November of 2006, upon reviewing the transcripts, JPM interviewed LS, who revealed that he too had concerns about the family members' undue influence.

According to LS, he had consulted outside counsel after meetings with MF and SF led him to believe that they were unduly pressuring the decedent to change her 2001 Will, which LS had drafted and which the decedent had executed under his supervision. LS's files, thereafter produced, provide some of the strongest evidence of undue influence and corroborate the transcripts provided by AL.

A Nassau County Criminal Lawyer said on January 2005, the decedent suffered a stroke that affected her physical, but allegedly not her mental, faculties.

According to LS, after the decedent suffered a stroke, he began to receive repeated calls from MF and SF who suggested that the decedent wanted to modify her will to increase dispositions to them and to ME. Thus, LS made four separate visits to the decedent to discuss the said potential changes but each time the decedent stated unequivocally that she had no intention of changing her will. LS, concerned that the decedent's nephews had been "browbeating" her to make changes she did not desire, cautioned MF and SF that their actions could constitute undue influence.

A Staten Island Probate Lawyer on 23 May 2005, LS again visited the decedent. This is LS's fifth visit to the decedent to discuss the subject. At this time, the decedent indicated that she now wanted to change her will. Despite his grave concern about the issue of undue influence, LS drafted a new will and mailed a copy to the decedent. However, when LS visited the decedent on three subsequent occasions between 23 May 2005 and 24 June 2005, he determined that the decedent was not able to freely execute the will.

As MF and SF were anxious to have the new will executed, they contacted a new attorney, JK, and arranged to have her preside over the execution of the new will drafted by LS. On 24 June 2005, JK supervised the will execution.

On 12 September 2005, the decedent died.

Consequently, JPM filed the application at bar seeking to vacate the probate decree. As stated, the Charities have joined in this application.

MF, SF and ME opposed.

In the responsive papers are LS's files and an affidavit dated 16 August 2007, filed by MF, in which he acknowledges his attempts to influence decedent's testamentary plan. Stating that he felt "insulted" by the bequest to him under the 2001 Will, MF concedes his repeated entreaties that decedent increase his share.

According to the respondents, JPM does not have standing to seek vacatur as it would not be entitled to file objections to probate under SCPA 1410.

According to JPM, it has the obligation as fiduciary to ensure that only valid wills are offered for probate.

The Charities, as residuary beneficiaries of the 2001 Will adversely affected by the probate of the 2005 Will, have subsequently joined in as co-movants in the proceeding at bar. Thus, the issue of standing is moot.

Under the rules, an application to vacate a probate decree must present a satisfactory showing of a substantial basis for contesting the will and a reasonable probability of success.
According to the movants, the basis for contesting the will is the discovery of new evidence, pursuant to CPLR 5015(a)(2), which suggests a strong probability that the respondents exerted undue influence on the decedent, causing her to change her will; and, that such evidence could not have been found with due diligence prior to the will being admitted to probate.

According to the respondents, the recorded phone conversations with AL do not constitute newly discovered evidence because AL's knowledge of the recorded telephone conversations suggesting undue influence should be imputed to JP; both JPM and AL failed to act in a timely manner in seeking vacatur; and, inasmuch as the Charities possessed information alleging a pattern of misbehavior, as described in their supporting affidavits, and failed to file timely objections to probate, they are precluded from challenging the probate decree at this late date, the institution of the proceeding at bar.

Knowledge acquired by an agent acting within the scope of his agency is imputed to his principal, and the latter is bound thereby, even though the information is never actually communicated to it.

First, JPM is not charged with knowledge of the nephews' alleged undue influence for two reasons: JPM Securities, Inc. and JPM are separate corporate entities and no evidence has been presented to suggest that an agency relationship exists between AL, an investment advisor for JPM Securities, Inc. and JPM; and, even if AL was an agent of JPM, the relevant conversations between AL and the decedent and her health care providers were clearly personal in nature and did not relate in any way to the investment services offered by the securities arm of the bank. At the time the 2005 Will was offered for probate, there was nothing to suggest that JPM, as nominated executor, knew or should have known about the special relationship that had developed over time between the decedent and her broker, or the existence of the recorded conversations that catalog the deeply personal concerns of the decedent and her attendants about the pressure being brought to bear on the decedent by her nephews. In brief, the knowledge gained by AL falls outside of the scope of his agency as an investment advisor for JPM Securities, Inc.

Second, JPM was not dilatory in bringing the new evidence to the Court's attention. It was only after the transcripts of the phone conversations came to light that JPM had reason to question the attorney-draftsman, LS, who confirmed his suspicions of undue influence. Within days after LS filed the 2001 Will, when JPM verified the dramatic changes in decedent's testamentary dispositions, it sought the drastic remedy of vacating the probate decree.

Third, the Charities were not dilatory in failing to file objections when the 2005 Will was offered for probate. At that time, the 2001 Will, under which they received significantly larger bequests, had not been filed with the Court. Only after LS filed the 2001 Will on 1 June 2007, a year after letters testamentary were issued, were the Charities aware of the extent to which their bequests had been reduced by the 2005 Will.

In Matter of Musso, 227 AD2d 404 [2d Dept 1996], several charities had been notified only days before a will was admitted to probate that a penultimate will provided them substantially larger bequests. Eight months later, they moved to vacate the probate decree and alleged undue influence and lack of testamentary capacity. In granting the motion, the court observed that "while vacatur disrupts the orderly process of" estate "administration and creates xxx uncertainty and nonfinality xxx the Court should also be slow to say that an injustice may not be corrected."
Here, JPM and the Charities bear the burden of proving a probability that undue influence can be established by a preponderance of the evidence.

Under the law, proof of undue influence requires (1) motive, (2) opportunity and (3) actual undue influence such that the testator acts contrary to her wishes because she cannot refuse or is too weak to resist. The mere fact that a new will alters the testamentary scheme contained in a prior will does not by itself raise a presumption of invalidity. A departure, however, from a previously expressed intention along with other suspicious facts may raise an inference of moral coercion that amounts to undue influence.

First, the taped conversations, along with the corroborating notes by LS, provide sufficient evidence of motive, opportunity and actual undue influence to suggest a probability of success. Sadly, the facts presented here paint a picture of a 93 year old woman who believed she "had no choice" but to change her will to accord with the unremitting demands of her closest family members.

Second, the fact that the will was executed under the supervision of an attorney who affirmed the decedent's capacity does not overcome the evidence presented of undue influence.
Third, while JK, the presiding attorney, memorialized her 24 June 2005 meeting with the decedent in a memorandum concluding that the decedent possessed the requisite testamentary competency, JK possessed few facts that would have caused her to question whether the decedent was making a new will of her own volition. Indeed, she may not have known of the nature and extent of the changes to the 2001 Will, including the significant reduction of bequests made to the Charities; she could not have known of the multiple visits made by LS to the decedent in which the latter declined to make further changes to her 2001 Will; and, she could not have known of LS's conclusion that the decedent's nephews had sought to unduly pressure the decedent to do so. JK may have been confident as to the decedent's testamentary capacity, but the inquiry does not end there. A determination of testamentary capacity should not preclude an independent determination that a testator succumbed to undue influence.

All told, there is clearly a reasonable probability that if the subject evidence had been produced in the form of objections to the probate of the 2005 Will, it would have resulted in a finding of undue influence.

Even were the parties unable to show compliance with CPLR 5105(a)(2), a determination to grant a motion to vacate a probate decree rests in the sound discretion of the court. "It is well established that, independent of statutory provisions, the court rendering a judgment, in its inherent power and control over its own proceedings, may vacate that judgment where it appears that substantial justice will be served and injustice prevented thereby."

Accordingly, under both the Weingarten standard and the court's inherent power, the decree dated 21 February 2006 admitting the will to probate was vacated. Objections to probate of the 2005 instrument, if any, was ordered filed within thirty days of notice of entry of the order. Upon vacatur of the probate decree, letters testamentary issued to JPM, MF and ME were ipso facto revoked. As the probate proceeding is to be reopened, the question arises as to which parties might be eligible for preliminary letters testamentary. Based upon a bona fide allegation of undue influence or other wrongdoing, the court may deny the issuance of preliminary letters pursuant to SCPA 707. The allegations against MF are sufficient to deny him preliminary letters testamentary. There is, however, little evidence to support an allegation of undue influence by ME. Although ME may very well have acted to thwart efforts of co-executor JPM by refusing to consent to the release of LS's files, this does not in and of itself meet the standard required to deny preliminary letters. The courts should nullify a testator's choice of executor only upon a "clear showing of serious misconduct that endangers the safety of the estate." Thus, preliminary letters testamentary shall issue to JPM and ME upon duly qualifying.

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